In Alves v. Cnty. of Riverside,[1] the Ninth Circuit Court of Appeals concluded that a jury’s mixed verdicts finding deputies did not use excessive force under the Fourth Amendment but were nonetheless negligent under California law were reconcilable on a reasonable theory consistent with the evidence. In reaching its conclusion, the Court explained that California tort law’s “reasonable care” standard is broader than the federal Fourth Amendment’s reasonableness standard.
Background
In July 2019, the Riverside County Sheriff’s Department dispatch received several 911 calls from an apartment complex in Temecula, California reporting that an unarmed man, wearing pajama pants and no shirt, was bleeding from a head wound, knocking on doors, yelling to himself, and fighting a tree. DeputiesBrian Keeney and Sonia Gomez responded to the scene. Deputy Gomez activated her body camera but Deputy Keeney was not wearing one. The deputies encountered a man later identified as Kevin Niedzialek seated without shoes. He was bleeding from the head and speaking incoherently. Believing that Niedzialek was under the influence of a controlled substance or experiencing a mental health crisis, both deputies requested medical assistance.
As Deputies Keeney and Gomez approached Niedzialek, he abruptly stood up and advanced toward Deputy Keeney. Deputy Gomez deployed her taser, Niedzialek fell to the ground. Niedzialek began to sit up. Deputy Keeney commanded Niedzialek to put his hands behind his back and lie down, but Niedzialek stood up and advanced towards Deputy Keeney again. Deputy Gomez again deployed her taser, and Niedzialek fell forward to the ground.
The deputies struggled to handcuff Niedzialek as he lay face down, kicking and flailing his legs. Deputy Keeney placed his right knee on the left side of Niedzialek’s back and held Niedzialek’s left wrist. Deputy Gomez attempted to gain control of Niedzialek’s right arm while retrieving her handcuffs. After struggling for about 35 seconds, Deputy Gomez secured both of Niedzialek’s hands behind his back in handcuffs. Deputy Gomez then made a second call for paramedics. Niedzialek continued bucking, kicking, rolling about, and flailing his legs. Niedzialek told the deputies, “Need help” and “Get me up,” but Deputy Gomez did not hear him. Deputy Keeney removed his right knee from Niedzialek’s back. When Niedzialek rolled to his left side, Deputy Keeney once again placed his right knee on the left side of Niedzialek’s back near his shoulder blade. Deputy Gomez placed her right hand near the middle of Niedzialek’s back between his shoulder blades.
Approximately 45 seconds after Niedzialek’s handcuffing, his movements stopped. Niedzialek began to make grunting or moaning noises. Deputy Keeney lifted his knee from Niedzialek’s back, but Deputy Gomez kept her right hand on Niedzialek’s back. Two and a half minutes later, Deputy Gomez asked Niedzialek for his name. Niedzialek did not respond. Another minute and twenty seconds elapsed before Deputy Keeney noticed that Niedzialek might not be breathing. Deputies Keeney and Gomez rolled Niedzialek onto his back. By this time, Niedzialek had not moved in over four minutes. Deputy Gomez checked and then rechecked for a pulse and detected a “low faint pulse.” Neither deputy performed CPR on Niedzialek before paramedics arrived. Paramedics arrived two minutes after Niedzialek had been rolled onto his back and determined that he was not breathing. Paramedics instructed the deputies to begin CPR on Niedzialek. Deputy Keeney and others performed CPR on Niedzialek until he was transported to the hospital. Niedzialek died the next day.
Niedzialek’s successor-in-interest, Plaintiff Tracy Alves, sued the County of Riverside, Sheriff-Coroner Chad Bianco, and Deputies Keeney and Gomez under 42 U.S.C. section 1983 for, among other things, excessive force under the Fourth Amendment and California state law claims for, among other things, negligence. Plaintiff’s claims for excessive force and negligence were tried before a jury. At Plaintiff’s request, the District Court dismissed all claims against Deputies Keeney and Gomez before trial began.[2]
Plaintiff’s federal excessive force claim alleged that Deputies Keeney and Gomez subjected Niedzialek to unreasonable force or restraint by holding him down on his chest in a prone position after he was handcuffed, which prevented him from sitting up or breathing and caused him to asphyxiate and die. For the negligence claim, Plaintiff asserted that the deputies owed Niedzialek a duty of care, breached their duty by failing to move Niedzialek into a recovery position, monitor his pulse or breathing, or perform CPR before the arrival of paramedics, and that the deputies’ actions were a substantial factor in causing Niedzialek’s death.
Defendants moved for judgment as a matter of law on all claims under Federal Rule of Civil Procedure 50(a). The District Court denied that motion.
The jury was given a special verdict form to guide its deliberations. One of the questions addressed and provided instructions regarding Plaintiff’s Fourth Amendment excessive force claim. Another question addressed and provided instructions about the state law negligence claim. The civil jury returned a mixed verdict, finding that the deputies had not used excessive force or restraint against Niedzialek under the Fourth Amendment but had acted negligently under California law. The District Court entered a judgment of $1.5 million for plaintiff. Defendants renewed their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), contending that the jury’s mixed verdicts could not be reconciled because the legal standard governing the reasonableness of the deputies’ conduct was the same for both claims. The District Court denied Defendants’ motion. Defendants appealed.
Discussion
On appeal, Defendants renewed their contention that the jury was precluded from finding negligence after finding that Deputies Keeney and Gomez did not use excessive force or restraint against Niedzialek under the Fourth Amendment. According to Defendants, unless pre-force tactical conduct and decisions are implicated, the same Fourth Amendment reasonableness standard must apply when evaluating state law negligence and federal excessive force claims.
The Ninth Circuit Court of Appeals explained that under the Fourth Amendment, an officer’s use of excessive force during an investigation or arrest constitutes an unreasonable seizure.[3] When evaluating the reasonableness of an officer’s use of force, courts must consider the “totality of the circumstances,” including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386 (1989) (cleaned up). Other factors may also bear on the reasonableness analysis, such as whether less intrusive means are available, whether any warning was given before force is employed, and whether special caution should be exercised when an arrestee shows signs of mental instability.[4] The Fourth Amendment reasonableness inquiry asks “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to [the officers’] underlying intent or motivation.” Graham, 490 U.S. at 397.
The Court of Appeals explained that under California negligence law, a plaintiff must show that the defendant has “a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.”[5] The Ninth Circuit noted that the California Supreme Court had long recognized that law enforcement officers have a duty to act reasonably when using deadly force against a suspect. See Hayes v. County of San Diego, 57 Cal. 4th 622, 629 (2013) (citing Munoz v. Olin, 24 Cal. 3d 629, 634 (1979), and Grudt v. City of Los Angeles, 2 Cal. 3d 575, 587 (1970)).[6] Like the federal standard, “[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 632 (quoting Graham, 490 U.S. at 396). “The reasonableness of an officer’s conduct is determined in light of the totality of the circumstances.” Id. at 629.
The Ninth Circuit observed that, because the Fourth Amendment and California negligence law both focus on whether an officer’s use of deadly force has been reasonable under a totality of the circumstances, there was potential for confusion as to whether these two standards were the same. However, that question was settled by the California Supreme Court in Hayes. In Hayes, two San Diego County Sheriff’s deputies responded to a domestic disturbance call at the home of Shane Hayes where they were informed that Hayes had attempted suicide earlier. The deputies encountered Hayes in an adjoining room holding a knife, and when Hayes walked toward them, the deputies drew their weapons and shot and killed him. Hayes’s daughter filed a wrongful death suit in federal district court asserting various claims, including a claim of negligence based on the deputies’ pre-shooting conduct. The District Court concluded that the sheriff’s deputies owed plaintiff no duty of care with regard to their pre-shooting conduct and therefore they could not be held liable for negligently provoking a dangerous encounter in which the use of deadly force was then justified. On appeal to the Ninth Circuit, the Court of Appeals certified a question to the California Supreme Court which was granted. However, the California Supreme Court restated the question as “[w]hether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force.” Hayes, 57 Cal. 4th at 626. The Supreme Court responded that “such liability can arise if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly force was unreasonable.” Id. In rejecting the District Court’s conclusion that the deputies could not be held liable for negligence based upon their pre-shooting conduct, Hayes noted that this “overlooks the long-established principle of California negligence law that the reasonableness of a peace officer’s conduct must be determined in light of the totality of circumstances.” Id. at 632.
Hayes found its earlier decision in Grudt instructive. In Grudt, a plainclothes officer approached a vehicle carrying a double-barreled shotgun and rapped the muzzle against the vehicle’s window. Believing he was about to be robbed, the driver accelerated his vehicle toward a second officer in plainclothes. Both officers opened fire on the driver, killing him. Grudt held that the trial court erred in barring a claim of negligence against the officers. As Hayes explained, “[s]ignificantly, the shooting in Grudt appeared justified if examined in isolation, because the driver was accelerating his car toward one of the officers just before the shooting.” Hayes, 57 Cal. 4th at 629 (emphasis in original). But the totality of the circumstances, including the pre-shooting conduct of the officers, permitted a jury to find that the officers had not acted “in a manner consistent with their duty of due care when they originally decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and when they shot him to death.” Grudt, 2 Cal. 3d at 587. “In other words, preshooting circumstances might show that an otherwise reasonable use of deadly force was in fact unreasonable.” Hayes, 57 Cal. 4th at 630.
Hayes clarified that the “[t]he Fourth Amendment’s ‘reasonableness’ standard is not the same as the standard of ‘reasonable care’ under tort law, and negligent acts do not incur constitutional liability.’” Id. at 639 (quoting Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002), abrogated on other grounds by Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 427-28 (2017)). Hayes explained that “state negligence law, which considers the totality of the circumstances surrounding any use of deadly force . . . is broader than federal Fourth Amendment law, which tends to focus more narrowly on the moment when deadly force is used.” Id. at 639 (first citing Grudt, 2 Cal. 3d at 585-88; then citing Billington, 292 F.3d at 1190). Hayes also noted that its prior decision in Hernandez v. City of Pomona, 46 Cal. 4th 501 (2009), should not be read to mean that the federal and state standards are co-extensive simply because both require consideration of the “totality of the circumstances” in determining reasonableness. Hayes, 57 Cal. 4th at 639 (quoting Hernandez, 46 Cal. 4th at 514). If the standards were the same, Hayes pointed out, the Hernandez opinion would not have separately analyzed evidence of the officers’ pre-shooting conduct under federal and state theories of liability. Id. After Hayes was decided, the Ninth Circuit repeatedly acknowledged that California negligence law “is broader than federal Fourth Amendment law.”[7]
Defendants argued that the only difference between a federal excessive force claim and a California negligence claim is with respect to an officer’s tactical conduct and decisions preceding his or her use of lethal force. The Ninth Circuit disagreed, explaining that Hayes emphasized that there is “no sound reason to divide plaintiff’s [negligence claim] artificially into a series of decisional moments.” Id. at 637. Pre-force conduct should not be considered in isolation; it is merely one “part of a continuum of circumstances” surrounding the reasonableness of an officer’s use of deadly force. Id. at 638. Defendants’ suggestion that Hayes should be confined to pre-force conduct ran counter to the Hayes court’s rejection of analyzing such moments in isolation.
Moreover, beyond a mere difference in scope, Hayes explained that there are differences in the standards applied to state negligence and federal excessive force claims, emphasizing that “state negligence law, which considers the totality of the circumstances surrounding any deadly use of force,” “is broader than federal Fourth Amendment law, which tends to focus more narrowly on the moment when deadly force is used.” Id. at 639 (cleaned up). The Ninth Circuit here stated, “Hayes indicates that a factfinder could view those circumstances differently when determining whether a law enforcement officer’s use of deadly force was unreasonable.”[8]
The Ninth Circuit Court of Appeals concluded that the jury’s excessive force and negligence verdicts in this case were reconcilable on a “reasonable theory consistent with the evidence.” Vaughan v. Ricketts, 950 F.2d 1464, 1471 (9th Cir. 1991). The Court noted that the jury instructions and special verdict form reflected some of the substantive distinctions between Fourth Amendment law and state negligence law. For the Fourth Amendment claim, the jury was instructed to consider whether either deputy’s use of force or restraint against Niedzialek after handcuffing him was “objectively reasonable” under the totality of the circumstances. The jury was asked to assess “all of the circumstances known to each officer on the scene,” including eleven factors bearing upon “the nature of the crime” or circumstances at the time force was applied, whether Niedzialek posed an immediate threat to the safety of the officers or others, whether Niedzialek was actively resisting arrest or attempting to flee, the “relationship between the need for the use of force and the amount of force used,” the extent of Niedzialek’s injury, and “the availability of alternative methods to take [Niedzialek] into custody,” among other factors.
With respect to negligence, the jury was asked to determine whether the deputies “were negligent in using unreasonable force or restraint to arrest, detain, prevent escape of, or overcome resistance by Kevin Niedzialek,” and whether the use of unreasonable force or restraint was a substantial factor in causing Niedzialek’s death. The negligence instruction did not include all eleven factors listed in the Fourth Amendment instruction. And althoughthe negligence instruction also prompted the jury to evaluate the reasonableness of the deputies’ conduct based on a “totality of the circumstances,” it defined that inquiry as “all facts known to the officer[s] at the time, including the conduct of Deputies Brian Keeney and/or Sonia Gomez and Kevin Niedzialek leading up to the use of force or restraint.”
The Ninth Circuit stated that the jury instructions thus permitted the jury to focus on different aspects of the “totality of the circumstances” to determine if the deputies’ use of force or restraint resulting in Niedzialek’s death was unreasonable. The Fourth Amendment instructions here focused more attention on the moment “when [the deputies] restrained Kevin Niedzialek on his chest after handcuffing,” asking jurors to consider “the nature of the crime or other circumstances known to the deputies at the time force was applied,” whether he posed an immediate threat or was resisting arrest, and whether alternatives existed “to take [Niedzialek] into custody.” The jury could have analyzed the Fourth Amendment claim narrowly by focusing on the amount of force the deputies applied to Niedzialek after he was handcuffed and determined that the light pressure applied to his back and legs was not excessive. Conversely, the negligence instruction allowed the jury to consider more broadly “all facts known to [a reasonable] officer at the time,” including Niedzialek’s and the deputies’ conduct “leading up to the use of force or restraint” as well as whether the deputies’ continued restraint of Niedzialek was reasonably necessary after he ceased moving or breathing and was no longer “actively resisting arrest/detention.”
The Ninth Circuit observed that Plaintiff’s law enforcement expert Jeffrey Noble had testified that the national standard of care in policing requires moving an arrestee into a recovery position as soon as possible after handcuffing by rolling them to their side or sitting them up to facilitate breathing and prevent asphyxiation. Noble opined that the County of Riverside’s policy ignored this generally accepted standard of care. During the cross-examinations of Deputies Keeney and Gomez, Plaintiff emphasized that the deputies failed to respond to Niedzialek’s medical needs even after he stopped moving and was unresponsive to their questions. Plaintiff’s medical expert Dr. Wohlgelernter testified that Niedzialek was prevented from overcoming an “oxygen debt” when Deputies Keeney andGomez restrained him in a prone position with pressure applied to his back, rather than putting him in a recovery position where he could breathe more deeply. Dr. Wohlgelernter explained that the “lethal comb[ination]” of decreasing oxygen levels and increasing acid levels led Niedzialek to suffer cardiac arrest, and that his death was not caused by the level of methamphetamine in his system.
The Ninth Circuit Court of Appeals concluded that from this evidence, the jury could have reasonably determined that Deputies Keeney and Gomez owed Niedzialek a duty of due care after restraining him in handcuffs and breached their duty of care by not placing him in a recovery position, failing to check whether he was breathing and had a pulse, or applying pressure on his back when it was no longer necessary. The Ninth Circuit explained that when faced with a claim of inconsistent jury verdicts (as Defendants suggested here), the Court’s task was to “search for a reasonable way to read the verdicts as expressing a coherent view of the case,”[9] and to uphold the judgment “if it is possible to reconcile the verdicts on any reasonable theory consistent with the evidence,” Vaughan, 950 F.2d at 1471. Because it was possible to do so here, the Ninth Circuit Court of Appeals affirmed the lower court’s denial of Defendant’s renewed motion for judgment as a matter of law.
HOW THIS AFFECTS YOUR AGENCY
As the Ninth Circuit noted, Fourth Amendment and California negligence law both focus on whether an officer’s use of deadly force is reasonable under a totality of the circumstances. Although Defendants argued that the only difference between a federal excessive force claim and a California negligence claim is with respect to an officer’s tactical conduct and decisions preceding his or her use of lethal force, the Ninth Circuit rejected this view, pointing to Hayes’ declaration that there is “no sound reason to divide plaintiff’s [negligence claim] artificially into a series of decisional moments.” Pre-force conduct should not be considered in isolation; it is merely one “part of a continuum of circumstances” surrounding the reasonableness of an officer’s use of deadly force (for California negligence claims). Id. at 638. The Ninth Circuit stated that Defendants’ suggestion that Hayes should be confined to pre-force conduct ran counter to the Hayes court’s rejection of analyzing such moments in isolation.
In situations similar to those presented in this case, departments may wish to consider training and policies that call for law enforcement officers to place a suspect in a recovery position as soon as it is safe to do so in order to attempt to prevent a tragic outcome and minimize liability exposure for claims of restraint/position asphyxia.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com
Information on www.jones-mayer.com is for general use and is not legal advice. The transmission of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 2025 U.S. App. LEXIS 10265 (9th Cir. Apr. 29, 2025).
[2] Plaintiff’s negligence claim against Sheriff Bianco was voluntarily dismissed before the case was submitted to the jury.
[3] Tolan v. Cotton, 572 U.S. 650, 656 (2014).
[4] See Glenn v. Wash. Cnty., 673 F.3d 864, 875-76 (9th Cir. 2011).
[5] Vasilenko v. Grace Fam. Church, 3 Cal. 5th 1077, 1083 (2017) (quoting Beacon Residential Cmty. Assn. v. Skidmore, Owings & Merrill LLP, 59 Cal. 4th 568, 573 (2014)).
[6] The Ninth Circuit observed that California courts also recognize a special duty by law enforcement to use reasonable care when arresting or detaining an individual because “[o]nce in custody, an arrestee is vulnerable, dependent, subject to the control of the officer and unable to attend to his or her own medical needs.” Frausto v. Dep’t of Cal. Highway Patrol, 53 Cal. App. 5th 973, 993 (1st Dist. 2020).
[7] C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1257 n.6 (9th Cir. 2016); accord Vos v. City of Newport Beach, 892 F.3d 1024, 1037-38 (9th Cir. 2018); see also Tabares v. City of Huntington Beach, 988 F.3d 1119, 1126-28 (9th Cir. 2021) (holding that the District Court erred by “conflat[ing] the broader California negligence standard regarding pre-shooting conductwith the Fourth Amendment standard.”).
[8] To illustrate the point, the Ninth Circuit provided the following example: “[A] jury might analyze a Fourth Amendment claim narrowly to focus on the manner and context in which force or restraint was applied in that moment and might view a state negligence claim broadly to consider whether officers acted in a manner consistent with their duty of due care during the use of force incident. See Grudt, 2 Cal. 3d at 585-88.”
[9] Toner for Toner v. Lederle Lab’ys, a Div. of Am. Cyanamid Co., 828 F.2d 510, 512 (9th Cir. 1987).