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January 8, 1998

ANN PRICE et al., Plaintiffs,
COUNTY OF SAN DIEGO et al., Defendants.

The opinion of the court was delivered by: RHOADES

 I. Overview

 Daniel Price died after San Diego Country Sheriff's Department deputies forcibly restrained him. His family and estate then sued the deputies, then-Sheriff Jim Roache, and the county of San Diego. Plaintiffs allege causes of action for wrongful death, assault, battery, negligence, and violation of Price's civil rights.

 The Court held a bench trial. After a lengthy trial and a careful review of the evidence, the Court hereby issues its findings of fact and conclusions of law in narrative form. *fn1"

 II. Background

 On June 28, 1994 Daniel Price inspected a house that was for sale. Price, who had a history of chronic methamphetamine abuse, wore only shoes, socks, and shorts. Price did not seem to be intoxicated, but he was very animated, extremely demonstrative in his gestures, and spoke loudly. After touring the house, Price attempted to give his wallet to the occupant, Timothy Malone. Price then hugged Malone and departed. As Price walked away from the house, Malone saw him throw his appointment book and checkbook into some bushes.

 Price then walked to a gate that led to the backyard of a nearby house, in which Christine Arrigo was sunbathing. After attempting to open the gate, Price made several unintelligible comments and departed.

 Ms. Arrigo called 911, claiming that a man had thrown rocks at her windows. San Diego County Sheriff's Department deputies John Groff and Steven Clause arrived at the scene and contacted Price. Price told the deputies that he was fixing his truck and that he intended to go to a nearby house. The deputies allowed him to leave. Price then got into his truck and drove away -- past the house to which he had told the deputies he was going. Although Price did not drive faster than thirty-five miles per hour, the deputies became suspicious and decided to contact him again.

 The deputies stopped Price and asked him to exit his truck. Price did not comply and a violent scuffle, more properly characterized as a brawl, ensued. Witness Sandy Bias testified that Price was "resisting totally" and shouting at the deputies as they tried to calm him. Ms. Bias described Price as a man "going crazy," as if under the influence of drugs. Price knocked Deputy Groff's eyeglasses from his face, and the deputies believed that Price was trying to grab their guns.

 The deputies sprayed Price with small amounts of pepper spray and wrestled him to the ground. The deputies placed Price face-down and handcuffed him with his hands behind his back. Price continued to resist, struggle, yell, and kick at the deputies.

 Deputies Sam Sheppard and Steven Tally then arrived. Because Price was kicking, Deputy Tally bound Price's legs together with leg shackles. Nevertheless, Price continued to kick at the deputies with both legs at once.

 To control Price, the deputies held him down with their body weight and connected the leg shackles to the handcuffs with a second set of handcuffs. In other words, they bound his hands and legs together behind his back as he lay prone. This four-point restraint, or "hog-tie," immobilized him.

 The parties agree, and Plaintiffs' police-procedures expert confirmed, that the deputies used reasonable force up to the moment of the hog-tie, and that it was proper to subdue Price with body weight. The parties also agree that applying the hog-tie, in and of itself, was reasonable. Thus, the actions of the deputies up to the moment the hog-tie was accomplished are not at issue, nor is their decision to use the hog-tie restraint.

 The issues in this case revolve around what happened next. As the deputies hog-tied Price, they necessarily applied some pressure to his torso. A deputy knelt next to Price and placed one knee on his back. The deputy also placed his hand on Price's shoulder. After the deputy completed the hog-tie, he may have maintained pressure for a short time as he paused before rising from the ground.

 Deputy Tally then knelt next to Price and placed one knee on his back. Deputy Tally rested most of his weight on his heels. Deputy Tally maintained contact in an effort to calm Price and as a means of communicating his presence. Deputy Tally did not apply significant pressure to Price's torso.

 At some point, Price began to smash his face into the ground repeatedly. In an effort to prevent Price from injuring himself, a deputy placed his foot on the back of Price's head and a kleenex box was placed underneath his face. Because of the blood on Price's face, the deputies called for medical assistance.

 The deputies left Price lying shirtless on the hot asphalt for several minutes, despite a nearby shaded area. The asphalt temperature was approximately 133.9 degrees Fahrenheit. Although Deputy Tally was near Price after the hog-tie was complete, the deputies did not monitor Price closely as he lay hog-tied.

 At some point, Price began turning blue, which suggests that he could not breathe properly. *fn2" As might be expected with such a dynamic and traumatic event, there is considerable variance in the testimony about when Price began to turn blue and how much time elapsed before the medics arrived.

 Nevertheless, it appears that before the medics arrived, the deputies noticed Price turning blue. *fn3" However, they did not release him from the hog-tie immediately, nor did they administer cardiopulmonary resuscitation ("CPR"), despite the fact that each of them had CPR training. *fn4"

 The medics arrived within minutes, but by that time Price had no pulse and had stopped breathing. The medics administered CPR but to no avail. They then loaded Price into an ambulance and took him to the hospital. While in transit, the medics managed to restore Price's vital signs by administering "shots to the heart" and anti-narcotic medication. However, he did not regain consciousness.

  On June 30, 1994 Price died. A county medical examiner, John W. Eisele, M.D., conducted the autopsy. Dr. Eisele found low levels of methamphetamine in Price's system. He also found petichaie (pinpoint) hemorrhaging in Price's left eye, which suggests that Price's torso had been compressed. *fn5" Dr. Eisele listed the cause of death as "hypoxic encephalopathy due to restrictive asphyxia with cardiopulmonary arrest due to maximum restraint in a prone position by law enforcement." (Pls.' Ex. 12 at 1.) Dr. Eisele listed a contributing cause of death as "acute methamphetamine abuse." (Id.) *fn6"

 Plaintiffs then sued the deputies, then-Sheriff Jim Roache, and the county of San Diego. Plaintiffs allege a cause of action against the deputies under 42 U.S.C. § 1983, for allegedly violating Price's Fourth and Fourteenth Amendment right to be free from excessive force. *fn7" Plaintiffs also allege state-law causes of action against the deputies for wrongful death, assault, battery, and negligence.

 Plaintiffs have sued Defendant Roache under § 1983 for the actions of the deputies. Plaintiffs also have sued Defendant Roache under § 1983 for being deliberately indifferent to Price's civil rights. Additionally, Plaintiffs assert a negligence cause of action against Defendant Roache.

 Plaintiffs next allege a cause of action under § 1983 against the county, relying on the theory of municipal liability articulated in Monell v. New York City Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Plaintiffs also seek to hold the county liable under the doctrine of respondent superior. *fn8"

 The Court will discuss each cause of action in turn.

 III. Discussion

 A. The Claims Against The Deputies

 1. The § 1983 Claim

 Plaintiffs have sued the deputies under § 1983, arguing that the deputies used excessive force on Price, in violation of the Fourth and Fourteenth Amendments. Plaintiffs allege that the hog-tie, as applied in the unique circumstances of this case, constituted excessive force. Plaintiffs also allege that a deputy used unreasonable force when he placed his foot behind Price's head. Plaintiffs further claim that the deputies used excessive force by leaving Price prone on hot asphalt. Lastly, Plaintiffs argue that the failure to render CPR constituted excessive force.

 The Fourth Amendment governs the use of force. The Fourth Amendment requires peace officers to use only an amount of force that is objectively reasonable in light of all the surrounding circumstances. Graham v. Connor, 490 U.S. 386, 397, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). Assessing the level of permissible force "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests and the countervailing governmental interests at stake." Id. (internal quotation marks and citations omitted); see also Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994). Courts must give due regard to the fact that officers frequently make split-second judgment about the amount of force to use without the benefit of hindsight. Graham, 490 U.S. at 396-97.

 a. The Hogtie Restraint

 Plaintiffs argue that the hog-tie restraint constituted excessive force because it is potentially lethal. Plaintiffs claim that the hog-tie restraint can cause "positional asphyxia." Asphyxia is a decrease in blood oxygen levels or an increase in blood carbon dioxide levels -- either of which can kill. (Eisele Excerpt of Trial Tr. at 16.) Positional asphyxia is asphyxia that results from body position.

 Plaintiffs argue that positional asphyxia can occur when a hog-tied person lies prone with pressure on his back. Plaintiffs claim that hog-tying poses an especially great danger to large-bellied persons, such as Price. Plaintiffs claim that if the deputies had closely monitored Price and/or placed him on his side, then the hog-tie's dangers would have been reduced or eliminated.

 The Court first will discuss whether the hog-tie restraint, in and of itself, constituted excessive force. The Court then will discuss whether the hog-tie restraint constituted excessive force in light of Price's girth and the pressure on his torso.

 i. Whether The Hogtie Restraint Itself Constituted Excessive Force

 Plaintiffs primarily rely on the testimony of Donald T. Reay, M.D., who first hypothesized the concept of positional asphyxia. *fn9" Dr. Reay conducted experiments and concluded that after exercise (such as a violent struggle with deputies) blood oxygen levels decrease. Dr. Reay found that the hog-tie restraint prevent these oxygen levels from rising again because the hog-tie restraint impairs the mechanical process of inhaling and exhaling. See Donald T. Reay et al., Effects of Positional Restraint on Oxygen Saturation and Heart Rate Following Exercise, 9 Am. J. Forensic Med. Pathology 16 (1988); Donald T. Reay et al., Positional Asphyxia During Law Enforcement Transport, 13 Am. J. Forensic Med. Pathology 90 (1992). *fn10"

 Plaintiffs also rely on the testimony of Dr. Eisele. Dr. Eisele testified that Price experienced lactic acidosis. Lactic acidosis is a natural bodily reaction to exercise in which the body produces lactic acid. To compensate for the increased acidity of the blood, the body then produces extra carbon dioxide.

 Dr. Eisele testified that because the hog-tie restraint impairs the mechanical process of exhaling, it prevents the body from "blowing off" excess carbon dioxide. In other words, Dr. Eisele opined that Price suffered from asphyxia (an increase in carbon dioxide levels) that, because of the hog-tie, Price's body could not correct.

 Dr. Eisele based his opinions largely on Dr. Reay's work. In fact, it appears that every scientist who has sanctioned the idea that hog-tying causes asphyxia has relied to some degree on Dr. Reay's studies. However, it appears that no scientist had ever critically examined Dr. Reay's methodology and logic -- until recently.

 After Price's death, at the request of defense counsel, Thomas Neuman, M.D., of the University of California at San Diego Medical Center ("UCSD") conducted a sophisticated study of positional asphyxia and the hog-tie restraint. *fn11" Dr. Neuman found, contrary to Dr. Reay's findings, that blood oxygen levels do not decrease after exercise. Dr. Neuman also found that although the hog-tie restraint impairs the mechanical process of inhaling and exhaling to an extent, the hog-tie does not affect blood oxygen or carbon dioxide levels. In other words, the impairment is so minor that it does not lead to asphyxia, and in fact has no practical significance. Dr. Neuman explained the disparity between his findings and those of Dr. Reay by describing methodological flaws in Dr. Reay's experiments and logical flaws in Dr. Reay's reasoning.

 The UCSD study, which Dr. Reay concedes rests on exemplary methodology, eviscerates Dr. Reay's conclusions. The UCSD study refutes Dr. Reay's underlying premise -- that blood oxygen levels decrease after exercise. Thus, the UCSD study refutes Dr. Reay's ultimate conclusion -- that the hog-tie restraint prevents the lungs from replenishing the blood's oxygen supply; according to the UCSD study, the blood needs no replenishment after exercise because it already has adequate oxygen.

 The UCSD study also refutes Dr. Eisele's opinion that the hog-tie prevents the lungs from "blowing off" excess carbon dioxide. The UCSD study found no difference in carbon dioxide levels between subjects who had exercised and been hog-tied, and subjects who had exercised and not been hog-tied. Thus, as Dr. Neuman testified and Dr. Reay now concedes, the hog-tie restraint is "physiologically neutral." (Reay Excerpt of Trial Tr. at 47.) *fn12"

 After Dr. Reay's retraction, little evidence is left that suggests that the hog-tie restraint can cause asphyxia. All of the scientists who have sanctioned the concept of positional asphyxia have relied to some degree on Dr. Reay's work. The UCSD study has proven Dr. Reay's work to be faulty, which impugns the scientific articles that followed it. Like a house of cards, the evidence for positional asphyxia has fallen completely.

 In light of the UCSD study, the hog-tie restraint in and of itself does not constitute excessive force -- when a violent individual has resisted less severe restraint techniques, applying a physiologically neutral restraint that will immobilize him is not excessive force. See Mayard v. Hopwood, 105 F.3d 1226, 1227-28 (8th Cir. 1997) (holding that placing a person wearing handcuffs and leg restraints in a prone position was reasonable as a matter of law where the person had violently resisted arrest). *fn13"

 ii. Whether Price's Girth Made The Hogtie Particularly Dangerous For Him

 Plaintiffs press, however, that the hog-tie as applied to Price posed a grave danger. Plaintiffs note that even the UCSD study found that hog-tying impairs the mechanical process of breathing to a small extent. Plaintiffs argue that this impairment, combined with Price's girth, caused him to asphyxiate.

 Plaintiffs have failed to prove this alleged fact. Plaintiffs have adduced no reliable evidence that suggests that Price's girth impaired his breathing. Dr. Reay opined that as Price lay prone, his belly may have applied pressure to his lungs, which could have impaired his breathing. However, Dr. Reay admitted that he has no empirical evidence that suggests that lying prone with a large belly can impair breathing to a significant extent. Thus, his testimony was wholly speculative.

  Moreover, Dr. Neuman studied individuals of Price's general size, shape, morphology, and body mass index. Dr. Neuman's study included persons with a body mass index of thirty, which is greater than Price's body mass index at the time of the struggle. *fn14" Dr. Neuman testified that although his study has limited applicability to extremely obese individuals, Price was merely somewhat overweight. As Dr. Neuman testified, it is wild speculation to say that a person lying prone with a potbelly will asphyxiate to death while a slightly smaller person will have no physiological reaction whatsoever. Thus, the Court finds that Plaintiffs have not established that Price's girth made the hog-tie especially dangerous for him.

 iii. Whether The Pressure The Deputies Applied To Price's Back Made The Hogtie Particularly Dangerous

 Plaintiffs next argue that pressure on Price's back impaired his breathing. Plaintiffs argue that this pressure, combined with the breathing impairment caused by the hog-tie, led to Price's death. *fn15"

 Plaintiffs have failed to establish this alleged fact. Plaintiffs' witnesses produced wildly different accounts of the deputies' actions. Some witnesses claimed that the deputies "sat on" Price. Other witnesses did not recall seeing the deputies apply any pressure at all. Even those witnesses who testified that the deputies applied pressure provided different accounts about whether the deputies applied pressure before or after they applied the hog-tie restraint.

 The Court doubts that a deputy sat on Price, for three reasons. First, sitting on a hog-tied person (whose hands and feet are necessarily above his torso) would be awkward indeed. Second, the deputies simply had no reason to sit on Price -- the hog-tie had immobilized him. It seems unlikely that a deputy would have sat in an awkward position for no reason. Third, Plaintiffs themselves have relentlessly claimed throughout this lawsuit that the deputies stood far away from Price after they hog-tied him.

 The deputies admit, however, that they applied minor pressure to Price's back. As they handcuffed and hog-tied him, they necessarily had to control him from thrashing around, so a deputy placed a knee in Price's back and a hand on his shoulder. The Court finds that this action was reasonable. See Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir. 1997) (holding on similar facts that "the officers' response was reasonable [inasmuch as the officers] placed just enough weight on [the arrestee] to keep him from rolling over and kicking"). A deputy testified that he may have maintained this pressure for a few seconds after he completed the hog-tie as he got up from the ground. The Court holds that this innocent, brief action was reasonable.

 In addition, Deputy Tally testified that he knelt next to Price, placing most of his weight on his heels. However, he placed a knee in Price's back. Deputy Tally did this to calm Price (and thus keep him from smashing his face into the ground) and to convey a sense of control in a tense, confused situation. Notably, Deputy Tally did not apply significant pressure to Price. The Court finds that Deputy Tally's actions were reasonable. See id.

 Plaintiffs have not established that the deputies applied any more than the above-described pressure. Even if the deputies applied more pressure, Plaintiffs have not shown that the pressure impaired Price's breathing to a significant degree. Plaintiffs have not offered any evidence that indicates the amount of the pressure, nor have they established what amount of pressure can impair breathing. *fn16"

 Thus, Plaintiffs have failed to establish that any pressure that Price may have experienced impaired his breathing or affected his blood gas levels. In short, plaintiffs have not proven that the hog-tie as applied posed any danger to Price, or that it led to his death. Accordingly, the Court concludes that the deputies used reasonable force when they placed Price face-down and hog-tied him, with incidental pressure applied to his torso. Insofar as the hog-tie and pressure are concerned, Plaintiffs' excessive force claim fails. *fn17"

 The obvious question remains, however: What did cause Price's death? The Court finds that, as several expert witnesses testified, he most likely died from a cardiac arrest that occurred during his encounter with the deputies. *fn18" Numerous factors indicate that methamphetamine-induced toxic delirium caused this cardiac arrest. *fn19" First, Price had methamphetamine in his system when Dr. Eisele conducted the autopsy, which means that he had recently used it. *fn20" Second, methamphetamine irritates the heart and makes it more prone to a cardiac arrest. (Eisele Excerpt of Trial Tr. at 25, 27.) Third, Price had "internal derangements" within his heart that chronic methamphetamine abuse could have caused. (Id.) Fourth, methamphetamine can cause the body to release catecholamines (adrenaline) which also can irritate the heart. Dr. Eisele found catecholamines in Price's body. Fifth, Price had been acting in a bizarre fashion, which indicates that he was suffering from a methamphetamine-induced psychosis. (Neuman Excerpt of Trial Tr. at 34-35.) Sixth, Price developed a high fever at the hospital, which methamphetamine-induced toxic delirium frequently causes. (Id. at 36.) Seventh, while in the hospital, Price developed rhabdomyloysis, which is a breakdown of muscle cells. This is also a symptom of methamphetamine-induced toxic delirium.

 Dr. Neuman perfectly captured the cause of death when he made the following statement:

We have clear data that there is no respiratory component to the hog-tie position. We also have clear data that Price was a chronic methamphetamine abuser. He had essentially all of the signs and symptoms of methamphetamine use, and he died a death that was completely consistent with toxic delirium secondary to methamphetamine use. To suppose anything else placed a significant role in his death is speculation.

 (Id. at 43.)

 Moreover, Defendants' expert on methamphetamine abuse, Joseph Shannon, M.D., stated: "The only factor that can explain his death in and of itself was acute methamphetamine intoxication or excited delirium . . . . This is a highly lethal illness which may well have caused his death regardless of where he was, the restraints used or the struggle involved." (Shannon Excerpt of Trial Tr. at 7.) *fn21"

 Thus, in the words of Dr. Neuman which the Court hereby adopts, "Mr. Price did not asphyxiate due to the hog-tie position. Rather, the most obvious cause of death is toxic delirium secondary to methamphetamine abuse, which in turn caused Mr. ...

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