Published United States Court of Appeals For The Fourth Circuit
Published United States Court of Appeals For The Fourth Circuit
Published United States Court of Appeals For The Fourth Circuit
We have no doubt that Lowery's present allegations, if true, constitute a violation of his clearly established rights. But Stovall contends
that Lowery's present allegations are irrelevant. Specifically, Stovall
argues that Lowery is precluded from making these allegations by the
doctrine of judicial estoppel because his present allegations are inconsistent with his prior guilty plea. Thus, Stovall reasons that he is entitled to qualified immunity because Lowery's admission that he
maliciously attacked Redd shows that a reasonable officer in Stovall's
place could have believed that shooting Lowery was lawful.
Lowery, however, contends that his present allegations cannot be
precluded by the doctrine of judicial estoppel. We disagree.
A
We first discuss the principles underlying the doctrine of judicial
estoppel. When a party attempts to assert a position that is inconsistent with a prior position that the party has successfully asserted in
another court, courts have a number of steps that they may take to
prevent such an attempted abuse of the judicial process. For example,
courts may apply collateral estoppel (also known as issue preclusion)
or equitable estoppel to prevent the attempted abuse. In addition to
those doctrines, courts may apply the closely related doctrine of judicial estoppel.3 "Judicial estoppel precludes a party from adopting a
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3 Judicial estoppel is "[c]losely related to collateral estoppel, but [it is]
dissimilar in critical respects." Allen v. Zurich Ins. Co., 667 F.2d 1162,
1166 (4th Cir. 1982). For example, judicial estoppel does not require that
the issue be actually litigated in the prior proceeding or that the parties
meet the requirement of mutuality, even if the mutuality requirement is
recognized by state law, as it is here. See Selected Risks Ins. Co. v. Dean,
355 S.E.2d 579, 581 (Va. 1987). One reason for these differences is that
judicial estoppel is a matter of federal law, not state law, see Allen, 667
F.2d at 1167 n.2, especially when the court's jurisdiction is based on the
presence of a federal question rather than the diversity of the parties.
Judicial estoppel is also closely related to equitable estoppel. See Rand
G. Boyers, Comment, Precluding Inconsistent Statements: The Doctrine
of Judicial Estoppel, 80 Nw. U.L. Rev. 1244, 1248 (1986). Unlike equitable estoppel, a party asserting judicial estoppel does not have to prove
detrimental reliance because judicial estoppel is designed to protect the
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(finding that "the record conclusively shows" that the party had successfully asserted a prior inconsistent position). The insistence upon
a court having accepted the party's prior inconsistent position ensures
that judicial estoppel is applied in the narrowest of circumstances.
Indeed, "the prior success rule narrows the scope of judicial estoppel
to the point at which the necessity of protecting judicial integrity outweighs the ramifications of that protection upon the litigant and the
judicial system." Boyers, supra note 3, at 1256. Because of the harsh
results attendant with precluding a party from asserting a position that
would normally be available to the party, judicial estoppel must be
applied with caution. See Faggert & Frieden, 65 F.3d at 29.
Finally, the party sought to be estopped must have"intentionally
misled the court to gain unfair advantage." Tenneco, 691 F.2d at 665.
Indeed, we have stated that this factor is the "determinative factor" in
the application of judicial estoppel to a particular case. Id.; Faggert
& Frieden, 65 F.3d at 29. Thus, courts will not apply judicial estoppel
"when a party's prior position was based on inadvertence or mistake."
Faggert & Frieden, 65 F.3d at 29. With these principles in mind, we
turn to consider whether the district court erred in applying the doctrine of judicial estoppel to preclude Lowery from contradicting the
statements he made when he pleaded guilty to violating Va. Code
18.2-51.1.
B
Our review of the record shows that the district court properly
applied the doctrine of judicial estoppel to preclude Lowery from disputing that he maliciously attacked Redd before Stovall shot him.
First, Lowery's present position regarding the circumstances of the
shooting is contradictory to the position he took when he pled guilty.
During his guilty plea hearing, Lowery admitted to maliciously
attacking Redd. Specifically, the trial judge, in taking Lowery's guilty
plea, asked if Lowery had cut Redd on the face with the metal key
holder to escape, and Lowery said that he had. Lowery's present position, however, is that he did not attack Redd with the magnetic key
holder prior to the shooting and that Stovall shot him without reason.
Lowery argues that these positions are reconcilable. Specifically,
Lowery contends that his statement does not show when he cut Redd.
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Thus, Lowery reasons that his statement is consistent with his present
position because the statement allegedly does not foreclose the possibility that he cut Redd on the face by scratching Redd as he was trying to crawl into the patrol car after being shot by Stovall.
Lowery's argument, however, is undercut by the plain language in
his statement accompanying his guilty plea:
On February 1, 1991 when I was arrested, I cut Officer
Thomas E. Redd on the face with a metal key holder
because I wanted to escape custody. I knew he would find
my cocaine. I intended to maim and disable him and at the
time Officer Stovall shot me I was intending to kill Redd if
I had to [in order] to get away.
(J.A. 686) (emphasis added). The "wanted to escape custody" language cannot be reconciled with Lowery's claim that he scratched
Redd as he was trying to get back into the patrol car because the positions are diametrically opposed to each other. Because Lowery's present position necessarily conflicts with his prior position, the first
requirement for applying judicial estoppel has been met.
Next, we consider whether the trial judge accepted Lowery's prior
inconsistent position. "[J]udicial acceptance means only that the first
court has adopted the position urged by the party . . . as part of a final
disposition." Edwards v. Aetna Life Ins. Co. , 690 F.2d 595, 599 n.5
(6th Cir. 1982). Although judicial estoppel does not apply to the settlement of an ordinary civil suit because "there is no `judicial acceptance' of anyone's position,"4 the taking of a guilty plea in a criminal
proceeding is not similar to the settlement of a civil suit.
In taking the guilty plea, the trial judge had a duty to determine that
Lowery entered his guilty plea "voluntarily with an understanding of
the nature of the charge and the consequences of the plea." Va. S. Ct.
Rule 3A:8(b). The record of the plea proceeding shows beyond dis_________________________________________________________________
4 Reynolds v. Commissioner, 861 F.2d 469, 473 (6th Cir. 1988) (finding
a bankruptcy court's approval of a settlement between a debtor and one
of his creditors constitutes a "judicial acceptance" because the court has
a duty to make sure the settlement is fair and equitable).
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pute that the trial judge carried out this mandate. Moreover, the record
here shows that the trial judge had a factual basis for finding Lowery
guilty. The trial judge asked Lowery whether each of the assertions
in the statement accompanying his guilty plea was true, rather than
whether he merely understood the statements. Further, the court heard
a summary of the state's evidence from a prosecution witness. Significantly, in sentencing Lowery, the trial judge stated that Lowery was
"in fact guilty of each charge." (J.A. 769). Thus, we find that the trial
judge accepted Lowery's position when he accepted his guilty plea.
Finally, we turn to the issue of whether Lowery's attempt to assert
his present position is an intentional attempt to mislead the court to
gain unfair advantage in this action. By pleading guilty, Lowery
received a drastically reduced sentence. Because of his criminal
record, Lowery was facing forty to sixty years imprisonment before
entering into a plea agreement with the State. In exchange for his
pleading guilty and signing the accompanying statement, the State
agreed to recommend that Lowery be sentenced to only ten years, suspended after the service of two years in prison. After Lowery carried
out his part of the bargain, the State kept its word and recommended
that he receive a ten-year sentence with eight years suspended; a sentence that the trial judge imposed upon him. But, after receiving the
benefit of the plea bargain, Lowery now wants to have it the other
way, arguing that we should find that he did not maliciously attack
Redd.
For the reasons aptly expressed by Professor Hazard, we find this
argument "too much to take":
Particularly galling is the situation where a criminal convicted on his own guilty plea seeks as a plaintiff in a subsequent civil action to claim redress based on a repudiation of
the confession. The effrontery or, as some might say it,
chutzpah, is too much to take. There certainly should be an
estoppel in such a case.
Geoffrey Hazard, Revisiting the Second Restatement of Judgments;
Issue Preclusion and Related Problems, 66 CORNELL L. REV. 564, 578
(1981). As it is clear that Lowery is "blowing hot and cold as the
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