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SMITH v. CITY OF HEMET

No. 02-56445.

394 F.3d 689 (2005)

Thomas SMITH, Plaintiff-Appellant, v. CITY OF HEMET, a municipal corporation; Hemet Police Department; Lee Evanson; Dave Quinn; Aaron Medina; Daniel Reinbolt; Trainer; Nate Miller; Peter Hewitt, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed January 10, 2005.

Attorney(s) appearing for the Case

Robert Mann, Esq. and Donald W. Cook, Esq., Los Angeles, CA, for the plaintiff-appellant.

Julie H. Biggs, City Attorney, Hemet, CA; Elizabeth R. Feffer, Esq., Burke, Williams & Sorensen, LLP, Los Angeles, CA, for the defendants-appellees.

Before: SCHROEDER, Chief Judge, PREGERSON, REINHARDT, KLEINFELD, THOMAS, SILVERMAN, W. FLETCHER, PAEZ, BERZON, BYBEE, and CALLAHAN, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge SILVERMAN.

REINHARDT, Circuit Judge.

We took this case en banc to clarify the law regarding whether, under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a § 1983 action for excessive force is necessarily barred by a plaintiff's conviction under California Penal Code § 148(a)(1) for willfully resisting...

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