Judge Fletcher's majority opinion simply has the better of the argument here. Yes, the Supreme Court has held that, as a matter of issue preclusion, you can't file a civil suit if you were found (or pled) guilty to the underlying offense. But the defendant here entered a nolo contendere plea, which expressly doesn't admit guilt. Judge Callahan's dissent admittedly gives potentially good reasons why, as a policy matter, we might want to hold that such pleas also bar civil lawsuits.
But there's a rule about this: Federal Rule of Evidence 410(a). The text of that provision is both clear and categorical:
"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: . . . (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas."
Further, the history of that rule, as well as the express purpose of its 1979 amendment, makes crystal clear that the rule was intended to function in precisely the manner described by Judge Fletcher. So it's not that Judge Callahan doesn't have an argument. It's just not the law.
In my view, if the Supreme Court wants to have nolo contendere pleas bar subsequent civil suits, then it can easily accomplish this objective. Just change Rule 410(a) -- which the Supreme Court itself created (and can amend). No problem. But, at present, the rule says that if you plead nolo contendere, that fact can't be used against you in a civil suit. Period. Hence today's result.
The end of Judge Callahan's dissent also seemed a bit overly aggressive to me. The last paragraph says:
"Finally, the scope and impact of the majority opinion should not be underestimated. Very few criminal cases actually go to trial, most are resolved at the pleading stage, and many of those are the result of nolo contendere pleas. Thus, the majority’s strained reading of Rule 410(a) would subject state officials to a broad swath of civil cases that as a matter of fact imply the invalidity of the plaintiffs’ underlying convictions and thus should be barred under Heck, as is the case here. Indeed, the majority’s approach paves the way for criminal defendants to plead nolo contendere to criminal charges and then sue the officers for their actions in apprehending them."
The predicate fact -- that most cases get resolved by pleas -- is undeniably true, but the conclusion she reaches does not necessarily follow (at all) from that premise. In particular, while criminal defendants might perhaps in particular cases have some incentive under today's ruling to potentially plead nolo contendere (rather than guilty), the state has no obligation to accept such a plea. Every single state -- as well as the federal system -- that allows such a plea allows a court, in its discretion, to reject such a proposed plea. And several states categorically don't allow such pleas in any event (and others severely restrict them). So if it's one of those settings in which a nolo contendere plea would indeed "subject state officials to a broad swath of civil cases," the state should (and presumably would) neither offer nor agree to such a plea deal. And if the defendant nonetheless insists upon "pleading to the sheet" (i.e., not striking a "deal", but instead just pleading no contest to the entirety of the charges), then the state can object to that request and inform the court that they'd rather have a trial, and let the judge know why the plea should be rejected. As a practical, as well as legal, matter, I think that the risk of expansive state civil liability from nolo contendere pleas is practically zero. No one's required to make those deals, the court has discretion to reject them, and the state is exceptionally well situated to protect its own interests in these matters. Today's opinion won't substantially move the needle on this point at all.
As if the Supreme Court disagrees, well, then it can amend Rule 410 accordingly. Their call.
