88 09.08.21 Valenzuela Response To PFR

Case: 20-55372, 09/08/2021, ID: 12223647, DktEntry: 88, Page 1 of 26
No. 20-55372
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________
FERMIN VALENZUELA, et al.,
Plaintiffs and Appellees,
versus
CITY OF ANAHEIM, et al.,
Defendants and Appellants.
____________________________________
On Appeal from the United States District Court

for the Central District of California,
Case Nos. 8:17-cv-00278-CJC-DFM, 8:17-cv-02094-CJC-DFM
The Honorable Cormac J. Carney, United States District Judge
___________________________________
APPELLEES’ RESPONSE TO PETITION FOR PANEL REHEARING AND

FOR REHEARING EN BANC
___________________________________
Garo Mardirossian Dale K. Galipo

Lawrence D. Marks Hang D. Le
Mardirossian & Associates, Inc. Law Offices of Dale K. Galipo
A Professional Law Corporation 21800 Burbank Boulevard, Suite 310
6311 Wilshire Boulevard Woodland Hills, CA 91367
Los Angeles, CA 90048-5001 Telephone: (818) 347-3333
Telephone: (323) 653-6311
John Fattahi
Law Office of John Fattahi
21250 Hawthorne Boulevard, Suite 500
Torrance, California 90503
Telephone: (424) 999-5579
Attorneys for Plaintiffs-Appellees V.V. and X.V.

TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................3
I. THE PANEL OPINION FAITHFULLY APPLIED SUPREME

COURT AND NINTH CIRCUIT PRECEDENT .................................3
II. THE PANEL OPINION CREATES NO CIRCUIT SPLIT
WARRANTING FURTHER REVIEW ..............................................10
III. CHAUDHRY SHOULD NOT BE OVERTURNED .........................14
IV. THE UNPUBLISHED MEMORANDUM DOES NOT
WARRANT FURTHER REVIEW .....................................................16
CONCLUSION ........................................................................................................19
STATEMENT OF RELATED CASES ...................................................................20
CERTIFICATE OF COMPLIANCE .......................................................................21
-i-
TABLE OF AUTHORITIES
Cases
B.B. v. County of Los Angeles,

10 Cal. 5th 1 (2020) ..............................................................................................13
Barnard v. Theobald,
721 F.3d 1069 (9th Cir. 2013) ..............................................................................17
Bell v. City of Milwaukee,
746 F.2d 1205 (7th Cir. 1984) ...................................................................... passim
Berry v. City of Muskogee,
900 F.2d 1489 (10th Cir. 1990) ..............................................................................5
Brazier v. Cherry,
293 F.2d 401 (5th Cir. 1961) ................................................................................11
Brosseau v. Haugen,
543 U.S. 194 (2004) ..............................................................................................18
Byrd v. Guess,
137 F.3d 1126 (9th Cir. 1998) ....................................................................... 11, 12
Carlson v. Green,
446 U.S. 14 (1980) ............................................................................................5, 10
Casillas v. City of Fresno,
2019 WL 2869079 (E.D. Cal. July 3, 2019) ...........................................................7
Chaudhry v. City of Los Angeles,
751 F.3d 1096 (9th Cir. 2014) ...................................................................... passim
Chew v. Gates,
27 F.3d 1432 (9th Cir. 1994) ................................................................................18
Drummond v. City of Anaheim,
343 F.3d 1052 (9th Cir. 2003) ..........................................................................8, 17
Durham v. Marberry,
156 S.W.3d 242 (Ark. 2004) ..................................................................................8
Frontier Insurance Company v. Blaty,
454 F.3d 590 (6th Cir. 2006) ........................................................................ passim
Graham v. Sauk Prairie Police Comm’n,
915 F.2d 1085 (7th Cir. 1990) ..........................................................................8, 15
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Gregory v. County of Maui,

523 F.3d 1103 (9th Cir. 2008) ..............................................................................18
Guyton v. Phillips,
532 F. Supp. 1154 (N.D. Cal. 1981) .......................................................................7
Henricksen v. State of Montana,
319 Mont. 307, 84 P.3d 38 (2004) ..........................................................................8
Jaco v. Bloechle,
729 F.2d 239 (6th Cir. 1984) ........................................................................ passim
Krouse v. Graham,
9 Cal. 3d 59 (1977) ...............................................................................................12
McFadden v. Sanchez,
710 F.2d 907 (2d Cir. 1983) ...................................................................................5
Mendez v. County of San Bernardino,
540 F.3d 1109 (9th Cir. 2008) ..............................................................................15
Monroe v. Pape,
365 U.S. 167 (1961) ..........................................................................................4, 16
Oltz v. St. Peter’s Community Hosp.,
861 F.2d 1440 (9th Cir. 1988) ................................................................................9
People v. Bradley,
1 Cal. 3d 80 (1969) ...............................................................................................16
Robertson v. Wegmann,
436 U.S. 584 (1978) ...................................................................................... passim
Silva v. Chung,
2019 WL 2292073 (D. Haw. May 29, 2019)..........................................................8
Sullivan v. Little Hunting Park,
396 U.S. 229 (1969) ..................................................................................... 3, 4, 10
Tuuamalemalo v. Greene,
946 F.3d 471 (9th Cir. 2019) ................................................................................17
Statutes
42 U.S.C. § 1983 .............................................................................................. passim

42 U.S.C. § 1988 ..................................................................................................3, 11
CAL. CIV. CODE § 3333.2 .........................................................................................13
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CAL. CODE CIV. P. § 377.34 ........................................................................ 1, 4, 5, 10

CAL. CODE CIV. P. § 377.60 .....................................................................................12
CAL. GOVT. CODE § 945 ...........................................................................................12
NEV. REV. STAT. 41.035 ...........................................................................................13
-iv-
INTRODUCTION
When state officials violate the Fourth Amendment so profoundly that a life
is lost, courts must ensure an appropriate remedy exists under 42 U.S.C. § 1983
consistent with its purposes of compensation and deterrence. California Code of
Civil Procedure section 377.34 is inconsistent with § 1983’s purposes because it
limits damages to the victim’s pre-death economic losses, which in most deadly
force cases are non-existent. This Court’s decisions here, and in Chaudhry v. City
of Los Angeles, 751 F.3d 1096 (9th Cir. 2014), correctly held that section 377.34
“does not apply to § 1983 claims where the decedent’s death was caused by the
violation of federal law.” Id. at 1105. Both decisions, and the well-reasoned
decisions of three sister circuits with which Chaudhry agreed, faithfully applied the
Supreme Court’s limited holding in Robertson v. Wegmann, 436 U.S. 584 (1978).
Robertson did not consider appropriate damages for a constitutional
violation causing death. It allowed the abatement of a § 1983 action under
Louisiana survivorship law, after a malicious prosecution plaintiff died years later
for unrelated reasons, leaving no surviving close relatives. The Court
painstakingly explained that its “narrow,” “limited” holding is inapplicable where
either the constitutional violation causes death, state law is generally inhospitable
to § 1983, or there is any adverse effect on § 1983’s policies in a particular case.
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436 U.S. at 594. All three of those distinguishing circumstances existed here and
in Chaudhry; thus, there is no conflict with Robertson.
Nor do these two decisions regarding § 1983 survival damages in California
create a circuit split of national importance. An outlier decision by the Sixth
Circuit, Frontier Insurance Company v. Blaty, 454 F.3d 590 (6th Cir. 2006),
ignored Robertson’s self-imposed limitations and conducted an inapposite analysis
premised on § 1983 wrongful death damages, unlike that court’s prior decision,
Jaco v. Bloechle, 729 F.2d 239 (6th Cir. 1984), which correctly found Ohio’s
survival statute inconsistent with § 1983 because it foreclosed recovery in the
event of instantaneous death. No circuit has ever upheld a damages limitation like
California’s in a § 1983 deadly force case, and several states permit recovery of
damages for loss of life, including within this circuit. Thus, the petition actually
seeks to create a split of authority.
The other two grounds in the petition challenge straightforward holdings in
an unpublished memorandum, one unanimous, that clearly do not warrant
rehearing. This Court should decline further review.
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ARGUMENT
I. THE PANEL OPINION FAITHFULLY APPLIED SUPREME

COURT AND NINTH CIRCUIT PRECEDENT
In its Opinion, the majority correctly concluded that damages for a deadly
force victim’s “loss of life” are recoverable in a § 1983 survival action,
notwithstanding California’s damages limitation. Indeed, Appellants conceded
loss of life damages were recoverable, jointly requesting instructions and verdict
forms that included them, until the jury returned an adverse verdict.1
“The existence of a statutory right implies the existence of all necessary and
appropriate remedies.” Sullivan v. Little Hunting Park, 396 U.S. 229, 239 (1969).
Under § 1988, “both federal and state rules on damages may be utilized, whichever
better serves the policies expressed in [§ 1983].” Id. at 240. “The rule of damages,
whether drawn from federal or state sources, is a federal rule responsive to the
need whenever a federal right is impaired.” Id. Section 1988 initially directs
courts to vindicate rights protected by § 1983 using the “laws of the United States.”
42 U.S.C. § 1988. Courts may apply state law only if federal law is “not adapted
to the object, or [is] deficient in the provisions necessary to furnish suitable
remedies and punish offenses.” Id. However, courts must not follow state law if
1
The panel did not consider Appellees’ argument that Appellants’ conduct
constituted waiver and invited error. Answering Bf. 54. Appellants claimed they
objected at the November 7, 2019 pretrial conference, Reply Bf. 21 (citing 2-ER-
77), but the transcript, C.D. Cal. Case No. 17-CV-00278-CJC, Dkt. No. 432, belies
that false assertion.
-3-
doing so would be “inconsistent with” § 1983’s compensation and deterrence
purposes. Id.
“One of Congress’s primary goals in enacting § 1983 was to provide a
remedy for killings unconstitutionally caused or acquiesced in by state
governments.” Chaudhry, 751 F.3d at 1103 (quoting Monroe v. Pape, 365 U.S.
167, 172-76 (1961)); see Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984)
(“The legislative history behind Section 1983 expresses an unequivocal concern
for protecting life.”). Here, rather than “furnish suitable remedies,” section 377.34
eliminates them entirely in most § 1983 deadly force cases.
In 2014, Chaudhry unanimously held the district court erred by applying
section 377.34 to strike the decedent’s pre-death pain and suffering damages from
a police shooting. 751 F.3d at 1105. Chaudhry “beg[an]” its analysis with
Robertson, noting “crucial” distinctions that Appellants, Judge Lee’s dissent, and
the Blaty court, conspicuously ignore. Id. at 1103-04. The entire final section of
the Robertson opinion emphasized its limited scope, cautioning:
Our holding today is a narrow one, limited to situations in which no

claim is made that state law generally is inhospitable to survival of §
1983 actions and in which the particular application of state
survivorship law . . . has no independent adverse effect on the policies
underlying § 1983. . . . We intimate no view, moreover, about
whether abatement based on state law could be allowed in a situation
in which deprivation of federal rights caused death.
436 U.S. at 594-95.
-4-
Robertson found that applying Louisiana’s statute to the “few” people who
die without close relatives, “surely would not adversely affect” § 1983’s deterrence
role, “in situations in which there is no claim that the illegality caused the
plaintiff’s death.” Id. at 591-92 & n.10. Chaudhry emphasized that Robertson
“repeatedly distinguished Louisiana’s abatement law from cases ‘in which
deprivation of federal rights caused death.’” 751 F.3d at 1104. But the
deprivations in Chaudhry and the case at bar caused death, and California law
would eliminate all damages for the decedents’ harm because the defendants killed
them. Section 377.34 thus has the “perverse effect of making it more economically
advantageous for a defendant to kill rather than injure his victim.” Id. In the
context of Bivens actions, the Supreme Court held post-Robertson that state law
may not “subvert the policy of allowing complete vindication of constitutional
rights” by making it more advantageous “to kill rather than to injure.” Carlson v.
Green, 446 U.S. 14 (1980). Thus, agreeing with the reasoning of three sister
circuits in Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990), Bell, and
McFadden v. Sanchez, 710 F.2d 907 (2d Cir. 1983), Chaudhry held that section
377.34 is inconsistent with § 1983’s deterrence purpose, when the deprivation
causes death. Id. at 1105.
Here, the district court and panel majority correctly applied the holdings of
Robertson, Chaudhry, and Bell, holding that section 377.34 also does not preclude
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damages for the decedent’s loss of life in § 1983 deadly force cases. Although
Chaudhry dealt specifically with pre-death pain and suffering, it adopted Bell’s
reasoning and quoted its holding that Wisconsin law precluding “loss of life”
damages was inconsistent with § 1983’s deterrence purpose, “since it would be
more advantageous to the unlawful actor to kill rather than injure.” Chaudhry, 751
F.3d at 1105. Appellants incorrectly claim Bell is inapposite because it refused to
apply a statute that would alternatively preclude any wrongful death damages or
cap recovery at $25,000. Pet. 6 (citing Bell, 746 F.2d at 1250-51). The irrelevant
section of Bell cited by Appellants analyzed damages for violation of surviving
family members’ Fourteenth Amendment right to familial association—a different
constitutional claim with a nearly insurmountable culpability standard not met
here. 746 F.2d at 1242-53. Appellants ignore Bell’s relevant, separate section
holding that states may not bar loss of life damages in a survival action for
violation of the decedent’s right. Id. at 1234-41. Like in California, “the
Wisconsin statutory scheme creates a survival action in favor of the estate for pre-
death injuries and a wrongful death action in favor of the victim’s survivors, and
neither type of action traditionally allows recovery of damages for loss of life
itself.” Id. at 1236.
Bell did not write on a clean slate. Bell found “directly pertinent,” and
Chaudhry cited with approval, a district court decision, after a bench trial, that
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despite California’s damages restriction, an appropriate § 1983 remedy for the use
of excessive deadly force should include damages for the decedent’s pre-death pain
and suffering and loss of life. Guyton v. Phillips, 532 F. Supp. 1154, 1167-68
(N.D. Cal. 1981) (awarding $15,000 and $100,000, respectively). Indeed, before
and after Chaudhry, California’s district courts routinely found California’s
prohibition of loss of life damages inapplicable to § 1983 deadly force claims. See
Casillas v. City of Fresno, 2019 WL 2869079, at *16 (E.D. Cal. July 3, 2019);
Answering Bf. 58 (collecting cases).
As the Opinion recognized, prohibiting loss of life damages runs afoul of §
1983’s remedial purpose “as much as (or even more than) the ban on pre-death
pain and suffering damages” specifically contested in Chaudhry.2 Op. 3. The
decedent’s loss of life is the central harm inflicted by deadly force violating the
Fourth Amendment. Such damages are the only § 1983 compensatory damages
available for every unconstitutional killing. They do not depend on the victim
remaining conscious or being gainfully employed. In the typical case involving
multiple semi-automatic pistol shots at “center mass,” the fatality of such force will
either limit pre-death pain and suffering to a brief time period, or result in
2
Although the panel based its decision on § 1983’s deterrence purpose,
precluding damages for the decedent’s loss of life is also inconsistent with
compensation. That a defendant’s unconstitutional conduct was so deadly that it
makes damages for the core harm payable to a decedent’s estate should not result
in a windfall to the defendant.
-7-
instantaneous death. In fatal restraint cases, a clearly established violation often
will not occur until around the time the victim loses consciousness. See
Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003). And Appellants do
not dispute Chaudhry’s observation that “the victims of excessive police force are
often low-paid or unemployed.” 751 F.3d at 1104.
Further, as the Seventh Circuit reasoned while reaffirming Bell, “§ 1983 is a
federal statute, and thus, its interpretation should not vary from state to state.”
Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085, 1106 (7th Cir. 1990). “It
makes no sense to preclude [California] plaintiffs from recovering loss of life
damages while plaintiffs in other states can recover those damages.” Id. at 1106.
The Sixth, Seventh, and Tenth Circuits have declined to apply other states’ similar
prohibitions of loss of life damages. Answering Bf. 58-59 (collecting cases).
Further, loss of life damages are recoverable under state law in at least two states
within this Circuit, plus several states outside it. See Silva v. Chung, 2019 WL
2292073, at *5 (D. Haw. May 29, 2019) (Hawaii); Henricksen v. State of Montana,
319 Mont. 307, 328 (2004) (Montana); Durham v. Marberry, 156 S.W.3d 242,
246-48 (Ark. 2004) (Arkansas survival statute permits loss of life damages, like
New Mexico and Connecticut).
Appellants and Judge Lee’s dissent repeatedly gesticulate toward the
abnormally large damages in this case, without acknowledging they are not typical
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of § 1983 litigation.3 Here, there was audio-visual evidence of the decedent’s
substantial pain and suffering. Valenzuela was subjected to three separate air
choke holds lasting several minutes, and his complaints that he couldn’t breathe
and cries for help were ignored. He survived for eight days, although he was
comatose. Although the jury also awarded wrongful death damages under
supplemental state claims, based on compelling evidence of substantial harm to
Valenzuela’s young children, those damages are irrelevant to § 1983’s purposes, as
set forth below.
As the panel noted, juries are in the best position to determine appropriate
damages based on evidence of the actual harm inflicted. If damages are excessive
or based on passion or prejudice, district courts have broad discretion to grant a
new trial on damages, even sua sponte. See Oltz v. St. Peter’s Community Hosp.,
861 F.2d 1440, 1452 (9th Cir. 1988). Appellants do not claim damages were
excessive in relation to the evidence of harm and causation. Instead, they seek to
categorically and arbitrarily prevent juries from considering damages for the
central harm inflicted, based on a state tort reform statute that would impede §
1983’s purposes.
3
A more representative case in terms of § 1983 damages, Craig v. Petropulos,
No. 19-55324 (9th Cir. Aug. 18, 2021), is the subject of a related petition. There,
after finding a police officer used excessive force in firing a single shot, the jury
awarded § 1983 damages of $200,000 for pre-death pain and suffering and $1.8
million for loss of life. Under a state wrongful death claim, the jury awarded the
decedent’s parents $700,000 each for their harm.
-9-
II. THE PANEL OPINION CREATES NO CIRCUIT SPLIT

WARRANTING FURTHER REVIEW
Rehearing likewise is not warranted due to any circuit split. The Opinion is
not at odds with the Sixth Circuit, which in Blaty applied inapposite Michigan law
and departed from the Supreme Court’s guidance in Sullivan, Robertson, and
Carlson. No circuit has ever upheld a severe damages limitation comparable to
section 377.34 in a § 1983 deadly force case. However, three sister circuits
(including the Sixth Circuit in Jaco), district courts throughout the country, and
even the laws of several states, currently authorize loss of life damages in such
cases.
Blaty, like Robertson, was a highly unusual case. An infant was placed with
a private foster care agency under state contract, then with a private individual.
After the girl died from bronchitis at age 2, her estate’s court-appointed
representative sued the agency and individual under § 1983. 454 F.3d at 593. The
district court entered a default judgment of $100,000 in pre-death pain and
suffering against the defendants’ insurer, because it brought insufficient authority
to a settlement conference. Id. at 594. The insurer appealed, and the plaintiff
cross-appealed the denial of loss of life damages. Id. at 595. Unlike California,
Michigan law allowed the estate to bring a § 1983 action to recover both pre-death
pain and suffering damages and wrongful death damages for harm to surviving
family. Id. at 601. The Blaty court pointed out it was only under “the unique
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circumstances” and “outlier of facts” in that case—a deceased with no surviving
family, like in Robertson—that the “typical recovery” in Michigan § 1983 death
cases, wrongful death damages for survivors’ harm, were unavailable. Id. at 601,
603-04. Blaty found Michigan law was not inconsistent with § 1983’s deterrence
purpose only because it provided for § 1983 wrongful death damages in almost
every case. Id. at 601.
Blaty’s consideration of wrongful death damages is inapplicable for several
independent reasons that the dissent and Judge Lee’s dissent ignore. Here,
wrongful death damages were recovered under supplemental state law claims, not
§ 1983. As the Sixth Circuit itself held in Jaco, state wrongful death claims are
“irrelevant to the § 1988 analysis imposed on this action by Robertson.” 739 F.2d
at 243 n.5. Unlike Michigan, California has two distinct causes of action for
survival and wrongful death, and different parties have standing to bring them.
Further, unlike the Fifth and Sixth Circuits, this Court does not allow family
members to vicariously assert their decedent’s Fourth Amendment rights in a §
1983 claim seeking wrongful death damages for their own harm. See Byrd v.
Guess, 137 F.3d 1126, 1134 (9th Cir. 1998); cf. Brazier v. Cherry, 293 F.2d 401,
407 & n.15, 409 (5th Cir. 1961) (holding that to effectuate § 1983’s purposes, §
1988 permits single action for survival and wrongful death damages from
excessive deadly force, even though Georgia’s laws, like California’s, “prescribe
-11-
separate and distinct causes of action”), cited with approval, Robertson, 436 U.S.
at 594. Instead, the decedent’s rights can only be vindicated in a § 1983 survival
action by his personal representative or intestate successor. This Court would have
to overturn Byrd to make Blaty potentially relevant.
Moreover, the panel majority correctly noted that state wrongful death
damages do not further § 1983’s compensation purpose because they compensate
third parties for “different injuries.” Unlike survival damages, which are
distributed according to the decedent’s wishes (or if unexpressed, intestacy
statutes), only qualifying family members can bring wrongful death claims. CAL.
CODE CIV. P. § 377.60. California also has strict exhaustion requirements for
claims against public entities and employees. CAL. GOVT. CODE § 945 et seq.
Surviving family members must properly present state claims to the entity within
six months, then file a lawsuit within six months of the inevitable denial. Yet often
family members are unable to obtain reports or autopsy findings within six months,
making it difficult to find representation and satisfy these requirements. California
also precludes recovery for emotional distress, including grief and sorrow, in
wrongful death actions. Krouse v. Graham, 19 Cal. 3d 59, 72 (1977). And until
last year, municipal defendants and amicus curiae ASCDC claimed that a ballot
proposition required reduction of wrongful death damages to account for a
decedent’s comparative negligence. B.B. v. County of Los Angeles, 10 Cal. 5th 1,
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22-23 (2020). California already has draconian limits on medical malpractice
claims that apply to in-custody deaths, and there is always a possibility it will join
other states in enacting a broadly applicable cap. See CAL. CIV. CODE § 3333.2;
NEV. REV. STAT. 41.035 ($150,000 damages cap against state actors); Bell, 746
F.2d at 1251 (Wisconsin’s $25,000 wrongful death cap is inconsistent with §
1983).
Even ignoring the distinctions above, Blaty conducted a flawed analysis that
misconstrued the scope of Robertson and undervalued § 1983’s purposes. Instead
of applying the plain language of § 1988 and Supreme Court precedent regarding
the broad remedial purpose of § 1983, Blaty fashioned a novel inquiry into whether
“it is clear that [a state] remedy is wholly inconsistent with the Constitution and the
goals of section 1983,” finding Michigan law was not “entirely inconsistent.” Id.
at 603-04 (emphasis added). The Sixth Circuit did not overrule its prior decision in
Jaco, which distinguished Robertson and held Ohio law was “hostile to promoting
deterrence, protection and vindication against § 1983 civil rights infringements,”
because it provided no recovery in cases of instantaneous death. Id. at 245.
California’s statutory scheme does precisely that, even with Chaudhry.
Accordingly, the Opinion created no circuit conflict.
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III. CHAUDHRY SHOULD NOT BE OVERTURNED
As the foregoing demonstrates, Chaudhry was correctly decided. The
untethered policy arguments in the petition and Judge Lee’s dissent seek to
eliminate all § 1983 damages in this and practically every deadly force case in
California. The Supreme Court in Robertson, clearly concerned about such a
scenario, repeatedly stressed that its holding is inapplicable when deprivations
cause death, survival statutes are generally inhospitable to § 1983, or particular
applications adversely affect § 1983’s purposes. 436 U.S. at 594. The petition, not
Chaudhry, turns Robertson on its head by misappropriating inapposite dicta to
devalue § 1983’s remedial purpose.
The petition, citing Judge Lee’s dissent, argues that Chaudhry should have
considered that damages from pendent state wrongful death claims further § 1983’s
purposes, but as discussed above, those damages are for separate harm and are
irrelevant. Jaco, 739 F.2d at 243 n.5. The petition and amici also erroneously
assert that punitive damages and attorney’s fees meaningfully deter constitutional
violations. Punitive damages are not available in most cases, including this case
and Chaudhry. Section 1983’s purpose is to deter all constitutional violations, not
just those performed with the requisite culpability for punitive damages. Further,
due process limits punitive damages to a reasonable ratio compared to actual
survival damages. Mendez v. County of San Bernardino, 540 F.3d 1109, 1123 (9th
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Cir. 2008). As for attorney’s fees, they are unrelated to the violation’s harm and
serve an independent purpose of attracting competent counsel.
Again citing Judge Lee’s dissent, the petition claims Chaudhry was based on
a faulty premise that potential § 1983 liability influences police officers’ conduct
during fatal encounters, for which they typically receive indemnification. These
speculative assertions ignore that officers can certainly contemplate potential
liability before and after such encounters, including during training, when
reviewing written policies, and if those are insufficient, when sued under § 1983.
“The loss of life award to [the decedent’s] estate is directed towards deterring any
police officer who would contemplate taking the life of a person who poses no
threat of harm to the officer or the public.” Graham, 915 F.2d at 1105. As for
indemnification, here the City’s official policy was “so closely related” that it was
the “moving force” of Valenzuela’s loss of life. Thus, appropriate damages should
also deter municipalities from implementing policies and training that encourage
excessive deadly force. Municipalities and their insurers are profoundly aware of
potential civil liability—as evidenced by their aggressive campaign against loss of
life damages through proxy amici. The legal sea change Appellants seek would
send a clear message to police officers, municipalities, and the general public that
the lives of people like Valenzuela have no value under federal law.
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Finally, Appellants wrongly complain that Chaudhry “has the pernicious
effect of driving section 1983 cases into federal court.” One of Congress’s central
reasons for enacting § 1983 was “to afford a federal right in federal courts.”
Monroe, 365 U.S. at 180. Further, when exercising concurrent jurisdiction over §
1983 cases, state courts deciding issues of federal law are obligated to follow §
1988 and Supreme Court precedent, and substantially defer to federal circuit
courts. People v. Bradley, 1 Cal. 3d 80, 86 (1969). Accordingly, there is no reason
to consider overturning Chaudhry.
IV. THE UNPUBLISHED MEMORANDUM DOES NOT

WARRANT FURTHER REVIEW
Appellants challenge the panel’s Memorandum on two grounds, both of
which are confined to the narrow factual circumstances of this case and lack
substantive merit. First, the petition reprises Judge Lee’s criticism of the Court’s
denial of qualified immunity. The dissent, however, relies on an improper factual
scenario and erroneous reading of precedent. Viewing the evidence in the light
most favorable to Appellees, as required under Rule 50(b), Valenzuela was
subjected to three “air choke” holds, not carotid restraints, totaling several minutes,
even though he was restrained, non-resisting, no threat, under control, and in
obvious respiratory distress. Answering Bf. 3-20. Contrary to the assertion in
Judge Lee’s dissent, nobody tried to handcuff Valenzuela until after he became
unresponsive. 3-ER-485; 4-ER-690; 4-ER-772-74.

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Valenzuela’s right to be free from this deadly force was clearly established.
Drummond and Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely
govern, as reflected by this Court’s holding in Tuuamalemalo v. Greene, 946 F.3d
471 (9th Cir. 2019), that both cases were “directly on point” and clearly established
the right to be free from a less dangerous neck restraint under analogous
circumstances before January 2014. In Tuuamalemalo, the plaintiff was subjected
to one proper carotid hold, causing temporary unconsciousness, immediately after
he aggressively resisted arrest for ten minutes4 and officers reasonably punched
him. 946 F.3d at 477-78. Barnard did not, as the dissent contends, involve a
“non-resisting arrestee who had surrendered.” Mem. 4. A jury found Barnard
reasonably appeared to “forcibly resist” when the officers attempted to handcuff
him, and it was clearly established that even an unsuccessful carotid restraint
causing only temporary pain was excessive. 721 F.2d at 1074. And here, like in
Drummond, Anaheim officers ignored Valenzuela’s complaints that he couldn’t
breathe, and used a dangerous, asphyxiating restraint method they were trained not
to use absent a deadly force justification. 343 F.3d at 1059. That Drummond was
handcuffed, while Valenzuela’s arms were securely restrained by multiple officers
(like Tuuamalemalo), is immaterial.
4
Tuuamalemalo thus refutes the argument that Valenzuela’s earlier resistance
across the street immunizes the officers.
-17-
Even without the foregoing precedent, a robust consensus of persuasive
authority, and the officers’ own training, made clear that such force was deadly and
therefore excessive under these circumstances. Answering Bf. 37-44. As the panel
majority pointed out, Appellants’ continued reliance on Gregory v. County of
Maui, 523 F.3d 1103 (9th Cir. 2008), is unpersuasive. Gregory involved a hold
that was neither a carotid restraint nor an air choke, and the suspect was armed
with a weapon, acting aggressively, and assaulted the caller. Id. at 1105-09.
Finally, the petition challenges the Memorandum’s unanimous affirmance of
the Monell verdict against the City under Rule 50(b). Municipal liability was
essentially uncontested at trial. Answering Bf. 45-50. The City conceded the
officers acted pursuant to its official policy authorizing carotid restraints for
passive resistance. That policy was facially overbroad and unconstitutional, but
the panel correctly recognized that was unnecessary—it need only be the moving
force of the violation. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994).
The panel also correctly concluded that Appellants waived any argument
that deliberate indifference was an essential element, by jointly requesting Ninth
Circuit Model Instruction 9.5, which correctly omits it for cases like this involving
an “affirmative policy” rather than a “policy of omission.” 2-ER-238-40; Chew,
27 F.3d at 1444-45.
-18-
CONCLUSION
For the foregoing reasons, the Court should deny the petition for panel
rehearing and rehearing en banc.
DATED: September 8, 2021 Respectfully submitted,
By: /s/ John Fattahi
Garo Mardirossian
Lawrence D. Marks
Mardirossian & Associates, Inc.
A Professional Law Corporation
6311 Wilshire Boulevard
Los Angeles, CA 90048-5001
Telephone: (323) 653-6311
Dale K. Galipo
Hang D. Le
Law Offices of Dale K. Galipo
21800 Burbank Boulevard, Suite 310
Woodland Hills, CA 91367
Telephone: (818) 347-3333
John Fattahi
Law Office of John Fattahi
21250 Hawthorne Boulevard, Suite 500
Torrance, California 90503
Telephone: (424) 999-5579
Attorneys for Plaintiffs-Appellees V.V. and

X.V.
-19-
STATEMENT OF RELATED CASES
Counsel for Appellees is aware that a petition for rehearing was recently
filed in this Court in Craig v. Petropulos, Case No. 19-55324 (pet. filed Sep. 1,
2021), which also concerns the issue of § 1983 damages for loss of life in
California.
DATED: September 8, 2021 LAW OFFICE OF JOHN FATTAHI
By: /s/ John Fattahi

John Fattahi, Esq.
Attorneys for Plaintiffs-Appellees V.V. and

X.V.
-20-
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
Form 11. Certificate of Compliance for Petitions for Rehearing or Answers
Instructions for this form: http://www.ca9.uscourts.gov/forms/form11instructions.pdf
9th Cir. Case Number(s) 20-55372
I am the attorney or self-represented party.
I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for
panel rehearing/petition for rehearing en banc/answer to petition is (select one):
Prepared in a format, typeface, and type style that complies with Fed. R. App.
P. 32(a)(4)-(6) and contains the following number of words: 4,197 .
(Petitions and answers must not exceed 4,200 words)
OR
In compliance with Fed. R. App. P. 32(a)(4)-(6) and does not exceed 15 pages.
Signature s/John Fattahi Date Sep 8, 2021

(use “s/[typed name]” to sign electronically-filed documents)
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov
Form 11 Rev. 12/01/2018

-21-

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Case: 20-55372, 09/08/2021, ID: 12223647, DktEntry: 88, Page 1 of 26

On Appeal from the United States District Court

APPELLEES’ RESPONSE TO PETITION FOR PANEL REHEARING AND

Garo Mardirossian Dale K. Galipo

Attorneys for Plaintiffs-Appellees V.V. and X.V.

TABLE OF AUTHORITIES .................................................................................... ii

I. THE PANEL OPINION FAITHFULLY APPLIED SUPREME

STATEMENT OF RELATED CASES ...................................................................20

CERTIFICATE OF COMPLIANCE .......................................................................21

B.B. v. County of Los Angeles,

Gregory v. County of Maui,

42 U.S.C. § 1983 .............................................................................................. passim

CAL. CODE CIV. P. § 377.34 ........................................................................ 1, 4, 5, 10

consistent with its purposes of compensation and deterrence. California Code of

Civil Procedure section 377.34 is inconsistent with § 1983’s purposes because it

Robertson did not consider appropriate damages for a constitutional

violation causing death. It allowed the abatement of a § 1983 action under

for unrelated reasons, leaving no surviving close relatives. The Court

painstakingly explained that its “narrow,” “limited” holding is inapplicable where

to § 1983, or there is any adverse effect on § 1983’s policies in a particular case.

in Chaudhry; thus, there is no conflict with Robertson.

Nor do these two decisions regarding § 1983 survival damages in California

create a circuit split of national importance. An outlier decision by the Sixth

ignored Robertson’s self-imposed limitations and conducted an inapposite analysis

survival statute inconsistent with § 1983 because it foreclosed recovery in the

seeks to create a split of authority.

The other two grounds in the petition challenge straightforward holdings in

an unpublished memorandum, one unanimous, that clearly do not warrant

rehearing. This Court should decline further review.

I. THE PANEL OPINION FAITHFULLY APPLIED SUPREME

force victim’s “loss of life” are recoverable in a § 1983 survival action,

notwithstanding California’s damages limitation. Indeed, Appellants conceded

to the object, or [is] deficient in the provisions necessary to furnish suitable

doing so would be “inconsistent with” § 1983’s compensation and deterrence

“One of Congress’s primary goals in enacting § 1983 was to provide a

remedy for killings unconstitutionally caused or acquiesced in by state

(“The legislative history behind Section 1983 expresses an unequivocal concern

eliminates them entirely in most § 1983 deadly force cases.

In 2014, Chaudhry unanimously held the district court erred by applying

the Robertson opinion emphasized its limited scope, cautioning:

Our holding today is a narrow one, limited to situations in which no

“repeatedly distinguished Louisiana’s abatement law from cases ‘in which

may not “subvert the policy of allowing complete vindication of constitutional

377.34 is inconsistent with § 1983’s deterrence purpose, when the deprivation

causes death. Id. at 1105.

damages was inconsistent with § 1983’s deterrence purpose, “since it would be

F.3d at 1105. Appellants incorrectly claim Bell is inapposite because it refused to

section of Bell cited by Appellants analyzed damages for violation of surviving

family members’ Fourteenth Amendment right to familial association—a different

constitutional claim with a nearly insurmountable culpability standard not met

violation of the decedent’s right. Id. at 1234-41. Like in California, “the

itself.” Id. at 1236.

and after Chaudhry, California’s district courts routinely found California’s

Answering Bf. 58 (collecting cases).

As the Opinion recognized, prohibiting loss of life damages runs afoul of §

pain and suffering damages” specifically contested in Chaudhry.2 Op. 3. The

remaining conscious or being gainfully employed. In the typical case involving