Metropolitan News-Enterprise


Wednesday, August 4, 2021


Page 1


Ninth Circuit:

Court in §1983 Action May Award Damages for Decedent’s Suffering of ‘Loss of Life’

Majority Says California’s Statute Barring Such Awards Is Inconsistent With Objectives of Federal Civil Rights Statute; Judge Lee Dissents


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday affirmed a $3.6 million component of a $13.2 million award to the family of a man who, like George Floyd, was subjected to a choke hold, screamed for help, gasped for air, and died, holding that California law barring “loss-of-life” damages cannot be applied in a federal civil rights action.

Circuit Judge John B. Owens wrote the majority opinion in which District Court Judge Michael H. Simon of the District of Oregon, sitting by designation, joined. Circuit Judge Kenneth Kiyul Lee dissented.

Owens’s published opinion in the case—Valenzuela v. City of Anaheim, 20-55372—deals only with the $3.6 million award based on the “loss of life” suffered by the decedent, Fermin Valenzuela Jr., holding that it is authorized by the Ninth Circuit’s 2014 opinion in Chaudhry v. City of Los Angeles.

In a separate memorandum opinion, the panel affirmed damages in favor of the father and children of Valenzuela of $3.6 million for wrongful death and $6 million for the decedent’s “pre-death” pain and suffering.

2014 Opinion

Chaudhry, like the current case, concerned an action brought under 42 U.S.C. §1983 for deprivation rights under federal law by persons acting under color of state law and the effect on such an action, when tried under California law, of the state’s Code of Civil Procedure §377.34, which says:

“In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.”

Chaudhry dealt with the bar on damages for the decedent’s pre-death pain and suffering, while yesterday’s opinion in Valenzuela relates to a jury’s award of damages for the decedent’s loss of life.

In the 2014 opinion, Circuit Judge William A. Fletcher wrote:

“Because federal law is silent on the measure of damages in § 1983 actions, California’s disallowance of pre-death pain and suffering damages governs unless it is inconsistent with the policies of § 1983.”

He concluded that it is, declaring:

“[W]e hold that California’s prohibition against pre-death pain and suffering damages limits recovery too severely to be consistent with § 1983’s deterrence policy.”

Owens’s Opinion

“Our analysis begins, and largely ends, with Chaudhry,” Owens wrote in yesterday’s opinion, saying:

“We see no meaningful way to distinguish Chaudhry from this case. Both involve deaths caused by a violation of federal law, and both consider the limits that California’s § 377.34 places on § 1983 plaintiffs—limits that we have squarely rejected. Prohibiting loss of life damages would run afoul of § 1983’s remedial purpose as much as (or even more than) the ban on pre-death pain and suffering damages. Following Chaudhry, we therefore hold that § 377.34’s prohibition of loss of life damages is inconsistent with § 1983.”

He went on to comment:

“At bottom, the Defendants ask us to overrule Chaudhry. Not only is this outside our authority as a three-judge panel, but it is also inconsistent with the Supreme Court’s repeated reminders of § 1983’s goals and remedial purpose.”

Lee’s Dissent

Lee said in his dissent:

“As tragic as his death was, we must follow the law—and California law prohibits damages for loss of life. That means Valenzuela’s estate and his family members should receive $9.6 million instead of $13.2 million. The majority opinion, however, holds that they are entitled to the full $13.2 million, ruling that federal common law supplants California law because it is ‘inconsistent’ with § 1983’s goals of deterrence and compensation….

“But an award of $9.6 million (for wrongful death and pain and suffering) is not ‘inconsistent’ with deterrence or compensation. We can respect state law enacted by the people of California and still meet the twin policy goals of §1983. We should not jettison California state law to maximize damages for §1983 plaintiffs.”

He expressed disagreement with the view that Chaudhry is controlling, noting that the majority “interprets that decision to allow federal common law to displace not only California’s ban on pre-death pain and suffering (which was at issue in Chaudhry) but also the prohibition on loss of life damages (which is at issue here).”

Lee remarked:

“I do not read Chaudhry as broadly as the majority does and believe it would be unwise to expand its reach to loss of life damages….”

He called upon the circuit to reexamine Chaudhry en banc.

Separate Opinion

In its memorandum opinion, the panel was unanimous in affirming other aspects of the judgment. It agreed with the decision by District Court Judge Cormac J. Carney of the Central District of California to deny qualified immunity to individual officers and said he was correct in declining to upset the jury’s finding that the officers used excessive force and violated California’s Tom Bane Civil Rights Act and that the City of Anaheim is liable.

Agreeing with Cormac that the extent of the force that was applied contravened established constitutional rights of the suspect, precluding qualified immunity, the opinion recites:

“Here, Anaheim police officers kept Valenzuela in multiple, extended choke holds even as he gagged, wheezed, turned purple, and screamed that he could not breathe. The officers did so even though the City’s interest in such force was low: Valenzuela was not suspected of a serious crime, he was half-naked and visibly unarmed, and he was at times subdued, with two officers holding down his arms as the third kept him in a choke hold. Moreover, the officers placed Valenzuela in the restraint more times—and kept him there for longer—than their training permitted.”

Under the United States Supreme Court’s 1978 decision in Monell v. Department of Social Services, a city is liable in a §1983 action only if its employees acted pursuant to its “policy or custom.” The memorandum opinion points out:

“The Anaheim Police Department had a policy of permitting carotid holds against resisting suspects. Here, it is uncontested that the officers were allowed under department regulations to place Valenzuela in a carotid hold. Indeed, the supervisory officer at the scene testified that he instructed his subordinate to ‘hold that choke’ because he saw Valenzuela was resisting, and he knew it was ‘clearly’ within department policy that ‘when a person is physically resisting,’ the officer may use the carotid hold.”

Bane Act

California’s Bane Act—Code of Civil Procedure §52.1—requires a showing of “a specific intent to violate the arrestee’s right to freedom from unreasonable seizure.” The opinion sets forth:

“Substantial evidence supports the jury’s finding of liability under the Bane Act.

“All three officers knew the carotid hold could cause serious injury or death, and all three were aware of the department’s limits on its use. Nonetheless, they applied multiple, extended holds against Valenzuela. even while he was lying down and restrained. The Defendants’ argument that the verdict on the Bane Act is inconsistent with the jury’s finding of no liability under the Fourteenth Amendment is wrong and based on the unsupported assumption that liability under both requires the same showing of specific intent.”


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