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Estate of Farmer v. Las Vegas Metropolitan Police Dept.

United States District Court, D. Nevada

June 13, 2019

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

          ORDER

         Presently before the court is plaintiff 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”)'s motion to certify appeal as frivolous. (ECF No. 138). Defendants Las Vegas Metropolitan Police Department (“LVMPD”) and Officer Kenneth Lopera filed separate responses (ECF Nos. 140, 141), to which plaintiffs filed a reply (ECF No. 142).

         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 Travis 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 Michael Tran and Michael 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 ...


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