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Fakhri v. Louisville-Jefferson County Metropolitan Government

United States District Court, W.D. Kentucky, Louisville Division

September 3, 2019



          Greg N. Stivers, Chief Judge United States District Court.

         This 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.

         I. BACKGROUND

         This 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.[1] (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”).

         The 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).

         Around 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. ¶ 26).

         At 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).

         At 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).

         Plaintiffs 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).

         Plaintiffs 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. ¶ 41).

         In 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).

         Now, 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.


         This action arises under the laws of the United States, and the Court has subject matter ...

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