FINDINGS OF FACT AND CONCLUSIONS OF LAW

BARBARA A. McAULIFFE, Magistrate Judge.

I. INTRODUCTION

This matter is currently before the Court following a stipulated bench trial and oral argument by counsel on November 6, 2017. Having carefully reviewed the trial transcripts, the parties' briefs, as well as the Court's entire file, and after hearing the arguments of counsel, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

II. BACKGROUND

A. Procedural History

1. The Jury's Verdict

On March 28, 2009, Stephen Willis was fatally shot by Defendants Greg Catton and Daniel Astacio, who were Officers with the Fresno Police Department at the relevant time. Stephen Willis's parents, Chris and Mary Willis ("Plaintiffs"), allege that Stephen Willis's Fourth Amendment rights were violated as a result of the shooting. Plaintiffs further allege that Officer Catton and Officer Astacio were negligent in causing the death of Stephen Willis.

Following over four years of extensive litigation and a ten-day jury trial in December 2013, the jury returned a verdict finding that Officer Catton used excessive force in violation of Stephen's Fourth Amendment rights, and Officer Catton was negligent in causing Stephen's death. The jury found Officer Astacio was not liable on Plaintiffs' Fourth Amendment and negligence claims. On Plaintiffs' Fourth Amendment claim, the jury awarded $1 in nominal damages, and Plaintiffs' were not awarded any compensation for Stephen's pre-death pain and suffering.1 On Plaintiffs' wrongful death claim, the jury awarded funeral and burial expenses in the amount of $10,224.00, and further awarded Plaintiffs $1,500,000.00 in compensatory damages. The jury also made a finding of comparative negligence, and determined that Stephen was eighty percent responsible for his injuries. On January 31, 2014, the Court entered judgment in favor of the Plaintiffs, and awarded Plaintiffs $1 on Plaintiffs' Fourth Amendment claim, and $302,044.80 (20% of $1,510.224.00) on Plaintiffs' wrongful death claim. (Doc. 251.)

2. Intervening Decision of Chaudhry

After the jury trial in this case, the Ninth Circuit decided Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014). Chaudhry held that "the prohibition against pre-death pain and suffering damages limits recovery too severely to be consistent with 28 U.S.C. section 1983's deterrence policy" in matters where the decedent's death was caused by the violation of federal law. In Chaudhry, the decedent, an autistic man, was shot and killed by a Los Angeles Police Officer. The jury awarded the victim's family $700,000 for the wrongful death claim and $1,000,000 for pre-death pain and suffering. Judgment was entered for $1,700,000, but the trial court struck the award for pre-death pain and suffering as barred in a wrongful death action. The Ninth Circuit reversed the district court on the pain and suffering award because the state laws preclusion of pre-death pain and suffering was: (1) inconsistent with the deterrent goal of §1983; (2) it incentivized death over severe injury, and (3) was particularly unfair to typical §1983 Plaintiffs like prisoners and targets of police brutality and profiling.

3. The Appeal in this Case and the Proceedings Following Remand

On appeal from the jury's verdict in this case, the Ninth Circuit affirmed all aspects of the trial court proceedings, except this Court's refusal to permit pre-death pain and suffering damages. The Ninth Circuit issued an opinion vacating this Court's judgment on Plaintiffs' 28 U.S.C. §1983 claim and remanded the case so that Plaintiffs "may present evidence in support of their claim for pre-death pain and suffering damages," in light of the intervening change of controlling law established in Chaudhry. See Willis v. City of Fresno, 680 Fed.Appx. 589, 592 (March 1, 2017). The Ninth Circuit further specified that on remand "plaintiffs will be limited to recovering only those pre-death pain and suffering damages caused by Officer Catton's final shot or shots." Id.

On remand, the parties stipulated to a bench trial of the damages with briefing and based upon evidence already in the record. Plaintiffs filed their opening briefs on October 2, 2017. Defendants filed their responsive brief on October 25, 2017. Plaintiffs filed a reply on November 1, 2017. The Court heard oral argument on November 6, 2017. Plaintiffs appeared by Counsel Walter Walker, in person and by Peter Koenig, by telephone. Defendants appeared by Counsel Mildred O'Linn and Lynn Carpenter, both in person.

B. The Parties' Arguments Regarding Pre-Death Pain and Suffering

In support of their claim for pre-death pain and suffering, Plaintiffs argue that a substantial amount of damages should be awarded for the purpose of deterrence. Plaintiffs argue that §1983's policy of deterrence cannot be fostered with a minimal award for pre-death pain and suffering damages. Plaintiffs argue that Section 1983's critical concerns are compensation of the victims of unconstitutional action and deterrence of like misconduct in the future. Plaintiffs seek a pre-death award of $1,000,000 for Stephen's pain and suffering, just as was awarded in Chaudhry. Plaintiffs cite evidence that Stephen survived for 30 to 60 seconds after Officer Catton's last shots. (Doc. 278, Catton Transcript, p. 901-902.) Plaintiffs argue that Defendants destroyed the evidence of Stephen's pain and suffering with his death, and cannot be rewarded for evidence destruction. Plaintiffs argue Stephen was a young man wounded and defenseless as he felt his life ebbing away. Stephen, age 23, would be experiencing not just the physical pain of his gunshot wounds, but the fear, anxiety, and mental anguish that anyone suffers when aware that his life is ending under such physically exacting circumstances.

Defendants argue that a minimal award, if any award, is warranted for the few seconds of time Stephen may have survived. Defendants argue that Plaintiffs must establish Stephen was conscious for an "appreciable amount of time" and that he cannot be awarded pain and suffering "substantially contemporaneous with death." Defendants cite numerous cases which hold that a person must survive for an appreciable amount of time to be awarded any pain and suffering. Defendants argue that Plaintiffs cannot prove Stephen was conscious for any appreciable period after the final shot, and it is purely guess work to divide damages between the justified gun shots and the unjustified gunshots. It is speculative to separate the pain and suffering among the various bullet wounds and even Dr. DiMaio was unable to determine which bullet wounds were the last. Defendants also argue that Stephen was intoxicated, with a blood alcohol of .29, such that he had an increased tolerance to pain or was too intoxicated to feel pain.

III. FINDINGS OF FACT

The fatal encounter between Stephen Willis and Officers Astacio and Catton and the facts leading up to the "last shot(s)" by Officer Catton are well known to the parties. These facts were the subject of the jury trial and the appeal to the Ninth Circuit, and are memorialized in numerous decisions of this Court and the Ninth Circuit. Therefore, the Court will not recount those facts here. Rather, and as required by the Ninth Circuit's remand, the Court now decides the pertinent facts as to Stephen's pain and suffering, starting from the final shot(s).

IV. CONCLUSIONS OF LAW

A. The Issue of the Separation of the Gun Shots

As a threshold matter, Plaintiffs may only be awarded pain and suffering for the excessive force used by Officer Catton. That force involves 1 or 2 final shots. Plaintiffs cannot be awarded any pain and suffering for shots fired by Officer Astacio. The jury found that Officer Astacio did not use excessive force, and therefore, any shots by Officer Astacio were not excessive force.

In addition, any shots fired by Officer Catton, other than the final shots, were not excessive force. As found by the jury and this Court in interpreting the jury's verdict, and as affirmed by the Ninth Circuit, the unlawful, excessive shots can be narrowed to the 1 or 2 final shots.

B. Compensatory v. Deterrence v. Punitive Pain and Suffering

Plaintiffs argue that based on Chaudhry, deterrence is an essential element of damages which should be compensated separate and apart from pain and suffering. According to Plaintiffs, compensation should be based not only on the less than a minute of pain and suffering but for an amount sufficient to punish Officer Catton. Basically, Plaintiff argues that a $1 million award is comprised of the actual pain and suffering plus some punitive element.

An important principle of damages in §1983 actions is that compensatory damages may be awarded only for the actual injuries suffered as a result of the violation of constitutional rights. Compensatory damages awarded under §1983 must be based on the actual injuries caused by the deprivation of the constitutional right. Carey v. Piphus, 435 U.S. 247, 256, 264, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (§ 1983 actions are a "species of tort liability" intended to "compensate persons for injuries that are caused by the deprivation of constitutional rights."); see also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) ("Deterrence is also an important purpose of this system, but it operates through the mechanism of damages that are compensatory—damages grounded in determinations of plaintiffs' actual losses."); Robertson v. Wegmann, 436 U.S. 584, 590-91, 98 S.Ct. 1991, 1995, 56 L. Ed. 2d 554 (1978) (The policies underlying §1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.)

Pain and suffering damages, like any other damages, must be proved. Compensation for damages must be proved, even in a §1983 action. Carey, 435 U.S. at 264, 98 S.Ct., at 1052 (no compensatory damages could be awarded for violation of that right absent proof of actual injury.) Whatever the injury, "damages must always be designed to compensate injuries caused by the [constitutional] violation." Carey, 435 U.S. at 265.

Deterrence is fostered by an award of damages. An award of pre-death pain and suffering fosters the §1983 policy of deterrence of wrongdoing. Indeed, the Supreme Court has recognized that Congress intended the "award of compensatory damages" achieves §1983's goal of deterrence. In Robertson, the Supreme Court elaborated that compensatory damages deter potential wrongdoers because "[a] state official contemplating illegal activity must always be prepared to face the prospect of a 1983 action being filed against him." 436 U.S. at 592. See also Chaudhry, 751 F.3d at 1105 ("[I]f Section 1983 did not allow recovery for loss of life notwithstanding inhospitable state law, deterrence would be further subverted since it would be more advantageous to the unlawful actor to kill rather than injure.") "Section 1983 presupposes that damages that compensate for actual harm ordinarily suffice to deter constitutional violations. Stachura, 477 U.S. at 310, citing Carey, 435 U.S. at 256-57. The Supreme Court also has characterized compensatory damages in Section 1983 actions as "mandatory" when a violation is found. See Smith v. Wade, 461 U.S. 30, 52 (1983) ("Compensatory damages, by contrast, are mandatory; once liability is found, the jury is required to award compensatory damages in an amount appropriate to compensate the plaintiff for his loss.").

Based on the above Supreme Court authority, this Court cannot accept Plaintiffs' argument of enhancing the award to further "deterrence." In their reply brief, Plaintiffs argue that $1 million pain and suffering should be awarded because: "Catton bragged to his fellow officers, "You see that bullet hole there?"; Stephen Willis cannot tell us what he was feeling because defendant "ended his ability to speak for himself;" that Defendants maddeningly took contradictory positions at trial (Stephen was going for his gun at the time of the final shots) to the polar opposite position in their damages argument (Stephen Willis was already dead at the final shot) and other entirely inconsistent positions as those taken at trial. (Doc. 367, Plaintiffs' Reply Brief.) These arguments, based upon a punitive element rather than actual proof of pain and suffering, are as much the result of frustration from the eight and one half year saga that has been this case, more than proof of what Stephen Willis suffered during his final moments. Plaintiffs' argument is more akin to imposing a punitive element into the damages calculation, as opposed to damages designed to compensate. Rather than compensating for injury, "[t]he purpose of punitive damages is to punish the defendant for his willful or malicious conduct and to deter others from similar behavior." Stachura, 477 U.S. at 306 n. 9, 106 S.Ct. 2537. Therefore, this Court rejects Plaintiffs' argument that a $1 million dollar award for pre-death pain and suffering is justified for the purposes of deterrence, as inconsistent with controlling case authorities.

C. "Appreciable Amount of Time" and "Substantially Contemporaneous with Death"

Defendants cite to a series of non-civil rights cases which hold that to recover pre-death pain and suffering damages, a plaintiff must establish that the decedent was conscious for "an appreciable length" of time prior to his death and that the pain and suffering was not "substantially contemporaneous with death." St. Louis IM &S.Ry. Co. v. Craft, 237 U.S. 648, 655 (1915) (pain and suffering is not compensable if substantially contemporaneous with death); Great N. Ry. Co. v. Capital Trust Co., 242 U.S. 144, 146 (1916) (compensable only if conscious for an "appreciable length of time."); Ghotra v. Bandila Shipping Inc., 113 F.3d 1050, 1061 (9th Cir. 1997) (10 seconds of insensible consciousness is not an "appreciable time"). In Ghotra v. Bandila Shipping Inc., 113 F.3d 1050, 1061 (9th Cir. 1997), the Ninth Circuit held that Plaintiff must establish that decedent was conscious for some appreciable amount of time to be eligible for pre-death pain and suffering. Decedent was aboard a ship when he fell from a crane to the bottom of a vessel ultimately causing his death. Plaintiff presented evidence that the decedent may have been conscious for at least ten seconds after his fatal injuries. The Ninth Circuit noted that federal courts have not generally allowed recovery for pre-death pain and suffering in cases where death resulted from a sudden and severe accident or impact. The Ninth Circuit upheld summary judgment in favor of the defendants where the decedent had been conscious for, at most, 10 seconds after his injury and before his death. See also Cook v. Ross Island Sand & Gravel., 626 F.2d 746, 750 752 (9th Cir. 1980) (wrongful death action where employee of Ross Island drowned, the court upheld an award of $35,000 for 2.5 minutes of suffering).

This Court distinguishes these cases cited by Defendants as not persuasive in a civil rights context. First, each of these cases dealt with either state common law or other statutory regimes not comparable to policies fostered in §1983. Each of the cases was brought in some form of a negligence action. Both St. Louis IM & S.Ry. Co. v. Craft, and Great N. Ry. Co. v. Capital Trust Co., involved the Employers' Liability Act for accidental deaths during the course of employment. Cook v. Ross Island Sand & Gravel also involved the accidental death of an employee. None of these cases assessed compensatory damages after the intentional wrongful conduct of a state actor, resulting in a violation of Constitutional rights.

Second, it would be inconsistent with Chaudhry to limit recovery only to instances where Plaintiff can show an "appreciable time" prior to death. In Chaudhry, the Ninth Circuit held that the California's survival statute limits recovery too severely to be consistent with §1983's deterrence policy because California did not allow damages for pre-death pain and suffering. Chaudhry, 751 F.3d at 1103, 1105. That conclusion advanced "[o]ne of Congress's primary goals in enacting §1983"—"provid[ing] a remedy for killings unconstitutionally caused or acquiesced in by state governments," id. at 1103—by avoiding the "perverse effect of making it more economically advantageous for a defendant to kill rather than injure his victim." Id. at 1104.

Section 1983's twin policies of compensation and deterrence would be undermined should defendants benefit from a plaintiff dying quickly following a defendant's intentional Constitutional violation. If a plaintiff were denied recovery for pre-death pain and suffering for "mere moments" of suffering, the perverse effect cautioned in Chaudhry would result—there would be an economic incentive to "kill them fast," thereby cutting off claims for pain and suffering. Thus, the policies of compensation and deterrence are furthered by awarding damages for every second a decedent survived following a Constitutional violation. "The policies underlying [Section] 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law." Dennis v. Higgins, 498 U.S. 439, 444 (1991).

D. Assessment of Monetary Damages

The Court has found from the evidence presented at trial that Stephen Willis survived for 15-30 seconds following the final shots. The Court must now assess pain and suffering damages.

The Supreme Court in Carey and Stachura held firm to its view that "whatever the constitutional basis for § 1983 liability, [compensatory] damages must always be designed `to compensate injuries caused by the [constitutional] deprivation.'" As stated above, this Court does not find the cases cited by Defendants persuasive for eliminating damages where a decedent fails to suffer for "an appreciable time," but those same cases are instructional for computing compensatory damages for pre-death pain and suffering.

In Cook v. Ross Island Sand & Gravel Co., 626 F.2d 746, 750 752 (9th Cir. 1980), a decedent's estate was awarded $35,000 for 2.5 minutes of suffering while he drowned. Plaintiff's medical expert testified that Plaintiff was likely conscious when he entered the water (no evidence of a skull fracture), and that he likely remained conscious for 2.5 minutes before he drowned. Thus, the court upheld $35,000.5 In Guyton v. Phillips, 532 F.Supp. 1154, 1167 (N.D. Cal. 1981), disapproved of on other grounds by Peraza v. Delameter, 722 F.2d 1455 (9th Cir. 1984), a civil rights case, decedent was shot first in the buttocks by an officer, he began to buckle and proceed into a staggered run, got to the sidewalk and finally fell down. A second shot was then fired by another officer hitting the victim slightly below the neck; the two shots collectively killed the victim. Decedent was awarded $15,000 for 15 minutes of suffering. In Hambrook v. Smith, No. 14-00132 ACK-KJM, 2016 WL 4408991, at *36 (D. Haw. Aug. 17, 2016), decedent died during a tourism scuba diving lesson when he got swept away and was yelling for help. The Court found that a total time of approximately one to two-and-a-half-minutes elapsed while decedent was conscious of his impending death. The Court found that "while the decedent's pre-death pain and suffering may have been relatively short, it was agonizing and frightful." His estate was awarded $50,000. In Randall v. Chevron U.S.A., Inc., a seamen fell into the water when attempting to evacuate a vessel during high seas. Randall v. Chevron, 13 F.3d 888, 901 (5th Cir. 1994) (overruled on other grounds Bienvenu v. Texaco, Inc., 164 F.3d 901 (5th Cir. 1999)). He managed to swim to the leg of a platform and clung as best he could in rough water for twenty-five minutes. Efforts to save him were unsuccessful and he eventually drowned. When his body was recovered his legs were lacerated from being thrown against the barnacle encrusted leg of the platform by the rough waves. On appeal, the Fifth Circuit reduced a jury award for pre-death pain and suffering from $1,000,000 to $500,000 for the twenty-five minutes of pain and suffering.

The above cases provide the Court with some guidance. The Court acknowledges that pain and suffering damages cannot be supported entirely by rational analysis, but is inherently subjective, involving experience and emotions, as well as calculation. See Dixon v. International Harvester Co., 754 F.2d 573, 590 (5th Cir.1985). Based on the evidence, the Court concludes that Stephen Willis suffered pain and suffering damages after the last shot(s) by Officer Catton in the amount of $25,000.

V. CONCLUSION AND ORDER

For the reasons discussed herein, following the conclusion of a bench trial in this matter, and in accordance with these Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, that judgment shall be AMENDED to include, in favor of Plaintiffs and against Defendant Officer Catton, an award of $25,000 for Stephen Willis's pre-death pain and suffering. (Doc. 251.)

The Judgment shall be AMENDED to reflect as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that judgment is entered in accordance with the Special Verdict and the Findings of Fact and Conclusions of Law in favor of plaintiffs Chris Willis and Mary Willis, as Successors in Interest to Stephen Willis, and against defendant Greg Catton in the amount of $25,001.00.

IT IS SO ORDERED.