Panel awards ‘loss of life’ damages disallowed in state law

A divided 9th U.S. Circuit of Appeals panel on Tuesday affirmed a jury decision awarding "loss of life" damages to the family of a man who died after a fatal encounter with Anaheim police officers even though such damages are not allowed under California law.

9th Circuit Judge John B. Owens, an appointee of President Barack Obama, wrote that limits on federal civil rights lawsuits against government employees by state laws were rejected in a 2014 9th Circuit ruling in another wrongful death case.

The decision affirmed a $13.2 million award to the family of Fermin V. Valenzuela, who died following multiple choke holds by the police officers during a violent struggle in 2016. Valenzuela v. City of Anaheim, 2021 DJDAR 7937 (9th Cir., Aug. 3, 2021).

In an unpublished ruling, the panel also affirmed U.S. District Judge Cormac J. Carney's denial of post-trial motions by the city and the officers that they had qualified immunity and did not violate California's Tom Bane Civil Rights Act by using a carotid hold on Valenzuela.

Owens wrote that the defendants, in seeking to overturn the $3.6 million part of the award against Anaheim for loss of life, were asking the panel to overrule the 2014 ruling. Chaudhry v. City of Los Angeles 751 F. 3d 1096 (9th Cir. 2014).

"We see no meaningful way to distinguish Chaudhry from this case," he wrote. "Both involve deaths caused by a violation of federal law, and both consider the limits that California's [law] 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," Owens added.

9th Circuit Judge Kenneth K. Lee, an appointee of President Donald Trump, dissented and argued that a 9th Circuit en banc panel should revisit Chaudhry, which he argued was based on "faulty assumptions."

"Chaudhry does not provide any support for its assumption that law enforcement officers would deliberately choose to kill, rather than injure, a suspect to avoid potential liability for pre-death pain and suffering," he wrote.

"Most fatalities involving law enforcement occur during chaotic, messy, and dangerous situations in which officers must make split-second decisions to protect others' lives or their own," Lee added.

Further, he wrote that federal law does not require that damages be maximized by supplanting California law.

Lee agreed the officers used excessive force against Valenzuela but wrote he did not have a constitutional right to be free of a neck restraint while resisting arrest on the date of his death in 2016.

Mike Lyster, chief communications officer of the city of Anaheim, in a statement did not directly address whether the city would seek en banc review.

"We would have liked to have seen a different majority opinion but also take some encouragement from the dissenting opinion," Lyster wrote. "Beyond that, we will continue to evaluate the decision and will consider any next steps."

Timothy T. Coates, an attorney with Greines Martin Stein & Richland LLP, argued the city's appeal.

Woodland Hills attorney Dale K. Galipo, who represented Valenzuela's family, said he expected the city to seek en banc review and that it might take the case to the U.S. Supreme Court.

"Chaudhry is binding federal law," Galipo said. "Unless it is overturned, the city doesn't have [a solid argument] to overturn the loss of life damages."

Laurie L. Levenson, a professor at Loyola Law School, said Lee's dissent is a signal that a U.S. Supreme Court appeal is possible especially given his critique of Chaudhry.

"The point of Section 1983 is to go beyond state law," Levenson said in a telephone interview. "Can you transplant state law to a federal action because you think the plaintiffs got enough?"