The U.S. Court of Appeals for the Ninth Circuit has temporarily halted proceedings in a high-stakes federal lawsuit stemming from a lethal police shooting in Las Vegas, asking the Nevada Supreme Court to clarify two fundamental questions about state tort law. The decision to certify these questions means the outcome of the negligence claims brought by the family of the deceased—Keith Childress Jr.—hinges on how Nevada’s highest court defines the line between intentional acts and careless conduct by police officers.
The case involves the December 2015 encounter where Las Vegas Metropolitan Police Department (LVMPD) officers mistakenly believed Childress was armed with a firearm while attempting to arrest him on outstanding Arizona warrants. After Childress fled and ignored commands, officers fired multiple volleys of shots, ultimately killing him. No firearm was found on his body; he possessed only a cell phone.
The Core Legal Dilemma: Intentional Force vs. Negligence
The central issue facing the Ninth Circuit is whether Nevada law allows plaintiffs to sue police officers for *negligence* when the alleged misconduct involves an *intentional* use of force, such as firing a weapon.
In the underlying district court case, the trial judge barred the jury from considering the officers’ initial shooting under a negligence theory, relying on precedent (specifically, an Arizona case) suggesting that negligence and intentional torts are mutually exclusive. The judge instructed the jury to evaluate negligence only based on the officers’ subsequent actions—specifically, their alleged failure to properly assess the need for force *after* the first volley of shots and while Childress was already on the ground.
The jury found the officers 25% negligent based on these later actions, but because the jury assigned 75% of the fault to Childress himself, Nevada’s modified comparative fault rules reduced the resulting damage award to zero.
The Ninth Circuit panel, consisting of Judges Mark J. Bennett, Gabriel P. Sanchez, and Holly A. Thomas, recognized that this distinction is crucial and currently unresolved under Nevada law. If Nevada law permits a negligence claim based on the intentional shooting itself, the jury’s analysis of fault and the final damage award could change significantly.
The Two Certified Questions
To resolve the case, the Ninth Circuit respectfully certified two specific questions to the Supreme Court of Nevada:
1. Can a plaintiff raise a theory of negligence based on an officer’s intentional use of force under Nevada law?
2. Is “reasonable care” under Nevada negligence law the same standard as “reasonableness” under the Fourth Amendment of the U.S. Constitution?
The court noted that the answer to the second question is also vital. If the Fourth Amendment standard of reasonableness (which governed the officers’ initial use of force under federal law) is identical to the state law standard of “reasonable care,” then the district court’s earlier ruling granting summary judgment on the initial shots (finding the force objectively reasonable) would effectively bar the state negligence claim related to those shots as well.
Conflicting Signals in Nevada Case Law
The Ninth Circuit detailed why existing Nevada precedent is insufficient to provide a clear answer.
The defendants pointed to the 1962 Nevada Supreme Court case, *Rocky Mountain Produce Trucking Company v. Johnson*, which stated that negligence is an “unintentional tort” and is “mutually exclusive” with willful misconduct (like battery). This precedent strongly suggests that intentional force cannot also be negligent force.
However, the plaintiffs highlighted more recent, though unpublished, opinions. For instance, in *Estate of Brenes v. LVMPD*, the Nevada Supreme Court addressed both battery and negligence claims stemming from an officer’s use of lethal force, suggesting that a negligence claim could proceed if the force was “objectively unreasonable” under the Fourth Amendment. Because *Brenes* was an unpublished disposition, it is not binding precedent.
Furthermore, federal district courts within Nevada are split on how to interpret these conflicting signals. Some courts follow the *Rocky Mountain* precedent, predicting that Nevada law bars negligence claims based on intentional force. Others argue that negligence claims sweep more broadly and can coexist with intentional tort claims.
A Look at Out-of-State Guidance
In the absence of clear state guidance, the parties presented contrasting out-of-state analogies. Plaintiffs looked to California law, which permits overlapping negligence and intentional force claims, citing cases where the “reasonable care” standard was deemed distinct from the Fourth Amendment “reasonableness” standard. Defendants followed the district court’s lead, citing Arizona law, which explicitly forbids negligence claims based solely on an officer’s intentional physical force.
The Ninth Circuit acknowledged the importance of these questions, noting they frequently arise in federal courts dealing with civil rights and police liability cases, making a definitive ruling from the Nevada Supreme Court beneficial for promoting uniformity.
While the Ninth Circuit panel affirmed the district court’s decision regarding the officers’ first volley of shots (under the Fourth Amendment analysis) and a related claim concerning the right to familial association, the negligence claim is now on hold. The court’s order directs the parties to await the Nevada Supreme Court’s decision before proceeding further.