The opinion
Filed 7/18/25 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
A.B., a Minor, etc., D084376
Plaintiff and Appellant, (Super. Ct. No. 37-2020-
00039800-CU-PO-NC)
v.
ORDER MODIFYING OPINION
COUNTY OF SAN DIEGO et al., AND DENYING REHEARING
Defendants and Respondents. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on June 26, 2025, be modified
as follows:
On page 8, footnote 3 is deleted. All subsequent footnotes are
renumbered accordingly.
On page 37, a new footnote is added immediately after the sentence
ending with “we must reverse the judgment as to him as well.” The text of
the new footnote is as follows:
In a petition for rehearing, defendants argue that Sheriff
Gore owed no duty to the public to exercise due care in
training deputies. We do not decide this duty issue because
it was raised for the first time in the defendants’ reply brief
below; it was not the basis for the trial court’s ruling; and it
was not properly briefed or meaningfully developed under a
separate argument heading as an alternative ground for
affirmance in the respondents’ brief on appeal. (See Luebke
v. Automobile Club of Southern California (2020) 59
Cal.App.5th 694, 703–708 [trial court erred by granting
summary judgment on duty issue not asserted in moving
papers]; Juge v. County of Sacramento (1993) 12
Cal.App.4th 59, 70 [due process prevents court from
granting summary judgment on ground of law not asserted
in moving papers without first giving opposing party an
opportunity to respond and a chance to show triable issue
of material fact as to that ground]; Provost v. Regents of
University of California (2011) 201 Cal.App.4th 1289, 1294
[“we do not consider all of the loose and disparate
arguments that are not clearly set out in a heading and
supported by reasoned legal argument” as required by rule
8.204(a)(1)(B) of the California Rules of Court].)
There is no change in the judgment.
The petition for rehearing is denied.
IRION, Acting P. J.
Copies to: All parties
2
Filed 6/26/25 (unmodified opn.)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
A.B., a Minor, etc., D084376
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00039800-CU-PO-NC)
COUNTY OF SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Blaine K. Bowman, Judge. Reversed and remanded.
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 stopped moving after
several minutes, the deputies kept him in a prone position for another 50
seconds before turning him on his side, then later returned him to a prone
position and resumed pressing down on his back. Within 25 minutes of the
first deputy’s arrival at the scene, Birtcher was no longer breathing. By the
time paramedics arrived and placed him on a gurney, he was dead from
asphyxiation and sudden cardiac arrest.
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 Civil
Code section 52.1 (Bane Act).
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
2
granting summary judgment on plaintiff’s direct negligence claim against
Sheriff Gore because plaintiff identified 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.
A psychiatric emergency response team comprised of Deputy Roland
Garza and a mental health clinician, Briana Brasel, arrived at the scene and
attempted to speak with Birtcher. Deputy Garza testified at his deposition
that Birtcher had trouble focusing, was putting his hands in and out of his
pockets, and “didn’t seem like he was understanding what was going on.”
Deputy Garza decided to detain him “to assess further[.]” When the deputy
tried to put Birtcher’s hands behind his back, Birtcher pulled away, and
Deputy Garza grabbed his shoulders and pushed him down onto the ground
into a seated position.
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
3
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 the 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
1 Plaintiff’s expert referred to this as the “maximum restraint position.”
We express no view on whether or when in the sequence of events Birtcher
was actually subject to “maximum” restraint.
4
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 into a “recovery position” on his side for about six minutes.
During that time, the deputies observed that Birtcher’s breathing had slowed
and become shallow. They administered two doses of Naloxone, a drug used
to counteract the effects of an overdose.
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 been 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 title 42 United
States Code section 1983, as well as wrongful death claims under state law.
The district court granted summary judgment to the defendants and denied
the plaintiffs’ cross-motion for summary judgment finding, among other
things, that even assuming a reasonable jury could find that the deputies
used excessive force, they were entitled to qualified immunity with respect to:
5
(1) Deputy Garza’s first attempt to physically restrain Birtcher in front of the
store entrance; (2) Deputies Garza and Robledo’s taser deployments against
Birtcher; (3) Deputy Robledo’s fist and sap strikes; and (4) the deputies’ prone
restraint of Birtcher. The district court further found, in relevant part, that
the County and Sheriff Gore were entitled to summary judgment because
they could not be held liable under federal law where the deputies’ conduct
did not deprive Birtcher or plaintiff of a constitutional right. (See Monell v.
Dep’t of Soc. Servs. (1978) 436 U.S. 658, 690–691.) The court therefore
dismissed plaintiff’s federal claims against all defendants, declined to
exercise supplemental jurisdiction over her remaining state law claims, and
dismissed the state claims without prejudice.
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
Garza and Robledo did not constitute excessive use of force. (A.B. v. County
of San Diego (9th Cir., Oct. 7, 2021, No. 20-56140) 2022 U.S. App. Lexis 9534
at pp. *2–*3.) As for the fourth and final category—that “deputy defendants
used a forceful prone restraint on Birtcher after backup deputies arrived” (id.
at p. *3)—the Ninth Circuit did not decide whether the deputies used
excessive force, but instead affirmed the district court’s ruling based on
qualified immunity because it found there was “no clearly established law
that would have put [the deputy defendants] on notice that the force they
used was excessive.” (Id. at pp. *3–*4.)
6
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 preclusion 2 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 violation 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
2 Although the parties and the trial court used the term res judicata, the
correct modern term is claim preclusion. (Samara v. Matar (2018) 5 Cal.5th
322, 326 (Samara).)
7
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 was in a state of excited delirium during
the incident; (3) deposition testimony from defendants’ police practices
expert; (4) documents and deposition testimony from the medical examiner
and non-party witnesses; (5) audio recordings including interviews of the
deputies; (6) training materials and logs produced by the County; (7) law
enforcement policy publications; (8) Birtcher’s medical and toxicology records;
(9) additional video recordings from bystanders; (10) expert declarations and
testimony regarding the use of force by law enforcement, Birtcher’s cause of
death, and his methamphetamine tolerance; (11) Sheriff Gore’s department
biography page; and (12) documents relating to the County’s Citizens’ Law
Enforcement Review Board (CLERB).
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
3 Defendants do not pursue this argument on appeal, so we do not decide
it.
8
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 hogtie, 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 their reply brief. Addressing the merits, counsel
asserted that Government Code sections 820, subdivision (a), and 820.8
provide a legal basis for holding a public employee liable for injury caused by
his own negligence. He further argued that the Sheriff’s Department still has
discretion over officer training because state agencies do not regulate all
aspects of training, and case law supports finding that Sheriff Gore can be
directly liable.
After considering the parties’ briefs, supporting documents, and oral
arguments at the motion hearing, the trial court issued a written order
9
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 were 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
10
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.
Lastly, the court acknowledged defendants’ reply brief argument that
officer training is controlled at the state level, and that Sheriff Gore “does not
have the authority to control precisely what is and what is not taught.” The
court ultimately ruled that plaintiff lacked a legal basis for suing Sheriff Gore
for negligence in training under California law.
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
11
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 plaintiff’s remaining state law claims based on this fourth
theory of excessive force. (See, e.g., Venegas v. County of Los Angeles (2007)
153 Cal.App.4th 1230, 1232 [federal doctrine of qualified immunity does not
apply to California civil rights action under Civ. Code, § 52.1].) Although the
defendants’ summary judgment motion asserted claim preclusion (res
judicata), their respondents’ brief on appeal appears to rely on issue
preclusion (collateral estoppel) under Hernandez v. City of Pomona (2009) 46
Cal.4th 501 (Hernandez). Yet defendants do not discuss the required
4 As the trial court noted, however, even if the first three theories are not
independently actionable, the deputies’ conduct underlying those theories
may still be relevant to the fourth theory because California law looks to the
“totality of the circumstances” leading up to the allegedly excessive force in
determining whether the force was unreasonable. (Hayes, supra, 57 Cal.4th
at pp. 629–631.) We express no view on this question because it is
unnecessary to our resolution of the appeal.
12
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. (Ibid.)
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
13
papers except that to which objections have been made and sustained. (Ibid.)
Evidence presented in opposition to summary judgment is liberally
construed, with any doubts about the evidence resolved in favor of the party
opposing the motion. (Ibid.)
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.” (Ibid.) “ ‘[T]he 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
14
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.)
As noted, all of plaintiff’s remaining claims are based on the deputies’
use of allegedly excessive force in Birtcher’s prone restraint. Our Supreme
Court “has long recognized that peace officers have a duty to act reasonably
when using deadly force. [Citations.] The reasonableness of an officer’s
conduct is determined in light of the totality of circumstances.” (Hayes,
supra, 57 Cal.4th at p. 629.) Under the Fourth Amendment, claims that
police officers used excessive force in the course of an arrest, investigatory
stop or other seizure of a free citizen are analyzed under a reasonableness
standard: “police officers may use force to the extent that it is objectively
reasonable under the circumstances.” (Murchison v. County of Tehama
(2021) 69 Cal.App.5th 867, 887 (Murchison), citing Graham v. Connor (1989)
490 U.S. 386, 395, 397 (Graham).) The “Graham factors” that federal courts
use to determine whether force was excessive or unreasonable under the
Fourth Amendment include: “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
15
whether he is actively resisting arrest or attempting to evade arrest by
flight.” (Graham, at p. 396.) Our Supreme Court has held that “[t]he same
consideration of the totality of the circumstances,” including the Graham
factors, is required in determining reasonableness under California
negligence law. 5 (Hernandez, supra, 46 Cal.4th at p. 514; see CACI Nos.
1305A & 3020 [incorporating the Graham factors into instructions on how to
determine whether force is unreasonable].)
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.”
5 In Hayes, our Supreme Court observed that California “negligence law,
which considers the totality of the circumstances surrounding any use of
deadly force [citation], is broader than federal Fourth Amendment law, which
tends to focus more narrowly on the moment when deadly force is used
[citation].” (Hayes, supra, 57 Cal.4th at p. 639.) More recently, however, the
United States Supreme Court brought Fourth Amendment law into closer
alignment with California negligence law by explicitly rejecting the so-called
“moment-of-threat rule” adopted by some federal circuits—which looked “only
to the circumstances existing at the precise time an officer” used deadly force.
(Barnes v. Felix (May 15, 2025, No. 23-1239) __ U.S. __ [2025 U.S. LEXIS
1834, *4; 2025 WL 1401083.]) The Supreme Court “reject[ed] that approach
as improperly narrowing the requisite Fourth Amendment analysis.” (Ibid.)
“To assess whether an officer acted reasonably in using force, a court must
consider all the relevant circumstances, including facts and events leading up
to the climactic moment.” (Ibid.)
16
(Graham, at p. 396.) “The calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular
situation.” (Ibid.) “The ‘inherently fact-specific determination whether the
force used to effect an arrest was reasonable under the Fourth Amendment
should only be taken from the jury in rare cases.’ ” (Murchison, at p. 887.)
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 policies 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
17
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
officer would know that when a person is lying face down, breathing can be
more difficult because the weight of the person’s body must be lifted to
breathe properly, and an officer kneeling or lying on the individual’s back
aggravates the situation. The greater the weight or more intense the
compression on the person’s back, the harder it becomes for the person to
breathe. As a result, the suspect struggles more violently, and an untrained
officer may respond by using more force. With no reserve oxygen left and
unable to take deep breaths, the individual slips into unconsciousness and
could be dead in minutes. Clark concluded that the deputies in this case
failed to follow policy and acted unreasonably when they placed bodyweight
on Birtcher while he was handcuffed.
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
18
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 how 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 to the contrary without any meaningful analysis is not a basis to
19
disregard Clark’s opinions. 6 “The rule that a trial court must liberally
construe the evidence submitted in opposition to a summary judgment
motion applies in ruling on both the admissibility of expert testimony and its
sufficiency to create a triable issue of fact. [Citations.] In light of the rule of
liberal construction, a reasoned explanation required in an expert declaration
filed in opposition to a summary judgment motion need not be as detailed or
extensive as that required in expert testimony presented in support of a
summary judgment motion or at trial.” (Garrett v. Howmedica Osteonics
Corp. (2013) 214 Cal.App.4th 173, 189.)
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,
6 “[E]xpert testimony on the use of force has often been admitted in
California excessive force cases without objection.” (People v. Sibrian (2016)
3 Cal.App.5th 127, 136; see also Allgoewer v. City of Tracy (2012) 207
Cal.App.4th 755, 764 [“expert testimony can be admissible on the issue of
reasonable force”].) On appeal, defendants have not challenged the trial
court’s decision to overrule all their evidentiary objections, including any
objections they made to Clark’s report and testimony. The court found that
defendants’ objections failed to comply with the formatting requirements in
California Rules of Court, rule 3.1354, and failed to discretely identify
objectionable material. On appeal, defendants still do not specify which
portions of Clark’s report and testimony they objected to, and they do not
state the grounds for those objections, discuss the relevant law concerning
their objections, or explain how the trial court erred in overruling them.
Defendants have forfeited any challenge to the trial court’s evidentiary
rulings by failing to renew them on appeal. In a summary judgment appeal,
“[t]he party making the evidentiary objection at the trial level forfeits it by
not renewing it on appeal.” (Gray v. La Salle Bank, N.A. (2023) 95
Cal.App.5th 932, 969, fn. 22; see also Reid v. Google, Inc. (2010) 50 Cal.4th
512, 534 [“the burden [is] on the objector to renew the objections in the
appellate court”].)
20
was supported by cites to deposition testimony from Deputies Robledo and
Garza. Clark observed from his review of the evidence, and defendants 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
making grunting noises and appeared to be struggling to breathe. Our own
review of the video evidence, construed in plaintiff’s favor, persuades us that
Clark’s interpretation is at least reasonable and could rationally be accepted
by the jury. In fact, Deputy Beatty testified to being trained that a person
who is restrained prone with bodyweight on their back might attempt to
move their body in an effort to breathe more adequately. Sergeant Alan
Noble said Birtcher was “squirming his body,” and Deputy Stalzer described
Birtcher’s “resistance” as “wiggling” his body and “trying to raise his chest
and his body off the ground[,]” which is consistent with Clark’s observations.
Clark’s opinions therefore find support in plaintiff’s other evidence, and also
reinforce plaintiff’s argument that the deputies used excessive force once
Birtcher ceased “actively resisting arrest or attempting to evade arrest by
flight.” (Graham, supra, 490 U.S. at p. 396.) On this record, a reasonable
21
trier of fact could reject the trial court’s conclusion that Birtcher “was rolled-
over into the recovery position immediately after he stopped resisting.”
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.”
22
Finally, plaintiff’s other expert evidence further supports Clark’s
reasoned explanation “of how and why maximum restraints are deadly force.”
Plaintiff submitted the report and deposition testimony of Dr. Ronald
O’Halloran, a forensic pathologist and retired medical examiner.
Dr. O’Halloran provided opinions based on his review of, among other things,
the medical examiner’s records and deposition, Birtcher’s medical records,
video evidence, and the deputies’ depositions. He concluded that: (1) Birtcher
“died from asphyxia by chest compression and by oral and nasal obstruction
during prone restraint by police officers[,]” including their use of the spit
sock; (2) “[i]n the much less likely event that [Birtcher] didn’t die from
asphyxia during restraint, but rather died from an acute cardiac arrhythmia
during restraint, the restraint activities by police would still be direct,
significant, causal factors in the death[]”; and (3) the medical examiner was
correct to determine Birtcher’s cause of death was “sudden cardiac arrest
while restrained,” with the manner of death being “homicide.”
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
23
“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 force, it can be one of a number of factors to consider on the issue of
whether the force used was excessive]; cf. Samples v. Atlanta (11th Cir. 1990)
916 F.2d 1548, 1551 [expert testimony on “the prevailing standards in the
field of law enforcement” on the use of force was admissible in an excessive
force case].) As noted, the trial court’s finding that there were no triable
issues on excessive force was largely based on its conclusion that the
deputies’ actions were “by the book.” But defendants made no reference to
any policies or training in their own statement of undisputed material facts,
and the court did not explain how it concluded that the deputies’ use of
24
forceful prone restraint with downward pressure conformed to any policy or
training materials in the record.
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
25
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 the ground or raise him to a seated position. Defendants
have provided no evidence to explain why it was reasonable as a matter of
law to keep Birtcher in a prone position and continue applying pressure to his
back after he was immobilized by the handcuffs and leg restraints. When the
bodycam footage showed Birtcher going limp, it took another 50 seconds for
the deputies to put Birtcher into recovery position, then later they returned
him to a prone position while pressing down on him for another significant
period of time. The deputies also did not apply the restraints to Birtcher in a
way that was consistent with the training video because his waist cord was
connected to his ankles from behind his waist.
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 period 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
26
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 concluded 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 threat is proven non-existent, a prohibition against unqualified
use of this restraint procedure for prisoners should be included in all law
enforcement agency policy.”
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
27
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.
28
- Deputy Winter testified that to his knowledge, 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
29
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 under 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.
4. Case Law Supporting Plaintiff’s Theory
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
30
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 “hallucinating 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. 1056.)
The Ninth Circuit also found that although Drummond may have presented a
danger to himself or others before being handcuffed, once he was prone on the
ground with his arms cuffed behind his back, “a jury could reasonably find
that he posed only a minimal threat to anyone’s safety.” (Id. 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 compliant,
31
prone, and handcuffed individual despite his pleas for air involves a degree of
force that is greater than reasonable.” (Id. at p. 1059.)
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. 402–404.) The officers placed Aguirre in prone position with his
legs pushed up by his buttocks and kneeled forward on his legs, holding them
near his bound hands “in a hog-tie-like position.” (Id. 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. 403–404.) After being held in that position for approximately five-
and-a-half minutes, Aguirre stopped breathing. (Id. at p. 404.) A subsequent
autopsy report concluded that Aguirre died by homicide, and that the prone
restraint caused him to asphyxiate. (Ibid.)
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.)
32
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. 706–707.)
The officer punched and tasered Mendoza several times while Mendoza yelled
for him to stop. (Id. at p. 709.) Three other officers arrived later and helped
the defendant officer hold Mendoza down in prone position, handcuff him,
and then pull him up to a sitting position. (Id. at p. 707.) Mendoza was dead
soon after. (Ibid.)
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
their bodyweight on Mendoza’s back while he was pinned and handcuffed.
(Mendoza, supra, 206 Cal.App.4th at p. 719.) The court found substantial
evidence to support the jury’s finding that the officer punched and tasered a
non-resisting, “emotionally troubled and physically ill” man, and that the
officer was “responsible for the restraint that caused Mendoza to
asphyxiate[.]” (Id. at p. 720.)
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
33
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
summary 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].)
34
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 in
restraints in a prone position, and holding him in that position forcefully
using bodyweight for an extended period, constituted excessive force. We
must therefore reverse the trial court’s grant of summary judgment.
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 Government Code section 820, subdivision
(a), provided a statutory basis for holding Sheriff Gore directly liable for his
own negligence. That section provides that except when otherwise provided
by law, public employees in California are statutorily liable to the same
extent as private persons for injuries caused by their acts or omissions,
subject to the same defenses available to private persons. (Hayes, supra, 57
Cal.4th at pp. 628–629; Gov. Code, § 820.) Neither defendants nor the trial
court addressed that statute. Instead, defendants now assert that
Government Code section 820.8 gives Sheriff Gore immunity. But by its own
terms, that section only immunizes public employees for injury “caused by
the act or omission of another person” and does not “exonerate[] a public
employee from liability for injury proximately caused by his own negligent or
35
wrongful act or omission.” (Gov. Code, § 820.8, italics added.) Accordingly,
Government Code section 820 provides a legal basis for a direct negligence
claim against Sheriff Gore for his own wrongful acts or omissions. 7
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 himself submitted no declaration. It was Sheriff Gore’s initial
burden on summary judgment to submit evidence demonstrating his lack of
involvement in the training policies and to include that evidence in the
statement of undisputed facts. (Calemine, supra, 171 Cal.App.4th at p. 160.)
He failed to do so. As a result, he did not meet his initial burden of negating
all theories of liability alleged in the complaint. (See Hufft v. Horowitz (1992)
4 Cal.App.4th 8, 23 [“Summary judgment is improper unless the moving
party negates every alternative theory of liability presented by the
pleadings.”].)
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
7 We do not decide whether any other form of statutory immunity might
apply because defendants have not argued any other theory of immunity.
36
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 maker, 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].)
37
DISPOSITION
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.
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