Alford Plea To Resisting Arrest Might Not Prevent Suit For Excessive Force (dang)

ZINKAND v. BROWN, USCA-4 No. 05-2170, on appeal from USDC-MDD, before USCJs Widener, Williams, and Traxler, opinion by Traxler, dissent by Widener, filed 01 Mar 2007.

LONG STORY SHORT: Because Plaintiff took an Alford plea in which he did not admit to resisting arrest, Defendants could not assert judicial estoppel against him when he sued them for injuries sustained during his arrest. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant, a detective with the Anne Arundel County, Maryland police, was part of a surveillance team watching an undercover drug transaction in a parking lot. Plaintiff drove up and another subject who had just received drug purchase money from the UC walked over to Plaintiff's car. Surveillance officers saw Plaintiff, whom they believed to be the stash man, pass an object to the subject, whereupon a number of officers ran up to Plaintiff's car. Defendant forcibly removed Plaintiff from his car and handcuffed him. In the process, Plaintiff hit his head, sustaining injury.

PROCEDURE: Maryland charged Plaintiff in state court with numerous Maryland drug offenses and resisting arrest. In return for dropping all drug charges and requesting the trial court for probation before judgment (Maryland law allows that), Plaintiff was allowed to tender an Alford plea to resisting arrest, in which he did not admit that he was guilty of resisting arrest but deemed it in his best interest to plead to the same. The trial court accepted Plaintiff's Alford plea and put him on probation before judgment.

A week later, Plaintiff sued Defendant, other officers, and Anne Arundel County in U.S. District Court for the District of Maryland for use of excessive force. After discovery, all Defendants moved for summary judgment, attaching among other papers Plaintiff's hospital records immediately after his arrest. Apparently because he did not want to continue with the case, Plaintiff's counsel did not file a response to the summary judgment motion. The trial court ruled, based only on the defense's evidence, that Defendant was the only one who touched Plaintiff, and Defendant's use of force, which Plaintiff precipitated, was fully justified and resulted only in a minor laceration. SUMMARY JUDGMENT GRANTED to all defendants.

Six days after that order, Plaintiff filed a pro se motion for reconsideration and for time to find new counsel, attaching police reports and other documents. When he was able to retain a new firm, they filed a more complete motion to alter or amend the judgment, attaching among other items a statement from Plaintiff's physician that Plaintiff had two herniated discs probably attributable to the use of force during his arrest. Defendants replied to this motion and the trial court held a Rule 59(e) hearing.

All parties and the trial court agreed that Plaintiff's forecast of medical evidence established a genuine issue of material fact, which normally would preclude summary judgment. However, the trial court looked to Plaintiff's original Alford plea, and ruled that even though Plaintiff had not acted in subjective bad faith or tried to deceive anyone, he was judicially estopped from claiming excessive force. MOTION TO ALTER OR AMEND DENIED. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Rule 59(e) allows motions to alter or amend judgments, essentially allowing trial courts to fix their own errors, but does not specify what grounds may justify such relief. Fourth Circuit precedent has established that one ground can be the discovery of new evidence not available at trial, and if the trial court has discretion to take new evidence if the moving party can justify why it did not present the evidence before. Defendants here did not object to the new evidence, ending the Fourth Circuit's review of that issue.

Judicial estoppel is only applicable to issues of fact, and has three elements: (1) the party tries to take a factual stand inconsistent with what it took in prior litigation; (2) the prior court must have accepted the prior position; and (3) the party intentionally misled the court to gain unfair advantage. This last bad faith element is the dispositive one. Here, the trial court expressly ruled that Plaintiff did not act in bad faith, and since Plaintiff did not plead straight up to resisting arrest, his Alford plea could not have been a prior inconsistent factual stand. The trial court made a clear error of law, in light of which its denial of the motion to alter or amend was an abuse of discretion. REVERSED AND REMANDED for further proceedings not inconsistent.

The dissent first focused on the trial court's original finding that Plaintiff suffered only a minor laceration, but also would have affirmed the trial court because Plaintiff precipitated the use of force and Defendant was entitled to qualified immunity. Lastly, the majority opinion could be read as an open door for Alford pleaders to sue the police, which they could not do if they admitted guilt.

EDITORIAL: I had to agree with the majority--right up until that last sentence of the dissent. Judge Widener doth speaketh most rightly. Now, all you have to do is pound on a cop, get a justified pounding in return, stand before the judge and say "I didn't do NOTHIN but I plead no contest," then sue away. Alford, by the way, is North Carolina v. Alford, 400 U.S. 25 (1970), where the Supremes established the right to consent to a judgment of guilty but not admit guilt, usually in the form of a nolo contendere or no contest plea, and can be useful as a last resort in, say, an iffy self-defense shooting to save face while limiting one's loss to a few years for manslaughter instead of going bye-bye for murder one.

I almost said to myself "so why didn't you try res judicata?" which is using a prior judgment to prevent your opponent from getting a later judgment that would contradict it. The answer was in the beginning of the opinion, which says that under Maryland law, there was no judgment yet! just probation. Maryland lawyers can correct me if I need it. (North Carolina has a "prayer for judgment continued," which is even better--you plead, pay costs, and BOTH the conviction AND the sentence are delayed to give you a chance to act right and get rid of the case.) Although I'd like to know more of the details, I would tend to take the police side in this case, because those who resist can get hurt even if the arresting officer is trying really hard not to permanently injure the resister. And I have to commend the Fourth for bending over backwards to be fair to the guy.

But for sure, the lawyers on the back cover of the phone book will use this opinion to open up a six-pack of dubious Section 1983 whoop-ass when prosecutors drop the ball and don't push for straight-up guilty pleas in resisting arrest cases. Furthermore, it's only common sense that even an Alford plea means that legally speaking, YOU DID IT and have to live with all the consequences. Yet this opinion says you get a do-over in civil court if you feel like suing the police. It rewards crooks for not accepting any responsibility for what they did. I hardly ever call for en banc reversals, but I think this opinion is a prime candidate for one.