United States District Court, W.D. Kentucky, Louisville Division
FADI FAKHRI et al. PLAINTIFFS
LOUISVILLE-JEFFERSON COUNTY METROPOLITAN GOVERNMENT et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge United States District Court.
matter is before the Court on Defendants Louisville-Jefferson
County Metro Government and Louisville Metro Police
Department's Partial Motion to Dismiss (DN 6). The matter
is ripe for adjudication. For the reasons that follow,
Defendants' motion is GRANTED.
lawsuit was filed by Fadi Fakhri (“Fakhri”) and
Qaderyia Fadaam (“Fadaam”) as administrators of
the estate of Raad Fakhri Salman (“Salman”)
asserting violations of federal and state law. (Compl.
¶¶ 1-8, DN 1). Defendant Brandon Hogan
(“Hogan”) was at the relevant time a sergeant
employed by Defendant Louisville Metro Police Department
(“LMPD”) of Defendant Louisville-Jefferson County
Metro Government (“Metro Government”).
events leading to this action occurred on July 5, 2018, in
Louisville, Kentucky. (Compl. ¶ 17). Salman was at the
time suffering from an unspecified form of psychosis for
which he was prescribed Risperdal. (Compl. ¶ 16). Salman
had not, however, been taking his Risperdal in the days
leading up to July 5 and had exhibited noticeable symptoms of
mental illness. (Compl. ¶ 16).
11:43 AM on July 5, Salman dialed 911 and requested police
assistance at his apartment. (Compl. ¶ 17). Salman spoke
primarily Arabic but requested police assistance and stated
his address in English. (Compl. ¶ 20). A woman could be
heard screaming in the background, and at one point she too
picked up the phone and requested police assistance. (Compl.
¶ 21). The 911 operator connected Salman to a language
line where a translator attempted to translate part of the
conversation before putting her supervisor on the line.
(Compl. ¶ 22). Because of his mental state, Salman was
unable to effectively answer many questions asked by the 911
workers. (Compl. ¶¶ 23-24). Notwithstanding this
difficulty, a police Run Report shows the 911 workers
understood some statements from Salman, including: Salman was
inside the apartment threatening to kill and torture his
wife; Salman stated someone could send him back to Iraq;
Salman said police should come in twenty minutes or he would
kill his wife; Salman repeatedly said he couldn't hear;
Salman stated again that the police had twenty minutes to
arrive or he would “slaughter” his wife. (Compl.
¶ 25). The call disconnected at 11:59:25 AM. (Compl.
¶ 26). At 12:01:00 PM, the run reports states that LMPD
Unit 416C was en route to Salman's residence. (Compl.
12:02:10 PM, the property manager of Salman's apartment
called 911 stating that a man identified as Salman was
threatening a woman with a knife. (Compl. ¶ 27).
Additional units responded, including a SWAT unit that
Plaintiffs believe included Defendant Brandon Hogan
(“Hogan”), which responded at 12:05:00 PM.
(Compl. ¶¶ 28-29). At the time, Hogan had been
engaged in a SWAT training exercise approximately half a mile
from Salman's apartment. (Compl. ¶ 30).
12:06:06 and 12:06:56 PM respectively, Salman placed two
additional 911 calls. (Compl. ¶ 31). When Hogan arrived,
Salman was standing outside his apartment holding a knife,
and his wife, Fadaam, was sitting on the ground. (Compl.
¶¶ 32-34). Both Salman and Fadaam were several feet
from where Hogan stood with his weapon drawn. (Compl. ¶
35). According to the LMPD, Hogan ordered Salman to drop the
knife multiple times, but Plaintiffs dispute this account,
noting that the 911 recording does not contain audio evidence
of those orders, despite the fact that Salman was holding his
phone and other voices are audible in the background. (Compl.
¶ 36). Hogan then shot Salman multiple times in the face
and head, killing him. (Compl. ¶ 38).
note that statements made by LMPD to media outlets indicated
that Hogan fired on Salman to allow Fadaam to flee to safety.
(Compl. ¶ 38). Plaintiffs dispute this, however,
claiming that Fadaam's sobs are audible on the 911 call,
reflecting that she stayed by her husband's side after
the shooting. (Compl. ¶ 38).
further note that someone can be heard on the 911 recording
requesting an ambulance at 12:07:32 PM, despite the fact that
the Run Report does not indicate shots were fired until
12:08:45. (Compl. ¶ 40). Assuming the 12:07:32 PM
ambulance request is an accurate measure of when Hogan shot
Salman, Plaintiffs point out that, if the rest of the Run
Report is to be believed, Hogan managed to end his SWAT
training exercise, go to his vehicle, travel a half mile,
find the relevant apartment, exit his vehicle, assess the
situation, draw his weapon, give multiple commands to Salman
to drop the knife, witness Salman's refusal to comply,
reevaluate the need to use deadly force, and shoot Salman all
within a span of two minutes and thirty-two seconds. (Compl.
Count I, Plaintiffs charge that Hogan's actions in such a
short span violated the LMPD's Standard Operation
Procedures Manual, were objectively unreasonable, and amount
to an unconstitutional use of excessive force in violation of
42 U.S.C. § 1983. (Compl. ¶¶ 46-58). In Count
II, Plaintiffs assert Metro Government is liable under
Section 1983 for the ratification of or tolerance of the
customary violation of civil rights. (Compl. ¶¶
59-77). In Count III, Plaintiffs assert LMPD is similarly
liable for ratification and tolerance of customary
constitutional violations, but add that LMPD is further
liable because its failure to train and retrain officers with
respect to the use of force and implicit bias amounts to
deliberate indifference. (Compl. ¶¶ 78-99).
Defendants Metro Government and LMPD seek dismissal of Counts
II and III, arguing Plaintiffs have failed to state a claim
upon which relief may be granted. (Defs.' Mot. Dismiss,
DN 6 [hereinafter Defs.' Mot.]). Additionally, Defendants
seek dismissal of Plaintiffs' state law claims on grounds
of sovereign immunity.
action arises under the laws of the United States, and the
Court has subject matter ...