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Khottavongsa v. City Of Brooklyn Center

United States District Court, D. Minnesota

August 30, 2017

Kevin Khottavongsa, as trustee for the heirs and next-of-kin of Sinthanouxay Khottavongsa, Plaintiff,
City of Brooklyn Center; Alan Salvosa, Police Officer, acting in his individual capacity as City of Brooklyn Center police officer; Cody Turner, Police Officer, acting in his individual capacity as City of Brooklyn Center police officer; and Gregg Nordby, Police Officer, acting in his individual capacity as City of Brooklyn Center police officer, Defendants.


          Paul A. Magnuson United States District Court Judge

         This matter is before the Court on Defendants' Motion for Summary Judgment and to Exclude Expert Witnesses, and Plaintiff's Motion to Exclude Expert Witnesses. For the following reasons, the Motion for Summary Judgment is granted in part and denied in part, and the Motions to Exclude are granted in part and denied in part.


         On the night of January 16, 2015, Sinthanouxay Khottavongsa, a 57-year-old Laotian immigrant, was visiting the auto-repair shop owned by the parents of his friend, Leang Sarin, in Brooklyn Center. (Hively Aff. (Docket No. 38) Ex. 2 (Sarin Dep.) at 9.) The shop was attached to a laundromat, Coin Laundry, also owned by Mr. Sarin's parents. While Mr. Khottavongsa was in the repair shop, three African-American individuals entered the Coin Laundry. Ms. Taing Hong, the owner of the laundromat, told them that it was closing time and asked them to leave. (Hively Aff. Ex. 3 (Hong Dep.) at 5-6.)

         The individuals ostensibly made inappropriate comments to Ms. Hong. (Id. at 5; see also Hively Aff. Ex. 8 (Cruz-Martinez Dep.) at 9.) Mr. Sarin got involved, attempting to lock the door to prevent the individuals from re-entering the laundromat. (Sarin Dep. at 10-11.) The individuals then dragged Mr. Sarin from the laundromat and started physically fighting with him. (Id. at 12) Ms. Hong sprayed mace in the face of one of the individuals. (Hong Dep. at 9, 11.) Her husband, Kear Som, grabbed a baseball bat. (Hively Aff. Ex. 4 (Som Dep.) at 41.) Mr. Khottavongsa was involved in the altercation as well, with one witness reporting that he fell to the ground and was kicked and punched. (Hively Aff Ex. 8 (Cruz-Martinez Dep.) at 14, 17-18.) Eventually, Mr. Khottavongsa went back into the repair shop and emerged with a crowbar. (Som Dep. at 19.)

         Several individuals called 9-1-1 to report the melee. (E.g., Cruz-Martinez Dep. at 14-15.) At least one reported that someone in the fight had a bat. (Id. at 14) Defendant Officer Alan Salvosa and a cadet trainee, Jose Nochez, were the first police officers to arrive on the scene, although they did not activate their police cruiser's lights or siren. (Rissman Decl. (Docket No. 74) Ex. N (Salvosa dashcam video).) They parked some distance away and thus the cruiser's dashcam video did not capture the events; audio from the dashcam did record the sound of what happened. According to Plaintiff, by the time the police arrived, the fight was over and many of the participants had fled. (Sarin Dep. at 32-34.) Shortly after Salvosa and Nochez arrived, Defendants Officers Gregg Nordby and Cody Turner, as well as other officers not named as Defendants here, arrived on the scene. The other cruisers' dashcams recorded the events.

         Officer Salvosa ran to the area of the fight and commanded everyone to get down on the ground. (Hively Aff. Ex. 10 (Salvosa Dep.) at 64.) The parties vigorously dispute Mr. Khottavongsa's English proficiency; Plaintiff contends that he spoke only broken English, while Defendants say that he spoke enough English to understand the officer's commands. When Salvosa arrived, Mr. Khottavongsa had his back turned to him and was holding the crowbar. Salvosa yelled at Mr. Khottavongsa to “drop it drop it drop it.” (Rissman Decl. Ex. N (Salvosa dashcam video) at 9:16:26.) Mr. Khottavongsa began to turn his head to look at Salvosa, and Salvosa tased him. (Id. at 9:16:30; Salvosa Dep. at 73.) Mr. Khottavongsa's body tensed and he fell to the ground, striking the back of his head against the pavement. (Salvosa dashcam video at 9:16:30.)

         Mr. Khottavongsa then lay on the ground, still holding the crowbar. Mr. Sarin tried to come to his aid but the police ordered him to the ground. Officer Turner took the crowbar out of Mr. Khottavongsa's grasp. (Hively Aff. Ex. 11 (Turner Dep.) at 69-70.) The officers apparently recognized that Mr. Khottavongsa was not able to understand what they were saying; Officer Turner can be heard commenting that Mr. Khottavongsa did not understand, later telling the other officers, “I don't think he speaks English.” (Rissman Decl. Ex. J (Turner dashcam video) at 21:17.37.)

         Officer Turner yelled to the group to “lay flat on your stomach!” (Id. at 21:14:15-17.) Mr. Khottavongsa, who had been lying on his back, then began moving very slowly. (Id. at 21:17:23.) Officer Salvosa tased him again, causing Mr. Khottavongsa to fall back, again striking his head on the pavement. (Id. at 21:17:24.) The officers again ordered him to roll to his stomach, and when he did not immediately comply, they began to push or kick him with their feet, trying to roll him over. (Id. at 21:18:04).

         Turner and Nordby eventually handcuffed Mr. Khottavongsa and ordered him to stand. He was unable to do so, and they dragged him to a cruiser. (Id. at 21:19:32.) Mr. Khottavongsa can be heard moaning loudly and constantly throughout this encounter. The officers put Mr. Khottavongsa in the back of the cruiser and he slumped over, falling forward to the floor of the car. (Id. at 21:20:16.) After several minutes, the officers pulled him out of the car and left him on the ground, face down. Eventually, the officers called an ambulance. (Hively Aff. Ex. 5 (Nordby Dep.) at 180-81.) The ambulance transported Mr. Khottavongsa to the hospital, but physicians there were unable to revive him. He was in a coma for two days and eventually removed from life support. (Id. Ex. 1 (K. Khottavongsa Dep. at 9, 12.)

         Plaintiff Kevin Khottavongsa is Mr. Khottavongsa's son and the trustee of his estate. The Complaint (Docket No. 1) raises a § 1983 claim for excessive force and deliberate indifference to serious medical needs against the three officers, [1] a § 1983 failure-to-train and unconstitutional policies and practices claim against the City of Brooklyn Center, and a state-law wrongful death claim against all Defendants.


         Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The Court must view the evidence and inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         1. Qualified Immunity

         Defendants contend that the officers are entitled to qualified immunity on the § 1983 claim. Qualified immunity protects police officers from suit unless “their conduct . . . violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To evaluate whether an officer is entitled to qualified immunity, the Court must determine whether the facts alleged “make out a violation of a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court must also determine whether the right at issue was “clearly established” at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Thus, a police officer is “entitled to summary judgment based on qualified immunity unless (1) the evidence, viewed in the light most favorable to the nonmoving party, establishes a violation of a federal constitutional or statutory right, and (2) the right was clearly established at the time of the violation.” Capps v. Olson, 780 F.3d 879, 884 (8th Cir. 2015).

         Plaintiff's § 1983 claim against the officers rests on two grounds. First, he contends that the officers used excessive force on Mr. Khottavongsa. Second, he claims that the officers were deliberately indifferent to Mr. Khottavongsa's serious medical needs. Defendants first ask the Court to determine that the uses of force here were reasonable as a matter of law.

         But there are too many factual disputes in the record to allow the Court to make this determination. There are questions as to whether Officer Salvosa deployed his taser too quickly, and indeed whether the use of a taser was necessary at all. There is a question whether the officers knew or should have known that Mr. Khottavongsa had limited English proficiency and thus might not have understood their commands. There are questions regarding whether the officers recognized or should have recognized the extent of his injuries after the first tasing or the second tasing. There are questions regarding the amount of force the officers used to handcuff Mr. Khottavongsa and whether moving him in and out of the police car was warranted considering his injuries. There are questions as to whether the officers recognized the extent of his injuries but ignored those injuries. Testimony from the officers at the scene and from eyewitnesses paints no clear picture on any of these issues. Moreover, the video and ...

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