$85 Million San Diego Civil Rights Wrongful Death Lawsuit
K.J.P. et al v. San Diego, County of et al
Justice For Everyone
Singleton Schreiber wins $85-million wrongful death lawsuit for family of victim of San Diego police brutality
On March 15, 2022, the San Diego civil rights attorneys at Singleton Schreiber and McKenzie Scott won an $85 million wrongful death case against San Diego County for the family of Lucky Phounsy, a 32-year-old Santee, California, man who died after being tased, beaten and hogtied in a 2015 encounter with deputies from the San Diego Sheriff’s Department.
Lawyers Make Case for Change in Maximum Restraint Policy
The Phounsy family hopes the verdict leads to a nationwide ban on the use of maximum restraints that are inherently dangerous, according to Singleton Schreiber attorney Mark Fleming, who tried the case with attorney Tim Scott of McKenzie Scott.
“We want municipalities and law enforcement agencies around the country to stop binding people’s hands and feet behind their back,” Fleming and Scott said in a post-trial interview. “It is both dangerous and unnecessary.”
The San Diego attorneys ultimately want to see the practice banned — something that will go a long way toward ending police brutality in San Diego.
Wrongful Death Verdict Years in the Making
The wrongful death verdict came seven years after the deadly encounter, which occurred during a family celebration for the second birthday of Phounsy’s son.
Unable to sleep for three days, Phounsy grew paranoid at the family gathering. His family decided to take him to the hospital. As they were preparing to leave, Phounsy called 911 and told the dispatcher that he and his family were in danger.
During the call, a family member told the dispatcher that no one was in danger and that Phounsy was unarmed. Two deputies responded to the house and immediately tried to handcuff him.
Confused, Phounsy tried to explain that he was the person who called 911. Deputies then tased and beat Phounsy while he struggled to break free. During the melee, one deputy suffered a broken nose.
Ten more deputies charged into the house and continued to tase and beat Phounsy, who was no longer resisting. The deputies forced Phounsy onto his stomach and bound his hands and feet hogtied together tightly behind his back while they piled on top of him.
Phounsy slowly began to suffocate from positional asphyxiation both inside the family home and while in the driveway, where deputies left him hogtied for 30 minutes. None of the deputies checked the restraints or properly monitored Phounsy’s breathing, in violation of standard law enforcement protocol.
Phounsy was then tightly strapped to a gurney and placed into an ambulance while still hogtied. Former Sheriff’s Deputy Richard Fischer rode with Phounsy to the hospital.
Once inside the ambulance, Fischer placed a spit-sock over Phounsy’s face and pushed down on his head and torso with all his strength until Phounsy went into cardiac arrest. The unjustified application of the spit-sock prevented paramedics from giving Phounsy oxygen or monitoring his condition.
Phounsy went into a coma before reaching the hospital. He died a week later.
The Sheriff’s Department cleared all deputies of any wrongdoing and falsely claimed Phounsy died because of a drug overdose and extreme exertion. However, toxicology reports proved Phounsy had no drugs in his system.
The family filed a wrongful death lawsuit against the Sheriff’s Department. The first trial in 2021 ended with a hung jury.
Excessive Force Lawsuit Focused on Richard Fischer and the County’s Failure to Properly Train Deputies
Fleming said he and Scott worked to simplify the case for the second trial.
“The way that Tim and I retooled the case made it easier for the jury to understand,” he said.
Honing the focus on the main defendant, former Sheriff’s Deputy Richard Fischer (who is currently in prison for sexually assaulting women while on patrol) and the abysmal training of the other deputies helped the jury to understand both the injustice that had occurred and how the county tried to cover it up, Fleming said.
In the second Phounsy trial, the jury unanimously found that Fischer’s use of excessive force and the county’s failure to properly train its deputies resulted in Phounsy’s death.
“I think this verdict was about accountability,” Managing Partner Gerald Singleton told the LA Times after the verdict. “They have a lot of very good officers who do this job, but they don’t do any kind of a decent job getting rid of the bad apples or properly training the rest.”
Excited Delirium Police Brutality Defense a Seven-Year Lie
The case was appealed to the 9th U.S. Circuit Court of Appeals two separate times by the county, which sought qualified immunity for the deputies involved, but that only served to prolong the litigation — all under the false pretenses that Phounsy had died from a drug overdose.
“This was the lie the county told for seven years after Mr. Phounsy was killed,” Fleming said.
Before the second trial began in February 2022, Scott and Fleming found out from another attorney who had sued the County in a prior unrelated case about the existence of a training video the Sheriff’s Department used on maximum restraints, which wasn’t turned over during the discovery phase of the first trial.
The video instructs deputies to strap restraints up the front of the body. But the maximum restraints on Phounsy were attached behind his back, his hands and feet tied together just inches apart in a dangerous “hogtie” fashion.
They were also bound too tightly, and Phounsy’s vital signs were not monitored as he slowly suffocated for 30 minutes before being placed into the ambulance with Fischer. Not only was the training video inadequate, but deputies also failed to follow even those insufficient instructions.
The training video itself, like the second toxicology report, was not turned over to the Phounsy lawyers until weeks before the start of the second trial, and only after Scott and Fleming brought the discovery violation to the attention of U.S. District Court Judge Marilyn Huff, who oversaw the trial.
The county claimed during the first trial that the 2015 drug test may have missed other drugs Phounsy may have taken. However, in October 2021, shortly after the first trial, additional testing by the County conducted on blood preserved from the autopsy came back negative for other drugs.
Fleming and Scott didn’t learn about that test result until the middle of the second trial.
The county had also indicated that Phounsy’s behavior was consistent with a controversial “medical condition” referred to as Excited Delirium Syndrome.
Excited Delirium is not recognized by the American Medical Association and is often relied upon by a small group of well-compensated defense experts as the cause of death in similar cases involving maximum restraints.
“They got caught this time,” Fleming said. “This is an important fact for the County and every other municipality that doesn’t want a similar outcome to think hard about and stop playing games with their discovery obligations.”
The Largest Civil Wrongful Death Verdicts in History
Judge Huff called the violations by the county “shocking and disturbing” and instructed jurors they may “distrust Defendant County of San Diego’s evidence” relating to their deputies’ training on maximum restraint and any allegation of drug use by Phounsy.
Ultimately, it took the jury just over a day of deliberations before they returned a verdict against the County. The $85 million verdict is believed to be the largest in United States history for a wrongful death civil rights trial.
For the loved ones of the victim, the verdict set the record straight about what happened to Phounsy. But no amount of money will ever compensate the family for the loss of a loving husband, father, and son.
The firm will wait to see if any further challenges are put forth by the county, but for now, our San Diego wrongful death lawyers hope the record verdict can garner enough attention to help prevent tragedies like this from happening — starting with a nationwide standard for the use of excessive force in maximum restraints.
For Fleming, this issue has become personal: “Getting to know Lucky’s family and seeing what they’ve been through was heartbreaking. What makes it worse is that this tragedy should never have happened,” he said.
“Using maximum restraints in which the hands and feet are lashed together is both dangerous and unnecessary. There is simply no legitimate law enforcement reason to do it,” he added. “Banning this practice will save lives.”
UPDATE [May 11, 2022]: County Files Motions to Reduce Verdict in Lucky Phounsy Excessive Force Lawsuit
The County of San Diego is now seeking to overturn the verdict in the Lucky Phounsy trial, according to two post-trial motions filed April 2022 in San Diego federal court.
One motion seeks that the verdict be set aside for insufficient evidence by the judge handling the case, U.S. District Court Judge Marilyn Huff. The second motion argues that errors in the trial led to an excessive amount awarded in the verdict and is seeking a new trial or a reduction of the $85 million award, the largest verdict ever issued against the county.
The plaintiffs representing the Phounsy family, led by Singleton Schreiber’s Mark Fleming and Tim Scott of McKenzie Scott, filed their response to the county’s motions on May 9, contending nothing about the case warrants bringing a new trial or reducing of the award.
As Fleming told the San Diego Union-Tribune, the motions to reduce the award disrespects “both the value of Lucky’s life and the enormity of his loss to his family, as well as the hard work and careful consideration of the jury.”
There will be a hearing on these motions in front of Judge Huff on June 13, but the county is expected to appeal the case further, including up to the U.S. Court of Appeals for the Ninth Circuit, a process that could take years to come.