Fermin Valenzuela v. City of Anaheim

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 3, 2021
• Docket: 20-55372
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FERMIN VINCENT VALENZUELA; et al., No. 20-55372

Plaintiffs-Appellees, D.C. Nos. 8:17-cv-00278-CJC-DFM v. 8:17-cv-02094-CJC-DFM

CITY OF ANAHEIM; et al., MEMORANDUM* Defendants-Appellants.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted May 5, 2021 Pasadena, California

Before: OWENS and LEE, Circuit Judges, and SIMON,** District Judge. Dissent by Judge LEE

The City of Anaheim and individual officers (“Defendants”) appeal from the

district court’s denial of their post-trial motions after a jury found them liable for

the death of Fermin Valenzuela, Jr. The district court denied qualified immunity

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. and upheld the jury’s finding that the officers used excessive force and violated

California’s Tom Bane Civil Rights Act (“Bane Act”), and that the City was liable

under Monell. 1 As the parties are familiar with the facts, we do not recount them

here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Qualified Immunity

When considering whether an officer is entitled to qualified immunity for a

42 U.S.C. § 1983 claim, we assess “(1) whether there has been a violation of a

constitutional right; and (2) whether that right was clearly established at the time of

the officer’s alleged misconduct.” S.B. v. County of San Diego, 864 F.3d 1010,

1013 (9th Cir. 2017) (citation omitted).

Substantial evidence supports the jury’s finding of excessive force in

violation of Valenzuela’s Fourth Amendment rights. For excessive force claims,

we evaluate: (1) “the type and amount of force inflicted, (2) the government’s

interest in the use of force, and (3) the balance between the gravity of the intrusion

. . . and the government’s need.” Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir.

2021) (internal quotations and citation omitted). When considering the

government’s interest, we assess “how severe the crime at issue was,” “whether the

suspect was actively resisting arrest or attempting to evade,” and, most

1 The district court also upheld the jury’s $3.6 million award for Valenzuela’s “loss of life.” We resolve the damages issue in a concurrently filed opinion.

2 importantly, “whether the suspect posed an immediate threat to the safety of the

officers or others.” Id. “Because this appeal comes after the jury’s verdict, we

must construe the facts in the light most favorable to the jury’s verdict”—in this

case, in favor of the Plaintiffs. Shafer v. County of Santa Barbara, 868 F.3d 1110,

1115 (9th Cir. 2017) (internal quotations and citation omitted).

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—behavior we have previously identified as “severe” force “capable of

causing death or serious injury.” Drummond ex rel. Drummond v. City of

Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003) (describing officers’ “press[ing]

their weight on [the suspect’s] neck and torso as he lay handcuffed on the ground

and begged for air”). 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. See id., 343 F.3d at 1059 (“[W]e may certainly consider a

police department’s own guidelines when evaluating whether a particular use of

force is constitutionally unreasonable.”). Ample evidence thus supports the jury’s

3 finding.2

For the second prong, at the time of Valenzuela’s encounter with officers on

July 2, 2016, any reasonable officer would have been on “clear notice that using

deadly force in these particular circumstances would be excessive.” S.B., 864 F.3d

at 1015. In 2003, we held that “squeezing the breath from a compliant, prone, and

handcuffed individual despite his pleas for air involves a degree of force that is

greater than reasonable.” Drummond, 343 F.3d at 1059. And in 2013, we

reaffirmed our prior conclusion, from 2009, that “it violate[s] clearly established

law to use a choke hold on a non-resisting arrestee who had surrendered, pepper-

spray him, and apply [severe] knee pressure on his neck and back.” Barnard v.

Theobald, 721 F.3d 1069, 1073, 1076 (9th Cir. 2013). Recently, we cited both

Drummond and Barnard to deny qualified immunity to officers who “seize[d] a

non-resisting, restrained person by placing him in a chokehold.” Tuuamalemalo v.

Greene, 946 F.3d 471, 479 (9th Cir. 2019) (per curiam).

Both the Defendants and dissent attempt to distinguish the above cases based

on Valenzuela’s resistance. But they ignore the fact that by the time of the final

hold, Valenzuela was subdued: He was lying on the ground with his arms pinned

down by two officers, and he was kept in the choke hold for at least one minute

2 The Defendants’ reliance on Gregory v. County of Maui, 523 F.3d 1103, 1108-09 (9th Cir. 2008) is unpersuasive, as the suspect in Gregory was armed, acting aggressively, and had already assaulted a third party.

4 despite the arm restraints. See LaLonde v. County of Riverside, 204 F.3d 947, 961

(9th Cir. 2000) (“[I]n a situation in which an arrestee surrenders and is rendered

helpless, any reasonable officer would know that a continued use of [force] . . .

constitutes excessive force.” (emphasis added)); see also Lombardo v. City of St.

Louis, 141 S. Ct. 2239, 2241-42 (2021) (per curiam) (rejecting any per se rule

permitting officers to use a “prone restraint . . . so long as an individual appears to

resist officers’ efforts to subdue him”). In addition, none of the cases the

Defendants cite regarding active resistance involve neck restraints or a similar use

of force, and none resulted in the suspect’s death. See Shafer, 868 F.3d at 1116

(leg sweep); Emmons v. City of Escondido, 921 F.3d 1172 (9th Cir. 2019) (per

curiam) (tackling suspect); and Gravelet-Blondin v. Shelton, 728 F.3d 1086 (9th

Cir. 2013) (stun gun).

Finally, to the extent that training materials are also relevant to the inquiry,

see Vazquez v. County of Kern, 949 F.3d 1153, 1164-65 (9th Cir. 2020), the

officers in this case were trained not to apply the carotid hold for longer than 30

seconds or attempt the hold more than twice within 24 hours, and they knew that

an improper hold could lead to asphyxia or death. Nonetheless, they placed

Valenzuela in three separate, extended holds within a 10-minute period. See

Drummond, 343 F.3d at 1059 (describing the officers’ use of the choke hold as

“even more striking” in light of specific warnings of the “extreme danger” of

5 compression asphyxia).

2. Monell Liability

To hold a city liable under § 1983 for an official policy, a plaintiff must

show that the city’s “policy or custom” led to his injury. Castro v. County of Los

Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc) (citing Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 694 (1978)). A city’s policy “‘causes’ an injury where it

is ‘the moving force’ behind the constitutional violation.’” Chew v. Gates, 27 F.3d

1432, 1444 (9th Cir. 1994) (citation omitted). Substantial evidence supports the

jury’s finding of Monell liability against the City.

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.

The Defendants do not meaningfully challenge causation. Instead, they

argue that the Plaintiffs did not show the policy was facially unconstitutional. But

“[c]ity policy need only cause [the] constitutional violation; it need not be

unconstitutional per se.” Chew, 27 F.3d at 1444 (second alteration in original)

6 (internal quotations and citation omitted). The Defendants also argue that the

Plaintiffs were required to show the City was “deliberately indifferent” in

maintaining such a policy. But the Defendants never objected to the jury

instructions before the district court, and they do not challenge the instructions on

appeal. Thus, their argument is waived. See Dodd v. Hood River County, 59 F.3d

852, 863 (9th Cir. 1995) (“[A] federal appellate court does not consider an issue

not passed upon below.” (citation omitted)).

3. Bane Act

California’s Bane Act, codified as Cal. Civ. Code § 52.1, requires plaintiffs

to demonstrate “a specific intent to violate the arrestee’s right to freedom from

unreasonable seizure.” Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th

Cir. 2018) (citation omitted). 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.

7 AFFIRMED.

8 FILED Valenzuela v. City of Anaheim, 20-55372 AUG 3 2021 MOLLY C. DWYER, CLERK LEE, Circuit Judge, dissenting: U.S. COURT OF APPEALS

Tragically, a routine police stop spiraled out of control and led to the death of

Fermin Valenzuela, Jr. Acting on a woman’s complaint about a man following her,

two Anaheim police officers approached Valenzuela in a laundromat. After noticing

what looked like a methamphetamine pipe on the floor and witnessing Valenzuela

put a screwdriver in his bag, one of the officers asked him to put his hands behind

his back. He did not comply. Then one officer grabbed Valenzuela’s arm and tried

to put it behind his back.

In the ensuing struggle, all three men fell to the ground, and the two officers

tried to restrain Valenzuela for the next two minutes. At least 40 times, the officers

directed Valenzuela to stop resisting — to no avail. One of the officers put him in a

neck restraint, causing a distressed Valenzuela to say that he could not breathe.

Despite two officers’ attempts to restrain him, Valenzuela managed to slip

away and fled the laundromat. One of the officers tased him multiple times, but

Valenzuela, now shirtless and his pants nearly falling off, kept on running. He

sprinted across several lanes of traffic but tripped on a curb in a parking lot. One of

the officers straddled Valenzuela and tried to roll him onto his stomach but

Valenzuela resisted. The officer then, yet again, put Valenzuela in a neck restraint,

who visibly struggled to breathe and complained about it. Two more officers arrived, and each grabbed one of Valenzuela’s arms. Over the next minute and forty-

five seconds, the officers ordered Valenzuela six times to stop resisting as they

struggled to handcuff him. Once the other two officers finally managed to put

handcuffs on Valenzuela, the officer who had him in the neck restraint released him

immediately. Sadly, Valenzuela lost consciousness. The officers administered CPR,

but Valenzuela died eight days later in a hospital.

I agree with the majority that the police officers used excessive force. But

that does not end our inquiry. Under the Supreme Court’s qualified immunity

doctrine, a police officer may have violated someone’s constitutional right but he or

she may still have immunity if that right was not “clearly established at the time of

the officer’s alleged misconduct.” S.B. v. County of San Diego, 864 F.3d 1010, 1013

(9th Cir. 2017). And in this case, that right was not clearly established under our

court’s precedent as of July 2, 2016 when this tragic event occurred. I thus

respectfully dissent.

* * * *

Like many qualified immunity cases, this appeal turns on the second prong of

the test: Was Valenzuela’s constitutional right to be free from a neck restraint under

these facts “clearly established” as of July 2, 2016? Put another way, we must ask

whether a reasonable officer would have been on “clear notice that using [the

particular] force in these particular circumstances would be excessive.” S.B., 864

2 F.3d at 1015-16. This is a very high bar: “To be clearly established, a right must be

sufficiently clear that every reasonable official would have understood what he is

doing violates that right.” Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016)

(emphasis in original). 1 So, in most cases, “officers are entitled to qualified

immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”

Kisela v. Hughes, __ U.S. __, 138 S. Ct. 1148, 1153 (2018) (emphasis added).

Although we “do not require a case directly on point,” existing precedent

“must have placed the statutory or constitutional question beyond debate.” Hamby,

821 F.3d at 1015 (internal quotation marks and citations omitted) (emphasis added).

As the Supreme Court recently reminded us while reversing this court 9-0, factually

analogous case law is “especially important in the Fourth Amendment context,

where the Court has recognized that it is sometimes difficult for an officer to

determine how relevant the legal doctrine, here excessive force, will apply to the

factual situation the officer confronts.” City of Escondido v. Emmons, 139 S. Ct.

1 Scholars, judges, and even Supreme Court Justices have raised significant questions about the basis for our qualified immunity framework. See Ziglar v. Abassi, 137 S. Ct. 1843, 1870-72 (2017) (Thomas, J., concurring) (“The Civil Rights Act of 1871 . . . made no mention of defenses or immunities . . . Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act . . . our qualified immunity precedents . . . represent precisely the sort of ‘freewheeling policy choices’ that we have previously disclaimed the power to make”) (cleaned up). See also generally William Baude, “Is Qualified Immunity Unlawful?” University of Chicago Public Law & Legal Theory Paper Series, No. 610 (2017). But unless the Supreme Court modifies this framework, we must follow it.

3 500, 503 (2019) (citing Kisela, 138 S. Ct. at 1153). Indeed, the use of “excessive

force is an area of law in which the result depends very much on the facts of each

case, and thus police officers are entitled to qualified immunity unless existing

precedent squarely governs the specific facts at issue.” Id. Importantly, “[p]recedent

involving similar facts can help move a case beyond the otherwise ‘hazy border

between excessive and acceptable force.’” Kisela, 138 S. Ct. at 1153 (citing

Mullenix, 136 S. Ct. at 309, 312).

Valenzuela has not pointed to a single pre-July 2, 2016 single case that

“‘squarely governs’ the specific facts at issue” — i.e., whether the use of a neck

restraint is unlawful when a suspect actively resists arrest. Kisela, 138 S. Ct. at

1153. In all the cases cited by the majority, the suspect already had been restrained

or had surrendered when the officers used a chokehold or similar restraint. For

example, in Drummond ex rel. Drumond v. City of Anaheim, we held that officers

used excessive force by “press[ing] their weight on [the suspect’s] neck and torso as

he lay handcuffed on the ground.” 343 F.3d 1052, 1056 (9th Cir. 2003) (emphasis

added). In Barnard v. Theobald, we recognized that the use of a chokehold on “a

non-resisting arrestee who had surrendered” violates the Fourth Amendment. 721

F.3d 1069, 1073, 1076 (9th Cir. 2013) (emphasis added). And Tuuamalemalo v.

Greene involved yet again a “non-resisting” defendant. 946 F.3d 471, 479 (9th Cir.

2019) (per curiam) (emphasis added).

4 In contrast here, Valenzuela had neither surrendered nor was he handcuffed.

Instead, he did not comply with the officers’ orders and vigorously resisted being

handcuffed or restrained. The video evidence reveals that officers immediately de-

escalated and removed pressure from Valenzeula’s chest and neck after handcuffing

him.

The majority opinion argues that the officers kept him in a neck restraint for

at least a minute after he was “already lying on the ground with his arms restrained

by two officers during the final hold.” But we cannot isolate the final minute of the

encounter from the four preceding it. In those four minutes, Valenzuela repeatedly

refused to comply with officers’ requests to stand down, managed to escape from

two officers who were trying to hold him down, did not stop after being repeatedly

tased, and dragged officers on a chase across a busy street. Notably, he resisted and

escaped from multiple attempted neck restraints involving several officers and

withstood several taser shocks. Given that backdrop, one of the officers continued

to hold Valenzuela in a neck restraint while his two colleagues tried to handcuff him.

And the moment they managed to put handcuffs on him, the officers released him.

To be clear, none of these facts justify the police officers’ excessive force.

Valenzuela, a father of two, should not have died that day. Qualified immunity may

sometimes lead to seemingly unjust results, but we are bound to follow it. And under

our qualified immunity doctrine, we need to determine whether a right was “clearly

5 established” at that time such that a prior case “‘squarely governs’ the specific facts

at issue” in this case. Kisela, 138 S. Ct. at 1153. And here, there was no prior case

“squarely govern[ing]” the officers’ conduct as of July 2, 2016. Id. I thus must