FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO DUARTE, 

Plaintiff-Appellant,

and 

ALEJANDRO GUTIERREZ, 

Plaintiff,

 v. 

CITY OF STOCKTON; STOCKTON 

POLICE DEPARTMENT; ERIC 

JONES; KEVIN JAYE HACHLER; 

ERIC B. HOWARD; MICHAEL 

GANDY; CONNER NELSON; 

UNDERWOOD, Sergeant, 

Defendants-Appellees.

No. 21-16929 

D.C. No. 2:19-cv00007-MCE-CKD 

OPINION

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted November 15, 2022

San Francisco, California
2 DUARTE V. CITY OF STOCKTON

Filed February 16, 2023 

Before: Johnnie B. Rawlinson and Andrew D. Hurwitz, 

Circuit Judges, and Kathleen Cardone,* District Judge.

Opinion by Judge Cardone 

SUMMARY**

Civil Rights

In an action brought pursuant to 42 U.S.C. § 1983, the 

panel reversed the district court’s dismissal of plaintiff’s 

false arrest and municipal liability claims, as well as the 

district court’s adverse summary judgment on plaintiff’s 

excessive force claim, and remanded for further 

proceedings. 

Plaintiff pled “no contest” or “nolo contendere” to 

willfully resisting, obstructing, and delaying a peace officer 

in violation of section 148(a)(1) of the California Penal 

Code. Although plaintiff entered the equivalent of a guilty 

plea, the state court never entered an order finding him guilty 

of the charge to which he pleaded. Instead, the court ordered 

that its acceptance of plaintiff’s plea would be “held in 

abeyance,” pending his completion of ten hours of 

* The Honorable Kathleen Cardone, United States District Judge for the 

Western District of Texas, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
DUARTE V. CITY OF STOCKTON 3

community service and obedience of all laws. After the six 

months of abeyance elapsed, the charges against plaintiff 

were “dismissed” in the “interest of justice” on the 

prosecutor’s motion.

The district court held that plaintiff’s false arrest and 

excessive force claims were barred by Heck v. Humphrey, 

512 U.S. 477 (1994), which holds that § 1983 claims must 

be dismissed if they would “necessarily require the plaintiff 

to prove the unlawfulness of his conviction.” Plaintiff’s 

municipal liability claims were also rejected as improperly 

filed against defendants who were not “persons.”

The panel held that the Heck bar does not apply in a 

situation where criminal charges are dismissed after entry of 

a plea that was held in abeyance pending the defendant’s 

compliance with certain conditions. The panel rejected 

appellees’ argument that by pleading no contest and 

completing the conditions of his agreement with the 

prosecution, plaintiff was functionally convicted and 

sentenced. The panel held that the Heck bar requires an 

actual judgment of conviction, not its functional equivalent.

The panel further held that the district court erred in 

dismissing plaintiff’s municipal liability claims against the 

City of Stockton and Stockton Police 

Department. Longstanding precedent establishes that both 

California municipalities and police departments are 

“persons” amenable to suit under § 1983. See Monell v. 

Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978); KarimPanahi v. L.A. Police Dep’t, 839 F.2d 621, 624 n.2 (9th Cir. 

1988).
4 DUARTE V. CITY OF STOCKTON

COUNSEL

Elizabeth Bixby (argued) and David Oyer, Roderick & 

Solange MacArthur Justice Center, Washington, D.C.; 

Easha Anand, Roderick & Solange MacArthur Justice 

Center, San Francisco, California; Yolanda Huang, Law 

Office of Yolanda Huang, Oakland, California; for PlaintiffAppellant.

Dana A. Suntag (argued), Joshua J. Stevens, and Amy N. 

Seilliere, Herum Crabtree Suntag, Stockton, California, for 

Defendants-Appellees.

Marie L. Miller and Patrick M. Jaicomo, Institute for Justice, 

Arlington, Virginia; Anya Bidwell, Institute for Justice, 

Austin, Texas; for Amicus Curiae Institute for Justice.
DUARTE V. CITY OF STOCKTON 5

OPINION

CARDONE, District Judge:

In this 42 U.S.C. § 1983 action, Francisco Duarte appeals 

from the dismissal of his false arrest and municipal liability 

claims, as well as the adverse grant of summary judgment on 

his excessive force claim. The district court held that

Duarte’s false arrest and excessive force claims were barred 

by Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, § 

1983 claims must be dismissed if they would “necessarily 

require the plaintiff to prove the unlawfulness of his 

conviction.” Id. at 486. But because Duarte was never 

convicted, we find that the Heck bar does not apply.

Duarte’s municipal liability claims were also rejected as 

improperly filed against defendants who were not “persons.” 

But longstanding precedent establishes that both California 

municipalities and police departments are “persons” 

amenable to suit under § 1983. See Monell v. Dep’t of Soc. 

Servs., 436 U.S. 658, 701 (1978); Karim-Panahi v. L.A. 

Police Dep’t, 839 F.2d 621, 624 n.2 (9th Cir. 1988). 

Accordingly, we reverse the judgment of the district court 

and remand for further proceedings.

I. BACKGROUND

The following facts are undisputed unless otherwise 

noted.

A. Duarte’s Arrest

On May 5, 2017, Duarte was in a public area in 

downtown Stockton, California. The parties dispute how it 

happened but agree that Duarte ended up standing within a 

few feet of a group of Stockton police officers—including 
6 DUARTE V. CITY OF STOCKTON

Michael Gandy and Kevin Jaye Hachler—who were 

detaining another person. Appellees assert that Gandy twice 

ordered Duarte to back up. Duarte contends that if he was

so ordered, he did not hear it. Either way, the parties agree 

that Gandy forcefully took Duarte to the ground when he did 

not back up.

The parties also agree that either Hachler, Gandy, or both 

ordered Duarte to put his hands behind his back. Duarte

claims he was unable to do so because his hands were pinned 

under him by the weight of Gandy pressing down on his 

back. Appellees claim that rather than attempt to comply, 

Duarte tried to pull his arm away.

The parties agree that Hachler then struck Duarte in the 

leg with a baton, breaking a bone. Duarte claims that 

Hachler struck him “at least six times on the same spot on 

his leg.” After the encounter, Duarte was taken into custody.

B. State Criminal Proceedings

Duarte was charged with willfully resisting, obstructing, 

and delaying a peace officer in violation of section 148(a)(1) 

of the California Penal Code. On July 12, 2018, Duarte and 

his attorney both signed and dated a document titled 

“Misdemeanor Advisement of Rights, Waiver and Plea 

Form” (the “Plea Form”). On the Plea Form, Duarte initialed 

the statement, “I hereby freely and voluntarily plead . . . no 

contest.” He also initialed several statements evincing his 

understanding of his rights, the charges against him, and the 

effect of entering a plea. Among those statements were the 

following:

I understand that a plea of no contest (nolo 

contendere) will have exactly the same effect 
DUARTE V. CITY OF STOCKTON 7

in this case as a plea of guilty, but it cannot 

be used against me in a civil lawsuit.

. . .

My decision to enter this plea has been made 

freely and voluntarily. No promises or 

inducements have been made in connection 

with this plea except: plea in abeyance – 10 

hours community service at any non-profit of 

my choice. 6 month [illegible] vacate plea 

and dismissal on Jan. 12, 2019 – if I fail to do 

the 10 hours of community service, then CTS 

& 3 years informal probation.

. . . 

I understand that this conviction could be 

used against me in the future as a prior 

conviction, to increase any penalties for 

future convictions, or could be used to violate 

my probation or parole which has been 

granted in another case.

On the same day, the court held a hearing and entered a 

Minute Order, stating, “Defendant pleads Nolo Contendre 

[sic] to: 1, PC 148(A)(1) . . . . Court’s acceptance of plea 

held in abeyance.”1 The Minute Order also incorporated the 

conditions from the Plea Form, requiring Duarte to complete 

ten hours of community service and obey all laws.

Six months later, the state court held another hearing and 

entered a Minute Order, in which the “event type” was 

1 The judge signed Duarte’s Plea Form beneath a paragraph stating that 

“[t]he Court accepts the defendant’s plea(s) and admission(s), if any,”

but left the space for a date next to his signature blank.
8 DUARTE V. CITY OF STOCKTON

denoted “Plea Held In Abeyance,” and which ordered, “Case 

dismissed upon motion of DDA, Interest of justice.”

C. Federal Civil Proceedings

On December 31, 2018, Duarte filed this § 1983 action

in the United States District Court for the Eastern District of 

California, asserting claims for excessive force and false 

arrest against Gandy, Hachler, Stockton Chief of Police Eric 

Jones, three other Stockton police officers, and a number of 

John Doe officers. Duarte also brought associated municipal 

liability claims against the City of Stockton and the Stockton 

Police Department.

The district court dismissed Duarte’s claims against the 

City of Stockton and Stockton Police Department, and the 

false arrest claims against the individual defendants. It

found that neither municipal entity was a “person” subject to 

suit under § 1983 and dismissed the false arrest claim as 

barred under Heck. After discovery, the district court 

granted summary judgment to the police officers on Duarte’s 

claim for excessive force, finding it was also Heck-barred.

This timely appeal followed. We have jurisdiction 

pursuant to 28 U.S.C. § 1291. See Hall v. City of Los 

Angeles, 697 F.3d 1059, 1070 (9th Cir. 2012).

II. DISCUSSION

A. Standard of Review

“We review de novo a district court’s grant or denial of 

summary judgment. We also review de novo a district 

court’s grant of a motion to dismiss under Federal Rule of 

Civil Procedure 12(b)(6).” Lopez-Valenzuela v. Arpaio, 770 

F.3d 772, 777 (9th Cir. 2014) (en banc) (internal citations 

omitted).
DUARTE V. CITY OF STOCKTON 9

B. Excessive Force and False Arrest Claims

We have never considered whether the Heck bar applies 

when criminal charges were dismissed after entry of a plea 

that was held in abeyance pending the defendant’s 

compliance with certain conditions. We hold that Heck does 

not apply in this situation.

1. The Heck Doctrine

The Supreme Court framed its Heck decision as standing 

“at the intersection” of 42 U.S.C. § 1983 and 28 U.S.C. § 

2254. See Heck, 512 U.S. at 480–81. Section 1983 provides 

a cause of action against state actors who commit 

constitutional violations, while § 2254 authorizes habeas 

corpus relief from unconstitutional state detention. Id. A

habeas petitioner must first exhaust state remedies, while a 

§ 1983 plaintiff need not. Id. A tension thus arises between 

the two laws “when establishing the basis for [a § 1983] 

damages claim necessarily demonstrates the invalidity of [a] 

conviction.” Id. at 481–82.

Resolving that tension, Heck held that

in order to recover damages for allegedly 

unconstitutional conviction or imprisonment, 

or for other harm caused by actions whose 

unlawfulness would render a conviction or 

sentence invalid, a § 1983 plaintiff must 

prove that the conviction or sentence has 

been reversed on direct appeal, expunged by 

executive order, declared invalid by a state 

tribunal authorized to make such 

determination, or called into question by a 

federal court’s issuance of a writ of habeas 

corpus . . . . A claim for damages bearing that 
10 DUARTE V. CITY OF STOCKTON

relationship to a conviction or sentence that 

has not been so invalidated is not cognizable 

under § 1983.

Id. at 486–87 (footnote omitted); see also Jackson v. Barnes, 

749 F.3d 755, 759–60 (9th Cir. 2014) (quoting Heck, 512 

U.S. at 486–87).2

But “[i]f the district court determines that the plaintiff’s 

action, even if successful, will not demonstrate the invalidity 

of any outstanding criminal judgment against the plaintiff, 

the action should be allowed to proceed.” Heck, 512 U.S. at 

487 (footnotes omitted). In other words, “the Heck rule . . . 

is called into play only when there exists ‘a conviction or 

sentence that has not been . . . invalidated,’ that is to say, an 

‘outstanding criminal judgment.’” Wallace v. Kato, 549 

U.S. 384, 393 (2007) (quoting Heck, 512 U.S. at 486–87); 

accord Roberts v. City of Fairbanks, 947 F.3d 1191, 1198 

(9th Cir. 2020).

2. Heck does not apply because Duarte was never 

convicted.

Duarte argues that Heck does not apply because the 

criminal charges against him were dismissed without entry 

of a conviction. Appellees argue Heck should nevertheless 

apply because by pleading no contest and completing the 

conditions of his agreement with the prosecution, Duarte

2 The holding was confined to claims for money damages. The Court 

had previously held that “habeas corpus is the exclusive remedy for a 

state prisoner who challenges the fact or duration of his confinement and 

seeks immediate or speedier release, even though such a claim may come 

within the literal terms of § 1983.” Heck, 512 U.S. at 481 (citing Preiser 

v. Rodriguez, 411 U.S. 475, 488–90 (1973)).
DUARTE V. CITY OF STOCKTON 11

was functionally convicted and sentenced.

The Heck bar, however, requires an actual judgment of

conviction, not its functional equivalent. Wallace, 549 U.S. 

at 393; Roberts, 947 F.3d at 1198 (“The absence of a 

criminal judgment [] renders the Heck bar inapplicable; the 

plain language of the decision requires the existence of a 

conviction in order for a § 1983 suit to be barred.” (citing 

Heck, 512 U.S. at 487)); Martin v. City of Boise, 920 F.3d 

584, 613 (9th Cir. 2019) (“Where there is no ‘conviction or 

sentence’ that may be undermined by a grant of relief to the 

plaintiffs, the Heck doctrine has no application.”). 

Heck speaks of challenges that would impugn “a 

conviction or sentence,” see Heck, 512 U.S. at 486–87 

(emphasis added), and Appellees argue that Duarte was 

effectively sentenced to completing the terms of his plea 

agreement. But a conviction is a prerequisite to a sentence. 

See Sentence, Black’s Law Dictionary (11th ed. 2019) (“The 

judgment that a court formally pronounces after finding a 

criminal defendant guilty; the punishment imposed on a 

criminal wrongdoer . . . . Also termed judgment of 

conviction.”). Because Duarte was never convicted, he was 

also never sentenced. See Mitchell v. Kirchmeier, 28 F.4th 

888, 895 (8th Cir. 2022) (holding the plaintiff’s claims were 

not Heck barred because he “was never convicted of—and 

therefore, a fortiori, never sentenced on—the charges 

against him.”); see also Blazak v. Ricketts, 971 F.2d 1408, 

1413 (9th Cir. 1992) (noting, in the habeas context, “There 

can be no sentence without a conviction.”).

According to Black’s Law Dictionary, the primary 

definition of “conviction” is, “The act or process of 

judicially finding someone guilty of a crime; the state of 

having been proved guilty.” Conviction, Black’s Law 
12 DUARTE V. CITY OF STOCKTON

Dictionary (11th ed. 2019). A secondary definition is, “The 

judgment (as by a jury verdict) that a person is guilty of a 

crime.” Id. Applying these definitions to the case at hand 

yields a straightforward result: Duarte was not convicted 

because he was never found or proved guilty. See id. 

To be sure, Duarte pleaded “no contest” or “nolo 

contendere” to the resisting arrest charge. And, under 

California law, a court ordinarily “shall find the defendant 

guilty” upon entry of such a plea, which is “considered the 

same as a plea of guilty.” Cal. Penal Code § 1016(3). But 

this only serves to underscore that a plea itself is not a 

conviction. A plea is entered by the criminal defendant, but 

a conviction does not follow without a subsequent order 

from the court. See id. Indeed, California law provides for 

several pretrial diversion programs, with terms akin to those 

in the agreement entered by Duarte, in which this distinction 

is highlighted. See, e.g., id. § 1000.10(a) (“A defendant’s 

plea of guilty shall not constitute a conviction for any 

purpose unless a judgment of guilty is entered . . . .”). 

Although Duarte entered the equivalent of a guilty plea, 

the state court never entered an order finding him guilty of 

the charge to which he pleaded. Instead, the court ordered 

that its acceptance of Duarte’s plea would be “held in 

abeyance,” pending his completion of ten hours of 

community service and obedience of all laws. Black’s Law 

Dictionary defines “abeyance” as, “Temporary inactivity; 

suspension.” Abeyance, Black’s Law Dictionary (11th ed. 

2019). Suspension of the plea is not a finding of guilt or a 

conviction.

After the six months of abeyance elapsed, the charges 

against Duarte were “dismissed” in the “interest of justice” 

on the prosecutor’s motion. A “dismissal” is the 
DUARTE V. CITY OF STOCKTON 13

“[t]ermination of an action, claim, or charge without further 

hearing, esp. before trial; esp. a judge’s decision to stop a 

court case through the entry of an order or judgment that 

imposes no civil or criminal liability on the defendant with 

respect to that case.” Dismissal, Black’s Law Dictionary

(11th ed. 2019). Dismissal, which imposes no criminal 

liability, is thus the opposite of a conviction, which imposes 

such liability. See Vasquez Arroyo v. Starks, 589 F.3d 1091, 

1095 (10th Cir. 2009); see also People v. Hernandez, 994 

P.2d 354, 359, 361 (Cal. 2000) (noting that “furtherance of 

justice” dismissals “cut[] off an action or a part of an action

against the defendant”). Because the charges against Duarte

were dismissed, he was never convicted. And because there 

is no conviction that Duarte’s § 1983 claims would impugn, 

Heck is inapplicable.

Our conclusion is consistent with the majority of circuits 

to consider Heck in the context of pretrial diversion 

agreements. The Sixth, Eighth, Tenth, and Eleventh Circuits

have all held that where the conditions of the agreement are 

satisfied and the criminal charges are dismissed without 

entry of conviction, Heck does not bar subsequent civil rights 

claims. See Mitchell, 28 F.4th at 895–96; Vasquez Arroyo, 

589 F.3d at 1093–96; S.E. v. Grant Cnty. Bd. of Educ., 544 

F.3d 633, 637–39 (6th Cir. 2008); McClish v. Nugent, 483 

F.3d 1231, 1250–52 (11th Cir. 2007).

The district court relied on a contrary decision by the 

Third Circuit, which held that the plaintiff’s civil rights 

claims were Heck-barred even though he had never been 

formally convicted in the state criminal proceedings. See 

Gilles v. Davis, 427 F.3d 197, 208–12 (3d Cir. 2005). But 

for the reasons explained above, we find Gilles

unpersuasive. Moreover, Gilles predated Wallace, in which 

the Supreme Court explicitly rejected an argument that 
14 DUARTE V. CITY OF STOCKTON

Gilles appears to embrace—that § 1983 claims inconsistent 

with ongoing criminal charges, not just outstanding criminal 

judgments, could be barred by Heck. See Mitchell, 28 F.4th 

at 896. Compare Wallace, 549 U.S. at 393–94, with Gilles, 

427 F.3d at 209.

We recognize the Fifth Circuit has also held “a deferred 

adjudication order is a conviction for the purposes of Heck’s 

favorable termination rule” because it is “a judicial finding 

that the evidence substantiates the defendant’s guilt” and “a 

final judicial act.” See DeLeon v. City of Corpus Christi, 488 

F.3d 649, 655–56 (5th Cir. 2007). As explained above, we 

do not adopt that logic. The final judicial act is either the 

dismissal of the charges or the imposition of a sentence.

Moreover, unlike Duarte, the DeLeon plaintiff remained 

under the conditions of his deferred adjudication agreement 

and the criminal charges against him had not yet been 

dismissed. Id. at 653. Indeed, the Fifth Circuit explicitly 

declined to decide how it would apply Heck for a plaintiff 

who, like Duarte, did satisfy the terms of his agreement. Id.

at 657 (“We do not decide whether DeLeon can meet the 

Heck conditions . . . by successfully completing his deferred 

adjudication.”).

In sum, Heck’s “core” concern is for preventing the 

circumvention of habeas exhaustion requirements through 

§ 1983. Martin, 920 F.3d at 615 (quoting Wilkinson v. 

Dotson, 544 U.S. 74, 82 (2005)). More broadly, Heck seeks 

to promote finality and consistency by “refrain[ing] from 

multiplying avenues for collateral attack on criminal 

judgments.” McDonough v. Smith, 139 S. Ct. 2149, 2157 

(2019) (collecting cases).

Thus, the sine qua non of Heck is a judgment of 

conviction and a resultant sentence. See Wallace, 549 U.S. 
DUARTE V. CITY OF STOCKTON 15

at 392–93 (citing Heck, 512 U.S. at 486–87). Challenges 

that cast doubt on such judgments are the province of direct 

appeals or habeas—not § 1983. But where, as here, the 

criminal charges were dismissed and there is no conviction 

to impugn, the tension with which Heck was principally 

concerned is missing. Also absent are any concerns about 

finality, consistency, or comity, when there is no order in the 

state criminal case with which a decision in the federal civil 

lawsuit could be inconsistent. Because Duarte was never 

convicted of a crime, his claims should not have been 

dismissed under Heck.

C. Municipal Liability

The district court also erred in dismissing Duarte’s 

claims against the City of Stockton and Stockton Police 

Department. The Supreme Court first held that municipal 

entities, like cities, were “persons” amenable to suit under § 

1983 in its seminal decision, Monell v. Department of Social 

Services, 436 U.S. 658, 690 (1978). Monell’s core 

holding—that claims for municipal liability are cognizable 

under the Civil Rights Act—has been affirmed many times 

over by this Court and the Supreme Court. See, e.g., City of 

St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988); Hervey v. 

Estes, 65 F.3d 784, 791 (9th Cir. 1995) (“It is beyond dispute 

that a local governmental unit or municipality can be sued as 

a ‘person’ under section 1983.” (citing Monell, 436 U.S. at 

690)).

As to the Stockton Police Department, we held over 

thirty years ago that municipal police departments in 

California “can be sued in federal court for alleged civil 

rights violations.” Karim-Panahi v. L.A. Police Dep’t, 839 

F.2d 621, 624 n.2 (9th Cir. 1988) (citations omitted). More 

recently, we reaffirmed this holding and extended it to 
16 DUARTE V. CITY OF STOCKTON

California’s county sheriffs’ departments. Streit v. County 

of Los Angeles, 236 F.3d 552, 565–66 (9th Cir. 2001). We 

have never overruled Karim-Panahi.

The district court reasoned that Karim-Panahi could not 

be reconciled with a concurring opinion in United States v. 

Kama, 394 F.3d 1236, 1240 (9th Cir. 2005). There, without 

citing Karim-Panahi or Streit, a judge commented that 

“municipal police departments and bureaus are generally not 

considered ‘persons’ within the meaning of 42 U.S.C. 

§ 1983.” Kama, 394 F.3d at 1239–40 (Ferguson, J., 

concurring).

But “concurring opinions have no binding precedential 

value.” Pub. Watchdogs v. S. Cal. Edison Co., 984 F.3d 744, 

757 n.7 (9th Cir. 2020) (citing Maryland v. Wilson, 519 U.S. 

408, 412–13 (1997)). And “as a general rule, one threejudge panel of this court cannot reconsider or overrule the 

decision of a prior panel.” Koerner v. Grigas, 328 F.3d 

1039, 1050 (9th Cir. 2003) (quoting United States v. Gay, 

967 F.2d 322, 327 (9th Cir. 1992)). Therefore, when a 

subsequent panel makes a “suggestion” that “is inconsistent 

with earlier opinions of this court,” such suggestions are to 

be disregarded in favor of the earlier, binding holding. See, 

e.g., Ass’n of Mexican-Am. Educators v. California, 231 

F.3d 572, 592 (9th Cir. 2000). 

Neither a lone concurring judge nor the full Kama panel

could overrule Karim-Pahani. See Koerner, 328 F.3d at 

1050. Nor can we. See id. The district judge’s 

determination that the City of Stockton and Stockton Police 
DUARTE V. CITY OF STOCKTON 17

Department are not persons within the meaning of § 1983 is 

reversed.3

III. CONCLUSION

We reverse the district court’s dismissal of Duarte’s false 

arrest and municipal liability claims. We also reverse the 

summary judgment in favor of the individual Appellees on 

Duarte’s excessive force claim. We remand for further 

proceedings consistent with this opinion.

REVERSED AND REMANDED.

3 We decline to reach Appellees’ other arguments for dismissal of the 

municipal liability claims, which were raised for the first time on appeal. 

See Henry A. v. Willden, 678 F.3d 991, 999 n.5 (9th Cir. 2012) (citing 

Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 974 (9th Cir. 

2010)).