K.C. v. Las Vegas Metropolitan Police Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-5580

K.C., a minor, by and through her

guardian ad litem Carolina Navarro;

D.C. No.

A. S., a minor, by and through her

2:16-cv-03039-

guardian ad litem Araceli Saenz;

APG-NJK

CAROLINA NAVARRO, guardian

ad litem on behalf of K.C.;

ARACELI SAENZ, guardian ad

ORDER

litem on behalf of A.S.; AMBER

CERTIFYING

NEUBERT, guardian ad litem on

QUESTION TO

behalf of K.C.; JACQUELINE

THE SUPREME

LAWRENCE; KEITH CHILDRESS

COURT OF

Sr., Individually and as Successor in

NEVADA

interest to Keith Childress, Jr.,

deceased; FREDERICK WAID, as

special administrator of the Estate of

Keith Childress, Jr.,

Plaintiffs - Appellants,

v.

LAS VEGAS METROPOLITAN

POLICE DEPARTMENT; DOJ -

UNITED STATES DEPARTMENT

OF JUSTICE; ROBERT

BOHANON; BLAKE WALFORD;

JAMES LEDOGAR,

2 K.C. V. LVMPD

Defendants - Appellees,

and

BRIAN MONTANA, UNITED

STATES MARSHALS SERVICE,

Defendants.

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, Chief District Judge, Presiding

Argued and Submitted October 6, 2025

Las Vegas, Nevada

Filed January 2, 2026

Before: Mark J. Bennett, Gabriel P. Sanchez, and Holly A.

Thomas, Circuit Judges.

SUMMARY *

Certification to Supreme Court of Nevada

In an action arising from a lethal shooting in which

police officers mistakenly believed that a suspect carried a

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

K.C. V. LVMPD 3

firearm, the panel certified the following two questions to

the Supreme Court of Nevada:

1. Under Nevada law, can a plaintiff raise a

theory of negligence based on an officer’s

intentional use of force?

2. Is “reasonable care” under Nevada

negligence law co-extensive with

“reasonableness” under the Fourth

Amendment?

In a concurrently filed memorandum disposition, the

panel affirmed the district court’s grant of summary

judgment to defendants on plaintiffs’ Fourth Amendment

excessive force claim based on defendants’ first volley of

shots and Fourteenth Amendment interference with familial

relationship claim.

ORDER

Pursuant to Rule 5 of the Nevada Rules of Appellate

Procedure, we respectfully certify the following two

questions to the Supreme Court of Nevada:

1. Under Nevada law, can a plaintiff raise a

theory of negligence based on an officer’s

intentional use of force?

2. Is “reasonable care” under Nevada

negligence law co-extensive with

“reasonableness” under the Fourth

Amendment?

4 K.C. V. LVMPD

The answer to these questions will be determinative of

the cause pending before this court as there is no controlling

precedent in the decisions of the Supreme Court of Nevada

or the Nevada Court of Appeals. Nev. R. App. P. 5(a). We

do not intend our framing of these questions to restrict the

Supreme Court of Nevada’s consideration of any issues it

determines are relevant. Should the Supreme Court of

Nevada decide to consider the certified questions, it may, in

its discretion, reformulate the questions. See Broad v.

Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.

1999). If the Court agrees to decide these questions, we will

accept its decision. We hold Plaintiffs’ negligence claim in

abeyance pending the result of certification.

I.

This case concerns a lethal shooting in which police

officers mistakenly believed that a suspect carried a firearm.

We briefly summarize the facts. On March 14, 2013, Keith

Childress was indicted on charges of armed robbery and

kidnapping in Arizona. He fled Arizona and crossed into

Nevada. On December 30, 2015, U.S. Marshals located

Childress at his uncle’s home in Las Vegas and, on

December 31, attempted to apprehend Childress. Childress

fled on foot. The U.S. Marshals requested assistance from

the Las Vegas Metropolitan Police Department

(“LVMPD”). A U.S. Marshal incorrectly reported that

Childress was suspected of “attempted homicide.” LVMPD

officers were also informed that a firearm had been found in

Childress’s uncle’s car and that Childress may have access

to a firearm.

LVMPD Sergeant Robert Bohanon and Officer Blake

Walford responded to the call and identified Childress

walking on the right side of the road in a cul-de-sac.

K.C. V. LVMPD 5

Bohanon commanded Childress to “get on the ground” and

show his “hands,” but Childress ignored the commands and

instead crossed to the left side of the street.

The officers advanced and crouched behind a vehicle

beside two U.S. Marshals. Bohanon told Walford that

Childress had a firearm in his right hand. Bohanon

repeatedly commanded Childress to drop his “gun” and

show his “hands.” Bohanon also warned, “If you advance

on us, you will be shot.”

Childress then walked quickly toward the officers. The

officers testified that they could not see Childress’s right

hand as he approached them. According to the officers,

Childress’s hand was either in his pant pocket or hidden

behind his legs. Bohanon and Walford opened fire when

Childress came within 45 feet of them. Bohanon fired two

rounds, and Walford fired two or three rounds. Childress

was struck by the first volley of shots and fell to the ground.

After a two-second pause, Bohanon fired two more shots as

Childress lay on the ground. Walford paused for five

seconds before firing two or three additional shots. Neither

U.S. Marshal fired upon Childress.

After the second volley of shots was fired, Officer James

Ledogar released a police dog onto Childress, which bit him

for fifteen seconds. The officers then handcuffed and

searched Childress’s body. They found a black phone in

Childress’s right front pocket but no gun. Medical personnel

arrived and pronounced Childress dead at the scene.

Childress’s estate, parents, and three minor children

(“Plaintiffs”) sued Bohanon, Walford, Ledogar, and

LVMPD (“Defendants”), asserting, inter alia, a Fourth

Amendment excessive force claim against Bohanon and

Walford for firing their weapons, a Fourth Amendment

6 K.C. V. LVMPD

excessive force claim against Ledogar for his deployment of

a police dog, and state law negligence and battery claims

against all the officer Defendants. As to Plaintiffs’ Fourth

Amendment claims, the district court granted Defendants’

motion for summary judgment concerning Bohanon and

Walford’s first volley of shots. The court concluded that the

officers had a reasonable albeit mistaken belief that

Childress was armed and posed an immediate threat to their

safety, and that their use of force was reasonable as a matter

of law. The district court denied summary judgment as to

Bohanon and Walford’s second volley of shots and

Ledogar’s deployment of the police dog while Childress lay

on the ground. Following a trial, the jury returned a verdict

in Defendants’ favor on Plaintiffs’ remaining Fourth

Amendment claims.

As for Plaintiffs’ negligence claim, the district court

determined that Nevada law did not allow Plaintiffs to assert

a negligence theory of liability based on the officers’

intentional use of force. Observing that Nevada law is

unclear on this question, the district court agreed with the

Supreme Court of Arizona, which held that “plaintiffs

cannot assert a negligence claim based solely on an officer’s

intentional use of physical force.” Ryan v. Napier, 425 P.3d

230, 233 (Ariz. 2018). The district court accordingly

excluded the officers’ shootings from the jury’s negligence

evaluation and instructed the jury to evaluate only the

officers’ “alleged failure to properly and adequately assess

the need to use force against Childress after the first volley

of shots until the time the police dog was taken off of

Childress.” The jury determined that Bohanon and Walford

were 25% negligent and Childress was 75% negligent. The

jury awarded Plaintiffs $150,000 in damages, but under

K.C. V. LVMPD 7

Nevada’s modified comparative fault regime, see Nev. Rev.

Stat. § 41.141, Plaintiffs’ award was reduced to $0.

Plaintiffs timely appealed to our court. We affirm in a

concurrently filed memorandum disposition the district

court’s grant of summary judgment to Defendants on the

Fourth Amendment excessive force claim based on the first

volley of shots and Fourteenth Amendment interference with

familial relationship claim. Plaintiffs’ negligence claim,

however, raises unsettled questions of state law on which we

request guidance.

II.

Nevada law permits certification of a state law question

from a federal court when there are “questions of law of this

state which may be determinative of the cause then pending

in the certifying court and as to which it appears to the

certifying court there is no controlling precedent in the

decisions of the Supreme Court or Court of Appeals of this

state.” Nev. R. App. P. 5(a).

No controlling precedent from the Nevada appellate

courts resolves these two questions. Defendants maintain

that a negligence claim cannot be based on an intentional use

of force because, as a matter of tort principles, negligent

conduct is separate from intentional conduct. Plaintiffs point

to recent decisions by the Supreme Court of Nevada on

officers’ intentional uses of force that suggest otherwise.

None of those authorities, however, resolve the two

questions we certify.

Some precedent suggests that negligence cannot be

based on an intentional act, as Defendants argue. In Rocky

Mountain Produce Trucking Company v. Johnson, 369 P.2d

198 (Nev. 1962), the Supreme Court of Nevada explained

8 K.C. V. LVMPD

that, as a general matter, negligence is mutually exclusive

with intentional tort. Id. at 201–02. The Court held that

“wanton misconduct did not exist as a matter of law” in a

collision between two drivers. Id. at 203. The Court

differentiated “wanton misconduct” from “negligent” and

“intentional” conduct by defining all three terms to show the

defendant driver’s conduct was only “negligent” but not

“wanton.” Id. at 201–02. In its discussion, the Court

explained:

Negligence is an unintentional tort . . . . A

negligent person has no desire to cause the

harm that results from his carelessness. And

he must be distinguished from a person guilty

of willful misconduct, such as assault and

battery, who intends to cause harm.

Willfulness and negligence are contradictory

terms. If conduct is negligent, it is not

willful; if it is willful, it is not negligent.

Id. (quotations and citations omitted).

This principle finds support in persuasive tort

authorities. See Restatement (Second) of Torts § 282 cmt. d

(A.L.I. 1965) (noting that negligence “excludes conduct

which creates liability because of the actor’s intention to

invade a legally protected interest”); Restatement (Third) of

Torts: Physical and Emotional Harm § 1 cmt. d (A.L.I. 2010)

(“In a negligence case the defendant does not desire to cause

harm . . . .”).

Still, the general principle set forth in Rocky Mountain

does not establish that negligence claims cannot be based on

a police officer’s intentional use of force. Rocky Mountain

did not involve an officer’s use of force, nor did it address

K.C. V. LVMPD 9

plaintiffs who assert concurrent Fourth Amendment

excessive force and state law negligence claims. Moreover,

the Supreme Court of Nevada has never applied Rocky

Mountain’s reasoning to hold that negligence cannot be

based on the same set of facts that can support an intentional

tort; it has instead applied that principle to hold that

negligent conduct is not intentional conduct. See, e.g.,

Tahoe Vill. Homeowners Ass’n v. Douglas County, 799 P.2d

556, 558 (Nev. 1990) (per curiam) (“Willful misconduct

requires some degree of intent to do harm, yet Tahoe’s

complaint contains no allegations regarding intent.”); Lee v.

Lamar Cent. Outdoor, LLC, 130 Nev. 1208, 2014 WL

1319180, at *3 (Nev. 2014) (unpublished disposition)

(finding no willfulness where plaintiff alleged only

negligence and failed to offer evidence of willfulness).

Other recent Supreme Court of Nevada decisions suggest

that a police officer’s intentional use of force can give rise to

negligence liability, as Plaintiffs argue. In Estate of Brenes

v. Las Vegas Metropolitan Police Department, the Court

denied the defendants’ claim of discretionary immunity and

reversed a grant of summary judgment for officers on battery

and negligence claims where evidence was presented before

the district court that the “use of lethal force was objectively

unreasonable” under the Fourth Amendment. 468 P.3d 368,

2020 WL 4284335, at *1 & n.2 (Nev. 2020) (unpublished

disposition). Brenes suggests that the Supreme Court of

Nevada would hold that a negligence claim can be based on

an officer’s intentional use of force. As an unpublished

disposition, however, Brenes is not controlling. See Nev. R.

App. P. 36(c)(2).

In Paulos v. FCH1, LLC, the state trial court “concluded

that issue preclusion applied to [a] negligence claim” against

a police officer with respect to a use of force incident

10 K.C. V. LVMPD

because a federal district court “had determined that [the

officer] acted reasonably under the Fourth Amendment and

the issue of reasonableness under the Fourth Amendment

was identical to that under Nevada negligence law.” 456

P.3d 589, 593 (Nev. 2020) (en banc). The Supreme Court of

Nevada reversed and held that the judgment of the federal

district court was not final and preclusive on the issue of

reasonableness because the Ninth Circuit had affirmed on a

different prong of the qualified immunity analysis. Id. at

595. In doing so, the Court noted that recent caselaw has

“called into question” whether “reasonableness under the

Fourth Amendment is identical to reasonableness under

Nevada’s negligence law,” but the Court declined to resolve

that issue. Id. at 595 n.2.

Like the parties, federal district courts are divided on the

questions we certify today. These courts have

acknowledged that “[t]he Supreme Court of Nevada has not

expressly addressed the issue of whether a police officer can

be liable under a negligence theory based on the same facts

as battery, excessive force, or other intentional tort claims.”

DeCastro v. Las Vegas Metro. Police Dep’t, No. 2:23-cv-

00580-APG-EJY, 2024 WL 4189939, at *22 (D. Nev. Sep.

12, 2024). When confronted with this issue, however,

district courts have resolved it differently.

Some district courts predict that “the Supreme Court of

Nevada would agree with the Supreme Court of Arizona that

‘negligence and intent are mutually exclusive grounds for

liability,’ and there is no cognizable claim for the ‘negligent

use of intentionally inflicted force.’” Id. (quoting Ryan, 425

P.3d at 236); see also, e.g., Wells v. City of Las Vegas, No.

2:21-CV-1346 JCM (EJY), 2024 WL 2028007, at *16 (D.

Nev. May 7, 2024) (predicting that the Supreme Court of

Nevada would hold that “liability under a negligence theory

K.C. V. LVMPD 11

cannot be based on an intentional use of force”); Sommer v.

Las Vegas Metro. Police Dep’t, No. 2:23-cv-01682-GMN-

NJK, 2025 WL 1180174, at *13 n.2 (D. Nev. Apr. 22, 2025)

(“[T]o the extent Plaintiff’s negligence claim is based on an

intentional use of force, it cannot form the basis of her

negligence claim.”).

Other district courts have rejected such a prediction. See,

e.g., Llera v. Las Vegas Metro. Police Dep’t, No. 2:20-cv-

01589-RFB-BNW, 2023 WL 6393092, at *16 (D. Nev. Sep.

30, 2023) (noting the absence of “binding or persuasive

authority that the negligence and battery causes of action are

mutually exclusive and cannot be alleged together as a

matter of law”); Murnane v. Las Vegas Metro. Police Dep’t,

No. 2:13-cv-01088-MMD-PAL, 2016 WL 10806738, at *11

(D. Nev. Mar. 31, 2016) (concluding the same because the

plaintiffs’ “negligence claim sweeps more broadly” than

intentional tort claims).

In the absence of controlling precedent, the parties turn

to out-of-state authorities. Plaintiffs invoke California law,

which permits plaintiffs to assert a negligence claim based

on an officer’s intentional use of force. See Hayes v. County

of San Diego, 305 P.3d 252, 262 (Cal. 2013) (holding that

the “reasonable care” standard of negligence and the Fourth

Amendment “reasonableness” standard are distinct).

Defendants, like the district court here, invoke Arizona law,

which prohibits plaintiffs from “assert[ing] a negligence

claim based solely on an officer’s intentional use of physical

force.” Ryan, 425 P.3d at 233.

The answers to the questions we certify may determine

the outcome of this case. As discussed, the jury determined

that Defendants were negligent, but only based on the

officers’ “failure to properly and adequately assess the need

12 K.C. V. LVMPD

to use force” prior to firing a second volley of shots. Had

the jury been allowed to consider whether Defendants were

negligent in firing a second volley of shots as Childress lay

on the ground, then the jury’s negligence verdict and

apportionment of fault could have materially differed. As to

our second certified question, if the standard for

“reasonableness” under the Fourth Amendment is identical

to the standard of “reasonable care” under Nevada

negligence law, then the district court’s grant of summary

judgment and the jury’s verdict for Defendants on the Fourth

Amendment claims would foreclose Plaintiffs’ negligent use

of force claim.

We therefore certify the two questions set forth above to

the Supreme Court of Nevada. “We invoke the certification

process only after careful consideration and do not do so

lightly.” Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir.

2003). In deciding whether to certify a question of state law,

we consider whether the question involves “important public

policy ramifications,” whether it is “new, substantial, and of

broad application[,]” “the state court’s caseload[,]” and “the

spirit of comity and federalism.” Murray v. BEJ Mins., LLC,

924 F.3d 1070, 1072 (9th Cir. 2019) (quotations omitted).

We recognize that the Court has a substantial caseload, and

we submit these questions because of their importance to

negligence claims that frequently arise in federal courts, as

well as their potential to advance uniformity among federal

courts.

III.

Pursuant to Nevada Rule of Appellate Procedure 5(c)(4),

if our request for certification is granted, we designate

Plaintiffs as the appellants and Defendants as the appellees

K.C. V. LVMPD 13

in the Supreme Court of Nevada. Pursuant to Rule 5(c)(5),

the names and addresses of counsel for the parties are:

For Plaintiffs: Dale K. Galipo and Hang D.

Le, Law Offices of Dale K. Galipo, 21800

Burbank Boulevard, Suite 310, Woodland

Hills, California 91367.

For Plaintiffs: Peter Goldstein, Law Office

of Peter Goldstein, 10161 Park Run Drive,

Suite 150, Las Vegas, Nevada 89145.

For Defendants: Craig R. Anderson, Marquis

Aurbach Coffing, 10001 Park Run Drive, Las

Vegas, Nevada 89145.

The Clerk of this Court is hereby directed to transmit to

the Supreme Court of Nevada, under official seal of this

court, a copy of this order and request for certification and

all relevant briefs and excerpts of record. Submission of this

case is withdrawn, and the case will be submitted following

receipt of the Supreme Court of Nevada’s opinion on the

certified question or notification that it declines to answer

the certified question. The Clerk is directed to

administratively close this docket pending further order.

The parties shall notify the Clerk of this court within one

week after the Supreme Court of Nevada accepts or rejects

certification. In the event the Supreme Court of Nevada

grants certification, the parties shall notify the Clerk within

one week after the Court renders its decision.

It is so ORDERED.

/s/ Gabriel P. Sanchez

Gabriel P. Sanchez, Circuit Judge, Presiding