Metropolitan News-Enterprise


Wednesday, April 8, 2020


Page 1


Ninth Circuit:

Wrongful Death Suit Against San Diego, Officers, to Proceed

Panel Says Factual Disputes Survive Summary Judgment in an Action Brought by the Family Of a Mentally Disturbed Man Who Was Restrained, Tasered, Struck After Becoming Violent


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday rebuffed the second bid by the County of San Diego, the county Sheriff’s Department, and individual sheriff’s deputies to overturn a District Court judge’s denial of qualified immunity in connection with the death of a psychotic man who became assaultive and was tasered, hogtied, and struck with a baton.

A three-judge panel dismissed an appeal from the partial denial of summary judgment.

Sheriff’s deputies arrived after the man, Lucky Phounsy, 32, telephoned 911 on April 13, 2015, to report that people were trying to kill him. Family members wrested the phone from him and explained that Phounsy was delusional.

 Phounsy agreed to undergo a pat-down search but when an effort was made to handcuff him, he became violent. He was restrained and placed on a gurney.

While being transported to a hospital, he remained combative. Paramedics sedated Phounsy and to prevent his thrashing about, he was hogtied.

Cardiac Arrest

He suffered cardiac arrest. Doctors determined that a serious brain injury had occurred and recovery was unlikely.

Family members decided against efforts to keep him alive, and he died two days after the incident.

The Ninth Circuit on Jan. 11, 2019, issued its first opinion in the case. A three-judge panel, responding to an appeal from the denial of qualified immunity, said:

 “Because there appear to be numerous factual disputes, we ordinarily might conclude that we lack jurisdiction to determine whether the district court correctly denied the motions for summary judgment based on qualified immunity.”

It did not dismiss, however, explaining:

“Because the district court did not individually evaluate each defendant’s specific actions and omissions to determine whether that conduct violated clearly established rights, we remand this case to the district court for further proceedings.”

On remand, District Court Judge Marilyn L. Huff of the Southern District of California made such an individualized determination, dismissing Sheriff William D. Gore and Sergeant Kevin Ralph as defendants as to all claims and other defendants as to some of the claims, with claims remaining against the county and 11 individuals.

No Jurisdiction

Yesterday’s action by the Ninth Circuit was a dismissal of the appeal. The panel—comprised on Circuit Judges Mary H. Murguia and Eric D. Miller, joined by District Court Judge George Caram Steeh III of the Eastern District of Michigan, sitting by designation—wrote:

“To the extent that Defendants challenge the district court’s determination that disputed facts precluded summary judgment on whether the decedent, Lucky Phounsy, was a threat to officers, or whether officers failed to take steps to monitor Phounsy’s breathing, we lack appellate jurisdiction to address those purely factual disputes….And to the extent Defendants seek to challenge the district court’s holding that clearly established law protected Phounsy’s rights, Defendants waived those arguments by failing to advance an argument that the law was not clearly established that takes the facts in the light most favorable to the Plaintiffs.”

The case is K.J.P. v. County of San Diego, 19-55527.

The San Diego County Citizens Law Enforcement Review Board, established by the Board of Supervisors, found in 2017:

“The actions of the deputies in their attempt to gain control of an assaultive prisoner were not excessive, but necessary. The evidence showed the alleged acts occurred and were lawful, justified and proper.”


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