United States District Court, D. Minnesota
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.
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
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.
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
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.)
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
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.)
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.)
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).
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.)
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,  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.
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).
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).
§ 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
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 ...