[00:00:02] Speaker 04:
I understand you've broken up your argument in time, and then you've each been allotted the time that you requested on the clock.

[00:00:10] Speaker 00:
Yes, Your Honor, and good morning.

[00:00:11] Speaker 00:
May it please the Court, Tony Sane and Abigail McLaughlin on behalf of defendants and appellants, the County of Riverside.

[00:00:20] Speaker 00:
Respectfully, we request to reserve two minutes of our time for rebuttal.

[00:00:24] Speaker 04:
All right.

[00:00:25] Speaker 04:
Thank you, Your Honor.

[00:00:28] Speaker 00:
This Court must reverse the denial of

[00:00:31] Speaker 00:
amended judgment and instead grant judgment to defendant below on the negligence in force claim for two reasons, the first of which I will address and the second of which my partner and co-counselman Mr. McLaughlin will address.

[00:00:45] Speaker 00:
Whereas here the Supreme Court has mandated that jurors must be presumed to have followed the jury instructions and whereas here the courts have mandated

[00:00:58] Speaker 00:
that verdict findings must be construed consistently wherever reasonable.

[00:01:04] Speaker 00:
And whereas here, the state of the pleading makes it absolutely crystal clear that the only valid negligence theory that was before this jury was negligence in force.

[00:01:14] Speaker 00:
And whereas here, the jury instruction, specifically 27, specifically stated that in order to find negligence relative to the force, you had to find that force was unreasonable.

[00:01:25] Speaker 00:
Force or restraint was unreasonable.

[00:01:28] Speaker 00:
the singular act of continuing to restrain Mr. Niedzelik after the handcuffs were on being the only factual issue that went to this jury and where they found as they did here in response to question one that all such restraint force was reasonable.

[00:01:44] Speaker 00:
There cannot be negligence with regard to the force while complying with the Supreme Court mandates.

[00:01:50] Speaker 00:
And secondly, as my co-counsel will explain,

[00:01:54] Speaker 00:
On the procedural posture and the controlling case law in this particular matter, plaintiff's claims on appeal, the appellee's claims are unsupported.

[00:02:03] Speaker 00:
Now to elaborate further on my first point.

[00:02:07] Speaker 00:
The Weeks case, Supreme Court in Weeks at page 234 makes it very clear that jurors are presumed to follow jury instructions.

[00:02:15] Speaker 00:
There was only one jury instruction that pertained to claims against the defendants.

[00:02:20] Speaker 00:
That would be jury instruction 27, negligence in force.

[00:02:24] Speaker 00:
It is undisputed in plaintiffs' appeal, their opposition.

[00:02:28] Speaker 00:
that the only negligence claim going to this jury was a force-related claim.

[00:02:32] Speaker 00:
There is no claim, no plea.

[00:02:33] Speaker 05:
Counsel, it was force or restraint.

[00:02:35] Speaker 00:
Yes, Your Honor.

[00:02:36] Speaker 05:
And the jury instruction spoke about it to tell you the circumstances, and frankly, they both did.

[00:02:41] Speaker 05:
So there's a little bit of a muddle here.

[00:02:44] Speaker 05:
First, let me ask you this.

[00:02:45] Speaker 05:
You agree that we are required to see if the verdicts are reconcilable before agreeing with your position.

[00:02:53] Speaker 05:
You have a high bar to cross, isn't that so?

[00:02:57] Speaker 00:
I agree that you were required to find that the verdicts are reconcilable and there's only one way to do that while also following the court's mandate that you presume jury instructions were followed and that is to construe that since there was no actual operative negligent in medical care claim or anything else that it was only about

[00:03:15] Speaker 00:
the negligence in continuing the ongoing restraint force applied to Mr. Niedzielik after the cuffs were on.

[00:03:21] Speaker 00:
Jury instruction 27 specifically told this jury that in order to find any negligence regarding that, they had to find unreasonable force or restraint.

[00:03:30] Speaker 00:
And the question they answered in question one was no, they did not find any unreasonable force or restraint.

[00:03:35] Speaker 00:
The only way that we can follow the Supreme Court's mandates here and construe the question answered in question three

[00:03:43] Speaker 00:
consistently with the question answered in question one is to presume that the jury was addressing some invalid negligence claim, a claim that had not been pled, that was not properly before this jury, but that the vague wording of question three invited them to consider.

[00:03:59] Speaker 00:
if the court looks at the record?

[00:04:01] Speaker 05:
Well, let me ask you.

[00:04:02] Speaker 05:
What I've wrestled with about this case is it doesn't seem to fit neatly into a force box or negligent medical treatment box.

[00:04:11] Speaker 05:
It's a bit of a blur, right?

[00:04:15] Speaker 05:
Because the arrestee was on the ground, prone, handcuffed.

[00:04:23] Speaker 05:
And for a time, he was very still for four minutes.

[00:04:27] Speaker 05:
And the jury could look at that and the force employed by the officers and think that's not excessive force.

[00:04:35] Speaker 05:
They're not applying excessive force.

[00:04:39] Speaker 05:
But did they owe a duty to make sure that he was breathing, to check on him, to roll him to his side?

[00:04:44] Speaker 05:
and might that contemplate a broader different negligence standard under California law?

[00:04:50] Speaker 05:
And so I take the plaintiff's position to be that the negligence claim fits more broadly within a context that is, it's still about the restraint of the officers, but it's focusing on different elements than what we traditionally think of under the Fourth Amendment.

[00:05:06] Speaker 05:
And so why is that wrong?

[00:05:07] Speaker 00:
So with regard to the Fourth Amendment, it is not wrong at all.

[00:05:12] Speaker 00:
But on the record, what the court needs to understand is in terms of what was the negligence theory that these plaintiffs pled, their theory, and they presented it through their expert testimony, Mr. Noble.

[00:05:22] Speaker 00:
was that the ongoing restraint after the cuffs were on was unreasonable and that that ongoing restraint caused the death here.

[00:05:30] Speaker 00:
Now they did not plead and they did not dispute that there was no pleading that there was a medical negligence claim that was viable.

[00:05:38] Speaker 00:
In fact, the only medical claim that was presented by these plaintiffs in their pleading was the 14th Amendment claim for which defendants received judgment before trial.

[00:05:47] Speaker 04:
So I don't understand why it has to be a medical negligence claim.

[00:05:52] Speaker 04:
The way I see this, given the duty that the district court judge has to reconcile the verdict, if at all possible, isn't it possible for the police not to engage in excessive force

[00:06:14] Speaker 04:
but to still have acted negligently in using force that was tailored to the situation so that, you know, the levels of mitigation of force.

[00:06:24] Speaker 00:
And the answer to that, Your Honor, is no.

[00:06:26] Speaker 00:
So the Hays Court makes it very clear that when you're evaluating negligence under California law, when it's related to an officer's use of force, whether pre-force or the force itself, you apply the Graham Reasableness Standard.

[00:06:39] Speaker 00:
The same question as to whether or not

[00:06:42] Speaker 00:
the restraint itself was negligent or anything associated with the restraint was negligent is Graham reasonableness.

[00:06:47] Speaker 00:
And that standard asked the question, was the force or restraint itself reasonable?

[00:06:52] Speaker 00:
The answer to that question in question one was yes, it was.

[00:06:56] Speaker 00:
That was the only valid claim that was before this jury.

[00:06:59] Speaker 00:
There was no claim that some failure to provide medical care, some failure to put him in a recovery position, these things were not part of anything other than ongoing restraint force.

[00:07:11] Speaker 00:
Their claim, what they stipulated to, what they raised, was that by continuing to restrain him prone, that ongoing post-cuffing restraint force was unreasonable and caused the death.

[00:07:22] Speaker 04:
I have one more question.

[00:07:23] Speaker 04:
Yes, Your Honor.

[00:07:24] Speaker 04:
I think you wanted to reserve your time.

[00:07:26] Speaker 04:
But did you agree to the special verdict form?

[00:07:31] Speaker 00:
No, not in total, Your Honor.

[00:07:32] Speaker 00:
We objected to question three very vociferously.

[00:07:35] Speaker 00:
We agreed with question one.

[00:07:37] Speaker 00:
Well, we made extensive record both at the trauma trial and afterward that question three should never have been included because it was vague and it appeared to be duplicative of question one as worded.

[00:07:47] Speaker 00:
It was potentially duplicative.

[00:07:49] Speaker 00:
And the standard for deciding negligence pertaining to force and the standard for deciding reasonable force under battery and 1983, when it comes to the force itself is the same.

[00:08:00] Speaker 04:
What do you make of all the cases in the California Hays case and all our cases that say that California negligence law

[00:08:06] Speaker 04:
encompasses conduct broader than what the excessive force law.

[00:08:13] Speaker 00:
That is true, Your Honor, but the broader scope of conduct that they're evaluating is before the force.

[00:08:18] Speaker 00:
The Hayes case.

[00:08:18] Speaker 04:
Hayes said that.

[00:08:19] Speaker 04:
No, Hayes did not say that.

[00:08:21] Speaker 04:
That happened to be the facts in Hayes, but Hayes did not limit its statement to that type of force.

[00:08:29] Speaker 00:
What it says, Your Honor, and it cites to Hernandez and it cites to Graham in that evaluating any

[00:08:35] Speaker 00:
officer-related conduct pertaining to a use of force, you apply GRAM Reasonable.

[00:08:39] Speaker 00:
This is not a different standard to determine whether or not conduct is reasonable or not.

[00:08:43] Speaker 00:
What HAYS stands for is that you can evaluate a broader scope of conduct leading up to the use of force to determine if that GRAM unreasonable pre-force conduct makes the subsequent use of force itself unreasonable.

[00:08:56] Speaker 00:
HAYS and Hernandez are very clear on this point.

[00:08:59] Speaker 00:
But when you evaluate that conduct, whether you're evaluating the pre-force conduct or the force itself,

[00:09:04] Speaker 00:
it's still the exact same standard.

[00:09:06] Speaker 00:
In fact, in Hernandez, the court expressly said that when you were evaluating negligence pertaining to force, you used the exact same rubric as you would under Graham.

[00:09:16] Speaker 00:
So with that, Your Honor, I'll preserve the balance of my time.

[00:09:19] Speaker 05:
This is a little too complicated to stop here.

[00:09:24] Speaker 05:
Hayes talks about pre-force conduct not as a separate duty or injury, but only as it informs the same act.

[00:09:33] Speaker 05:
So the police shot a person in Hayes who had a knife and the question was, that could be reasonable under the Fourth Amendment at that moment that the force is applied because of what was happening, but Hayes permits a broader scope of looking at the pre-force conduct to inform whether that same act is liable under a different theory of negligence.

[00:09:58] Speaker 00:
That is entirely true, Your Honor.

[00:09:59] Speaker 05:
Why couldn't that same notion be applied here, where even if there's reasonableness under the Fourth Amendment in the way that the officers stunned the RSD, restrained him, handcuffed him, but because they didn't check on his vitals or roll him over or do other things, after the handcuffs were applied, that informs the same act of restraint, but under a different legal consequence.

[00:10:26] Speaker 00:
Because that concept, so Hayes talks about pre-force restraint, possibly making the force unreasonable, right?

[00:10:33] Speaker 00:
And in this record, it was undisputed that all conduct leading up to the handcuffs being closed was reasonable and consistent with standard police practice.

[00:10:41] Speaker 00:
Agreed.

[00:10:41] Speaker 00:
So the only conduct that went to the issue, the only conduct they were evaluating was whether or not the ongoing restraint force was unreasonable.

[00:10:49] Speaker 00:
By keeping him there in that prone position, their theory was that maintaining that restraint position was unreasonable.

[00:10:56] Speaker 00:
That was the first question the jury answered.

[00:10:58] Speaker 00:
The only disputed factual issue that went to the jury, and their answer was, no, it was not unreasonable.

[00:11:05] Speaker 00:
So with that, Your Honor, I will allow my partner to address the secondary issues.

[00:11:09] Speaker 04:
Thank you.

[00:11:11] Speaker 04:
Ms.

[00:11:11] Speaker 04:
McLaughlin?

[00:11:24] Speaker 03:
Good morning, your honors.

[00:11:25] Speaker 03:
As my esteemed colleague stated, my name is Abigail McLaughlin, and I also represent the county of Riverside in this matter.

[00:11:31] Speaker 03:
And while I am going to address how the procedural history in this matter does not support the appellee's claims on appeals, I did, as an initial matter, wanted to discuss the court's question as to whether assuming the district court is correct in that defendants cannot request the remedy here, judgment as a matter of law, whether that is an independent and adequate basis for this court to affirm the district court on appeal.

[00:11:54] Speaker 03:
And I think that if we had a different record and different facts and a different legal standard in this case, the answer would be yes.

[00:12:01] Speaker 03:
However, in regards to the district court's analysis as to the defendants not being entitled to the remedy requested here, such was based on a different legal theory than defendants are asserting here.

[00:12:14] Speaker 03:
The district court stated that defendants were alleging that questions one and question three were inconsistent with each other.

[00:12:21] Speaker 03:
and that the court could reconcile them.

[00:12:24] Speaker 03:
As Mr. Sain already stated, we see how these verdicts can be reconciled.

[00:12:28] Speaker 03:
The problem here is that question three never should have gone before the jury.

[00:12:33] Speaker 03:
And in its order denying our motion for judgment as a matter of law, the district court actually stated that if defendants are correct on the law in regards to Hayes and its progeny and the governing of the reasonableness standard in this matter,

[00:12:46] Speaker 03:
then he never would have put question three on the verdict form.

[00:12:49] Speaker 05:
But Ms.

[00:12:50] Speaker 05:
McLaughlin, the usual way that this goes is if you're challenging the verdict form or the instructions as legally inadequate and you prevail, you go back and get a new trial.

[00:13:03] Speaker 05:
What is your best case for the proposition that there's any permissible way to enter judgment when there are two irreconcilable verdicts and one could choose either one or the other?

[00:13:15] Speaker 03:
Well, Your Honor, we don't believe that one could choose either one or the other.

[00:13:18] Speaker 05:
What's your best case, is my question.

[00:13:21] Speaker 03:
The best case as to entry of judgment as a matter of law.

[00:13:24] Speaker 03:
Well, I think in that regard, it would be the Zeng case that was also cited by the district court, Your Honor.

[00:13:30] Speaker 03:
Because in Zeng, they talk about where factual findings conflict with the law, judgment is warranted.

[00:13:37] Speaker 03:
And here, the factual finding of question one

[00:13:41] Speaker 03:
was correct and was pursuant to the jury instructions that we assume that the jury follows in regards to the reasonableness standard.

[00:13:47] Speaker 05:
But I think the district court said we could have just as easily have started with question one as a negligence claim and then followed with question three, that they were not linked together.

[00:13:57] Speaker 05:
The special verdict form didn't say if you say yes or no on question one, that disposes of question three.

[00:14:04] Speaker 05:
So why is that wrong?

[00:14:06] Speaker 02:
And that the order of the questions did not matter.

[00:14:09] Speaker 03:
Well, Your Honor, that was based on the district court's assumption that defendants are wrong in regards to the reasonableness standard governing both the negligence claim and the excessive force claim as a single question in question one.

[00:14:22] Speaker 03:
If everything that the district court discusses in the order is under the premise that we are wrong on our interpretation of Hayes and its progeny,

[00:14:29] Speaker 03:
If we are correct on the interpretation of Hazen and its progeny and the district court agrees, question three never would have existed.

[00:14:36] Speaker 03:
It wouldn't have existed as question one.

[00:14:38] Speaker 03:
It wouldn't have existed as question three.

[00:14:40] Speaker 03:
It wouldn't have existed on the verdict floor.

[00:14:43] Speaker 03:
And that's because, and why we believe that question one was more than adequate to provide the liability conclusion for defendants on all claims, as Mr. Sain already discussed, is that the difference between Fourth Amendment excessive force claims and Hays California law negligence claims is not that a different legal standard is applied, it's the scope of the conduct at issue.

[00:15:03] Speaker 03:
And here, as the court already noted and agreed, the parties had stipulated that all pre-force conduct had been reasonable as a matter of law.

[00:15:12] Speaker 03:
So when the jury was considering question one, which asked whether all force restraint during the incident that was at issue was either excessive or unreasonable, they answered no, and that should have ended the query under the applicable law.

[00:15:27] Speaker 05:
Can I ask this?

[00:15:29] Speaker 05:
I was struck by the colloquy, I think by your co-counsel in the court, where the county proposed amending question three to say negligence in medical treatment of the arrestee.

[00:15:44] Speaker 05:
And the court said, well, I think there could be other forms of negligence.

[00:15:49] Speaker 05:
Or I guess the idea was the court thought that question three broadly encompassed other potentially negligent acts after the arrest.

[00:15:59] Speaker 05:
So if that might have been a permissible way to think of question three, why doesn't that suggest two different theories at work that the jury could have relied on in making their determinations?

[00:16:10] Speaker 03:
Well, Your Honor, I don't think that that would represent two different theories, because in the record where my co-counsel, who was also trial counsel, asked about specifying that the negligence claim was as to medical care, because that would have been the only negligence claim that was not already encompassed in question one.

[00:16:28] Speaker 03:
But then when you review the record, medical care and negligence was never actually put before the jury.

[00:16:33] Speaker 03:
None of the jury instructions mention negligence in medical care.

[00:16:36] Speaker 03:
All of it refers to the use of force or restraint

[00:16:39] Speaker 03:
at the time of the incident, which was covered in question one, rendering question three to not only be improperly vague, but also duplicative, especially where the jury already answered question one correctly and should have stopped their analysis there.

[00:16:54] Speaker 03:
I'd like to reserve my remaining time for rebuttal.

[00:17:07] Speaker 01:
Good morning, your honors, John Burton and Dale Gallippo for the plaintiff.

[00:17:13] Speaker 01:
And welcome to our circuit, Judge Lynn.

[00:17:17] Speaker 01:
I know you've already made your stamp felt on other cases, and we appreciate that.

[00:17:25] Speaker 01:
I'm going to start, if I may, by just responding straight out to the court's question that we received in the order earlier this week.

[00:17:35] Speaker 01:
Assuming the district court correctly determined that the defendants are not entitled to the remedy they seek, this determination is an independent and adequate basis on which the judgment should be affirmed.

[00:17:50] Speaker 01:
Our plaintiff's answer to that is unequivocally and emphatically, yes, that's correct.

[00:17:56] Speaker 01:
There's simply no reason to get into the weeds in this case.

[00:18:02] Speaker 01:
about what California law provides, because defendants have not filed a motion that actually brings that issue up.

[00:18:18] Speaker 01:
The defendants chose, for their own tactical reasons, which are alluded to by the district court, to file a Rule 50B JMOL.

[00:18:28] Speaker 01:
When I was in law school, we called those JNOVs.

[00:18:33] Speaker 01:
And the standard, there's only one standard for a JMOL post trial that I could find.

[00:18:42] Speaker 01:
And that's that the evidence in support of the verdict is insufficient to support the jury's finding.

[00:18:50] Speaker 01:
There are several different ways that's formulated.

[00:18:54] Speaker 01:
But the essence is it's like a summary judgment, a directed verdict.

[00:18:57] Speaker 01:
There's just no facts that a jury could

[00:19:02] Speaker 01:
rely on to make the finding that there was post-handcuffing negligence by these officers.

[00:19:11] Speaker 01:
And the court addressed this specifically in its order, and we addressed it specifically in our lead argument on page 12 of our brief.

[00:19:21] Speaker 01:
The video, which to our surprise, we had to file over the defendant's objection,

[00:19:29] Speaker 01:
shows that Mr. Nijelik was held prone for five minutes after handcuffing while the deputies were waiting for the paramedics.

[00:19:42] Speaker 01:
And during the last four minutes he was held prone, he was not moving.

[00:19:49] Speaker 01:
Our expert on police practices said that is not the standard

[00:19:56] Speaker 01:
either in California or nationally, that the standard is once a person is handcuffed, particularly someone who's in an agitated state, like Mr. Nijulek clearly was, they need to be put into a recovery position.

[00:20:15] Speaker 01:
which is defined as either rolled on his side or better yet sat up.

[00:20:20] Speaker 05:
Is this more of a use of force restraint issue or a negligent medical care issue?

[00:20:27] Speaker 05:
How would you define the contours of what it is that this four-minute period entails?

[00:20:35] Speaker 01:
We think that it was simply negligent handling of the prisoner after handcuffing.

[00:20:41] Speaker 01:
I mean, we thought of lots of sort of analogies, like what if they stood him up and walked him to the police car?

[00:20:48] Speaker 04:
So how do you think of that?

[00:20:50] Speaker 04:
So I mean, I'm trying to follow the rule about you have a duty to reconcile.

[00:20:55] Speaker 04:
So it was an excessive force to tase him and to handcuff him.

[00:21:01] Speaker 04:
But it was negligent not to follow standard police practice in terms of what you do once you have someone prone on the ground.

[00:21:17] Speaker 04:
I did not look at the video, but I have in mind the George Floyd video.

[00:21:28] Speaker 04:
I'm just wondering if it's this post-duty of care that could have been in the jury's mind that they decided to say that the police were negligent.

[00:21:41] Speaker 01:
Well, that's absolutely the way the case was argued by the plaintiffs.

[00:21:46] Speaker 01:
We were actually unhappy that our 1983 claim was framed as a forced claim.

[00:21:55] Speaker 01:
And what we had pled initially

[00:21:58] Speaker 01:
was in the alternative that it was excessive force to continue holding him down like this.

[00:22:05] Speaker 01:
And it was also a section 1983 delivered indifference violation of the duty that the officers had to render medical care.

[00:22:17] Speaker 01:
The court granted summary judgment on that claim.

[00:22:23] Speaker 01:
And in that opinion, which is not an issue here,

[00:22:26] Speaker 01:
said, well, they called the paramedics.

[00:22:28] Speaker 01:
And basically, under certain readings of circuit precedent, that was adequate.

[00:22:37] Speaker 01:
We actually filed a cross-appeal.

[00:22:40] Speaker 01:
And the subject of our cross-appeal was that, in fact, we should have been able to go to the jury on that claim.

[00:22:49] Speaker 01:
for our own tactical reasons, we decide to dismiss that cross appeal and are simply asking that it be affirmed.

[00:22:57] Speaker 01:
I think the point of this order that the court gave, first, we think the district court got it right, that the standard for negligence and the standard for under the 14th Amendment are different.

[00:23:11] Speaker 01:
The jury understood it as different.

[00:23:14] Speaker 01:
They were argued as different throughout the trial and throughout the closing.

[00:23:19] Speaker 01:
They answered one yes and one no.

[00:23:21] Speaker 02:
What is the difference in the federal claim on your issue of restraint and your state claim on your issue of restraint?

[00:23:29] Speaker 02:
And how did that get argued to the jury?

[00:23:33] Speaker 01:
That the federal claim had to be more force than was reasonably necessary under the standard

[00:23:43] Speaker 01:
using all of the gram factors.

[00:23:48] Speaker 01:
The negligence claim was simply a failure to exercise due care for the safety of someone in their custody by putting them in a position where they could breathe and be monitored.

[00:24:01] Speaker 02:
Now, are those both analyzed as restraint issues or force issues?

[00:24:07] Speaker 01:
we analyzed everything as restraint.

[00:24:10] Speaker 01:
And so there was this back and forth throughout this whole process of the defense wanting to make everything in force and us focusing on restraint.

[00:24:22] Speaker 05:
Well, didn't the jury instructions for the negligent claim also bring up the Graham Factors?

[00:24:28] Speaker 05:
As I understand it, they were taking after the model Casey jury instructions, which do incorporate the Graham Factors as well.

[00:24:35] Speaker 01:
Yeah, that instruction was also given.

[00:24:38] Speaker 05:
And again, there's a little- So I think the defendant's argument is this is one in the same analysis because you're applying Graham Factors in both jury instructions.

[00:24:48] Speaker 05:
And so how are we to distinguish what is a different standard for negligence versus Fourth Amendment here?

[00:24:55] Speaker 01:
Thank you, Your Honor.

[00:24:55] Speaker 01:
And I would answer that in two ways.

[00:24:58] Speaker 01:
Number one, we think that the district court got it right.

[00:25:05] Speaker 01:
This was argued throughout the pretrial and right up until the jury forum.

[00:25:10] Speaker 01:
But I think more important and more apropos to the question that was asked by the panel this week, if they were right, then these are inconsistent verdicts, and the remedy is a new trial.

[00:25:26] Speaker 01:
And as the district court pointed out, if we were asked that, we would say, don't throw us in the briar patch.

[00:25:35] Speaker 01:
I mean, we are more than happy to retry this case and try to prevail on the civil rights claim.

[00:25:43] Speaker 05:
Could we order a retrial if defendants had not asked for it?

[00:25:46] Speaker 05:
Or have they forfeited that potential remedy?

[00:25:49] Speaker 01:
I would say forfeit is the right word or waived.

[00:25:53] Speaker 01:
They didn't ask for it.

[00:25:55] Speaker 01:
So if they were right and they asked for a new trial, we would be in a posture to address this question.

[00:26:04] Speaker 01:
And then if they prevailed on it, we would retry both claims.

[00:26:08] Speaker 01:
Because everything you're saying about, or everything they're saying about, well, because of the finding on excessive force, there must have been no negligence.

[00:26:18] Speaker 01:
We could make exactly the same argument.

[00:26:21] Speaker 01:
Well, because there was a finding on negligence, there had to be a finding also on excessive force.

[00:26:27] Speaker 01:
The two were put on the form as alternatives.

[00:26:31] Speaker 01:
You do one, and then you do the other.

[00:26:33] Speaker 01:
Now, we all know, those of us with trial court experience, how juries actually process this.

[00:26:39] Speaker 01:
I mean, they're looking at the end result.

[00:26:42] Speaker 01:
There's likely divisions on the jury.

[00:26:45] Speaker 01:
We don't consider their deliberations.

[00:26:48] Speaker 01:
But this was obviously worked out over a period of a couple days to reach a certain result.

[00:26:53] Speaker 04:
It looks to me like they split the baby.

[00:26:56] Speaker 01:
And that's how we felt when it came out.

[00:27:00] Speaker 01:
And that's, I think, what the district court thought.

[00:27:04] Speaker 01:
So if the jury form was defective, and we say it wasn't, they say it was, the trial court agreed with us, if the verdict form was defective and or if the verdicts are inconsistent, then

[00:27:22] Speaker 01:
If they would have asked for it, we could be discussing a new trial.

[00:27:26] Speaker 01:
But since they only asked for a Rule 50B judgment as a matter of law, and since they admit and they made no attempt to show that the negligence verdict was not itself supported by substantial evidence, there's the video, there's the testimony of our police practice expert, there's the testimony of our doctor,

[00:27:50] Speaker 01:
Dr. Wolglerter, it's a tongue twister, who said this is what caused the death, him having his breathing impaired, that if he would have been sat up, they would have been able to monitor his condition and notice that for four minutes he wasn't breathing and he wasn't responsive when they asked him his name and all of this stuff.

[00:28:15] Speaker 01:
That claim

[00:28:20] Speaker 01:
was supported by substantial evidence.

[00:28:22] Speaker 01:
So therefore, they don't get the relief they asked for, which is 50B.

[00:28:26] Speaker 01:
Now, whether there were other errors, which they've said all along and we've opposed, those would entitle them to a new trial.

[00:28:36] Speaker 01:
They haven't asked for it.

[00:28:38] Speaker 01:
I don't think they've asked for it today.

[00:28:40] Speaker 01:
If the court wants to give us a new trial and reach out and decide these things, frankly, we would love to have another shot at this.

[00:28:49] Speaker 02:
You're not arguing we can't send it back for a new trial.

[00:28:54] Speaker 02:
You're arguing we shouldn't send it back for a new trial because they waived it?

[00:28:58] Speaker 01:
We're saying you shouldn't send it back for a new trial because they haven't asked for it.

[00:29:05] Speaker 01:
They've asked for a judgment, that judgment be entered in their favor.

[00:29:10] Speaker 01:
and they have ignored the only standard I can find in the law.

[00:29:16] Speaker 01:
I mean, the Ninth Circuit has this great website on standards of review.

[00:29:20] Speaker 01:
I looked there, looked at the Supreme Court.

[00:29:23] Speaker 01:
Is there a standard for a 50B entry of judgment against a plaintiff who has a jury verdict in her favor other than you don't have evidence to support it?

[00:29:37] Speaker 01:
If there is, I haven't seen it.

[00:29:40] Speaker 01:
So they've raised two points.

[00:29:43] Speaker 04:
Do you make the argument in the alternative that the district court got it right when it reconciled the verdict?

[00:29:50] Speaker 01:
We think the district court got it right when it reconciled the verdict.

[00:29:54] Speaker 01:
We think that.

[00:29:56] Speaker 01:
And we thought there should have been two questions on the verdict form.

[00:30:00] Speaker 01:
We think there was no error in that respect.

[00:30:06] Speaker 01:
So we think the judgment should be affirmed all the way through.

[00:30:10] Speaker 01:
Our point is, and the point I think of your order is, assuming, arguing though, they're right, that the negligence claim is the same as the excessive force claim, then, or the jury, or the verdict form is defective, there should have been one question instead of two, it's sort of another way of phrasing it, then we have a Seventh Amendment right to have our claim determined by a jury.

[00:30:40] Speaker 01:
If that's correct, and those are sustained, they asked for the wrong thing.

[00:30:44] Speaker 01:
They asked for judgment.

[00:30:47] Speaker 01:
It should have been a new trial.

[00:30:49] Speaker 01:
And that's what the district court said.

[00:30:51] Speaker 01:
That's what we said in our opposition in district court.

[00:30:54] Speaker 01:
We did not ask for a new trial, because we don't think there's grounds for a new trial, because we think the district court got it right.

[00:31:01] Speaker 05:
And I take a you view Hayes as permitting a totality the circumstances analysis that contemplates the officers conduct after they've handcuffed the arrestee.

[00:31:14] Speaker 01:
Absolutely your honor I've been doing this a long time and I remember when when initially you know back in the 80s there was a case called you know Daniels

[00:31:26] Speaker 01:
I'm forgetting the other name, Daniels versus Williams in the Supreme Court, where the Supreme Court finally clarified, look, negligence is one thing.

[00:31:36] Speaker 01:
Section 1983 civil rights violations are something else.

[00:31:40] Speaker 01:
These are two different things.

[00:31:42] Speaker 01:
That's the Supreme Court.

[00:31:44] Speaker 01:
And then through a series of cases, there doesn't have to be a state remedy for negligence.

[00:31:51] Speaker 01:
But if there is or if there isn't, that doesn't affect 1983.

[00:31:55] Speaker 01:
California has a state remedy for negligence by police officers.

[00:32:01] Speaker 01:
So in Hayes, this court asked them to clarify, look, are these standards the same in the context of pre-shooting tactical decisions, or are they distinct?

[00:32:16] Speaker 01:
The California Supreme Court said they are different standards,

[00:32:21] Speaker 01:
The negligence is broader.

[00:32:25] Speaker 01:
That's been said every time it's come up in front of the circuit.

[00:32:29] Speaker 01:
In the Voss case and the Tabaris case, they use the term distinct.

[00:32:34] Speaker 01:
They are two different theories.

[00:32:36] Speaker 01:
And one can see jurors saying, look, I can, you know, because they have an idea, negligence is like carelessness.

[00:32:43] Speaker 01:
It's like not being careful.

[00:32:47] Speaker 01:
Whereas a civil rights violation has an element of deliberateness to it.

[00:32:52] Speaker 01:
You know, even if the instructions vary, you know, they get that.

[00:32:56] Speaker 01:
And that's really at the basis of that.

[00:33:00] Speaker 01:
We had the two theories.

[00:33:01] Speaker 01:
We argued them that way.

[00:33:03] Speaker 01:
The judge instructed that way.

[00:33:05] Speaker 01:
They came out with a split decision that way, which was the chance we took.

[00:33:11] Speaker 01:
We accepted it.

[00:33:13] Speaker 01:
They've said these verdicts are inconsistent.

[00:33:16] Speaker 01:
The verdict form was bad.

[00:33:18] Speaker 01:
We're saying, yeah, but you're not saying that our verdict is not supported by the evidence, which is the only standard for directing a verdict in your favor.

[00:33:28] Speaker 01:
You're not saying that.

[00:33:29] Speaker 01:
And in fact, it is supported by substantial evidence.

[00:33:33] Speaker 01:
And if you are right, you should have asked for a new trial.

[00:33:35] Speaker 01:
Now, whether this court should wade into that and say, well, we're going to use our equitable powers, or even address this state law question, I'll leave that to your honors.

[00:33:47] Speaker 01:
I mean, from a practical standpoint, we would like to see a further elaboration on this.

[00:33:54] Speaker 01:
We think the Ozon, which is the unpublished case,

[00:33:57] Speaker 01:
where the guy was arrested.

[00:34:00] Speaker 01:
He was put in tight handcuffs.

[00:34:03] Speaker 01:
It's unpublished.

[00:34:04] Speaker 01:
They said, well, the tight handcuffs were not excessive force, but maybe it was negligent.

[00:34:09] Speaker 01:
We'll let that go to the jury.

[00:34:11] Speaker 01:
We think that same principle applies here.

[00:34:15] Speaker 01:
a published decision saying that would sort of put this argument to rest and make life easier for us.

[00:34:21] Speaker 01:
But I think it's somewhat of a reach to get there because even if they're right, they're not entitled to the remedy unless you decide to say, well, even though they're asking for a directed verdict and even though plaintiffs are asking that it be affirmed so she can get her money and move on with her life, we're going to

[00:34:44] Speaker 01:
say there should be a new trial.

[00:34:47] Speaker 01:
So I'll leave that up to you.

[00:34:49] Speaker 01:
And unless there are any other questions, I don't need to use all my time.

[00:34:55] Speaker 04:
Well, you've gone over your time by almost three minutes.

[00:34:57] Speaker 01:
You know, I always get confused by this thing.

[00:35:01] Speaker 01:
I would have thought I still had two minutes left, but thank you very much, Your Honor.

[00:35:03] Speaker 04:
Thank you very much, Counsel.

[00:35:05] Speaker 01:
That happens to me every time I'm here.

[00:35:08] Speaker 01:
Thank you, and thank you for the indulgence.

[00:35:10] Speaker 04:
Yes, thank you.

[00:35:11] Speaker 04:
Well, as you're saying, you can have your two minutes, even though you went over, because Mr. Burton went over.

[00:35:17] Speaker 00:
Thank you, Your Honor.

[00:35:18] Speaker 00:
I appreciate that.

[00:35:20] Speaker 00:
Rule 50 and the Wadler case, 916 F.

[00:35:23] Speaker 00:
3rd, 1176, are very clear that where a jury's factual finding is inconsistent with the law, judgment as a matter of law, even post verdict, is the only appropriate remedy.

[00:35:36] Speaker 00:
And this court cannot follow the law without granting judgment here because the jury instruction, the only jury instruction that this jury was provided on negligence related to the officers

[00:35:47] Speaker 00:
was jury instruction 27, record page 121, which asked them to consider whether or not the amount of force or restraint used by the deputies was unreasonable.

[00:35:58] Speaker 00:
Jury question number one asked, did the deputies use excessive or unreasonable force or restraint against Kevin Niedzelik?

[00:36:05] Speaker 00:
No.

[00:36:06] Speaker 00:
New trial was neither necessary nor wanted because the jury here decided the only factual dispositive issue

[00:36:14] Speaker 00:
That was before them.

[00:36:16] Speaker 00:
It was the only issue they needed to decide that eliminated all plaintiff's claims.

[00:36:20] Speaker 00:
And I thought it was telling that plaintiffs just now, appellees below, did not dispute that they had no viable operative negligence in medical care claim before this particular jury.

[00:36:32] Speaker 00:
Now, question three was vague.

[00:36:35] Speaker 00:
That was our problem with it.

[00:36:36] Speaker 00:
And at trial, we improperly suggested it should be amended to medical negligence, even though there was no medical negligence pled.

[00:36:44] Speaker 00:
The complaint states that there was only a duty of care when restraining him.

[00:36:48] Speaker 00:
Nothing about failure to provide medical care.

[00:36:50] Speaker 04:
The appeal is that it's based on inconsistent and irreconcilable jury verdict.

[00:37:01] Speaker 00:
That's correct.

[00:37:02] Speaker 04:
That's what you're appealing.

[00:37:03] Speaker 04:
You're not appealing whether or not question three was legal error.

[00:37:08] Speaker 00:
We're appealing that question three should never have been asked because it was disposed of, the real issue, the valid issue was disposed of by question one.

[00:37:16] Speaker 00:
Question three, because of its in-artful wording, suggested a claim that was not properly before this jury.

[00:37:22] Speaker 00:
There was no negligence at issue other than whether or not the post-coving restraint force was negligent.

[00:37:28] Speaker 00:
And the verdict form, the jury instruction told them, if you don't find that that restraint, force or restraint,

[00:37:35] Speaker 00:
was unreasonable, you can't find negligence.

[00:37:38] Speaker 00:
The jury here concluded, based on sufficient evidence, that the force and restraint was reasonable.

[00:37:44] Speaker 00:
As a matter of law, you can't get to negligence as pled in this case, if that is true.

[00:37:49] Speaker 00:
The only way to reconcile question three with question one is to presume that the jury invented a negligence claim that had never been pled

[00:37:58] Speaker 00:
that was not operative was not valid.

[00:38:00] Speaker 00:
That's the only way that we can follow Weeks and the Supreme Court mandates and Hayes and Hernandez and apply this record here.

[00:38:07] Speaker 00:
And because that's the only reasonable construction on this particular record, amended judgment is the only appropriate remedy here.

[00:38:16] Speaker 00:
I'd just like to address a couple of the other things that plaintiff raised.

[00:38:20] Speaker 00:
With regard to

[00:38:21] Speaker 00:
Rule 50B.

[00:38:23] Speaker 00:
The standard says that where evidence permits only one reasonable conclusion that is contrary to the verdict and or the law, that judgment as a matter of law is appropriate.

[00:38:32] Speaker 00:
That's all we're asking for here.

[00:38:35] Speaker 00:
With regard to the court's earlier question about whether or not this court could order a new trial, plaintiffs claim we waived it and we never asked for it and we don't want it because that wasn't necessary.

[00:38:44] Speaker 00:
It wasn't appropriate here.

[00:38:46] Speaker 00:
The jury, after a multi-year litigation,

[00:38:49] Speaker 00:
After a lot of evidence, after two weeks of trial, hearing all the evidence, when asked the only question that mattered, was the restraint force post-handcuffing reasonable, they said, yes.

[00:39:00] Speaker 00:
The answer to that question disposed of everything else in the case.

[00:39:05] Speaker 00:
And only because of the court's erroneous inclusion of a vaguely worded negligence question in question three that wasn't applicable, and that

[00:39:13] Speaker 00:
is contrary to the law as it is depicted in Hayes.

[00:39:17] Speaker 00:
Only because of that conclusion do we find ourselves here today.

[00:39:20] Speaker 00:
The only way to remedy that is to grant the judgment that defendants earned by the finding of the jury in response to question one.

[00:39:30] Speaker 00:
And with that, Your Honors, we submit to the court.

[00:39:31] Speaker 00:
And thank you for your time, your attention, and your patience.

[00:39:34] Speaker 04:
Thank you very much.

[00:39:35] Speaker 04:
Alves versus County of Riverside will be submitted, and this session of the court will be adjourned for today.

[00:39:56] Speaker 04:
This court for this session stands adjourned.