A.B., a Minor, etc., Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.
D084376
(Super. Ct. No. 37-2020-00039800-CU-PO-NC)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 6/26/25
CERTIFIED FOR PUBLICATION
Law Offices of Dale K. Galipo, Dale K. Galipo, Hang D. Le; Law Office of John Fattahi and John Fattahi for Plaintiff and Appellant.
Office of County Counsel, Ronald C. Lenert and Morris G. Hill, Deputy County Counsel, for Defendants and Respondents.
A Hobby Lobby manager called law enforcement because Kristopher Birtcher appeared to be suffering from a mental health crisis at the store. Other than being under the influence of drugs, Birtcher had committed no crime and made no threats against anyone. He was unarmed. After sheriff‘s deputies arrived and decided to detain Birtcher for assessment, he tried to flee into the parking lot. Birtcher was eventually brought to the ground and subdued by multiple deputies who double-cuffed his hands behind his back, secured his ankles together, tied his ankles to a cord around his waist, and applied bodyweight pressure to his back while he was lying face down on the pavement. While restrained in this prone position, Birtcher gasped, “Can‘t breathe,” and called out for help. When Birtcher finally
After unsuccessfully litigating federal claims in federal court, Birtcher‘s minor daughter A.B. brought state claims in state court against defendants County of San Diego (County), Sheriff William D. Gore, and eight individual sheriff‘s deputies. She asserted claims for wrongful death, battery, negligence, and negligent training, and a survival action for violation of
On summary judgment, the trial court found no triable issues of material fact on plaintiff‘s theory that holding Birtcher in restraints in a prone position and applying bodyweight pressure to his back in the last minutes of his life constituted excessive force. The court concluded that Birtcher‘s restraint was “by the book” and “as it should be.” The court further ruled that plaintiff had failed to identify a legal basis for her negligent training theory asserted against Sheriff Gore.
We reverse. Construing the facts in the light most favorable to the plaintiff, we conclude there are triable issues of material fact on her claim of excessive force used to restrain Birtcher. Moreover, the trial court erred in granting summary judgment on plaintiff‘s direct negligence claim against Sheriff Gore because plaintiff idеntified a statutory basis for it, and Sheriff Gore failed to meet his initial burden to demonstrate the absence of any triable issues of material fact on this negligent training theory. Accordingly, we reverse the judgment in favor of all defendants and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. Birtcher‘s Death
In October 2017, the manager of a Hobby Lobby store in San Marcos, California, called law enforcement for mental health assistance because Birtcher was staggering near the front entrance, he had no shoes on, and he appeared to be disoriented and possibly under the influence of drugs. The manager stood with Birtcher outside and waited about 25 minutes for officers to arrive. During that time, Birtcher occasionally shuffled back and forth on the sidewalk, but did not appear to threaten or engage with anyone.
Brasel called for emergency backup and Deputy John Robledo arrived at the scene to see Deputy Garza on top of Birtcher‘s back while Birtcher struggled to get up. When Deputy Robledo determined that Birtcher was resisting Deputy Garza‘s efforts to detain him, he deployed his taser at Birtcher, which caused Birtcher to pause briefly before running into the parking lot. The deputies pursued Birtcher and deployed their tasers again, with little apparent effect. In the ensuing struggle in the parking lot, Deputy Robledo struck Birtcher several times in the head, hands, and torso with his fist and a “sap” weapon (made of leather and lead-weighted) while civilian bystanders also attempted to assist in restraining Birtcher. At some point Birtcher reached for Deputy Robledo‘s baton on the ground, but the deputy moved it away from his reach.
Deputies Drew Beatty, Adrien Carrillo, Joseph Kodadek, Scott Rossall, Frank Stalzer, and Scott Winter all responded to the scene, and several of them applied downward force on Birtcher to control his movements as he resisted restraint. Eventually the deputies handcuffed Birtcher‘s wrists behind his back and secured his ankles together with cords, wrapping one cord around his waist and connecting it from behind his back to both the handcuffs and thе ankle cord for “maximum restraint.”1 At this point, Birtcher was lying prone on the pavement in the parking lot while several deputies pressed down with their hands and knees on Birtcher‘s back, legs, and arms. A deputy also placed a mesh “spit sock” over Birtcher‘s head after he spat once on the ground. After the spit sock was in place, the deputy pressed into the back of Birtcher‘s head and neck while he was still lying face down on the pavement.
The deputies eventually attached another set of handcuffs to Birtcher‘s rear belt loop and ankle cord, then secured another cord around his waist. At
some point Birtcher said, “Can‘t breathe,” and called out for help. After several minutes of being prone with restraints and under bodyweight compression, Birtcher stopped moving, and 50 seconds later, the deputies placed Birtcher
It took a few minutes longer than usual for paramedics to arrive because of their station‘s distance from the scene. When they got there, a few deputies were still positioned over Birtcher, he had beеn rolled back to prone position, and he appeared to be unresponsive. Birtcher remained in prone position with officers applying downward pressure on him for about three minutes before the paramedics placed him on a gurney and wheeled him to the ambulance. Around that time the paramedics noticed Birtcher lacked a pulse and looked purple. They attempted life-saving measures on him, but were unsuccessful. The medical examiner who conducted Birtcher‘s autopsy opined that his cause of death was “sudden cardiac arrest while restrained” with “[a]cute methamphetamine intoxication” as a contributing factor. The manner of death was homicide.
B. Federal Proceeding
Plaintiff and other family members filed suit in federal district court against defendants alleging civil rights violations under
Plaintiff appealed the decision to the Ninth Circuit, and as discussed below, she also refiled her state law claims in state court. While the state court proceeding was pending, the Ninth Circuit affirmed the district court‘s decision, but on slightly different grounds. The Ninth Circuit concluded, in relevant part, that the first three categories of force involving only Deputies
C. State Proceeding
After appealing the district court‘s decision, plaintiff brought wrongful death claims in state court alleging battery, negligence and negligent training, and a survival action for violation of the Bane Act. In the state court proceedings, plaintiff represented that she was not basing her claims on the first three theories of excessive force decided against her in federal court, only the fourth theory based on the deputies’ use of prone restraint.
The trial court denied defendants’ first motion for summary judgment without prejudice to allow for additional briefing. Defendants’ second motion argued that claim preclusion2 barred plaintiff‘s claims, there were no triable issues of fact on excessive force, the County was immune from liability, and Sheriff Gore had no personal involvement with Birtcher or the deputy defendants. In support of their motion, defendants submitted: (1) deposition testimony and sworn statements from the deputies, Brasel, responding paramedics, and the Hobby Lobby manager; (2) a declaration from the Sheriff‘s Department emergency dispatcher; (3) videos from security and body-worn cameras; and (4) the autopsy report.
In opposition, plaintiff argued that a reasonable jury could find that the forceful prone restraint constituted battery or a violatiоn of the Bane Act. Plaintiff also argued that defendants were all negligent in their tactics leading up to Birtcher‘s death, and that Sheriff Gore himself was negligent in failing to adequately train the deputies on the proper use of restraint methods. In addition to excerpts from the depositions and videos that defendants relied on in their motion, plaintiff also submitted a separate
statement of facts in response to defendants’ statement, a statement of additional material facts, and the following additional evidence in support of her opposition: (1) deposition testimony from the County‘s designees on training and department procedures; (2) medical experts’ deposition testimony about whether Birtcher
Defendants filed a reply brief and responses to plaintiff‘s separate and additional statement of facts. In addition to reiterating arguments from their initial brief, defendants argued for the first time that California law “does not recognize a duty of care owed by sheriffs to the general public to train deputies with due care.”3 Defendants also asserted that because California‘s officer training is regulated by another state agency (POST), Sheriff Gore could not be found liable “for not setting a minimal standard for training on maximum restraints.”
At the motion hearing, among other things, defense counsel argued that the maximum restraint used on Birtcher differed from a “hogtie” in that
the latter attaches a subject‘s ankles directly to his wrists and increases pressure on his torso and shoulders. The defense argued that maximum restraint, in contrast, merely pins a subject‘s handcuffed hands to his back or buttocks, and that the waist restraint is connected to the ankles with a length of cord that, when tightened, pulls the ankles more tightly to the buttocks. Defense counsel contended that “simply having the hands tightly against the buttocks and the ankles tightly against the buttocks doesn‘t impact the torso and does not impact breathing[,]” which distinguishes maximum restraint from a hоgtie, which is dangerous.
Plaintiff‘s counsel argued that plaintiff‘s claims were still viable as to the use of force on Birtcher after he was under maximum restraint because he did not pose a threat at that point, and to the extent he may have been resisting arrest, deadly force was not justified. Plaintiff‘s counsel also contended that the issue was not necessarily whether the restraint was a “hogtie” or not, but rather whether the compression of Birtcher‘s chest in prone position constituted excessive force, causing his death. As for Sheriff Gore, counsel asserted that though defendants argued in their first motion that there was no legal basis for direct liability, they failed to raise it in their second motion except in
After considering the parties’ briefs, supporting documents, and oral arguments at the motion hearing, the trial court issued a written order granting summary judgment to defendants. The court began by overruling all of defendants’ objections to plaintiff‘s evidence. The court then found that while the Ninth Circuit‘s ruling had preclusive effect as to the first three theories of liability based on force used before Birtcher was restrained, the holding did not have preclusive effect as to the fourth theory based on forceful prone restraint. Specifically, the trial court observed that the Ninth Circuit narrowly held that if the deputies used excessive force in the prone restraint, they still could not be liable under the federal qualified immunity doctrine. The trial court further noted that in contrast to federal law at the time of its ruling, California law looks beyond each discrete instance of force to the “totality of the circumstances” leading up to the alleged excessive force in determining whether the force was unreasonable. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629-631 (Hayes).) Moreover, the trial court concluded that the district court‘s finding of no excessive force as to the fourth theory had no preclusive effect because the Ninth Circuit did not affirm the ruling on this ground, but instead relied on qualified immunity. In support, the trial court cited Samara, supra, 5 Cal.5th 322, which it correctly characterized as “holding that when an appellate court affirms an underlying judgment, but on different grounds than the ground identified by the trial court, only the grounds identified by the appellate court have res judicata impact.”
The trial court went on to find, however, that there wеre no triable issues of material fact as to whether the deputies’ use of prone restraint constituted excessive force. The court reasoned that Birtcher was not actually “hogtied,” that the application of restraints was ” ‘by the book’ ” and “as it should be[,]” and that Birtcher “was rolled-over into the recovery position immediately after he stopped resisting.” The court further found that plaintiff had “not made a cogent or specific argument with sufficient evidence” as to why the restraint policy should be changed, or why it was insufficient to protect the safety of those being taken into custody. In deciding to grant defendants’ motion on the prone restraint theory, the court observed that “the law and circumstances of this case rendered the instant motion a close call.” The court nonetheless concluded that summary judgment is “no longer regarded as a disfavored procedural shortcut” and that defense counsel sufficiently addressed the court‘s concerns about the prone restraint at the motion hearing.
After the court granted defendants’ summary judgment motion, plaintiff moved for a new trial, which the court denied. The court then entered judgment in defendants’ favor and dismissed the case with prejudice.
DISCUSSION
I
We begin by clarifying what theory of excessive force is before us. As noted, the trial court ruled that the federal judgment had preclusive effect as to the first three theories of liability based on allegedly excessive force used before Birtcher was restrained, but did not have preclusive effect as to the fourth theory based on the use of forcible prone restraint. The court reasoned that the Ninth Circuit affirmed the district court‘s ruling as to the first three theories on the ground that no excessive force occurred, but it affirmed as to the fourth theory based solely on the alternative ground of qualified immunity, which the defendants in this state action did not assert as a ground for their summary judgment motion as to the state law claims.
On appeal, plaintiff does not contest the trial court‘s preclusion ruling as to the first three theories of excessive force based on the deputies’ initial takedown, taser deployments, and impact strikes to Birtcher‘s head before he was prone or handcuffed. Plaintiff concedes that she may not argue these actions “in and of themselves, constituted independently actionable ‘excessive force.’ ” Accordingly, the only theory of excessive force plaintiff argues on appeal is based on the deputies’ use of forcible prone restraint with bodyweight compression.4
For their part, defendants do not address the trial court‘s claim preclusion analysis as to the fourth theory. Specifically, they do not discuss the trial court‘s reliance on Samara or its conclusion that the district court‘s judgment and the Ninth Circuit‘s qualified immunity ruling have no preclusive effect on
elements of either theory of preclusion and do not attempt to show how they would apply to the Ninth Circuit‘s qualified immunity ruling under the holding of Samara. Defendants have therefore failed to demonstrate any error in the trial court‘s preclusion ruling on this fourth theory. The primary issue before us, then, is whether there are triable issues of material fact on plaintiff‘s state law excessive force claims based on the deputies’ use of forcible prone restraint with bodyweight compression.
II
Plaintiff argues that there are triable issues of material fact on her theory that defendants used excessive force in applying forcible prone restraint to Birtcher with bodyweight compression. We agree.
A. Governing Law
1. Standard of Review
We review a grant of summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) A defendant moving for summary judgment bears the initial burden to show that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 160 (Calemine).) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto, supported by evidence of specific facts and not mere allegations of the pleadings. (Id.)
On review, we examine the facts presented to the trial court and determine their effect as a matter of law. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents).) We review the entire record, considering all the evidence set forth in the moving and opposition papers except that to which objections have
Summary judgment is appropriate only where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Regents, supra, 4 Cal.5th at p. 618.) ” ‘An issue of fact can only be created by a conflict of evidence. It is not created by “speculation, conjecture, imagination or guess work.” ’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525 (Brown).) We focus on “issue finding” and do not resolve issues of fact. (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1292.) Rather, we review the evidence for contradictions, “or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Id.) ” ‘The trial court‘s stated reasons for granting summary judgment “are not binding on us because we review its ruling, not its rationale.” ’ [Citation.] We affirm the summary judgment if correct on any of the grounds asserted in the moving party‘s motion.” (Carr v. City of Newport Beach (2023) 94 Cal.App.5th 1199, 1204.)
2. Substantive Law Governing Plaintiff‘s Claims
Plaintiff alleges battery, negligence and negligent training, and Bane Act claims. “The elements of civil battery are: (1) defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff‘s person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to plaintiff.” (Brown, supra, 171 Cal.App.4th at pp. 526-527.)
For a negligence claim, the plaintiff must show that the defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. (Hayes, supra, 57 Cal.4th at p. 629.)
To prevail on her Bane Act claim, plaintiff would need to prove “(1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation or coercion.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67.) “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion‘), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.)
Analyzing whether an officer‘s actions are reasonable requires balancing the nature of the intrusion on the individual‘s Fourth Amendment interests against the government‘s interests. (Murchison, supra, 69 Cal.App.5th at p. 887, citing Graham, supra, 490 U.S. at p. 396.) The force applied must be balanced against the need for that force, and the need for force ” ‘is at the heart of the Graham factors.’ ” (Murchison, at p. 887, quoting Liston v. County of Riverside (1997) 120 F.3d 965, 976.) We judge the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene, rather with the 20/20 vision of hindsight.”
(Graham, at p. 396.) “The
B. Analysis
Plaintiff contends there was conflicting evidence concerning whether the deputies’ use of force was excessive, making summary judgment inappropriate. Specifically, she asserts she presented evidence that would allow a reasonable jury to find that the use of bodyweight compression and forcible prone restraint on Birtcher was excessive because he was handcuffed, hobbled, and did not pose an immediate threat of serious bodily harm. For the reasons we explain below, we agree there are triable issues of material fact on this theory of excessive force.
1. Plaintiff‘s Expert Witnesses
Plaintiff submitted declarations and testimony from several experts in support of her opposition to defendants’ summary judgment motion. One of them was Roger Clark, a police excessive force expert, who reviewed court filings, investigation reports, video and audio recordings, deposition transcripts, Sheriff‘s Department policiеs and procedures, and other documents in forming his opinions.
Based on his review of the evidence, Clark concluded that the use of force inflicted on Birtcher was excessive and unreasonable, including the force used by deputies in pressing down and applying weight on his back and head while he was in a forcible prone restraint position with handcuffs connected to his ankles. A reasonably trained deputy would have known that the sustained application of pressure or weight on the torso of a subject who is prone on the ground may make it more difficult for the subject to breathe. In Clark‘s opinion, it was unreasonable for the deputies to continue to apply pressure and bodyweight on Birtcher after he was handcuffed and hobbled. A properly trained deputy would have understood that the application of pressure and bodyweight on Birtcher‘s legs, back, neck, and head could significantly contribute to a positional asphyxia condition, particularly with the spit sock over his head and after he exclaimed that he could not breathe.
According to Clark, there is a widely used form of law enforcement training referred to as the “physiology of a struggle.” A properly trained
In Clark‘s opinion, based on the video footage, Birtcher did not appear to be resisting after he was under maximum restraint. Birtcher was instead yelling out “help” and “get it off me” while attempting to alleviate the pressure on his chest by lifting his head. According to Clark‘s review of the evidence, Birtcher was never assaultive or life-threatening. Clark noted that Birtcher had merely been acting strangely and possibly under the influence when law enforcement was called; he had not committed any assault or attempted assault; he was alone and unarmed; he appeared to be disoriented; and he did not attack Deputy Garza but merely tried to avoid contact with him and flee.
The trial court did not mention Clark‘s opinions in its ruling and did not explain why they were insufficient to create a triable issue of material fact on excessive force. Likewise, defendants on appeal fail to make any meaningful argument why Clark‘s expert opinions based on his review of the evidence do not create a triable issue of material fact. In their brief, the defendants refer to a prior case decided by this court (Brown, supra, 171 Cal.App.4th 516) and two unpublished federal district court decisions that rejected Clark‘s opinions in vastly different factual circumstances. But we cannot disregard expert testimony on summary judgment merely because courts in other unrelated cases may have criticized or rejected the expert‘s opinions on different facts and issues. The defendants do not challenge Clark‘s qualifications as a use-of-force expert, and Clark‘s report lists scores of cases in which his opinions have been accepted on such issues. We must evaluate Clark‘s opinions based on the facts and circumstances of this case, not other cases.
The defendants’ only substantive comment on Clark‘s expert testimony in this case is to claim in a single conclusory sentence that he failed to provide “a reasoned explanation of hоw and why maximum restraints are deadly force.” As we have described, however, Clark did explain how and why the forcible prone restraint and bodyweight compression constituted deadly force—and in fact did result in Birtcher‘s death. Defendants’ mere assertion
Liberally construing Clark‘s testimony and report, we conclude that his opinions are sufficiently supported by video and other evidence to raise a triable issue of fact. For example, his conclusion that there was no evidence Birtcher threatened anyone that day, either before or during the incident,
was supported by cites to deposition testimony from Deputies Robledo and Garza. Clark observed from his review of the evidence, and defendаnts do not dispute, that Birtcher was never found to have a weapon and was not harming himself or anyone else when first encountered.
Likewise, Clark’s opinions and the supporting evidence create a triable issue of fact on defendants’ assertion that the use of force was justified because Birtcher was resisting arrest. In response, plaintiff contends that after Birtcher was placed in maximum restraint position, he was only “squirming,” yelling, “wiggling[,] and trying to lift his torso” because he was having trouble breathing. Clark observed in his report that Birtcher did not appear to be resisting after he was restrained in prone position, and that he was only “attempt[ing] to alleviate the pressure on his chest by lifting his head slightly” and yelling for help. Clark further observed that Birtcher was
Federal jurisprudence also supports Clark’s opinion that Birtcher’s movements did not necessarily constitute “resistance.” (See, e.g., K.J.P. v. Cnty of San Diego (S.D.Cal. 2022) 621 F.Supp.3d 1097, 1117 [jury could find hogtied man’s movements were “attempt to breathe,” not resistance]); Garlick v. Cnty of Kern (E.D.Cal. 2016) 167 F.Supp.3d 1117, 1159 [larger man who kicked deputies, tried to lift his chest, and yelled did not warrant asphyxiating restraint because those were all signs he could not breathe].) And more importantly, as plaintiff points out, “[r]esistance, or the reasonable perception of resistance, does not entitle police officers to use any amount of force to restrain a suspect.” (Barnard v. Theobald (9th Cir. 2013) 721 F.3d 1069, 1076, italics added.) Moreover, if the use of force causes serious injury or death, a reasonable jury could certainly still conclude that the force was excessive, even if the person had been resisting at the time. (See LaLonde v. County of Riverside (9th Cir. 2000) 204 F.3d 947, 959.) Resistance is merely one of the factors the jury can consider in determining whether force is excessive. (See Graham, supra, 490 U.S. at p. 396.)
As we discuss further below, Clark’s opinion that the deputies did not act in accordance with protocols regarding physical restraints and mental health crises is also supported by policy and training documents. His review of the County Sheriff’s Office’s maximum restraint policy showed that it did not include instruction about “the physiology of a struggle” and minimizing “the length of a struggle” with someone at risk of asphyxiating. If credited by the jury, Clark’s opinions would therefore refute the notion that the application of restraints to Birtcher was “by the book” and “as it should be.”
Finally, plaintiff’s other expert evidence further supports Clark’s reasoned explanation “of how and why maximum restraints are deadly force.” Plaintiff
Plaintiff also presented a report and deposition testimony from Dr. Bennet Omalu, a forensic pathologist and neuropathologist. Dr. Omalu reviewed the medical examiner’s records, Birtcher’s medical records, video evidence, incident reports, deposition transcripts, and audio recordings of interviews. In addition to providing a medical explanation of Birtcher’s death, Dr. Omalu concluded that Birtcher died from restraint asphyxiation, with concussive traumatic brain injury and acute methamphetamine toxicity as contributing factors to his death. More specifically, Dr. Omalu opined that Birtcher’s fatal injuries were directly caused by “repeated blows to his head from punches, hammer-fist and slapjack baton strikes,” repeated taser deployments, and “multi-modal restraint asphyxiation,” which included both “mechanical-positional asphyxiation” as well as “mechanical-smothering asphyxiation” from the spit sock and having his face pressed into the ground.
Viewing plaintiff’s expert reports together and resolving doubts about the evidence in plaintiff’s favor, we conclude that the expert opinions and the evidence on which they are based could lead a reasonable jury to find that the deputies used excessive force by holding Birtcher down forcefully in a prone position for an extended period after he was placed in restraints, resulting in his death.
2. Evidence of Training and Policy Violations
Because the reasonableness of a particular use of force is judged from the perspective of a “reasonable officer” on the scene, department policies, prevailing standards, and training protocols addressing how a reasonable officer should act in similar circumstances are often relevant to determining whether force was excessive. (See Murchison, supra, 69 Cal.App.5th at p. 887; United States v. Brown (11th Cir. 2019) 934 F.3d 1278, 1296 [while violation of department use-of-force policies does not, by itself, establish excessive
Plaintiff, however, did present evidence from which a reasonable jury could conclude that the deputies’ use of force was not by the book. Her evidence, including the deputies’ own testimony, showed that at least some of the deputies were trained to know that a person in prone position with bodyweight applied to their torso could have difficulty breathing. Not only were the deputies trained to use the “minimum force” possible to effect arrest or prevent escape, they were also trained to minimize the amount of time a subject is in prone position because they might experience a medical emergency “not merely during the application of weight.” According to plaintiff’s evidence, deputies are trained to roll a prone person onto their side or to a seated position as soon they are maximally restrained to allow for monitoring a subject’s vital signs and to make it easier for them to breathe.
In our own review of the County’s training video on maximum restraints, we observed that as soon as the restraints were applied to a training subject on a sidewalk, the officers lifted him off the ground and transported him to a nearby police vehicle, where he was raised to a seated position in the backseat. Later in the video when maximum restraints were applied to a training subject in custody, officers again lifted him off the ground immediately and placed him in recovery position on a gurney. The video warned that during transport, subjects must be placed on their side, continually monitored, and “must not be transported in prone position.” We also observed that in each training scenario, the cord connecting the training subject’s handcuffed wrists to his bound ankles was always passed in front of the subject’s body, allowing enough slack for the subject to be in a seated position. A County designee confirmed that deputies are taught to run the cord cuff in front of the subject’s waist.
Despite this training, a jury could reasonably conclude that the deputies in this case did not use the minimum force possible, nor did they minimize the amount of time Birtcher spent in prone position. They did not roll him onto his side right away once the restraints were attached, nor did they lift him off
Not only was there evidence that the deputies failed to comply with their own training, plaintiff also submitted evidence from which a reasonable jury could find that the deputies’ actions were inconsistent with prevailing police standards. A County designee testified that when renewing and updating training curriculum, the County might incorporate “something that the [International Association of Chiefs of Police (IACP)] has adopted or another entity has adopted.” A model policy on arrest published by the IACP states that officers should only use additional approved restraints beyond handcuffs when “necessary to control the situation and only for the periоd of time required.” The IACP model policy also specifies that “[w]hen restraining individuals on the ground, officers should position the subject in a manner that will assist breathing, such as placement on his or her side, and avoid pressure to the chest, neck, or head.” Rather than avoiding pressure to the chest, neck, and head as the IACP policy suggests, here the deputies applied bodyweight pressure to multiple parts of Birtcher’s body, even after there was no possibility that Birtcher could assault them or flee.
A policy review article entitled “The Prone Restraint—Still a Bad Idea,” published by the IACP in 1998, stated that a combination of factors can make the prone restraint position deadly. Those factors could include “both the physical build of the prisoner, the degree of exertion occurring during efforts to gain control of the subject and apply restraints, and the presence of drugs and/or alcohol in the prisoner’s system.” The article noted that “[i]n many cases, application of restraints to a violently resisting subject requires that officers apply their weight on the back of the subject in order to gain control of the hands so that handcuffs can be applied. This action typically compresses the subject’s chest cavity and further adds to oxygen depletion and difficulty in breathing.” The IACP article cоncluded that “there is considerable evidence, both in terms of expert opinion and actual field experience, that indicates that the practice of prone restraint does in fact lead to deaths among suspects in the custody of the police. Therefore, until such time as this
Despite these policy statements, the scenario described in the IACP article came to fruition here. The “degree of exertion” during efforts to gain control of Birtcher was great, and consistent with the deputies’ observations of him, the toxicology report showed that Birtcher had methamphetamine in his system. As Drs. O’Halloran and Omalu opined, Birtcher’s chest was compressed during the struggle to subdue him, which further added to his difficulty in breathing and ultimately led to his death.
Defendants offered no evidence to contradict or dispute plaintiff’s policy and training evidence at summary judgment. Aside from characterizing the evidence as immaterial and irrelevant, defendants made no argument that the documents published by the IACP—of which Sheriff Gore is a member—were not representative of prevailing policing standards, nor did they explain how the guidance in those documents are consistent or inconsistent with County policy or training protocols. Accordingly, viewing the policy evidence in the light most favorable to plaintiff, we conclude that she has shown that a triable issue of fact exists regarding whether the deputies acted unreasonably by violating training protocols.
3. Defendants’ Admissions and Expert Testimony
We have already identified several instances in which defendants’ own admissions and testimony has supported plaintiff’s argument that there are triable issues of fact regarding excessive force. To those instances, we add the following:
- Deputy Beatty testified that Birtcher never appeared to pose an imminent threat of death or serious bodily injury to anyone. He said that once ankle restraints were applied, Birtcher could not move his legs independently. Deputy Beatty also testified that he was kicked before ankle restraints were applied, but he denied feeling any pain immediately after the kick.
- Brasel testified that she did not see Birtcher trying to punch, kick, or grab anyone during the altercation, and that Birtcher was not agitated until Deputy Garza made physical contact with him.
- Deputy Carrillo testified that he had no information while he was at the scene indicating Birtcher was armed, or that he punched, kicked, or threatened anyone.
-
Deputy Winter testified that to his knоwledge, Birtcher had not verbally threatened anyone, tried to take anyone’s weapon, or possessed any weapons during the incident. He also testified that at no time either before he arrived on the scene, or while he was there, did he think that Birtcher posed an immediate threat of death or serious bodily injury. - Jeffrey Martin, defendants’ police practices expert, testified that after reviewing the video and other evidence, his opinion was that it would not have been appropriate to use deadly force against Birtcher after he was handcuffed. Martin explained that “at the time, there wasn’t anything that would lead a trained and reasonable officer to believe that him- or herself or any other persons were in imminent threat of death or serious bodily injury.” He also confirmed that the deputies had no information that Birtcher had a weapon, that he had threatened to harm anyone, or that he had committed any violent crime.
Martin further testified that in his review of the video evidence, although he saw that there “was clearly movement[,]” he never saw a weapon in his hand, nor did he see Birtcher “land a punch” or “land a kick” on any deputies. His review of the County’s maximum restraint training materials also led him to conclude that the County’s policy is that “as soon as possible after a subject is maximally restrained, they’ll be rolled onto their side or put into a seated position.” He explained that he understood the purpose of the policy, as “with most agencies,” was to “avoid the accusation of a death or injury due to the positional asphyxia theory.”
These admissions by defendants, defense witnesses, and defendants’ own expert bolster our conclusion that triable issues of fact exist because they create concrete contradictions in the evidence surrounding “the severity of the crime [or conduct] at issue,” whether Birtcher posed “an immediate threat to the safety of the officers or others,” and whether he was “actively resisting arrest or attempting to evade arrest by flight.” (Graham, supra, 490 U.S. at p. 396; see Brown, supra, 171 Cal.App.4th at p. 525.) Specifically, the admissions would further support jury findings that Birtcher had committed no crime other than drug use, he was not a violent criminal, he posed minimal or no threat to the safety of others when he was restrained, and for reasons described above, he was not resisting arrest after he was handcuffed and hobbled. Based on the totality of the circumstances, a jury could conclude that the force used to restrain Birtcher was excessive and unreasonable, particularly for a situation in which law enforcement was responding to someone who was merely undеr the influence of drugs and suffering from a mental health crisis and had not committed or threatened any act of violence. This evidence, therefore, supports our conclusion that the trial court erred in granting summary judgment.
Both federal and state courts have applied Graham’s “objective reasonableness” standard to find that similar prone restraint incidents constituted excessive force. In Scott v. Smith (9th Cir. 2024) 109 F.4th 1215 (Scott), the Ninth Circuit found that when an officer kept his bodyweight on Scott’s back and neck for one to two minutes while another officer restrained Scott’s lower body, both officers had used “deadly force.” (Id. at p. 1224.) The Ninth Circuit further held that a reasonable jury could find that the force was excessive because Scott was “a mentally ill person who was not suspected of committing a crime and presented little or no danger.” (Id. at p. 1225.) In its qualified immunity analysis, the court observed that “[o]ur caselaw makes clear that any reasonable officer should have known that bodyweight force on the back of a prone, unarmed person who is not suspected of a crime is constitutionally excessive. . . . The law is especially clear where, as here, the officers know the prone individual is suffering from a mental illness and is not suspected of a crime.” (Id. at p. 1226, quoting Drummond v. City of Anaheim (9th Cir. 2003) 343 F.3d 1052, 1059 (Drummond).)
In Drummond, officers responded to a call and found Drummond in a parking lot “hallucinаting and in an agitated state.” (Drummond, supra, 343 F.3d at p. 1054.) They decided to detain him “for his own safety,” knocked Drummond to the ground, and handcuffed him. (Ibid.) One officer “put his knees into” Drummond’s back and placed his bodyweight on him while a second officer did the same, except that he had one knee on Drummond’s neck. (Ibid.) The officers continued to kneel on Drummond’s back and neck despite his pleas that “he could not breathe and that they were choking him.” (Id. at pp. 1054–1055.) Drummond was later placed in a “hobble restraint,” and one minute later he fell unconscious. (Id. at p. 1055.) Although he was revived after several minutes, he remained in a “permanent vegetative state.” (Ibid.)
In holding that the force was excessive, the Ninth Circuit emphasized that the level of force used was “severe,” because “two officers continued to press their weight on [Drummond’s] neck and torso as he lay handcuffed on the ground and begged for air.” (Drummond, supra, 343 F.3d at p. 1056Id. at pp. 1057–1058.) Lastly, the court noted that Drummond’s obvious mental illness suggested that officers should have considered using less severe measures. (Ibid.) Considering these factors, the Ninth Circuit held that any reasonable officer “should have known that squeezing the breath from a
In Estate of Aguirre v. City of San Antonio (5th Cir. 2021) 995 F.3d 395 (Aguirre), officers applied “prone maximal-restraint” to Aguirre, who appeared mentally disturbed and potentially under the influence of drugs. (Id. at pp. 402–404Id. at p. 403.) One officer “knelt with one knee on the ground and the other on Aguirre’s back, later changing position to hold Aguirre’s shoulders and cheek down against the pavement with his hands.” (Ibid.) Other officers placed their hands on Aguirre’s arms and back to hold him prone in the maximal-restraint position. (Id. at pp. 403–404Id. at p. 404Ibid.)
The Fifth Circuit held that the use of forceful prone restraint on Aguirre was excessive because there was no “criminal investigatory function justifying their actions[]” and he posed only a minimal threat to public safety. (Aguirre, supra, 995 F.3d at pp. 407–408.) The court further concluded that the summary judgment evidence, including videos, “at minimum raise[d] genuine questions about whether it was objectively reasonable to believe Aguirre was actively resisting or even physically capable of posing an immediate safety threat that would justify the Defendant Officers in using extraordinarily dangerous force by placing and holding him in the prone maximal-restraint position that led to his death.” (Id. at p. 408.)
In Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702 (Mendoza), a homeowner called the police after Mendoza tried to open a window. (Id. at p. 706.) Mendoza, who had recently been to the hospital for alcohol withdrawal sickness, complained of stomach pain and hearing voices. (Ibid.) The jury heard varying accounts of what happened after the defendant officer took him to the hospital, but according to the officer, Mendoza became agitated and resisted being subdued. (Id. at pp. 706–707Id. at p. 709Id. at p. 707Ibid.)
The Court of Appeal in Mendoza upheld the jury’s verdict that the defendant officer used excessive force when he and the other officers applied
The similarities between the facts in each of the above cases and the circumstances in this case are striking. The individuals in those cases, like Birtcher, were suffering from a mental health crisis. In each instance, an officer or multiple officers applied forceful bodyweight pressure to the subject’s back while he was in prone position with his hands secured behind him. None of the individuals appeared to be armed when they died or were incapacitated by asphyxiation. In at least some cases, whether they were even “resisting” was a disputed issue. And in the majority of the cases discussed above, the subjects, like Birtcher, were never suspected of criminal activity.
These are just some of the numerous cases plaintiff cites to prove the point that courts have often found a triable issue of material fact in remarkably similar circumstances. Yet defendants provide no substantive rebuttal to any of the cases. They merely assert that this case is different from Drummond and Scott because the Ninth Circuit in this case “upheld summаry judgment for [defendants] based on Fourth Amendment considerations.” But the trial court correctly observed that the Ninth Circuit here did not actually rule on whether the prone restraint constituted excessive force. Nor do defendants meaningfully dispute that applying pressure to Birtcher’s torso while he was restrained and in a prone position constituted deadly force, an issue the Ninth Circuit also did not address in its memorandum opinion.
Over 20 years ago, the Sixth Circuit found it was “clearly established that putting substantial or significant pressure on a suspect’s back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” (Champion v. Outlook Nashville, Inc. (6th Cir. 2004) 380 F.3d 893, 903.) “Creating asphyxiating conditions by putting substantial or significant pressure, such as body weight, on the back of an incapacitated and bound suspect constitutes objectively unreasonable excessive force.” (Ibid.; see also Lombardo v. City of St. Louis (2021) 594 U.S. 464, 467 (per curiam) [referring to “well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of [the risk of suffocation]” and finding factual issues precluded summary judgment as to whether use of force was excessive].)
In sum, based on the totality of the plaintiff’s evidence, ample case law supports the conclusion that a reasonable jury could find putting Birtcher
III
Plaintiff argues the trial court erred in finding that there was no legal basis for holding Sheriff Gore directly liable for negligent training. We agree. The trial court erred in granting summary judgment to Sheriff Gore because he failed to meet his initial burden, as the moving party, of demonstrating the absence of any triable issues of material fact as to plaintiff’s negligent training claim.
The trial court ruled that plaintiff had “not identified a legal basis for sustaining a claim of negligent training against Sheriff Gore under California law.” At the hearing on defendants’ summary judgment motion, however, plaintiff’s counsel asserted that
Defendants nevertheless assert that Sheriff Gore cannot be liable because he was not personally involved in training the deputies. This was the sole basis for their summary judgment motion as to the negligent training claim against Sheriff Gore. But defendants submitted no declarations or any evidence whatsoever to show that Sheriff Gore did not play a role in the department’s training policies or the deputies’ training, or that he had no knowledge or notice of deficiencies in the training policies. In fact, there is not a single reference to Sheriff Gore, or plaintiff’s negligent training claim against him, in the defendants’ statement of undisputed facts. Sheriff Gore
By contrast, plaintiff presented testimony from a County designee unequivocally confirming that “[a]ny policy and procedure has to be approved ultimately by the Sheriff[.]” The designee explained in his deposition that a committee annually reviews every policy, “starting at Page 1 and going through everything[,]” and then that review is presented to the Sheriff. Even though defendants have argued that POST regulates officer training, the designee testified in his deposition that the department itself created the training outline for “arrest and control training,” and after POST approved it for use, “that’s what [got] taught” to officers.
Not only did Sheriff Gore fail to meet his initial burden as the moving party, therefore, but when we draw all reasonably deducible inferences from plaintiff’s evidence, there is also a triable issue of material fact as to whether Sheriff Gore was personally involved in approving the training of the deputies. Because defendants make no other argument on the negligent training theory against Sheriff Gore, we must reverse the judgment as to him as well. (Cf. McBeth v. City of Union (D.S.C. Sept. 25, 2018, No. 7:15-1473-BHH) 2018 U.S. Dist. Lexis 164121, at *51 [finding genuine dispute of material fact on claim against sheriff for “failure to properly train his deputies regarding the dangers of positional asphyxia” and finding that “[a] reasonable policy makеr, given the available literature that positional asphyxia is one of the chief causes of sudden in-custody deaths, should develop a policy and training on the topic” including “education on the physiology of struggle” and “that an arrestee’s attempts to get up and/or get officers off them while they are in a prone position may be an effort to facilitate breathing rather than resistance”]; Briones v. City of Ont. (C.D. Cal. May 21, 2018, No. ED CV 17-590-DMG (JPRx)) 2018 U.S. Dist. Lexis 227680, at *8, 31–32 [denying summary judgment on claim of municipal liability for failure to properly train officers on dangers of positional and restraint asphyxia, including the “physiology of a struggle” and dangers of applying pressure to detainee’s back while in prone position].)
The judgment is reversed and the matter is remanded with directions that the trial court vacate its order granting defendants’ second motion for summary judgment and issue a new order denying the motion. Appellant may recover her costs on appeal.
BUCHANAN, J.
I CONCUR:
IRION, Acting P. J.
I CONCUR IN THE RESULT:
CASTILLO, J.