Facts

On April 13, 2015, 32-year old, Lucky Phounsy called 911, claiming that people were trying to kill him. Phounsy gave his father-in-law, Greg Kelley, the phone and Kelley told the operator Phounsy was acting delusional and paranoid and asked that San Diego Sheriff's Department respond to his residence. Kelley also informed the operator that Phounsy had recently returned from a music festival and had taken drugs days earlier and was unable to sleep. Deputies Marcos Collins and Janae Krull arrived first and were met in the driveway by Kelley, who escorted the deputies inside the house and told Phounsy that they were there to help. After Phounsy told them that he had no weapons, the deputies asked if they could pat him down. Phounsy was confused because he had called them, but agreed. After Phounsy lowered a hand to show deputies he had no weapons, the deputies attempted to handcuff Phounsy. Thereafter, a fight ensued, about which the facts were contested. Deputy Collins tased Phounsy several times and Deputy Krull used her baton on Phounsy multiple times. Four deputies, Dean Allen, Michael Lee, Billy Tennison and Tamani Pugh then came to assist in restraining Phounsy and six more deputies, Aaron Brooke, Kevin Ralph, Richard Fischer, Jenny Martinson, Sandra Carbajal, and Jovonni Silva, arrived. The deputies collectively handcuffed and placed maximum restraints on Phounsy. During that time, Deputy Brooke also tased Phounsy and six to eight of the deputies applied downward pressure on Phounsy while he was being restrained in the prone position. Once Phounsy was placed in the maximum restraint, he was carried outside and held in place. Paramedics arrived on the scene, administered two doses of sedative to Phounsy and transported him to Grossmont Hospital in an ambulance with one deputy, Deputy Richard Fischer. During that trip, Phounsy remained in maximum restraints akin to a hogtie and Fischer applied additional downward force to Phounsy's head and torso. While Fischer applied downward force, Phounsy suffered cardiac arrest. Doctors later determined he had sustained brain injury and, after his organs began to fail in the ICU, his family allowed him to be taken off life support. Phounsy's family including his minor children, wife and mother, filed suit against the County of San Diego, the San Diego Sheriff's Department, the individual deputies, the City of Santee, its fire department, the Lakeside Protection District and the paramedics involved. On April 12, 2019, summary judgment was granted in favor of defendants, with the following exceptions: plaintiffs' claim for excessive force, Bane Act, and battery claims against Deputies Collins, Krull, Allen, Brooke, Tennison, and Fischer; plaintiffs' claim for denial of medical care against Deputies Allen, Martinson, Carbajal, Lee, Pugh, Tennison, and Fischer; plaintiffs' Monell claim; plaintiffs' negligence claims against all defendants except Ralph; and Ms. Nguyen's claim for intentional infliction of emotional distress. After several additional claims and defendants were settled, including Phounsy's mother's claims, the following proceeded to trial: excessive force against Fischer, Bane Act claims against Fischer and the County of San Diego; Monell claim against the County of San Diego; negligence claims against both Fischer and the County of San Diego; and wrongful death.

PLAINTIFF'S CONTENTIONS: Plaintiffs contended that defendants used excessive force, failed to administer medical care, were negligent, and that the County had a policy of inadequately training their deputies, all of which subsequently caused Lucky's death. When the deputies entered the house, they almost immediately attempted to handcuff Lucky, escalating the situation, instead of reasonably talking him down given that Lucky himself called 911. Lucky, who was unarmed, had done nothing wrong, and was in his own home, was frightened and confused when the deputies attempted to handcuff him. In response, Deputy Collins yelled at Phounsy to "Put your fucking hands up" and proceeded to tase Phounsy. A fight ensued during which additional deputies joined the assault. Lucky was punched, struck with a baton, and tased. The deputies collectively applied downward pressure on Lucky during and after he was hogtied and laying prone. This led to Lucky struggling to breathe which, in turn, led deputies to apply still more downward force. Deputies then dropped Lucky on the driveway where he lay without proper attention and displaying signs of cyanosis and hypoxia for approximately 20 minutes. When paramedics arrived they found Lucky prone on the driveway in acute distress, but failed to act on his dire medical needs. Instead, paramedics injected sedatives that, owing to Lucky's blood pressure and failing heart, never circulated into his blood stream. Lucky was placed in an ambulance while still hogtied and strapped to a gurney. During transit, the deputy present, Fischer, instructed paramedics to apply a spit sock to Lucky's face. With Lucky completely restrained and immobilized and facing Fischer in the ambulance, Fischer pressed down as hard as he could on Phounsy's head and shoulder. Lucky's heart stopped while Fischer pressed down on him in the ambulance, but Fischer continued to tell paramedics Lucky was resisting until paramedics heard Lucky's teeth grinding - a telltale sign he was in total cardiac arrest - and they instructed Fischer to stop. Lucky never regained consciousness. Of note is that former Deputy Fischer is now currently serving a five-year prison term for assaulting women while on duty, having pled guilty to four felony charges in September 2019. Although the San Diego Sheriff's Department received complaints from citizens who had been assaulted by Fischer and complained of excessive force in the years before he assaulted Lucky, the Sheriff's Department ignored those complaints. Additionally, County Counsel failed to turn over a training videotape that showed the deputies had violated their training by restraining Lucky in the manner they did. Plaintiffs' counsel obtained this tape after the first trial when it was provided by another attorney not connected with the case. The trial judge found that this was a significant discovery violation, gave the jury a curative instruction, and has set a sanction hearing for June 2022.

DEFENDANTS' CONTENTIONS: Defendants contended that the situation that deputies were presented with required the force exerted, which was reasonable in light of the circumstances. The situation only escalated when the deputies who were initially present, were placed in danger due to the actions of Phounsy. Once Phounsy struck Deputy Janae Krull in the nose, he became a legitimate threat and the deputies' actions thereafter were an attempt to handcuff Phounsy so that he would no longer be a danger to not only the deputies but also to himself and others. Given that it took several deputies to just initially restrain Phounsy, the deputies' actions were reasonable given that they had no knowledge of whether he was under the influence of any drugs that can cause impulsive, violent behavior, manifesting as superhuman strength. These types of drugs pose unpredictable dangers for those around the individual. Here, the deputies were responding in an applicable manner due to the safety threat posed by Phounsy, as evidenced by the fact that several deputies required medical treatment thereafter. Additionally, while in the ambulance, Phounsy was thrashing his body in an unsafe manner such that Fischer was reasonable in pressing down on him for Phounsy's own safety.

Result

A Southern District of California jury awarded Lucky Phounsy's estate $5 million in damages for pain and suffering and his family $80 million in noneconomic damages. After the first-phase verdict, the parties stipulated to $10,000 in punitive damages against Fischer.