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Estate of Farmer v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

April 25, 2019

ESTATE OF TASHI S. FARMER, et al., Plaintiffs,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.

          ORDER

         Presently before the court is defendant Las Vegas Metropolitan Police Department (“LVMPD”); Sergeant Travis Crumrine, Officer Michael Tran and Officer Michael Flores' motion for summary judgment. (ECF No. 92). Plaintiffs Estate of Tashi S. Farmer (“Estate of Farmer”); E.B. K. D., a minor, through his legal guardian Stevandra Lk Kuanoni; and T.B.K. F.D., a minor, through her legal guardian Kuanoni (collectively “plaintiffs”) filed a response. (ECF No. 63). LVMPD, Sergeant Crumrine, Officer Tran, and Officer Flores filed a reply. (ECF No. 103).

         Also before the court is plaintiffs' motion for partial summary judgment. (ECF No. 93). LVMPD, Sergeant Crumrine, Officer Tran, and Officer Flores filed a response (ECF No. 97), to which plaintiffs replied (ECF No. 108). Defendant Officer Kenneth Lopera also filed a response (ECF No. 98), to which plaintiffs replied (ECF No. 104).

         Also before the court is Officer Lopera's motion for summary judgment. (ECF No. 94). Plaintiffs filed a response (ECF No. 99), to which Officer Lopera replied (ECF No. 109).

         I. Facts

         This is a civil rights action under 42 U.S.C. § 1983 that arises from a physical confrontation between now-deceased Tashi S. Farmer (“the decedent”) and Officer Lopera of the LVMPD. (ECF No. 1). Video evidence, transcripts, and official records inform the court of the following events:

         On May 14, 2017, Officer Lopera and Officer Ashley Lif were working at the Venetian Resort Hotel Casino. (ECF No. 93-5). At approximately 12:50 a.m., the decedent approached the officers to inform them that he ran across Las Vegas Boulevard because he believed that someone was following him. (ECF Nos. 45, 92-3, 93-5). The decedent was agitated, sweating profusely, and looking over his shoulder. (ECF No. 93-5). In response, Officer Lopera walked closer and reached out to the decedent. (ECF Nos. 93-5, 95-4). The decedent backed away into an employee hallway and a chase ensued. Id.

         A few steps into the pursuit, Officer Lopera fell. (ECF No. 95-4). By the time he recovered, Officer Lopera no longer had sight of the decedent. (ECF Nos. 93-5, 95-4). Officer Lopera immediately ran through the hallway and down a stairwell, which led him to a shared road near Venetian's valet/self-park. (ECF No. 95-4). After receiving some assistance from a security guard, Officer Lopera spotted the decedent in the valet area near a white truck. Id.

         Officer Lopera believed that the decedent was attempting to carjack the truck. (ECF No. 93-5). The operator of the vehicle, Jonathan Pierce, was closer to the decedent and did not perceive any attempt to enter the vehicle. (ECF No. 93-11). However, the decedent's erratic behavior frightened Pierce and caused him to lock the truck's doors. (ECF No. 92-6). Meanwhile, Officer Lopera sprinted to the decedent and shouted, “Stop! Don't move! You're getting tased!” (ECF No. 95-4). The officer then fired his taser and the decedent fell to the floor. Id.

         Officer Lopera instructed the decedent to roll onto his stomach. Id. The decedent initially held his hands near his head, but then reached towards his feet and put his fingers inside his left shoe. Id. The officer fired his taser a second time and again instructed the decedent to roll onto his stomach. Id. The decedent cried, 'I will, I will!” Id. A brief moment passed, but the decedent did not comply with Officer Lopera's order. Id. Instead, he once again reached towards his left shoe. Id. The officer fired his taser a third time and tried to push the decedent onto his stomach. Id. Officer Lopera's efforts were unsuccessful. Id.

         The decedent continued to make erratic movements in what appears to be an effort to resist arrest. Id. Officer Lopera fired his taser four more times and then attempted to pull the decedent's hands behind his back. Id. Two security guards approached the scene to provide assistance, which gave Officer Lopera an opportunity to step back and holster his taser. (ECF Nos. 95-4, 96-12). The decedent's behavior remained erratic and Officer Lopera re-engaged the decedent, delivering numerous blows to the head. Id.

         Once the decedent was sufficiently weakened, Officer Lopera placed the decedent in a neck restraint. Id. At this point, Sergeant Crumrine arrived and attempted to help effectuate the arrest. Id. After approximately 25 seconds, Sergeant Crumrine instructed Officer Lopera to let go. Id. The decedent then attempted to escape, causing Officer Lopera to roll over. Id.

         Despite the decedent's show of strength, Officer Lopera managed to maintain the neck restraint while officers Tran and Flores arrived. Id. Nearly 46 seconds passed while the officers attempted to subdue and handcuff the decedent. Id. Officers Crumrine, Tran, and Flores eventually stepped back and Officer Lopera released the decedent's inanimate corpse. Id.

         Several officers applied first aid in a futile attempt to revive the decedent. (ECF No. 93-5). Eventually, medical personnel arrived and transported the decedent to Sunrise Hospital & Medical Center. Id. At 1:39 a.m., the decedent was pronounced dead. (ECF No. 45-1). The cause of death, according to the decedent's death certificate, was “asphyxia due to, or as a consequence of police restraint procedures.” Id.

         On July 18, 2017, plaintiffs initiated this action. (ECF No. 1). In their first amended complaint, plaintiffs allege six causes of action: (1) excessive force against Officer Lopera and failure to intercede against officers Crumrine, Tran, and Flores; (2) violation of the Fourth Amendment against defendant LVMPD; (3) deprivation of right to familial relationship against Lopera, Crumrine, Tran, and Flores; (4) deprivation of right to familial relationship against LVMPD; (5) negligence against all defendants; and (6) battery against Officer Lopera and LVMPD. (ECF No. 45). Plaintiffs assert claims against the individual defendants in both their individual and official capacities. Id.

         Approximately one month after plaintiffs initiated this action, LVMPD's Tactical Review Board (“review board”) convened a meeting to review the officers' conduct at the March 14, 2017, incident. (ECF No. 93-5). The review board made factual findings that are substantially consistent with the video evidence and concluded that Officer Lopera's actions amounted “to a gross inappropriate use of force.” Id. The review board also concluded that Sergeant Crumrine “was in neglect of duty as a supervisor.” Id.

         The review board recommended terminating Officer Lopera but was unable to take any adverse employment action because Officer Lopera preemptively resigned. (ECF No. 92-15). The review board also demoted Sergeant Crumrine to a patrol officer. Id. The remaining officers did not receive substantial disciplinary sanctions. (ECF Nos. 92-15, 93-5).

         LVMPD produced documents in discovery related to its use of force policy. At the time of the subject incident, LVMPD identified five levels of resistance: compliant, passive, active, aggressive, and aggravated aggressive. (ECF No. 93-6). According to the review board, the decedent engaged in active resistance, which means that the decedent was attempting to prevent arrest without harming an officer. (ECF Nos. 93-5, 93-6). The use of force policy permits officers to use a lateral vascular neck restraint (“LVNR”) on suspects that are at the level of active resistance. (ECF No. 93-6).

         LVMPD also disclosed that there have been 12 excessive force incidents in which an officer used a neck restraint from 2012 to 2017. (ECF Nos. 101, 103). Of these 12 incidents, two include the inappropriate use of an LVNR. Id. On September 20, 2017, LVMPD changed its use of force policy so that officers could no longer use neck restraints on suspects that are at the level of active resistance. Id.

         Now, plaintiffs move for summary judgment on their first cause of action. (ECF No. 93). The defendants also move for summary judgment on all six causes of action. (ECF Nos. 92, 94). . . . . . .

         II. Legal Standard

         The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be entitled to a denial of summary judgment, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

         In determining summary judgment, a court applies a burden-shifting analysis. The moving party must first satisfy its initial burden. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

         By contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the non-moving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

         If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T. W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass 'n, 809 F.2d 626, 631 (9th Cir. 1987).

         In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex, 477 U.S. at 324.

         At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving ...


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