Fermin Vincent Valenzuela v. City of Anaheim ; Daniel Wolfe ; Woojin Jun ; Daniel Gonzalez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERMIN VINCENT VALENZUELA;
V.V., by and through their Guardian,
Patricia Gonzalez, individually and
as successors-in-interest of Fermin
Vincent Valenzuela, II, deceased;
X.V., by and through their Guardian,
Patricia Gonzalez, individually and
as successors-in-interest of Fermin
Vincent Valenzuela, II, deceased,
Plaintiffs-Appellees,
v.
CITY OF ANAHEIM ; DANIEL W OLFE ;
W OOJIN J UN ; DANIEL GONZALEZ ,
Defendants-Appellants.
No. 20-55372
D.C. Nos.
8:17-cv-00278-
CJC-DFM
8:17-cv-02094-
CJC-DFM
OPINION
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
Filed August 3, 2021

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2 VALENZUELA V. CITY OF ANAHEIM
Before: John B. Owens and Kenneth K. Lee, Circuit
Judges, and Michael H. Simon,* District Judge.
Opinion by Judge Owens;
Dissent by Judge Lee
SUMMARY**
Civil Rights
The panel affirmed a jury verdict awarding “loss of life”
damages to the family of Fermin Valenzuela, Jr., who died
after an encounter with the police.
Valenzuela’s father and children filed suit under
42 U.S.C. § 1983 and California law for excessive force,
wrongful death, and similar theories of liability. After a five-
day trial, the jury awarded the Valenzuela family a total of
$13.2 million in damages on multiple theories of liability,
including $3.6 million for Valenzuela’s loss of life, which
was independent of any pain and suffering that he endured
during and after the struggle with the officers. In their post-
trial motions, the Defendants argued that because California
state law did not recognize loss of life damages, neither
should § 1983. The district court disagreed. After reviewing
the relevant in- and out-of-circuit case law, including
Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir.
* The Honorable Michael H. Simon, United States District Judge for
the District of Oregon, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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VALENZUELA V. CITY OF ANAHEIM 3
2014), the district court concluded that § 1983 permitted the
recovery of loss of life damages and that California state law
to the contrary was inconsistent with the federal statute’s
goals.
The panel saw no meaningful way to distinguish
Chaudhry from this case. Both involved deaths caused by a
violation of federal law, and both considered the limits that
California’s Civil Procedure Code § 377.34 places on
§ 1983 plaintiffs, limits that this court has squarely rejected.
The panel determined that prohibiting loss of life damages
would run afoul of § 1983’s remedial purpose as much as (or
even more than) the ban on pre-death pain and suffering
damages. Following Chaudhry, the panel held that
§ 377.34’s prohibition of loss of life damages was
inconsistent with § 1983.
The panel resolved the remaining issues on appeal,
including qualified immunity, in a concurrently filed
memorandum disposition.
Dissenting, Judge Lee stated that this court should not
jettison California state law to maximize damages for § 1983
plaintiffs. Judge Lee wrote that as tragic as Valenzuela’s
death was, the panel must follow the law, and California law
prohibits damages for loss of life. While Judge Lee did not
believe Chaudhry controlled this case, he thought this court
should still revisit that decision in a future en banc
proceeding because it misconstrued Robertson v. Wegmann,
436 U.S. 584, 590–91 (1978), and relied on flawed
assumptions.

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4 VALENZUELA V. CITY OF ANAHEIM
COUNSEL
Timothy T. Coates (argued) and Peter A. Goldschmidt,
Greines Martin Stein & Richland LLP, Los Angeles,
California; Steven J. Rothans and Jill Williams, Carpenter
Rothans & Dumont LLP, Los Angeles, California; Robert
Fabela, City Attorney; Moses W. Johnson, Assistant City
Attorney; City Attorney’s Office, Anaheim, California; for
Defendants-Appellants.
Dale K. Galipo (argued) and Hang D. Le, Law Offices of
Dale K. Galipo, Woodland Hills, California; John Fattahi,
Law Office of John Fattahi, Torrance, California; Garo
Mardirossian and Lawrence D. Marks, Mardirossian &
Associates Inc., Los Angeles, California; for Plaintiffs-
Appellees.
Christopher D. Hu (argued), San Francisco, California, for
Amicus Curiae
Steven S. Fleischman, Scott P. Dixler, and Yen-Shang
Tseng, Horvitz & Levy LLP, Burbank, California, for
Amicus Curiae Association of Southern California Defense
Counsel.
Michael E. Gates, City Attorney; Brian L. Williams, Chief
Trial Counsel; Daniel S. Cha and Pancy Lin, Senior Deputy
City Attorneys; Office of the City Attorney, Huntington
Beach, California; for Amicus Curiae City of Huntington
Beach.
Steven J. Renick, Manning Kass Ellrod Ramirez Trester
LLP, Los Angeles, California, for Amicus Curiae
International Municipal Lawyers Association.

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VALENZUELA V. CITY OF ANAHEIM 5
OPINION
OWENS, Circuit Judge:
The City of Anaheim and individual officers
(“Defendants”) appeal from a jury verdict awarding “loss of
life” damages to the family of Fermin Valenzuela, Jr., who
died after an encounter with the police. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.1
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Death of Valenzuela
On July 2, 2016, Anaheim Police Department Officers
Woojin Jun and Daniel Wolfe received a 911 dispatch about
a “suspicious person” near a laundromat in Anaheim. The
dispatcher described Valenzuela’s appearance, indicated
that no weapons had been seen, and noted that it was
unknown whether Valenzuela was on drugs or required
psychiatric assistance.
Arriving at the scene, the officers spotted Valenzuela and
followed him into the laundromat, where they observed him
moving clothing from a bag into a washing machine. As
they approached, Wolfe said he heard the sound of breaking
glass and saw what he recognized as a methamphetamine
pipe. Wolfe then asked Valenzuela whether he was “alright”
and if he had just “br[oke] a pipe or something.” Valenzuela
replied that he was “good” and “just trying to wash” his
clothes.
1 This opinion only addresses the issue of loss of life damages. A
concurrently filed memorandum disposition resolves the remaining
issues on appeal, including qualified immunity.

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6 VALENZUELA V. CITY OF ANAHEIM
Wolfe claimed that he then saw a screwdriver in the bag,
so he ordered Valenzuela to stop and put his hands behind
his back. Valenzuela stepped away from the bag but did not
immediately comply. Wolfe then grabbed Valenzuela’s
right arm and tried to pull it behind his back. Almost
immediately after, Jun placed Valenzuela in a choke hold as
Wolfe tried to maintain control of Valenzuela’s hands.2
A violent struggle ensued, with Jun continuing the choke
hold while the officers managed to knock Valenzuela to the
floor, face down. Jun then initiated a second choke hold, and
Valenzuela started turning purple and repeatedly screamed
“I can’t breathe” and “help me.” Wolfe then tased
Valenzuela, who jumped to his feet and ran out of the
laundromat. The officers chased after Valenzuela, pulling
off some of his clothes as he tried to escape and knocking
him to the ground. The officers repeatedly tased Valenzuela,
who begged for them to “stop it.”
Despite multiple choke holds and taser attacks,
Valenzuela ran across the street with the officers in pursuit.
Out of breath, Valenzuela repeatedly asked the officers to
“please don’t” and “don’t kill me.” He managed to make it
to a convenience store parking lot, where he tripped and fell
to the ground. While on the ground, Wolfe placed
Valenzuela in yet another choke hold. Again, Valenzuela
turned purple, repeatedly screamed “help me” and “stop it,”
2 The parties dispute whether the officers placed Valenzuela in a
carotid hold or an air choke hold. A carotid hold involves compressing
the carotid arteries on both sides of the neck. When properly applied,
the hold should render someone unconscious within seven to ten
seconds. But when improperly applied, a carotid hold can turn into an
air choke hold, which applies pressure to the front of the neck and is
much more dangerous. Without resolving this dispute, we use the term
“choke hold” to describe the neck restraints placed on Valenzuela.

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VALENZUELA V. CITY OF ANAHEIM 7
and was audibly gasping for air. Sergeant Daniel Gonzalez,
a supervisory officer, arrived on the scene and encouraged
Wolfe to “hold that choke” and “put him out,” and gave
Wolfe tips on how to accomplish this. Wolfe maintained the
hold for between one and two minutes as Jun and Gonzalez
held down Valenzuela’s arms.
Towards the end of the encounter, Gonzalez asked Wolfe
whether Valenzuela was able to breathe. Gonzalez told the
officers to roll Valenzuela on his side because he was “going
to wake up.” Valenzuela never did, and he fell into a coma
and died eight days later in the hospital. The Orange County
medical examiner ruled the manner of death as a homicide
caused by “complication[s] of asphyxia during the struggle
with the law enforcement officer” while Valenzuela was
“under the influence of methamphetamine.”
B. Procedural History
Valenzuela’s father and children filed suit under
42 U.S.C. § 1983 and California law for excessive force,
wrongful death, and similar theories of liability. After a five-
day trial, the jury awarded the Valenzuela family a total of
$13.2 million in damages on multiple theories of liability,
including $3.6 million for Valenzuela’s “loss of life,”3 which
was independent of any pain and suffering that he endured
during and after the struggle with the officers.4
3 The Ninth Circuit’s Model Civil Jury Instruction 5.2 also
recognizes damages for the “loss of enjoyment of life.”
4 The other awards were $6 million for Valenzuela’s pre-death pain
and suffering and $3.6 million for his children’s loss of Valenzuela’s
love, companionship, society, and moral support.

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8 VALENZUELA V. CITY OF ANAHEIM
In their post-trial motions, the Defendants argued that
because California state law did not recognize loss of life
damages, neither should § 1983. The district court
disagreed. After reviewing the relevant in- and out-of-
circuit case law, including Chaudhry v. City of Los Angeles,
751 F.3d 1096 (9th Cir. 2014), the court concluded that
§ 1983 permitted the recovery of loss of life damages and
that California state law to the contrary was inconsistent with
the federal statute’s goals. As the court recognized, to hold
otherwise “would undermine the vital constitutional right
against excessive force—perversely, it would incentivize
officers to aim to kill a suspect, rather than just harm him.”
This appeal followed.
II. DISCUSSION
A. Standard of Review
We review de novo the district court’s decision regarding
loss of life damages. See Chaudhry, 751 F.3d at 1103.
B. Section 1983 and “Loss of Life” Damages
California law forbids recovery for a decedent’s loss of
life. Cal. Civ. Proc. Code § 377.34.5 And because the
relevant federal law is silent as to loss of life damages,
California law controls our inquiry “unless it is inconsistent
5 Section 377.34 provides: “In an action or proceeding by a
decedent’s personal representative or successor in interest on the
decedent’s cause of action, the damages recoverable are limited to the
loss or damage that the decedent sustained or incurred before death,
including any penalties or punitive or exemplary damages that the
decedent would have been entitled to recover had the decedent lived, and
do not include damages for pain, suffering, or disfigurement.” Cal. Civ.
Proc. Code § 377.34 (emphasis added).

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VALENZUELA V. CITY OF ANAHEIM 9
with the policies of § 1983.” Chaudhry, 751 F.3d at 1103.
We conclude that it is, mindful that § 1983 was meant to be
a remedial statute and should be “broadly construed” to
provide a remedy “against all forms of official violation of
federally protected rights.” Dennis v. Higgins, 498 U.S. 439,
445 (1991) (citation omitted); see also Wilson v. Garcia,
471 U.S. 261, 271–72 (1985) (“[Section] 1983 provides a
‘uniquely federal remedy against incursions under the
claimed authority of state law upon rights secured by the
Constitution’ . . . [that] make[s] it appropriate to accord the
statute ‘a sweep as broad as its language.’” (internal citation
omitted)), superseded by statute on other grounds. Section
1983’s goals include compensation for those injured by a
deprivation of federal rights and deterrence to prevent future
abuses of power. Robertson v. Wegmann, 436 U.S. 584, 591
(1978).
Our analysis begins, and largely ends, with Chaudhry.
In that case, we addressed whether § 377.34’s prohibition of
pre-death pain and suffering damages prevented § 1983
plaintiffs from obtaining such relief. We recognized that
“[o]ne of Congress’s primary goals in enacting § 1983 was
to provide a remedy for killings unconstitutionally caused or
acquiesced in by state governments,” and that “[i]n cases
where the victim dies quickly, there often will be no damage
remedy at all under § 377.34.” Chaudhry, 751 F.3d at 1103–
04. Because California’s bar on such relief had “the perverse
effect of making it more economically advantageous for a
defendant to kill rather than injure his victim,” we held that
it clashed with § 1983’s remedial purpose and undermined
its deterrence policy. Id. at 1104–05. “Section 377.34
therefore does not apply to § 1983 claims where the
decedent’s death was caused by the violation of federal law.”
Id. at 1105.

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10 VALENZUELA V. CITY OF ANAHEIM
In reaching this conclusion, Chaudhry relied in part on
Bell v. City of Milwaukee, 746 F.2d 1205, 1239 (7th Cir.
1984), overruled in part on other grounds by Russ v. Watts,
414 F.3d 738 (7th Cir. 2005), a § 1983 case which rejected
Wisconsin laws precluding loss of life damages because they
made it “more advantageous [for officials] to kill rather than
injure.”6 In doing so, Chaudhry implicitly disagreed with
the Sixth Circuit’s contrary decision in Frontier Ins. Co. v.
Blaty, 454 F.3d 590, 601, 603 (6th Cir. 2006), which held
that § 1983 did not conflict with a similar Michigan law
because § 1983 compensates only for “actual damages
suffered by the victim,” and a loss of life “is not ‘actual’ . . .
because it is not consciously experienced by the decedent.”
We see no meaningful way to distinguish Chaudhry from
this case.7 Both involve deaths caused by a violation of
federal law, and both consider the limits that California’s
§ 377.34 places on § 1983 plaintiffs—limits that we have
squarely rejected. Prohibiting loss of life damages would
run afoul of § 1983’s remedial purpose as much as (or even
6 Chaudhry also relied on similar cases from the Tenth and Second
Circuits. See Chaudhry, 751 F.3d at 1104–05 (first citing Berry v. City
of Muskogee, 900 F.2d 1489, 1506 (10th Cir. 1990) (rejecting an
Oklahoma state law that limited survival damages to property loss and
lost earnings as inconsistent with § 1983); and then citing McFadden v.
Sanchez, 710 F.2d 907, 911 (2d Cir. 1983) (holding the same for a New
York law barring punitive damages in § 1983 survival actions)).
7 Although district courts in our circuit once were split over the
availability of loss of life damages under § 1983, they are unanimous
after Chaudhry. See Estate of Casillas v. City of Fresno, No. 16-CV-
1042, 2019 WL 2869079, at *16 (E.D. Cal. July 3, 2019) (“Critically,
. . . the cases in California federal district courts denying survival
damages, including ‘loss of enjoyment of life’ damages, are pre-
Chaudhry; and courts in this district have authorized hedonic damages
in the post-Chaudhry landscape.”).

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VALENZUELA V. CITY OF ANAHEIM 11
more than) the ban on pre-death pain and suffering damages.
Following Chaudhry, we therefore hold that § 377.34’s
prohibition of loss of life damages is inconsistent with
§ 1983.
The Defendants’ attempts to distinguish Chaudhry fall
flat. First, the Defendants argue that the injury in this case
is different because unlike pre-death pain and suffering, a
person cannot “actually experience” the phenomenon of
being dead. But we already rejected this quasi-metaphysical
argument in Chaudhry when we endorsed the Seventh
Circuit’s analysis in Bell, which identified the rationale
behind Wisconsin’s restrictive statute—“that the victim
once deceased cannot practicably be compensated for the
loss of life to be made whole”—and, in light of § 1983’s
broad remedial purpose and deterrence goal, rejected the
state law anyway. Bell, 746 F.2d at 1236, 1239–40.
Second, the Defendants contend that the damages in this
case are already adequate: Even if Valenzuela’s family
could not recover the $3.6 million loss of life award, they
would still receive $9.6 million in pre-death pain and
suffering and wrongful death damages, which sufficiently
serves § 1983’s deterrent purpose. But the above awards
address different injuries. One can endure pain and suffering
separately from dying, while another can die painlessly and
instantly. “[T]o further the purpose of § 1983, the rules
governing compensation for injuries caused by the
deprivation of constitutional rights should be tailored to the
interests protected by the particular right in question.” Carey
v. Piphus, 435 U.S. 247, 258–59 (1978). Additionally, such
a framework would still preclude recovery for the decedent
who is penniless, without family, and killed immediately on
the scene. That reading is not tenable in light of § 1983’s
remedial purpose. See Zinermon v. Burch, 494 U.S. 113, 124

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12 VALENZUELA V. CITY OF ANAHEIM
(1990) (“[Section] 1983 was intended not only to . . . provide
a remedy for violations of civil rights ‘where state law was
inadequate,’ but also to provide a federal remedy ‘where the
state remedy, though adequate in theory, was not available
in practice.’” (citation omitted)).
Finally, the Defendants argue that loss of life damages
are too speculative because juries have never experienced
death. But juries are regularly asked to assess damages
without direct sensory experience of the issue before them—
including, in this case, for pre-death pain and suffering. And
it is still better for juries to decide whether a plaintiff has
received sufficient compensation than for our court to draw
arbitrary lines denying compensation entirely.8
At bottom, the Defendants ask us to overrule Chaudhry.
Not only is this outside our authority as a three-judge panel,
but it is also inconsistent with the Supreme Court’s repeated
reminders of § 1983’s goals and remedial purpose.
AFFIRMED.
LEE, Circuit Judge, dissenting:
Fermin Valenzuela, Jr. did not deserve to die, even if he
defied police orders and forcefully resisted arrest. His father
did not deserve to lose his son. His two children did not
deserve to lose their father. Valenzuela’s family deserves
compensation. And the jury agreed: In a civil suit filed by
his estate and his surviving family members against the City
8 Contrary to the dissent’s contention that we are mandating
maximizing recovery, we continue to leave it to juries to decide the
appropriate award in each case.

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VALENZUELA V. CITY OF ANAHEIM 13
of Anaheim and its police officers, the jury awarded
$13.2 million in damages — $6 million for pre-death pain
and suffering, $3.6 million for wrongful death, and another
$3.6 million for loss of life.
As tragic as his death was, we must follow the law —
and California law prohibits damages for loss of life. That
means Valenzuela’s estate and his family members should
receive $9.6 million instead of $13.2 million. The majority
opinion, however, holds that they are entitled to the full
$13.2 million, ruling that federal common law supplants
California law because it is “inconsistent” with § 1983’s
goals of deterrence and compensation. Chaudhry v. City of
Los Angeles, 751 F.3d 1096, 1103 (9th Cir. 2014).
But an award of $9.6 million (for wrongful death and
pain and suffering) is not “inconsistent” with deterrence or
compensation. We can respect state law enacted by the
people of California and still meet the twin policy goals of
§1983. We should not jettison California state law to
maximize damages for §1983 plaintiffs. I thus respectfully
dissent.
I. Section 1983 does not require us to maximize
damages.
Section 1983 serves as a powerful tool to vindicate the
constitutional rights of people who have suffered harm at the
hands of the government. 42 U.S.C. § 1983. But because
federal law does not provide for damages in § 1983 actions,
state law governs the availability of damages unless it is
“inconsistent” with the twin policy goals of § 1983,
compensation and deterrence. See Robertson v. Wegmann,
436 U.S. 584, 590–91 (1978); 42 U.S.C. §1988(a). And for
better or worse, California decided to bar “loss of life”
damages in civil cases (though it allows a panoply of other

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14 VALENZUELA V. CITY OF ANAHEIM
damages, including wrongful death and punitive damages).
Cal. Civ. Proc. Code § 377.34.1 So we must determine
whether California’s ban on loss of life damages is
“inconsistent” with the goals of compensation and
deterrence. Id.
Our analysis should start with the Supreme Court’s
decision in Robertson v. Wegmann, 436 U.S. 584 (1978).
The plaintiff there had sued the government for violating his
constitutional rights but he passed away before trial, and his
estate tried to substitute itself as the plaintiff. Louisiana’s
statute, however, extinguished a person’s tort claims at
death, thus preventing an estate from recovering anything
under § 1983. And because the plaintiff had no family
members when he died, Louisiana’s law effectively barred
any damages. 436 U.S. at 590–91. While the unique facts
of that particular case led to no recovery and perhaps an
unjust result, the Court held that the state law was not
“inconsistent” with § 1983 because “most Louisiana actions
survive the plaintiff’s death.” Id. Writing for the Court,
Justice Marshall explained that despite “the broad sweep of
§ 1983, we can find nothing in the statute or its underlying
policies to indicate that state law causing abatement of a
particular action should invariably be ignored in favor of a
rule of absolute survivorship.” Id. at 590–91. In other
words, the Court suggested that § 1983 does not trump state
1 Section 377.34 provides: “In an action or proceeding by a
decedent’s personal representative or successor in interest on the
decedent’s cause of action, the damages recoverable are limited to the
loss or damage that the decedent sustained or incurred before death,
including any penalties or punitive or exemplary damages that the
decedent would have been entitled to recover had the decedent lived, and
do not include damages for pain, suffering, or disfigurement.” Cal. Civ.
Proc. Code § 377.34 (emphasis added).

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VALENZUELA V. CITY OF ANAHEIM 15
law just because it does not provide maximum recovery for
plaintiffs.
But Robertson left open a more complex question:
Would a similar state law conflict with § 1983 if the
challenged governmental conduct directly caused the
plaintiff’s death? Id. at 594. In Chaudhry, we answered this
question in the narrow context of damages for pre-death pain
and suffering. Chaudhry v. City of Los Angeles, 751 F.3d
1096, 1105 (9th Cir. 2014). In that case, a police officer shot
and killed a 21-year-old autistic man sleeping in front of an
apartment building. The police officer alleged that he had
lunged towards him with a knife, a claim that was hotly
contested at trial. A jury awarded his estate $1 million for
pain and suffering, but California law bans damages for pre-
death pain and suffering (though California allows someone
who does not die to sue for pain and suffering). This court
reasoned that in “cases where the victim dies quickly” and
does not suffer any pain and suffering, “there often will be
no damage remedy at all.” Id. The opinion also noted that
“a prohibition against pre-death pain and suffering awards
for a decedent's estate has the perverse effect of making it
more economically advantageous for a defendant to kill
rather than injure his victim.” Id. Based on the facts of that
case, this court held that California’s ban on pre-death pain
and suffering was “inconsistent” with §1983’s goals of
deterrence and compensation. Id.
The majority believes that Chaudhry controls this case.
It interprets that decision to allow federal common law to
displace not only California’s ban on pre-death pain and
suffering (which was at issue in Chaudhry) but also the
prohibition on loss of life damages (which is at issue here).
I do not read Chaudhry as broadly as the majority does and

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16 VALENZUELA V. CITY OF ANAHEIM
believe it would be unwise to expand its reach to loss of life
damages (more on that later).
California’s bar on loss of life damages does not
undermine § 1983’s goal of deterrence. This case is a prime
example. Not only are the defendants on the hook for
$9.6 million, but they will also likely have to shell out
millions more in attorneys’ fees. An eight-figure judgment
deters even the largest city or police department. Chaudhry
also highlighted the potentially perverse incentive of
allowing someone who does not die to obtain pain and
suffering damages but barring someone who does die from
receiving those same damages. Id. But that incongruity does
not exist for loss of life damages because someone who does
not die cannot seek them. Thus, to borrow the language of
Chaudhry, California’s bar on loss of life damages does not
make death more “economically advantageous” than injury.
Id.
Nor does California’s bar on loss of life damages
undermine the goal of compensation. Chaudhry specifically
focused on the danger that “there often will be no damage
remedy at all” if someone dies quickly and experiences no
pain and suffering. Id. at 1105 (emphasis added). Under
those particular facts, California’s state law might be
“inconsistent” with § 1983’s goals of deterrence and
compensation. But that is not the case here. Here, even
without loss of life damages, Valenzuela’s estate and his
children will still receive $9.6 million. While no amount of
money can replace the loss of Valenzuela’s life, that nearly
eight-figure award is not inconsistent with § 1983’s
compensatory goal, especially given that pre-death pain and
suffering damages are now recoverable under Chaudhry.
The majority warns that California’s bar against loss of
life damages may hypothetically “preclude recovery for the

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VALENZUELA V. CITY OF ANAHEIM 17
decedent who is penniless, without family, and killed
immediately on the scene.” Maj. Op. at 11. But the Supreme
Court has already rejected that argument: In assessing
whether a state law is “inconsistent” with § 1983’s goals, we
cannot refuse to apply a state law just because it “caus[es]
abatement of a particular action.” Robertson, 36 U.S. at
590–91 (emphasis added). Rather, we must take a broader
view to see if the state law denies recovery under § 1983 in
“most” cases. Id. (upholding a state damages bar because
“most Louisiana actions survive the plaintiff’s death”). Put
another way, courts cannot abrogate a state law just because
it may lead to a seemingly unjust result in a particular § 1983
case. That is why the Court in Robertson upheld the
Louisiana state law: Even though it meant that the plaintiff’s
estate would not receive a penny, it was not “inconsistent”
with § 1983 because plaintiffs in most cases would still
obtain damages.
The majority opinion also suggests that the pain and
suffering and wrongful death damages do not adequately
compensate Valenzuela’s estate and his surviving family
members because these “awards address different injuries.”
Maj. Op. at 11. But neither § 1983 nor any court decision
suggests that we can ignore a state law unless it mandates
damages for each theory of harm suffered by the plaintiff or
his survivors. Simply put, we cannot supplant state law to
mandate maximum recovery for § 1983 plaintiffs. Rather,
we need to address whether the state law is inconsistent with
§ 1983’s twin goals of deterrence and compensation. And
here, I believe that $9.6 million satisfies both of those
important goals, and that we should thus respect the decision
by the people of California to bar loss of life damages.

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18 VALENZUELA V. CITY OF ANAHEIM
II. We should revisit Chaudhry.
While I do not believe Chaudhry controls this case, this
court should still revisit that decision in a future en banc
proceeding because it misconstrued Robertson and relied on
flawed assumptions.
First, Chaudhry ignored the Supreme Court’s guidance
about when a state law is “inconsistent” with § 1983’s goals
of deterrence and compensation. The opinion incorrectly
suggested that if a state law denies recovery in a particular
case or in some cases, that law conflicts with § 1983.
Chaudhry, 751 F.3d at 1104 (rejecting California’s ban on
pre-death pain and suffering damages because the “practical
effect” would be to “often . . . eliminate . . . damage awards
for the survivors of people killed by violations of federal
law”).
But the Supreme Court in Robertson rejected such an
expansive reading of the word “inconsistent.” The Court
upheld the Louisiana law limiting damages — even though
it meant that the plaintiff in that case would receive nothing
— because plaintiffs in “most” § 1983 cases would still
obtain recovery. Robertson, 436 U.S. at 590–91. As the
Court explained, if “success of the §1983 action were the
only benchmark, there would be no reason at all to look to
state law, for the appropriate rule would then always be the
one favoring the plaintiff, and its source would be essentially
irrelevant.” Robertson, 436 U.S. at 593. Put another way, a
state law is “inconsistent” with §1983’s goals only if “most”
§1983 plaintiffs would not obtain recovery. But Chaudhry
turned Robertson on its head and implied that a state law is
inconsistent whenever it denies recovery in any case or some
cases.

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VALENZUELA V. CITY OF ANAHEIM 19
Second, the facts in Chaudhry do not support its
reasoning. The court refused to apply California’s law
banning pre-death pain and suffering damages because
following it would supposedly “eliminate . . . damage
awards for the survivors of people killed by violations of
federal law.” Chaudhry, 751 F.3d at 1104. But the facts of
the case belie that assertion: “The jury awarded $700,000 to
the Chaudhrys for their wrongful death claim under state
law.” Id. at 1102. Curiously, despite briefly mentioning this
fact in the background section of the opinion, the Chaudhry
court never addressed why a wrongful death damages of
$700,000 would not serve the goals of compensation and
deterrence. So contrary to Chaudry’s implication, California
law compensated the plaintiffs, even without pre-death pain
and suffering damages. This omission strikes at the core of
Chadhry’s reasoning for refusing to follow state law.
Finally, the opinion relied on a dubious assumption that
state law limiting damages would not deter police officers
and in fact may encourage them to deliberately kill suspects.
It observed that “a prohibition against pre-death pain and
suffering awards for a decedent’s estate has the perverse
effect of making it more economically advantageous for a
defendant to kill rather than injure his victim.” Chaudhry,
851 F.3d at 1104.
That apparent assumption is not rooted in reality. See,
e.g., Carlson v. Green, 446 U.S. 14, 50 n.17 (1980)
(Rehnquist, J., dissenting) (rejecting the claim that law
enforcement officers “would intentionally kill the individual
or permit him to die, rather than violate his constitutional
rights to a lesser extent, in order to avoid liability under
Bivens”).
Chaudhry does not provide any support for its
assumption that law enforcement officers would deliberately

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20 VALENZUELA V. CITY OF ANAHEIM
choose to kill, rather than injure, a suspect to avoid potential
liability for pre-death pain and suffering. Most fatalities
involving law enforcement occur during chaotic, messy, and
dangerous situations in which officers must make split-
second decisions to protect others’ lives or their own. See
Jonathan Nix, “On the Challenges Associated with the Study
of Police Use of Deadly Force in the United States: A
Response to Schwartz & Jahn,” (28 Jul. 2020), PLoS One
15(7); e0236158 at *3, available at
https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC7386827/
pdf/pone.0236158.pdf. (noting that “roughly 87% of the
5,134 citizens fatally shot by police officers since 2015 were
in possession of a potentially deadly weapon”) (citations
omitted). All these deaths are tragic, and many were
unwarranted in hindsight. But no evidence even remotely
suggests that these police officers acted out of some macabre
desire to seek an “economically advantageous” outcome.
In other situations, a seemingly normal investigation or
arrest spirals out of control, leading to a tragic death. That
is what happened here. Acting on a woman’s complaint
about a suspicious man following her, two Anaheim police
officers approached Valenzuela in a laundromat. An officer
asked him to put his hands behind his back, but he did not
comply. In the ensuing struggle, all three men fell to the
ground, and one of the officers put him in a neck restraint.
But Valenzuela slipped away and fled the laundromat. One
of the officers tased him multiple times, but Valenzuela
sprinted across several lanes of traffic. The officers caught
up to him and tried to handcuff him, but Valenzuela resisted.
During this five-minute encounter, the officers told him to
stop resisting 41 times, all to no avail. Once the officers
finally managed to put handcuffs on Valenzuela, the officer
who had him in the neck restraint released him immediately.
Sadly, Valenzuela had lost consciousness and died eight

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VALENZUELA V. CITY OF ANAHEIM 21
days later. As I noted in our related decision, I believe that
the officers used excessive force because it was obvious that
Valenzuela was in distress. But I do not believe they made
a calculated decision to kill him because it would be
“economically advantageous.” Indeed, once they realized
Valenzuela was unconscious, they tried to resuscitate him
through CPR.
Finally, even the most malevolent officer would not kill
a suspect because it would be “economically advantageous.”
Almost all police officers today do not face any personal
financial liability because the government generally
indemnifies them.2 The real deterrents to police misconduct
are not monetary damages (which they do not personally pay
anyway), but firings, negative media attention, and potential
criminal liability.
Although we must construe §1983 with a broad remedial
purpose, we cannot ignore the tension between Chaudhry
and the actual law that Congress enacted. If Congress really
thought that this court’s job is to overwrite state law to
maximize recovery, why preserve state damages law?
Robertson, 436 U.S. at 593. Surely, a uniform federal
scheme would better accomplish that goal. Instead, Congress
told us to respect states’ sovereignty unless their law was
“inconsistent” with our own. 42 U.S.C. § 1988. Chaudhry
2 See Joanna C. Schwartz, “Qualified Immunity and Federalism All
the Way Down,” 109 Geo. L.J. 305, 321 (2020) (discussing the
development of state indemnification practices after the Supreme Court
invented modern qualified immunity). See also Martin A. Schwartz,
“Should Juries Be Informed that Municipality Will Indemnify Officers’
§ 1983 Liability for Constitutional Wrongdoing?,” 86 Iowa L. Rev.
1209, 1217 (2001) (discussing the common practice of state
indemnification of officers entitled to qualified immunity).

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22 VALENZUELA V. CITY OF ANAHEIM
ignores Congress’ directive as well as the will of the
California people.
I respectfully dissent.

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