United States District Court, D. Nevada
ESTATE OF TASHI S. FARMER, et al., Plaintiffs,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.
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).
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).
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).
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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).
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.
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.
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). . .
. . . .
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).
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.
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).
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
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).
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.
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