[00:00:03] Speaker 01:
May it please the court, I'm Violet Elizabeth Grayson and I represent the appellant James Zugal.

[00:00:10] Speaker 01:
And I'd like to thank the court for consolidating the two cases because they are intimately intermingled.

[00:00:18] Speaker 01:
My client is seeking the same thing through both appeals.

[00:00:22] Speaker 01:
He's seeking what he has always sought since he first came to federal court in his 1983 action, which is the right to litigate the question of whether he was arrested without probable cause for child molestation.

[00:00:37] Speaker 01:
And the two cases are interrelated in so far as if the relief is granted in one case,

[00:00:44] Speaker 01:
then the other cases move.

[00:00:46] Speaker 01:
There's really no need for the court to actually decide both cases as long as we're sent back to the district court with the opportunity to litigate the issue of whether Mr. Zuegel was arrested without probable cause for child molestation makes no difference which route we take to get to that point.

[00:01:04] Speaker 02:
How do we determine the basis of his 1983 claim?

[00:01:09] Speaker 02:
You have said twice now that he was arrested without probable cause for child molestation.

[00:01:16] Speaker 02:
But your complaint, the operative complaint, says he was arrested without probable cause for any offense.

[00:01:23] Speaker 02:
I'm sorry.

[00:01:25] Speaker 02:
I'm paraphrasing, but I think it was something like this is an innocence defense.

[00:01:29] Speaker 02:
There was no probable cause to arrest him for any offense, at least a misdemeanor offense.

[00:01:35] Speaker 02:
So, I mean, do we take your argument as to what the claim was?

[00:01:38] Speaker 02:
The district court apparently looked at the allegations in the complaint.

[00:01:42] Speaker 01:
One looks at the excerpts of record and looks at these.

[00:01:45] Speaker 01:
But what about the complaint?

[00:01:46] Speaker 01:
What about the complaint?

[00:01:47] Speaker 01:
That's what I'm saying.

[00:01:47] Speaker 01:
The excerpts of record contain the original complaint.

[00:01:50] Speaker 01:
and that's what's controlling here.

[00:01:52] Speaker 02:
Okay, so the original complaint says that Mr. Zuegel had engaged in no disorderly conduct and committed no crime of any description.

[00:02:03] Speaker 02:
That's different from child molestation.

[00:02:06] Speaker 01:
Well, as it goes on, it makes clear that he did plead no low contender to making noise.

[00:02:14] Speaker 01:
And making noise is very different from what he was arrested for.

[00:02:17] Speaker 01:
He wasn't arrested for making noise.

[00:02:19] Speaker 01:
He wasn't even arrested for the misdemeanors with which he was charged.

[00:02:24] Speaker 01:
He was arrested pursuant to California Criminal Code Section 288, which is a lewd and lascivious act on a child.

[00:02:34] Speaker 01:
And he admits that he made noise.

[00:02:36] Speaker 01:
There's no problem with that.

[00:02:37] Speaker 01:
He was in the YMCA with his son, who's severely autistic.

[00:02:41] Speaker 01:
The son created a commotion, came running down the hallway, flapping his arms.

[00:02:46] Speaker 01:
So that's the issue.

[00:02:49] Speaker 02:
So as I understand what occurred, he was arrested and then ultimately pleaded guilty.

[00:02:58] Speaker 02:
to a different offense to avoid the possibility of sex offender registration.

[00:03:02] Speaker 01:
Yes, that's right.

[00:03:03] Speaker 02:
So this is a pretty common occurrence.

[00:03:05] Speaker 02:
You're charged with one offense or arrested with one offense, and then you plead to something that's not as significant, and it's part of the bargaining process.

[00:03:13] Speaker 02:
So the problem, of course, is the heck bar, right?

[00:03:16] Speaker 02:
So if his claim in his First Amendment, I think it was the First Amendment complaint, is that he was arrested without probable cause for any offense, then that calls into question the validity of his conviction.

[00:03:28] Speaker 01:
If you read the entire complaint, it makes very clear that the problem was that he was arrested for, and this is also clear from the oral argument, that he was arrested for child molestation.

[00:03:41] Speaker 01:
And if you look at the controlling opinion in Lockhart, what's clear is that regardless of what he pled to, if he pled

[00:03:54] Speaker 01:
guilty or no low to anything as opposed to being convicted of something based on evidence, then under Lockhart, there's no heckling.

[00:04:03] Speaker 02:
That's not accurate.

[00:04:05] Speaker 02:
Lockhart doesn't say that there's no heck bar.

[00:04:07] Speaker 02:
And your argument on this was a little puzzling to me, because it seemed inconsistent.

[00:04:11] Speaker 02:
It seemed at one point you conceded that there's no categorical ban to a heck bar based on a plea.

[00:04:18] Speaker 02:
And then elsewhere, you're making the argument you're making here.

[00:04:20] Speaker 02:
And what's at issue in heck is whether the claim would call into question the validity of a conviction.

[00:04:29] Speaker 02:
And a plea leads to a conviction, right?

[00:04:32] Speaker 01:
I don't think that's the language.

[00:04:33] Speaker 01:
It said that if you look at Lockhart, what Lockhart says, and Lockhart was decided many, many years after Heck, Lockhart, and it's this court's controlling precedent, says that there is no Heck bar unless, excuse me, where the party who's the plaintiff in the Section 1983 action was not tried, and this is a quote,

[00:04:57] Speaker 01:
and no evidence was introduced against him and that's the situation here it's the situation with every no low plea it's the situation with every guilty plea and that's Lockhart and how

[00:05:12] Speaker 01:
how heck may have been construed before Lockhart, really doesn't matter very much.

[00:05:17] Speaker 01:
The controlling opinion of this court is Lockhart.

[00:05:20] Speaker 02:
Okay, so your brief, at page 13, your opening brief, says that a guilty plea or no-lo contendre plea does not automatically insulate a subsequent 1983 case from heck's reach, which seems to be a pretty clear concession that, across the board, we have not held, you're not arguing, that a plea

[00:05:41] Speaker 02:
means that heck can't be implicated.

[00:05:43] Speaker 02:
Why?

[00:05:43] Speaker 02:
That's exactly what I'm arguing.

[00:05:45] Speaker 02:
But that's exactly the opposite of what your brief actually says.

[00:05:48] Speaker 02:
I just read from your brief.

[00:05:50] Speaker 01:
Maybe that sentence taken out of context may appear to say that, but we say over and over again that once you have a situation where

[00:06:02] Speaker 01:
where there's a plea, the plea cannot provide the basis.

[00:06:05] Speaker 02:
So how does that work just through, how would you reason through that?

[00:06:09] Speaker 02:
So a plea can result in a conviction, right?

[00:06:13] Speaker 02:
It can result in a conviction.

[00:06:15] Speaker 02:
Okay.

[00:06:15] Speaker 02:
So then why would HEC not be implicated here?

[00:06:18] Speaker 02:
Because the Ninth Circuit

[00:06:20] Speaker 02:
in Lockhart.

[00:06:21] Speaker 02:
But we didn't say that.

[00:06:22] Speaker 02:
I'm just going to tell you.

[00:06:23] Speaker 02:
I've read Lockhart.

[00:06:24] Speaker 02:
I disagree with you that it was that broad.

[00:06:25] Speaker 01:
Well, that's the language I think.

[00:06:26] Speaker 02:
It wasn't Lockhart that what the court did was parse through what the claim was and how that would impact the conviction.

[00:06:33] Speaker 02:
And because it was a challenge to how evidence was obtained, but the evidence wasn't used for the conviction.

[00:06:39] Speaker 02:
So it wouldn't implicate the conviction.

[00:06:43] Speaker 01:
This evidence wasn't used for the conviction either.

[00:06:45] Speaker 01:
It's really this case is indistinguishable from Lockhart.

[00:06:49] Speaker 04:
Suppose we don't agree with you that convictions obtained pursuant to a non-contentory plea are necessarily immune from the heck bar.

[00:07:00] Speaker 04:
I thought a large part of your argument was that the claim that you were bringing here doesn't implicate the disorderly conduct conviction as opposed to the sex offence arrest.

[00:07:15] Speaker 01:
Is that right?

[00:07:16] Speaker ?:
I'm sorry.

[00:07:17] Speaker 01:
For example, I think that under Lockhart, and certainly there are many cases that agree with this, that it's a per se rule, that's Cooley, that's Ellis, that's Sillson, that's Leon, that's Burris, but let's say that we took a look

[00:07:33] Speaker 01:
at the sort of compromise rule that comes out in Scamessa or Gordon V. Paris Police Department implying that conceivably a plea of no low or a plea of guilty could raise the heck bar, but that would depend upon the relationship between what the Section 1983 plaintiff pled to and the Section 1983 complaint.

[00:08:02] Speaker 01:
And in this case, there's not a close enough relationship under Gordon and Scomesa.

[00:08:09] Speaker 01:
The notion is that the plea would necessarily imply the invalidity, rather that the Section 1983 relief would necessarily imply the invalidity of the plea.

[00:08:22] Speaker 01:
And that's not the case here.

[00:08:23] Speaker 01:
It's perfectly possible.

[00:08:24] Speaker 01:
Indeed, it's true.

[00:08:26] Speaker 01:
that my client could be guilty of disorderly conduct and making noise, the misdemeanor at the YMCA, but not be guilty of felony child molestation.

[00:08:37] Speaker 01:
They couldn't be more different.

[00:08:39] Speaker 04:
Well, so to prevail in this action, do you need to establish that there was no probable cause to arrest him for anything?

[00:08:47] Speaker 01:
No.

[00:08:49] Speaker 04:
And why is that?

[00:08:50] Speaker 01:
Well, among other things, they couldn't have come into his house to molest, it would have been unlawful to come into his home to arrest him for misdemeanor, making noise that occurred outside the presence of a police officer.

[00:09:04] Speaker 01:
The reason they could come into his house potentially and arrest him

[00:09:08] Speaker 01:
was, or arrest him outside his house, or arrest him at all, was because this was a felony.

[00:09:13] Speaker 01:
And it was something serious.

[00:09:14] Speaker 01:
It was child molestation.

[00:09:17] Speaker 01:
So it does make a difference.

[00:09:19] Speaker 01:
And the police, of course, admitted that they had no probable cause to arrest him, which is why they didn't seek a search warrant or an arrest warrant.

[00:09:28] Speaker 01:
They had no probable cause.

[00:09:29] Speaker 01:
That's what the police admitted at trial.

[00:09:35] Speaker 01:
If the court does decide this based on appeal one, concludes that under Lockhart, this was not permissible.

[00:09:47] Speaker 01:
And the court here, the trial court fell into a manhole.

[00:09:50] Speaker 01:
It's unfortunate.

[00:09:52] Speaker 01:
She was presented with an unpublished case from Nevada, which was decided about six months after the controlling opinion in Lockhart, but she

[00:10:06] Speaker 01:
She just followed that case.

[00:10:07] Speaker 01:
I urged it didn't make any sense, and it wasn't controlling.

[00:10:10] Speaker 01:
But she followed it very closely, even though it's clearly inconsistent with Ninth Circuit precedent as it now exists and as it then existed.

[00:10:19] Speaker 01:
And so we came up with this erroneous decision, which is unfortunate.

[00:10:24] Speaker 01:
If this court does not decide in appeal one that that's sufficient under Lockhart to reverse, then you get to appeal two.

[00:10:35] Speaker 01:
And appeal two is much more complicated than appeal one.

[00:10:38] Speaker 01:
I mean, you can still get to the same place, but it's a longer route.

[00:10:42] Speaker 01:
The most important consideration in appeal number two is the actual language of the controlling opinion in Spencer v. Kempner, Justice Studer's opinion.

[00:10:53] Speaker 01:
And what's significant about that is that Justice Studer made two points.

[00:10:58] Speaker 01:
One, it clearly states that if you do come within the

[00:11:02] Speaker 01:
Spencer exception, if your probation expires and then you bring a section 1983 action, it follows that you can attack a conviction.

[00:11:13] Speaker 01:
You can attack a relief from conviction.

[00:11:15] Speaker 01:
It doesn't say anything about special conditions like how much, you know, whether your parole was revoked or whether you got your good time credits.

[00:11:26] Speaker 01:
It actually specifies that the conviction itself can be attacked.

[00:11:30] Speaker 01:
and it also states that after the prisoner is released from constructive or actual custody then the habeas statute no longer has anything to do with his right to relief and this court has in some footnotes and some dicta implied other rules implied

[00:11:51] Speaker 01:
that Spencer is narrower than what Justice Souter actually said for five justices.

[00:11:57] Speaker 01:
But this court is bound by what the US Supreme Court said.

[00:12:01] Speaker 01:
And to the extent that there are language suggesting otherwise, fortunately it's all dicta.

[00:12:11] Speaker 01:
In not one of those cases did it happen that the district court said, well, we're going to deny you relief because

[00:12:21] Speaker 01:
you're attacking your conviction.

[00:12:23] Speaker 01:
In all of the cases, it was a situation where they said, well, you can have some relief because this is good time credit or date of release or something other than an actual attack on the conviction.

[00:12:35] Speaker 01:
So in every case, the party who was the Section 1983 plaintiff got the relief they were looking for and the footnotes about how narrow Spencer is were just dicta.

[00:12:47] Speaker 01:
So this court is relieved of having to choose between following the United States National Congress.

[00:12:52] Speaker 04:
But in a lot of those cases, we emphasize that the plaintiff had exercised some diligence in trying to challenge the conviction through habeas.

[00:13:01] Speaker 04:
And then once he no longer could, we said he could bring the 1983 action.

[00:13:05] Speaker 04:
I'm sorry.

[00:13:06] Speaker 04:
So what, I mean, don't you have a problem demonstrating diligence here?

[00:13:10] Speaker 01:
Not at all, Your Honor.

[00:13:12] Speaker 01:
And let's talk, let's speak for a moment about diligence.

[00:13:15] Speaker 01:
In Spencer v. Kamner,

[00:13:17] Speaker 01:
Justice Souter said he didn't say that diligence was a requirement, but he explained all the ways in which the plaintiff had actually been diligent.

[00:13:27] Speaker 01:
And from that, I think some of the Ninth Circuit cases inferred that diligence was a requirement.

[00:13:33] Speaker 01:
Assuming in arguendo that diligence is a requirement, Mr. Zugal was diligent.

[00:13:39] Speaker 01:
One thing we know is that Mr. Zugal didn't need to file a habeas petition because that's what Justice Souter and four other justices said.

[00:13:50] Speaker 01:
They said that after the person is released,

[00:13:52] Speaker 01:
then the habeas statute, which I think clearly in context means the federal habeas statute, no longer has anything to do with that party's right to relief.

[00:14:02] Speaker 01:
So if there's diligence required, the diligence is the diligence in pursuing state habeas.

[00:14:10] Speaker 04:
You're nearing the end of your time.

[00:14:13] Speaker 01:
I'll finish up with another sentence or two.

[00:14:16] Speaker 01:
I've reserved six minutes.

[00:14:22] Speaker 04:
We'll give you some time for rebuttal, but this was all the 15 minutes you had.

[00:14:27] Speaker 01:
I didn't really look at that.

[00:14:28] Speaker 01:
I was sort of engaged with the colloquy.

[00:14:31] Speaker 01:
The diligence required is state habeas.

[00:14:34] Speaker 01:
which none of the parties in places like Guerrero, for example, they did nothing.

[00:14:39] Speaker 01:
My client went through the California Supreme Court.

[00:14:42] Speaker 01:
He got a decision from them.

[00:14:44] Speaker 01:
That was his diligence, and he wasn't required to file a federal petition or to leave enough time to do so.

[00:14:49] Speaker 01:
And thank you very much.

[00:14:50] Speaker 04:
Thank you, counsel, and we'll give you two minutes for a vote.

[00:14:58] Speaker 04:
Thank you, Ms.

[00:14:59] Speaker 04:
Hemley.

[00:15:05] Speaker 00:
Good morning, may it please the court?

[00:15:06] Speaker 00:
This is Amy Hamoy on behalf of the City of Mountain View and the Officers' Ward and Britain in this matter.

[00:15:14] Speaker 00:
We request this court affirm the District Court's findings below, in particular the conclusion that the heck bar did in fact apply as to Mr. Zuegel's conviction and prevented him from proceeding

[00:15:27] Speaker 00:
In particular on his claim for a false arrest.

[00:15:31] Speaker 00:
The court did allow after extensive briefing as well as two further amendments to the complaint.

[00:15:38] Speaker 00:
The plaintiff to proceed on his claim for warrantless entry into the home.

[00:15:43] Speaker 00:
and extending the time that the officers were in the home and affected their arrest.

[00:15:49] Speaker 00:
As the court is aware from the record, that trial took place in November of 2020 and resulted in an award for Mr. Zuhl.

[00:15:59] Speaker 00:
The rule that appellant is now asking this court to apply and is unsupported by any of the authority that's been cited in both of the briefs is that a plea of NOLO results in a blanket relief from the heck bar and that just simply is not the case.

[00:16:21] Speaker 00:
The NOLO plea or the guilty plea taken by a criminal defendant often has a factual basis.

[00:16:28] Speaker 00:
And that factual basis is either recited in a transcript or a record or some location in the file, usually including some negotiations between the prosecutor and the criminal attorney to reach a determination as to what the conviction is going to be for that particular criminal defendant and what consequences may follow from it.

[00:16:51] Speaker 00:
The court has been careful to allow criminal defendants who have had convictions by plea to proceed on 1983 claims where HEC does not apply.

[00:17:03] Speaker 00:
So where HEC actually sets out four particular requirements of either reversal, expungement, a question under writ of federal habeas as to the validity of the conviction,

[00:17:20] Speaker 00:
or somehow the conviction be determined invalid by appropriate tribunal, though meeting one of those four criteria would allow a criminal defendant to go forward on a section 1983 claim.

[00:17:34] Speaker 00:
absent any of the meeting of those four criteria, which agree to hear appellant did not meet, the court needs to engage in that rigorous analysis to determine if allowing that criminal defendant to pursue section 1983 will result in a implied invalidity of that existing

[00:17:57] Speaker 00:
criminal conviction.

[00:18:00] Speaker 04:
So, Council, suppose we agree with you that a conviction obtained pursuant to a plea of nullo contendere implicates the heck bar.

[00:18:09] Speaker 04:
The claim here, as Council explained this morning, is that there wasn't probable cause to arrest him for the molestation offense.

[00:18:21] Speaker 04:
If he prevails in a 1983 action and establishes that,

[00:18:26] Speaker 04:
How does that necessarily imply the invalidity of his conviction for disorderly conduct?

[00:18:34] Speaker 00:
This is where the court's rigorous analysis of the factual basis for the plea does have to come into play.

[00:18:41] Speaker 00:
So the other authorities, including Hack, Lockett, and even Cooley, the unreported case cited by the appellant, discuss the underlying facts and circumstances that led to the original arrest.

[00:18:57] Speaker 00:
and break out the interactions between law enforcement and that criminal defendant in order to determine if HEC still applies and if that invalidity is implied as a result of the actions of law enforcement or otherwise.

[00:19:13] Speaker 00:
Here we know that based on the amended complaint and

[00:19:19] Speaker 00:
subsequent amended complaints that Mr. Zugal's conduct that was at issue and served the basis for his plea involved an allegation that he had engaged in improper touching at a YMCA on a particular day.

[00:19:37] Speaker 00:
There's no evidence in the record and no inference that can be drawn that Mr. Zugal pled to anything

[00:19:47] Speaker 00:
different in terms of conduct and circumstances at the YMCA.

[00:19:52] Speaker 00:
And in fact, his plea included a 300-yard stay-away order from the YMCA.

[00:19:58] Speaker 00:
While that is mentioned or noted as a footnote in the court's ruling, it is an aspect of the factual basis of the original conduct that was the basis of the arrest that led to the charging that resulted in negotiations that led to a plea.

[00:20:16] Speaker 04:
So what are the elements of disorderly conduct in California?

[00:20:23] Speaker 00:
There are actually three versions of the PC-415 statute, and the particular one here involved a plea by Mr. Zuegel to disorderly conduct in a public place involving a loud noise.

[00:20:39] Speaker 04:
Okay.

[00:20:40] Speaker 04:
So which element of that would be negated by a determination that he had not engaged in molestation?

[00:20:50] Speaker 00:
I believe the elements relating to the conduct occurring in a public place and disturbing others.

[00:20:57] Speaker 00:
So those two of the three elements, the third element being the noise, may potentially not be called into question by the false arrest allegation.

[00:21:05] Speaker 00:
However, the first two elements, meaning that the suspect needs to be in a public place and engaging in something that is disruptive or disorderly.

[00:21:13] Speaker 00:
would be called into question.

[00:21:15] Speaker 04:
But why?

[00:21:15] Speaker 04:
I mean, there's a lot of conduct that's disruptive and disorderly that's not of a sexual nature, right?

[00:21:23] Speaker 00:
Yes.

[00:21:24] Speaker 04:
So establishing that there was no probable cause for molestation seems like it's entirely consistent, that there could be no probable cause for molestation, but

[00:21:36] Speaker 04:
The person could have engaged in some other conduct and that's disorderly, right?

[00:21:44] Speaker 00:
The overall challenge being presented here by Mr. Zugal is not just to an allegation that he made a loud noise.

[00:21:52] Speaker 00:
It's throughout his briefing as well as the amended complaint that he claims innocence

[00:21:59] Speaker 00:
entirely as to having even done anything wrong.

[00:22:03] Speaker 04:
That's a fair point.

[00:22:05] Speaker 04:
He is saying that and his complaint contains those statements, but that doesn't need to be true for him to win.

[00:22:10] Speaker 04:
And the heck bar turns on not

[00:22:14] Speaker 04:
what has he said in the complaint, but what would a judgment in his favor in the 1983 action necessarily say about the conviction?

[00:22:25] Speaker 04:
And he could win the 1983 action without establishing that he didn't do anything wrong, couldn't he?

[00:22:31] Speaker 00:
A judgment in a 1983 action challenging probable cause for arrest that the officers affected based on the information they had at the time relating to the PC-288 allegation, again, is the basis for all of the ongoing events relating to this conviction.

[00:22:56] Speaker 00:
Even to the extent that Mr. Zuegel pled to the misdemeanor at 415, that in and of itself is still implicated by the original conduct, the original events, and the investigation that resulted in his arrest and then ultimate charging, and then the later negotiations that led to the plea.

[00:23:19] Speaker 00:
We're in a situation most of the time in court where we look back with some hindsight and we ask ourselves in looking at the laws that we issue and the opinions from the court how to understand with all the nuances of everyday decision making and in particular in the criminal courts with negotiations for plea agreements what that could mean.

[00:23:43] Speaker 00:
and how folks determine whether or not to take a plea.

[00:23:47] Speaker 00:
And here we have some insight as to why Mr. Zuegel took this plea agreement.

[00:23:53] Speaker 00:
He states in his own pleadings that he did it to avoid Section 290 registration, which is telling to the court as to the relationship between the original arrest

[00:24:08] Speaker 00:
the charges and the plea.

[00:24:11] Speaker 00:
It cannot be that these things are all fully divorced from one another.

[00:24:15] Speaker 00:
Otherwise, we start going into a path where a NOLO plea automatically means you are not barred by heck.

[00:24:24] Speaker 00:
And we know that the court is not leaning in that direction, and that's not what the ruling in Lockett says.

[00:24:29] Speaker 03:
It wouldn't be that a NOLO plea, I mean, that's a different argument, right?

[00:24:32] Speaker 03:
And we've talked about that.

[00:24:33] Speaker 03:
But it would just be that if, you know, if you're

[00:24:38] Speaker 03:
If the issue is whether you had probable cause to arrest somebody for attempted murder or something, but they end up pleading to jaywalking or something like that, if that's what they actually, then it doesn't have you look at what they actually pled to, and then you say, would this imply the invalidity of their jaywalking?

[00:25:02] Speaker 03:
You don't just say, well, the whole reason they pled the jaywalking was because of this

[00:25:06] Speaker 03:
because they were originally arrested or something on an attempted murder.

[00:25:12] Speaker 03:
It's just what they actually pled to, I think.

[00:25:15] Speaker 03:
So I guess the question, I think this question's been asked a little bit, but it seems like it might be really important whether or not it would, we're talking about probable cause to arrest

[00:25:28] Speaker 03:
him for child molestation, or whether we're asking, I think this may have been a question that Judge Beatty asked the other side, but whether or not for the heck bar apply, there just needs to have not been probable cause to arrest for anything.

[00:25:47] Speaker 03:
So where's your position on that?

[00:25:49] Speaker 03:
And then secondarily, assuming your position is that he would need to show that he didn't have probable cause to arrest for anything.

[00:25:55] Speaker 03:
I think your opposing counsel's argument was, yeah, but you can't arrest somebody for making noise at the YMCA in their home.

[00:26:05] Speaker 03:
And so they wouldn't have probably, even assuming that the thing that he actually ended up pleading for is they wouldn't have probable cause to go in and arrest him in his home for that, because it's just a misdemeanor.

[00:26:21] Speaker 03:
I'm sorry, that was a long question.

[00:26:23] Speaker 00:
I'm parsing out the court's comments.

[00:26:26] Speaker 00:
Maybe I should work backwards or in reverse from your questioning, Your Honor, if that's okay.

[00:26:33] Speaker 03:
The entry into the hall... Well, the reason I asked and the reason I did, I'm sorry, but the reason I... Because the second question isn't really implicated

[00:26:40] Speaker 03:
if, as a sort of arguing, that if they can just show that there was not probable cause for child molestation, you know, if the whole issue was whether there was probable cause for child molestation, he wasn't charged.

[00:26:53] Speaker 03:
He didn't plead to child molestation.

[00:26:55] Speaker 03:
So that kind of is sort of the threshold question, I guess.

[00:26:59] Speaker 03:
It's only if the probable cause needs to be

[00:27:03] Speaker 03:
broader than that.

[00:27:04] Speaker 03:
If there was probable cause to arrest at all, if that's sufficient to have a heck bar in this case, then we ask, well, was there probable cause to arrest?

[00:27:14] Speaker 00:
That's why I asked it.

[00:27:17] Speaker 00:
Yes, there was probable cause here to arrest for PC-288 and any other related offenses.

[00:27:24] Speaker 03:
The question about whether or not there needs to be... 288 is the child must... Sorry, PC-288 is a... Okay, that's completely irrelevant because that, you know, he wasn't charged with... He didn't plead to that, so... He didn't plead to that, so it doesn't matter whether... Because it wouldn't imply the invalidity of that probable cause, right?

[00:27:45] Speaker 00:
And understood your honor and so therefore probable cause to arrest for any offense at the time that the officers were at the home would be Would be a Would implicate hack okay, right so so in other words it needs to show that there's not You know if there was a reason to arrest him If there's a reason of the officers to come and arrest him and it would

[00:28:10] Speaker 03:
And success on his 1983 claim would imply that there was no reason for the officers to come and arrest him.

[00:28:17] Speaker 03:
Then you have a heck problem because you have that inconsistency the hex concerned about right that's that.

[00:28:21] Speaker 00:
Yes your honor.

[00:28:22] Speaker 03:
Okay so can the officers so if I'm out there.

[00:28:26] Speaker 03:
Playing loud music in the mall somewhere and then I go home and the officers come and said you were you were Whatever I forget the name of this the Disturbing the piece I guess disturbing other person by so I'm playing loud music and and I go home Can the officers come in and on a misdemeanor?

[00:28:47] Speaker 03:
Charge like that come in and arrest me in my home.

[00:28:49] Speaker ?:
I

[00:28:51] Speaker 00:
potentially no, Your Honor.

[00:28:52] Speaker 00:
And in part, the court's scenario brings to mind something like locket.

[00:29:00] Speaker 00:
where there was a question of whether or not the criminal defendant was being investigated for a DUI.

[00:29:07] Speaker 00:
The officers went to his home, did not find anyone responsive, ultimately entered the home and then discovered Mr. Lockett in his bed with the odor of alcohol and were trying to understand could he explain to them, had he been driving his car, where had he been, etc.

[00:29:25] Speaker 00:
Ultimately, he was charged with DUI, he pled to a wet reckless, a lesser included offense, and then he was allowed to proceed on a 1983 claim as to warrantless entry into his home.

[00:29:38] Speaker 00:
And the court there took the position in Lockett that

[00:29:41] Speaker 00:
The evidence derived from the warrantless entry into the home did not implicate heck because it was not going to necessarily imply the invalidity of his wet reckless conviction or plea.

[00:29:57] Speaker 00:
Here the court parsed out in the same way the incidents involving.

[00:30:02] Speaker 00:
Mr. Zugal and while heck barred his false arrest complaint He was still allowed to proceed on a 1983 action and seek relief as To the entry into his home and whether or not consent was withdrawn.

[00:30:15] Speaker 04:
Thank you Thank You counsel Miss Grayson two minutes

[00:30:26] Speaker 01:
Very briefly.

[00:30:28] Speaker 03:
Can I ask a question related to what you just said?

[00:30:31] Speaker 03:
So the trial that the jury got to hear, and I think he prevailed on the claim that stayed too long in the home.

[00:30:41] Speaker 03:
So I'm trying to figure out how this all works, because if the officers could have, I mean, presumably the officers could arrest somebody at some point.

[00:30:48] Speaker 03:
They can get me at some point for having disturbed the peace in my hypothetical.

[00:30:53] Speaker 03:
But maybe they can't come into my home.

[00:30:54] Speaker 03:
But that's sort of already been.

[00:31:00] Speaker 03:
Yes, I guess they could mail me the ticket or they could wait on the sidewalk and wait for me to come out and hand me the ticket or something like that.

[00:31:05] Speaker 03:
But they can't arrest you for it.

[00:31:08] Speaker 03:
So your point is they just can't arrest it at all for, okay.

[00:31:13] Speaker 03:
So that's why, since that's what he actually pled to, the improper arrest claim, it's just not implicated by, because you can't arrest for this kind of misdemeanor.

[00:31:43] Speaker 02:
But that claim was litigated, right?

[00:31:46] Speaker 02:
That claim was not heck barred and went to trial.

[00:31:49] Speaker 02:
So that's not what we're talking about.

[00:31:51] Speaker 01:
At police counsel,

[00:32:26] Speaker 01:
Council you're over your time so you can address that point very briefly and then

[00:32:50] Speaker 01:
concerns the Gordon case.

[00:32:52] Speaker 01:
In the Gordon case, which didn't apply Lockhart as kind of a per se rule, but looked more closely at what the plea was and then what the section 1983 action raised, in that case they were quite closely related.

[00:33:08] Speaker 01:
The conviction was for driving or possessing a stolen car.

[00:33:14] Speaker 01:
The attack was on the

[00:33:17] Speaker 01:
The attack was on the carjacking conviction and the court held that there was no heck bar.

[00:33:22] Speaker 01:
So does the court have any further questions?

[00:33:24] Speaker 04:
No, no.

[00:33:25] Speaker 04:
I think we have your argument.

[00:33:26] Speaker 01:
Thank you very much indeed.

[00:33:26] Speaker 04:
Thank you.

[00:33:27] Speaker 04:
We thank both counsel and the cases submitted.