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Judge throws out $85M award over San Diego custody death

The judge said the jury may have been influenced by outside factors such as sympathy for Lucky Phounsy’s family or anger at the sheriff’s department


Lucky Phounsy pictured in this undated photo.

Photo/United States District Court

By Greg Moran
The San Diego Union-Tribune

SAN DIEGO, Calif. — A federal judge this week threw out the record $85 million civil rights verdict against San Diego County stemming from the death of Lucky Phounsy, who was beaten, tasered and hogtied in a struggle with nearly a dozen deputies in 2015.

U.S. District Court Judge Marilyn Huff concluded that the monetary award handed down by a federal jury in March could not be supported by the evidence presented in the trial, and may have been influenced by outside factors such as sympathy for Phounsy’s family or anger at the Sheriff’s Department.

“Considering the entire record,” Huff wrote near the end of a 75-page ruling, issued Wednesday, “the size of the jury’s wrongful death award is far out of proportion to the evidence and indicates that the jury may have impermissibly included in the award some measure of Plaintiffs’ emotional distress, or some amount intended to punish Defendants.”

But Huff rejected pleas from county lawyers to order an entirely new trial, and also declined to issue a ruling overturning the verdict and declaring the county the winner. Moreover, she upheld jury findings of excessive force and negligence on the part of deputies, as well as a key finding that the Sheriff’s Department’s training on how to avoid using excessive force on someone who was being restrained was deficient.

That poor training, the jury found and Huff upheld, was the driving factor behind the excessive force and civil rights violations against Phounsy.

The ruling means there will be a third trial, but this one only on the issue of how much money the county should pay. No date has been set for this trial, and Huff ordered both sides to confer on possible dates.

A spokesperson for the county, citing the ongoing nature of the case, declined to comment.

Mark Fleming and Timothy Scott, the Phounsy family lawyers, issued a statement that focused on the aspects of Huff’s ruling upholding the county’s liability.

“The order confirms the most important part of the jury’s verdict: that the County and its deputies are entirely, and legally, responsible for Lucky Phounsy’s death,” they wrote. “Another jury will soon have the responsibility of measuring the unspeakable loss suffered by the Phounsy family.”

At the time of the verdict, the $85 million was the largest civil rights verdict for a death in custody ever made in the nation. The panel awarded the family $5 million for Phounsy’s suffering, and $80 million for past and future loss of his love and companionship.

Phounsy, 32, got into a prolonged confrontation with deputies on April 13, 2015, that lasted a 45 minutes. He had not slept much for several days and was dealing with a mental health crisis during a family get-together at a relative’s home in Santee when he became convinced his family was in danger and called 911 himself.

Two deputies arrived, and when they attempted to handcuff Phounsy inside the home, a struggle ensued and quickly turned violent. Phounsy was punched, struck with a baton, zapped by an electric stun gun several times and eventually had his hands and ankles bound together in a hogtie fashion. He was also administered two doses of a sedative.

He was taken outside the home still bound in what the county describes as maximum restraints and set down on the driveway. By the time an ambulance arrived, he had been restrained for about 30 minutes, Huff wrote. He was loaded into the ambulance and strapped to a gurney.

On the ride to the hospital his head was forcibly held down by Richard Fischer, one of the deputies who responded. He would later be fired from the department after pleading guilty to assault and battery charges filed after numerous women accused him of groping them while he was on duty.

Phounsy’s heart had stopped by the time he arrived at the hospital, and several days later his family removed him from life support. The medical examiner later ruled he died as a result of the long struggle with deputies, combined with the effects of the drug ecstasy he had taken several days before.

But lawyers for Phounsy’s widow Loan Nguyen and the couple’s two small children disputed that conclusion and argued that the conduct of the deputies caused him to suffocate to death. She sued the county and numerous deputies, contending his death was the result of excessive force and poor training. It took years to get the case to trial, and when it did last August, a jury could not reach a verdict.

Before the second trial began, lawyers for Phounsy’s family found out that the county had not given them an 18-minute training video showing how the department instructs deputies on applying the restraints, as county lawyers were required to do under pre-trial procedures known as discovery.

The video would have helped the case against the county, the family’s lawyers argued, since it showed that the deputies who bound Phounsy did not follow the training, they told Huff.

County lawyers initially said they were not at fault and that Phounsy’s attorneys never specifically asked for the video, but eventually conceded they had no record of ever giving the video to the other side.

That led Huff to take the unusual step of advising jurors during the second trial that, because of the discovery violations, they could disbelieve the county’s evidence about how deputies are trained.

She issued similar instructions for other issues. The county did not provide complete results of tests that deputies have to take after seeing the restraints video, and also didn’t turn over a second video about training on “excited delirium,” a theory that says someone can become so agitated because of drugs that it can result in death.

She also penalized the county for not promptly giving the results of a toxicology test on a sample of Phounsy’s blood done before the second trial, which showed that aside from minimal amounts of ecstasy, there were no other drugs in his system.

Huff in her ruling Wednesday brushed off arguments from the county that the instructions prejudiced the jury, saying they were “measured sanctions for the County’s serious discovery violations.”

In upholding the jury finding that the county did not adequately train deputies, she pointed to testimony from several deputies at the trial. Some testified that they did not recognize Phounsy’s difficulty while restrained — he was described as grunting, groaning and making “animalistic noises” — as signs he was struggling to breathe.

Overall, she wrote, the evidence jurors considered showed that “deputies as a group received deficient training in preventing excessive force on a restrained individual.”

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