Reeves v. City of West Liberty, Kentucky et al
Filing
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MEMORANDUM OPINION & ORDER: Accordingly, IT IS HEREBY ORDERED that Defendants' MOTION for Summary Judgment DE 28 be SUSTAINED as it pertains to Plaintiff's claim for defamation and OVERRULED in all other aspects. This is an INTERLOCUTORY and NON-APPEALABLE Order. Signed by Judge Henry R. Wilhoit, Jr on 11/29/16.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
Civil Action No. 15-81-HRW
PLAINTIFF,
BRYAN REEVES,
v.
MEMORANDUM OPINION AND ORDER
CITY OF WEST LIBERTY, KENTUCKY,
and
JUSTIN FLANNERY, Individually,
and in his official capacity as
Police Officer for the City of West Liberty, Kentucky,
DEFENDANTS.
This matter is before the Court upon Defendants' Motion for Summaiy Judgment [Docket
No. 28]. The motion has been fully briefed by the parties [Docket Nos. 28-1, 29 and 30]. For the
reasons set forth herein, the Court finds that summa1y judgment is not appropriate as to any of
Plaintiffs claims except for his claim for defamation.
I.
This case arises from PlaintiffB1yan Reeves' arrest for DUI. In his Complaint, Plaintiff
states that on September 28, 2014, at about 12:02 a.m., that he, while operating his automobile,
in a lawful and proper manner, was stopped by the Defendant, Justin Flanne1y, a police officer,
employed by the City of West Libe1ty, Kentucky. After the Plaintiff's vehicle was stopped,
Kentucky State Troopers also responded to the call. [Complaint, Docket No. 1-1, if 3]. Plaintiff
alleges that he was asked by the police officers to get out of the car, and perform field sobriety
tests. Specifically, the Plaintiff submitted to, and passed, the eye nystagmus examination four (4)
times, once for each of the Kentucky State Troopers, and twice for the Defendant Flannery.
Plaintiff informed Defendant Flannery that he had prior surgeries to his leg. Id. at ii 4.
Defendant Flannery arrested for driving under the influence and took him into custody. Plaintiff
was then transported to a local jail, where he underwent a strip search, including a body cavity
search Id.
Blood tests later revealed that Plaintiff did not have alcohol or other controlled substances
in his system and the charge was, ultimately, dismissed. This lawsuit followed.
Plaintiff claims that Defendant Flannery arrested him without probable cause, thereby
violating his rights under the United States Constitution, and the Kentucky Constitution,
specifically the Fourth and Fifth Amendments to the United States Constitution, and Section 10
of the Kentucky Constitution. Further, Plaintiff alleges that Defendant Flannery The police
officer, employed by the City of West Liberty, acted intentionally, while violating the Plaintiff's
constitutional rights, and did so knowingly, while acting under color of law, in violation of 42
U.S.C. Section 1983. In addition, Plaintiff alleges that a result, he suffered personal injury to his
body, including mental anguish, and physical, and mental pain and suffering, including physical,
and mental pain and suffering, reasonably likely to be incurred in the future, as well as
psychological injmy inflicted upon the Plaintiff, for which treatment in the future is reasonably
likely. Id. at ii 7. Finally, Plaintiff claims that subsequent to his arrest, an article appeared in the
local newspaper which stated that he had been arrested and listed the charge. Id. at ii 9. He
claims this to be a basis for a claim of defamation against the Defendants.
Defendants seek judgment as a matter of law as to all claim alleged against them. In
addition to denying violation of either federal or state law, Defendants maintain they are entitled
to qualified immunity.
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II.
Summary judgment is appropriate if the pleadings, depositions, answers to
inten-ogatories, and affidavits show there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter oflaw. Fed.R.Civ.P. 56. The burden to show
that there are no genuine issues of material fact falls on the parties seeking summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91L.Ed.2d265 (1986).
"Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jmy functions, not those of a judge[.]" Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91L.Ed.2d202 (1986). This Court will consider the
evidence in the light most favorable to the non-moving pmiies, drawing all justifiable inferences
in their favor. Id. The ultimate question is whether the evidence presents a sufficient factual
disagreement to require submission of the case to the jury, or whether the evidence is so onesided that the moving parties should prevail as a matter oflaw. Id. at 251-52, 106 S.Ct. 2505.
III.
This case hinges upon probable cause. Although "state law defines the offense for which
an officer may arrest a person, ... federal law dictates whether probable cause existed for an
arrest." Kennedy v. City of Villa Hills, 635 F.3d 210, 215 (6th Cir.2011). Probable cause for an
arrest "quite familiarly, depends on 'whether, at the moment the arrest was made, ... the facts and
circumstances within [the officers') knowledge and of which they had reasonably trnstworthy
information were sufficient to warrant a prndent man in believing that the [defendant) had
committed or was committing an offense.' " United States v. Harness, 453 F.3d 752, 754 (6th
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Cir.2006) (quoting Beckv. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)).
Whether probable cause exists in a particular situation, however, is often difficult to determine.
The probable-cause standard is incapable of precise definition or quantification into percentages
because it deals with probabilities and depends on the totality of the circumstances. See Illinois v.
Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "The substance of all the
definitions of probable cause is a reasonable ground for belief of guilt and that the belief of guilt
must be particularized with respect to the person to be searched or seized." M01yland v. Pringle,
540 U.S. 366, 371, 1245 S.Ct. 795, 157 L.Ed.2d 769 (2003). Generally, the existence of
probable cause in a § 1983 action presents a jury question, unless there is only one reasonable
dete1mination possible." Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.1995) (emphasis added).
In support of their motion and their argument that Defendant Flannery had adequate
probable cause upon which to arrest Plaintiff, Defendants present the deposition testimony of
Plaintiff, Defendant Flannery as well as two Kentucky State Troopers. Defendants contend that
the deposition testimony tells a different tale than the one set fmth in the Complaint.
Kentucky State Trooper Luke Goodwin testified that he first saw Plaintiffs vehicle as it
departed city limits of West Liberty on 519 and 7, where the two roads merge. [Deposition of
Luke Goodwin, Docket No. 26, p. 8). He observed him driving significantly below the speed
limit, failing to maintain his vehicle within their lane and running off the pavement, and crossing
the centerline into oncoming traffic while vehicles were passing in the opposite direction. Id. He
believes he had probable cause to activate his lights and stop Plaintiff. However, Trooper
Goodwin called dispatch asking for another officer because he was transporting a passenger to
St. Claire Medical Center in Morehead and, this, was not authorized to conduct a traffic stop . Id.
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The Kentucky State Police contacted the West Liberty Police Department
dispatch and advised them that Trooper Goodwin was behind a vehicle that was driving 35 in a
55 mile an hour zone, and that vehicle had run off the roadway four times, and the driver was
possibly under the influence, and requested an officer on duty come out to help. [ Deposition of
Justin Flannery, Docket No. 25, pp. 8-9 and Docket No. 26, p. 5]. Although Trooper Goodwin
initiated the stop, he remained in his vehicle with his blue lights on until, Defendant Flannery
arrived on the scene. [Docket No. 26, p. 9].
Defendant Flanne1y made contact with Plaintiff, and had a short conversation,
after which, he asked Plaintiff to exit his vehicle. [Docket No. 25, p.14]. Defendant Flannery
then conducted a standard field sobriety test, which consists of three different tests: the horizontal
gaze nystagmus test (HGN), walk-and-turn test, and the one-leg stand test. Id. at p. 17.
Defendant Flanne1y performed these all three tests himself, and testified that he observed five
out of a possible six clues for impairment of the horizontal gaze nystagmus and four clues of
impairment out of eight possible clues on the walk-and-tum test, to-wit, slatting the test before
being instructed to start, misses' heel-to-toe, raises arms, and improper turn. Id. at p. 24.0n the
one-leg stand test, he observed three clues of impairment, out of a possible four: sways, raises
arms, and puts foot down. Id. He also testified that Plaintiff had bloodshot eyes and appeared to
be confused. Id at p. 33. Based upon the foregoing, Defendant Flannery determined that Plaintiff
failed the field sobriety test. He then arrest Plaintiff. Id. Defendant Flannery testified that
he did not detect alcohol or drugs on Plaintiff or in his vehicle. Id. He also recalled that
Plaintiff told the police officer that he had surgeries, which prohibited him from successfully
completing the standard sobriety tests.
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A second Kentucky State Trooper, Robe1t Martin aJTived on the scene after the field
sobriety test had been given. [Deposition of Robert Martin, Docket No. 27, p. 3]. Trooper Martin
testified that he was on his way home to Pikeville when he had received the call from KSP
dispatch that Trooper Goodwin believed he was behind a vehicle under the influence. Id. at p. 4.
At the time he was 15 or 20 minutes away from the scene and went to assist. By the time Trooper
Martin arrived, however, "they were finishing up." Id. at p. 8.
Plaintiff was deposed as well. He testified to that after pulling out from the parking lot
across from the West Libe1ty entrance sign, where he had taken his girlfriend to, he was followed
by a West Liberty Police officer for approximately seven-and a half-miles traveling toward
Grayson, when he saw blue lights from that vehicle. [Deposition of Bryan Reeves, Docket No.
24, pp. 17-18). He recalled traveling at 35 miles per hour in a 55 miles per hour zone, because his
truck had a bad transmission, so it wouldn't pull the hill very well. He did not, however, recall
running off the roadway. Id. at 18. Plaintiff testified that the steering can go in and out on that
vehicle. Id. With regard to the traffic stop, he recalled there being two State Troopers
and several officers performing the field sobriety tests. Id. at 20. He recalls one of the State
Troopers stating, "[h]is pupillary response is fine, and he's not slurring his speech. Id. at 31.
This case represents a classic he said-he said dispute of facts. Indeed, the issue of
probable cause is, almost always, rife with issues of fact and, thus, belong in the hands of a jury.
The differing narratives of what happened the night of Plaintiffs arrest preclude a finding of
"only one reasonable determination''. Another officer, standing in Defendant Flannery' s shoes,
could have, reasonably, concluded there was no probable cause.
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Defendants disagree. They rely heavily upon the 6'h Circuit's opinion in Jolley v. Harvell,
254 Fed.Appx. 483 (6'h Cir. 2007). Jolley was pulled over at 2:23 a.m. because he paused at a
stop sign for 30 seconds for no apparent reason. The officer claimed to have smelled marijuana
during the stop and proceeded to administer several field sobriety tests, all of which were
recorded on video. Jolley performed well on most of the tests, but he failed to complete the oneleg-stand test. He was then placed under arrest for driving while impaired and, after a subsequent
test for drugs or alcohol revealed that he was sober during the stop, he brought suit against the
a!1'esting officer. The District Comi sustained the officer's motion for summary judgment. The
61h Circuit affirmed, rejecting the argument that a reasonably prudent officer would not have
made the same decision stating:
We would be hard-pressed to conclude that no reasonably prudent
officer would have made the same decision, especially when
balanced against the potential consequences of an incorrect call
had Jolley ultimately proven to be impaired. A drunk driver
is a severe threat to the safety of others. Jolley' s ultimate
innocence is i11'elevant.
Id. at 489 (internal citations omitted).
However, Jolley, is an unpublished, nonbinding case. More importantly, it is factually
distinguishable from the case at hand. More analogous, and thus more instructive, is the 61h
Circuit's opinion in Green v. Throckmorton, 681F.3d853 (6 1h Cir. 2012).
Catrena Green had traveled all day from her hometown in South Carolina to a fairground
in an unfamiliar area of Ohio. Id. at 856. At approximately 10:30 in the evening, she drove to
Walma1i to purchase groceries. As she returned to the fairgrounds, the roads "were wet from a
recent rain [making] visibility somewhat worse than normal." Id. In order to see better, she
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turned on her high beam lights. However, she failed to switch to her low beam lights when she
encountered oncoming traffic. Her failure to do so violated Ohio law. A police officer driving in
the opposite direction witnessed Green's failure to dim her lights, turned around, and began
following her. He then saw the plaintiff"briefly cross[] over a shoulder lane marker." Id. The
officer thereafter commenced a traffic stop. After the officer approached the Green's car, the
officer asked why the plaintiff had "brighted" and "blinded" him with her high beams. Id. at 857.
She apologized and told the officer that she used the beams because it was dark, there were no
street lights like there were in her hometown, and she was trying to drive carefully. As the
officer spoke with the plaintiff, he "momentarily pointed his flashlight inside [Green's] vehicle"
and "noticed that [her] pupils were constricted." Id. He regarded that constriction as "abno1mal."
Id. Green then tried to exit her car in order to retrieve her driver's license from her trunk. When
she did so, she "either forgot to completely remove her seatbelt or became entangled in it." Id. At
that point, the officer "commented that [Green] might want to take her seatbelt off' when
attempting to exit the vehicle. Id. (internal punctuation omitted). Green was then able "to remove
her seatbelt quickly and easily," and she exited her vehicle. Id. The officer then asked her if she
had anything to drink or had taken any drugs or medications that evening. Green responded she
had not. In addition, the officer "did not see or smell alcohol or drugs at any time during the
stop," and he did not "notice anything suspicious" upon a preliminary search of the Green's car.
Id. The officer nonetheless chose to administer several field sobriety tests. He first attempted to
conduct the HGN Test using his pen as a stimulus. According to the officer, he tried to
administer this test two times but was unable to complete the test because Green could not follow
the tip of his pen as he moved it back and f01th. The officer then asked the her again if she had
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taken any drngs or medications. She said she had only been drinking water. See id. The officer
did not believe her and insisted that "[y]ou've taken something else. I mean, you're, you're just
completely dazed off there for a second." Id. The officer then tried to administer the
HGN Test a third time, and he concluded that Green again failed to follow the pen with her eyes.
The officer then asked her to "recite the alphabet, beginning with the letter L and ending with the
letter S." Id. He also asked her to "count backward from 57 to 42." Id. Green was able to
complete the Alphabet Test "without difficulty," but she "hesitated slightly between a few of the
numbers" during the counting test. Id. The officer also "noticed that she talked slowly and that
there was a slight slur to her words." Id.
Next, the officer administered the One- Leg Stand Test. During the test, Green "strnggled
to maintain her balance ... but [she] did not sway badly." Id. In addition, "[h]er foot appear[ ed] to
touch the ground on multiple occasions, and she skipped the number 19 while counting." Id.
Finally, the officer administered the Walk and Turn Test. During this test, Green "swayed
ve1y slightly as she walked, used her aims for balance, and turned right instead of left." Id. at
859.
After these tests were complete, the officer once more attempted to administer the HGN
Test. He again determined that Green could not follow his pen with her eyes, he arrested her for
"driving under the influence of alcohol or drugs." Id.
Following her arrest, officers searched her car and found no evidence of drugs or alcohol.
Green was then transported to the police station and charged with operating a motor vehicle
while under the influence of drugs or alcohol. She was held in custody for two days while she
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attempted to make bail. During her time in custody, she provided a urine sample to be tested for
alcohol and drugs. "When [the plaintiff's] urine test later came back negative for both
alcohol and drugs, all charges against her were dismissed." Id.
Following the dismissal of the charges against her, Green sued the officer
under 42 U.S.C. § 1983 for, among other things, mTesting her without probable cause.
The officer moved for summa1y judgment on the basis of qualified immunity. The United States
District Court for the Southern District of Ohio, concluding that no constitutional violations had
occun-ed, granted summmy judgment in favor of [the defendant officer]." Id.
The Sixth Circuit reversed, refusing to accept as undisputed the officer's testimony that
the plaintiff's "pupils were constricted and that this feature suggested possible impairment." Id. at
862. The court noted that the video of the stop "provide[d] no evidence to support [the officer's]
claim that [GTeen's] pupils were constricted at the time of the stop," and it stressed that the
negative result of the urine test "alone is sufficient to cast doubt on the trnthfulness of [the
officer's] testimony regarding [her] pupils." Id. at 862-63. The court added that under these
circumstances, it was unwilling to "take" the officer's testimony about the Green's pupils "on
faith," and it declined to "penalize [Green] for failing to produce any evidence directly rebutting
[the officer's] stated observation" concerning her pupils because she could not "speak to the
appearance of her [own] pupils." Id. The Sixth Circuit then stressed that a reasonable juror could
conclude that the plaintiff was neither confused nor disoriented. A reasonable jury could
find, for example, that she acted rationally throughout the stop, that her relatively minor traffic
violations were not indicative of impairment, and that [the officer's] fabricated the alleged
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constriction of [her] pupils to create an after-the fact justification for the detention. Id. at 864.
While the facts in Green are not identical to those here, there are a number of significant
similarities between the two cases. In both cases, (1) the plaintiffs drove in an irregular
manner; (2) the officers did not see or smell alcohol during the stop; (3) the drivers
denied ingesting drngs or drinking alcohol; and (4) the officers found no evidence of drugs
or alcohol in the drivers' vehicles. Green is clear: it is proper to consider to the facts and
explanations tendered by the Reeves as to any purported deficiencies of his behavior, including any
innocuous conditions that might explain any less than perfect performance on the tests.
Moreover, the deposition testimony provides alternate reasons, provided by Reeves, which
would meet the criteria of innocuous conditions and explain driving 35 in a 55, and the driving
irregularities noted by the police officer. Specifically, he testified in his deposition that the police
officers followed him 7.8 miles before they pulled him over [Docket No. 24, p.35], that he had
previously had knee surge1y and then only earlier the same year of his arrest had suffered an ankle
injury. Id.
He disputed that he had ran off the road.
Given these conflicting facts, the undersigned cannot say, as a matter oflaw, that Defendant
Flam1e1y had probable cause upon which to arrest Plaintiff. As noted in Green, Plaintiffs behavior
may give rise to a "hunch," and whether this "hunch" rose to the standard of probable cause is a
question for the jury. Green, 681 F.3d at 863.
Having reached this conclusion, the question remains as to whether Defendant Flannery is
entitled to summaty judgment based on the defense of qualified immunity. Qualified immunity
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is a doctrine that "protects government officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808,
172 L.Ed.2d 565 (2009). The Supreme Comt has made clear that "qualified immunity is an
immunity from suit rather than a mere defense to liability." Id. at 231, 129 S.Ct. 808. On the
other hand, "where the legal question of qualified immunity turns upon which version of the facts
one accepts, the jmy, not the judge, must determine liability." McKenna v. Edgell, 617 F.3d 432,
437 (6th Cir.2010). The question of qualified immunity in this case turns upon which version of
the facts one accepts, and, as such, cannot be determined at this juncture. See Kennedy v. City of
Cincinnati, 595 F.3d 327, 336-38 & n. 7 (6th Cir.2010) (internal quotation marks omitted)
(denying qualified immunity at the summary-judgment stage because the reasonableness of the
officer's conduct depended on disputed facts to be dete11nined by the jury).
As for Plaintiffs claim of defamation, it is axiomatic that trnth is an absolute defense to
such a charge. Plaintiff was arrested and the arrest was allegedly published in the newspaper.
The Newspaper rep01ied that he had been arrested and listed the charges, which was ttue - he
was atTested. Therefore, under state law no action for defamation can lie. See Columbia Sussex
Corp., hie. v. Hay, 627 S.W.2d 270, 273 (Ky. App.1981) (listing elements of offense to include
defamato1y language); see also Bell v. Courier-Journal & Louisville Times Co., 402 S.W.2d 84,
87 (Ky. App.1966) (holding that trnth is a complete defense to an action for libel). Therefore,
this claim will not survive a summary judgment motion.
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IV.
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion for Summaty
Judgment [Docket No. 28] be SUSTAINED as it pertains to Plaintiff; 's claim for defamation
and OVERRULED in all other respects.
This is an INTERLOCUTORY and NON-APPEALABLE Order.
0t1~
This _O\ f day of November, 2016.
__
Signed By:
Henrv R. WUholt. Jr,
United StatH Ol11lrhit Judge
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