Tuesday, April 22, 2014
Plea Plea Me: Central District of California Cites Me But Reaches Opposite Conclusion in Nolo/Civil Plaintiff Case
A few years ago, I published the article, The Best Offense is a Good Defense: Why Criminal Defendants' Nolo Contendere Pleas Should be Inadmissible Against Them When They Become Civil Plaintiffs. The article discussed a split among federal circuits over whether a criminal defendant's nolo contendere plea is admissible against him if he subsequently becomes a civil plaintiff in a case involving the same factual context. So, where does the Ninth Circuit fall on the issue? Let's take a look at the recent opinion of the United States District Court for the Central District of California in Galvan v. City of La Habra, 2014 WL 1370747 (C.D.Cal. 2014).
On January 14, 2013, Galvan pled nolo contendere to violating, inter alia, California Penal Code section 148(a), and signed a guilty plea form under penalty of perjury stating:
On 8/25/11 in Orange County, I was in violation of a valid domestic violence no contact order and went to the home of my wife. I pushed her and dissuaded her from reporting my crime by taking the phone from her while she was speaking to the 911 Operator and threw it on the ground and broke it. I delayed or obstructed Officer Sanchez who was attempting to discharge his duties as a police officer by failing to follow his command.
Thereafter Galavan brought a civil action against Sanchez and the City of La Habra, asserting causes of action relating to his arrest for domestic violence.
In response, the defendants sought to introduce Galvan's nolo contendere plea, Galvan, however, claimed that the plea was inadmissible under Federal Rule of Evidence 410(a)(2), which states that
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....
a nolo contendere plea....
In response, the court noted that
There appears to be a split of authority on the admissibility of the nolo contendere plea in this context. The Sixth Circuit has held civil rights claims "do[ ] not present the kind of situation contemplated by Rule 410: the use of a nolo contendere plea against the pleader in a subsequent civil or criminal action in which he is the defendant...[a]ccordingly, use of the no-contest plea for estoppel purposes is not ‘against the defendant’ within the meaning of [FRE] 410." Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir.1988)....
The Third Circuit, however, has held that the admission of a nolo contendere plea during trial in which the plaintiff is alleging civil rights violations in connection with his underlying criminal charge can be contrary to FRE 410 and constitutes reversible error. Sharif v. Picone, 740 F.3d 263, 270 (3d Cir.2014).
The court then found that, while the Ninth Circuit has never ruled on the issue, the weight of Ninth Circuit authority falls on the Sixth Circuit line of the divide. Specifically, the court then noted that
In Alatraqchi v. City & Cnty. of San Francisco, No. 99–4569, 2001 WL 637429 (N.D.Cal. May 30, 2001), the plaintiff was arrested for threatening a police officer after a traffic stop. Alatraqchi, 2001 WL 637429, at *1. The plaintiff pled “no contest” to disturbing the peace, and the remaining charges against him, including the charge of threating a police officer, were dropped. Id. Plaintiff later brought suit against the police officer and the city, arguing that he was falsely arrested and imprisoned. Id. The police officer moved for summary judgment, arguing that, should plaintiff succeed in his action alleged he was falsely imprisoned, such an outcome would necessarily render his conviction or sentence invalid, and would violate Heck. Id. at *2. Furthermore, the court reasoned that the officer “[did] not seek to use plaintiff's plea against plaintiff as an admission or as evidence of guilt. Under Heck, plaintiff's ‘no contest’ plea is significant merely by the fact of its existence, and by the fact that it resulted in a criminal conviction.” Id. Though the district court did not engage in a detailed analysis of the applicability of Rule 410, the implication of the court's decision in Alatraqchi is that Rule 410 does not bar the admission of a “no contest” plea in a later civil action.
Thus, the court held that
While it might be the case that other circuits and commentators FN13 have recently come to a contrary conclusion about the admissibility of nolo contendere pleas in later civil rights actions, this Court declines to so hold at this time.
FN13. See Colin Miller, The Best Offense Is A Good Defense: Why Criminal Defendants' Nolo Contendere Pleas Should Be Inadmissible Against Them When They Become Civil Plaintiffs, 75 U. Cin. L.Rev. 725 (2006).
While I appreciate the citation to my work, I'm a bit chagrined that the court didn't grapple with the analysis in it. That analysis is pretty simple. In 1979, Federal Rule of Criminal Procedure 11(e)(6), which paralleled Rule 410 at the time, was amended. And here is a portion of the Advisory Committee's Note to the Amendment:
The phrase “in any civil or criminal proceeding” has been moved from its present position, following the word “against,” for purposes of clarity. An ambiguity presently exists because the word “against” may be read as referring either to the kind of proceeding in which the evidence is offered or the purpose for which it is offered. The change makes it clear that the latter construction is correct.
And there it is. The amendment addressed a split. Previously, some courts thought that a nolo contendere plea was inadmissible in an action against the pleader, meaning that the plea would be admissible in an action in which the pleader was the civil plaintiff. Other courts, meanwhile, held that a nolo contendere plea was inadmissible against the pleader, meaning that the plea would be inadmissible against the pleader regardless of whether he was the civil defendant or the civil plaintiff. As the Note makes clear, this latter construction is correct, and yet many courts continue to apply the former interpretation.