A ruling upholding post-death, hedonic damages in a police excessive-force case deepens an existing circuit split and should have been given en banc review, 11 dissenting judges on the U.S. Court of Appeals for the Ninth Circuit said Wednesday.

In the underlying lawsuit, a panel upheld a $3.6 million hedonic award—meant to compensate for the loss of life’s enjoyment—to the family of Fermin Valenzuela, who died of asphyxia after a police encounter in which officers put him in chokeholds. The police and city asked the court to overturn the award, pointing to a California law that prohibits such damages after a plaintiff dies.