478 F.3d 634

WIDENER, Circuit Judge,
dissenting:
I respectfully dissent for several reasons. I would affirm.
I.
The majority opinion describes itself:
The district court denied [plaintiff] Zin-kand’s motion, and Zinkand appeals only the decision rendered in favor of Detective Timothy Brown on the claim of excessive force. We hold that the district court erred in denying Zinkand’s motion to alter or amend by finding that judicial estoppel applied, and we must therefore reverse and remand.
As described by the majority, the only claim of Zinkand before us is “of excessive force.” But the majority opinion does not deal with the claim it has just described, and, more importantly, does not deal with the precise factual findings of the district court, to which exception is not taken. They are, copied verbatim from the opinion of the district court:
The materials submitted by defendants in support of their motion establish beyond doubt that there was ample probable cause to arrest plaintiff. Plaintiff was observed by officers to be involved in an undercover drug [heroin] purchase as the apparent “stash” man. As to plaintiffs claim for excessive force, only one of the defendants (Officer Brown) touched plaintiff and this officer was fully justified in using his hands to subdue plaintiff. Plaintiff entered an Alford plea to a charge of resisting arrest, and this resistence precipitated the use of force about which plaintiff now complains. He suffered only a minor laceration, and the use of force was reasonable as a matter of law. J.A. 180.
I submit the reversal of the district court’s decision in favor of the defendant, in the face of the facts found by the district court, stated just above, is patently erroneous. To permit plaintiffs claim to go forward “on the claim of excessive force,” as described in the majority opinion, slip p. 2, should not be possible in the face of the finding that plaintiff “suffered only a minor laceration, and the use of force was reasonable as a matter of law.” J.A. 180.
II.
In my opinion, the majority has erred, and the judgment of the district court should be affirmed for a second separate reason.
The plaintiff entered into a plea bargain with the State of Maryland in which he not only received absolution from the charge of obviously felonious participation in the sale of heroin, he received a disposition of probation before judgment on the charge of resisting arrest. Maryland lived up to her end of the bargain, but Zinkand was determined to eat his cake and have it, too. Only a week later, he sued the officers.
In the case of Lowery v. Stovall, 92 F.3d 219 (4th Cir.1996), a case on facts so similar as to be persuasive, even if not controlling, one Lowery had been prosecuted for a felony under the Virginia Felonious Assault Statute, Va.Code § 18.2-51.1, following a fight with two arresting officers. Lowery pleaded guilty to the charge, which subjected him to the possibility of 40-60 years in prison. In return for the guilty plea, the Commonwealth agreed to recommend that Lowery be sentenced to only 10 years, to be suspended after the service of two years in prison. That sentence was entered by the trial court. After the sentence, Lowery sued Stovall and Redd, the arresting officers, arguing that he did not maliciously attack Redd. Our decision is best stated by the panel in Lowery at p. 225:
For the reasons aptly expressed by Professor Hazard [in 66 Cornell L.Rev. 564, 578 (1981) ], 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.
III.
A third reason to affirm the district court is that Officer Brown is entitled to qualified immunity, as Lowery so held. 92 F.3d at 226.
IV.
A fourth reason to affirm is that what has come to be known as an Alford plea should not be construed, as has been done here by the majority, to open the door to recovery under 42 U.S.C. § 1983 which would otherwise be closed.
. After taking the Alford plea and hearing allocution, the state court judge entered a disposition of probation before judgment.

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