Tollison v. City of Independence, Kentucky et al

Filing 58

MEMORANDUM OPINION & ORDER: (1) Officer Hallau and Captain Lucas Motion for Summary Judgment 38 is GRANTED IN PART AND DENIED IN PART; (a) The Motion is GRANTED as to Count I (§ 1983 unlawful arrest), Count II ( § 1983 unlawful detention/confinement), Count IV (§ 1983 conspiracy), Count IX (malicious prosecution), Count X (abuse of process) and Count XI (intentional infliction of emotional distress);(b) The Motion is DENIED as to Count III (§ 1983 excessive force), Count VI (assault), Count VII (battery), Count VIII (false imprisonment), Count XII (negligent infliction of emotional distress), Count XIII (negligence) and Count XIV (gross negligence); (2) Chief Butler and Mayor Moriconis Motion for Summary Judgment 38 is GRANTED IN PART AND DENIED IN PART; (a) The Motion is GRANTED as to Count V (§ 1983 ref using or neglecting to prevent harm) and Counts XIIXIV (negligent hiring, training and supervision); (b) The Motion is DENIED as to Count VI (assault based on a respondeat superior theory), Count VII (battery based on a respondeat superior theory), Count VIII (false imprisonment based on a respondeat superior theory), Count XII (negligent infliction of emotional distress based on a respondeat superior theory), Count XIII (negligence based o n a respondeat superior theory) and Count XIV (gross negligence on a respondeat superior theory); (3) The City and IPDs Motion for Summary Judgment 38 is GRANTED IN PART AND DENIED IN PART; (a) The Motion is GRANTED as to Count IV (§ 19 conspiracy), Count V (§ 1983 refusing or neglecting to prevent harm) and Counts XIIXIV (negligent hiring, training and supervision); (b) The Motion is DENIED as to Count VI (assault b ased on a respondeatsuperior theory), Count VII (battery based on a respondeat superior theory), Count VIII (false imprisonment based on a respondeat superior theory), Count XII (negligent infliction of emotional distress ba sed on a respondeat superior theory), Count XIII (negligence based on a respondeat superior theory) and Count XIV (gross negligence on a respondeat superior theory); and (4) The parties to this action shall file a Joint Notice of available pre-trial and trial dates within twenty (20) days of the date of entry of this Order . Signed by Judge David L. Bunning on 09/25/2015.(KRB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 13-55-DLB-CJS
CARL DAVID TOLLISON

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

THE CITY OF INDEPENDENCE, et al.

DEFENDANTS

******************
I.

Introduction
Officer Greg Hallau and Captain Anthony Lucas, both of the Independence Police

Department, move for summary judgment on Carl Tollison’s § 1983 false arrest and
excessive force claims, arguing that: (1) Tollison’s threatening behavior gave them
probable cause to arrest him for second-degree disorderly conduct, third-degree terroristic
threatening, menacing and resisting arrest; and (2) they appropriately used minor force to
subdue a resistant Tollison. Officer Hallau and Captain Lucas contend that summary
judgment is appropriate on Tollison’s state tort claims for the same reasons. In the
alternative, Officer Hallau and Captain Lucas maintain that they are entitled to qualified
immunity under § 1983 and Kentucky law.
The City of Independence and the Independence Police Department seek summary
judgment on Tollison’s § 1983 municipal liability claim, arguing that no official policy of
custom caused the constitutional deprivation. Mayor Moriconi and Chief Shawn Butler also
contend that they are entitled to summary judgment on Tollison’s § 1983 supervisory
1

liability claim because they did not know of a risk created by employing Officer Hallau and
Captain Lucas. They insist that summary judgment is appropriate on Tollison’s state
negligent supervision, hiring and training claim for the same reason. Alternatively, Mayor
Moriconi and Chief Butler claim that they are entitled to qualified immunity under § 1983
and Kentucky law. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§
1331, 1367.
II.

Factual and Procedural Background
On April 7, 2012, Carl Tollison was riding his motorcycle in a funeral procession

when he was involved in a minor traffic accident at the intersection of Madison Pike and
Centennial Boulevard in Independence, Kentucky. (Doc. # 38-1 at 1-5). Officer Greg
Hallau of the Independence Police Department responded to the scene. (Id.). After
speaking with both motorists and an eyewitness, Officer Hallau completed a Kentucky
Uniform Police Traffic Collision Report. (Id.). In the Report, he identified Tollison as “Unit
1" and reported that he “misjudged clearance.” (Id.). He also indicated that neither party
was injured in the accident. (Id.).
Tollison returned home and soon discovered a fresh bruise on his elbow. (Doc. #
38-2 at 2-3). He immediately contacted Officer Hallau, hoping that he would include this
injury in the Report. (Id.). Officer Hallau did not answer his phone, so Tollison left a
voicemail. (Id.). Later that day, Officer Hallau used a different phone number to return the
call, but Tollison decided not to pick up because he did not recognize the number. (Id. at
1). Tollison later tried to redial that number, but it was restricted. (Id. at 2).
On April 12, 2012, Tollison went to the Independence Police Department (“IPD”) and
asked receptionists Nancy Slusher and Catherine Weger for a copy of the Report. (Doc.
2

# 47-3 at 1). As Slusher and Weger searched for the appropriate document, with help from
IPD volunteer Phyllis Vetter, Tollison described the traffic accident and repeatedly referred
to Officer Hallau as a “prick.” (Doc. # 55 at 4). Once the receptionists located the Report,
they made Tollison a copy to review. (Id.). He stood in the lobby while he read over it, then
returned to the reception desk and began expressing his dissatisfaction with it. (Id.).
Slusher escorted Tollison to the Soft Interview Room, then went into the secure IPD
office space. (Id.). She informed Officer Hallau that Tollison had some concerns about the
Report and wanted to speak with him. (Id.). She also warned Officer Hallau that Tollison
seemed angry. (Id. at 5). As Officer Hallau headed towards the door connecting the office
space to the Soft Interview Room, he passed Captain Lucas and told him “this isn’t going
to be good.” (Doc. # 53 at 19 and 57 at 5).
Upon entering the Soft Interview Room, Officer Hallau asked Tollison how he could
help him. (Doc. # 38-2 at 1). Tollison explained that he wanted Officer Hallau to document
his elbow injury in the Report for his insurer’s benefit. (Id. at 1-2). Officer Hallau refused
to do so because several days had passed since the accident. (Id.). Tollison pointed out
that he had tried to contact Officer Hallau a few hours afterwards, but Officer Hallau cut him
off, saying that he would not argue with Tollison. (Id. at 3). The conversation then became
heated. The Soft Interview Room video captured the following exchange:
Officer Hallau:
Tollison:
Officer Hallau:

I’m not arguing with you.
Why are you such a jerk?
Wait a minute. You’re not going to talk to me like that.
Leave or I will arrest you on the spot.

Tollison:

Or what?
3

Officer Hallau:

Leave. Disorderly conduct, trespassing, obstruction of
official business. Leave.

Tollison:

This is official business.

(Id. at 3-4).
At this point, Tollison began backing out of the Soft Interview Room and into the
lobby.1 (Doc. # 39). Officer Hallau followed him and the two men continued to shout at
each other:
Tollison:
Officer Hallau:
Tollison:
Officer Hallau:
Tollison:
Officer Hallau:

One of these days, Jack.
Leave.
One of these days, me and you.
Are you threatening me?
No.
Are you threatening me? (Inaudible). I’m talking to you.
Turn around right now. Turn around right now.

Female Speaker:

Stop, Greg.

Officer Hallau:

What’s going on, man?

Tollison:

I know you’re a jerk.

Officer Hallau:

You’re under arrest.

Female Speaker:

(Inaudible). Hurry up. (Inaudible conversation).

Officer Hallau:

You’re under arrest.

1) The Soft Interview Room camera recorded their entire verbal altercation from start to finish. (Doc. # 39).
However, as Tollison and Officer Hallau moved out of the Soft Interview Room, their physical movements are
only visible on the lobby surveillance camera, which does not have audio recording capabilities. (Id.). Thus,
one must compare the audio from the last half of the Soft Interview Room recording with the silent surveillance
video in order to understand what happened in the lobby. (Id.).

4

(Inaudible conversation)
(Doc. # 38-2 at 4). During this part of the exchange, Tollison was moving towards the front
door, as if to leave. (Doc. # 39). He then strode back towards Officer Hallau, getting
relatively close to him. (Id.). This prompted Officer Hallau to place him under arrest. (Id.).
Vetter could see the dispute developing from her post at the reception desk. (Doc.
# 56 at 8). She called back to Slusher and Weger, who remained in the secure IPD office
space, and told them to get help. (Docs. # 57 at 6 and 56 at 8). They immediately ran
through the office and alerted Chief Butler to the incident. (Doc. # 57 at 6). Meanwhile,
Captain Lucas overheard the raised voices and ran into the lobby to assist Officer Hallau.
(Doc. # 54 at 15-16).
As Officer Hallau grabbed Tollison’s arm and attempted to place him in handcuffs,
Captain Lucas came forward to assist in the arrest. (Doc. # 39). All three men lost their
balance and fell to the floor. (Id.). Tollison fell partially on top of Officer Hallau, while
Captain Lucas was dragged to his knees. (Id.). Officer Hallau testified that Tollison
resisted arrest, while Tollison insisted that he was tripped. (Docs. # 51 at 26; 53 at 22-23).
Once they had subdued Tollison, Officer Hallau and Captain Lucas stood up, handcuffed
him and helped him to his feet. (Docs. # 39; 53 at 23).
Chief Butler arrived on scene just as Officer Hallau and Captain Lucas completed
the arrest. (Doc. # 52 at 12). He made sure that everyone was alright, then pulled a
cruiser to the front door so that Officer Hallau could escort Tollison to jail. (Doc. # 54 at
16). Officer Hallau also breathalyzed Tollison, even though Tollison repeatedly assured
him that he did not drink. (Doc. # 53 at 24). Captain Lucas testified that he instructed
Officer Hallau to breathalyze Tollison because he thought he could smell alcohol on his
5

person; however, Tollison insists that Chief Butler ordered the breathalyzer test. (Docs. #
54 at 13 and 51 at 29). Officer Hallau then transported Tollison to the Kenton County
Detention Center. (Doc. # 53 at 24-25).
Tollison was ultimately charged with second degree disorderly conduct, third-degree
terroristic threatening, menacing and resisting arrest. (Doc. # 38-3). On September 27,
2012, Assistant Kenton County Attorney Jonathan Hart moved to dismiss these charges
during a hearing in Kenton County District Court. (Doc. # 40). He explained that he was
not conceding a lack of probable cause to prosecute Tollison; rather, he believed that it was
appropriate to dismiss the charges, given Tollison’s past military service and clean criminal
record. (Id.).
Tollison sued the City, IPD, Mayor Chris Moriconi, Chief Butler, Captain Lucas and
Officer Hallau (collectively, “the Independence Defendants”) for false arrest, unlawful
confinement, excessive force, conspiracy and failure to prevent harm in violation of 42
U.S.C. § 1983. (Doc. # 23). He also asserted pendent state claims for assault, battery,
false imprisonment, malicious prosecution, abuse of process, intentional infliction of
emotional distress, negligent infliction of emotional distress, negligence, gross negligence
and negligent supervision. (Id.). Discovery is now closed (Docs. # 32 and 33), and the
Independence Defendants’ Motion for Summary Judgment is ripe for review (Docs. # 38,
46 and 50).
III.

Analysis
a.

Standard of Review

Summary judgment is appropriate when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
6

56(a). If there is a dispute over facts that might affect the outcome of the case under
governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading
the court that there are no disputed material facts and that he is entitled to judgment as a
matter of law. Id. Once a party files a properly supported motion for summary judgment
by either affirmatively negating an essential element of the non-moving party’s claim or
establishing an affirmative defense, “the adverse party must set forth specific facts showing
that there is a genuine issue for trial.” Id. at 250. “The mere existence of a scintilla of
evidence in support of the [non-moving party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [non-moving party].” Id. at 252.
b.

Claims Under 42 U.S.C. § 1983

Section 1983, Title 42, United States Code aims to “deter state actors from using the
badge of their authority to deprive individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992);
Albright v. Oliver, 510 U.S. 266, 271 (1994) (stating that the statute “is not itself a source
of substantive rights, but merely provides a method or vindicating federal rights elsewhere
conferred”). It provides that:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .
To prevail on a § 1983 claim, a plaintiff must generally demonstrate that: (1) he or she was
deprived of a right secured by the Constitution or laws of the United States; and (2) the
7

deprivation was caused by a person acting under color of state law. Tahfs v. Proctor, 316
F.3d 584, 590 (6th Cir. 2003).
Tollison claims that Officer Hallau and Captain Lucas violated his right to be free
from unreasonable searches and seizures under the Fourth and Fourteenth Amendments
in two respects. First, Tollison argues that Officer Hallau and Captain Lucas lacked
probable cause to arrest him.

He then asserts that they used excessive force in

effectuating that arrest. Tollison also contends that Chief Butler, Mayor Moriconi, the City
and IPD are liable under § 1983 for failing to properly instruct, supervise, control and
discipline Officer Hallau and Captain Lucas. The Court will consider each of these
allegations in turn.
1.

False Arrest Claim Against Officer Hallau and Captain Lucas2

The Fourth Amendment provides that:
[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
“It is a well-settled principle of constitutional jurisprudence that an arrest without probable
cause constitutes an unreasonable seizure in violation of the Fourth Amendment.” Ingram
v. City of Columbus, 185 F.3d 579, 592-93 (6th Cir. 1999) (internal citation omitted).
Accordingly, a plaintiff must “prove that the arresting officer lacked probable cause to

2) Tollison also brings a § 1983 unlawful detention and confinement claim. (Doc. # 23 at 13-14). The
Independence Defendants argue that this claim should be dismissed as duplicative of the § 1983 false arrest
claim because “there is no proof that any of the Defendants did anything to perpetuate or prolong the
prosecution against Tollison following his arrest.” (Doc. # 38 at 8, n. 43). Tollison offers no response to this
argument. The Court therefore finds it appropriate to dismiss the § 1983 unlawful detention and confinement
claim is appropriate.

8

arrest” him or her in order to succeed on a false arrest claim under § 1983. Voyticky v. Vill.
of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005).
Probable cause exists if there are “facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or one of reasonable caution,
in believing, in the circumstances shown, that the suspect has committed, is committing or
is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). Simply
stated, “[p]robable cause requires only the probability of criminal activity not some type of
‘prima facie’ showing.” Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988) (emphasis
added); see also Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003) (noting
that reasonableness is “based on an examination of all facts and circumstances within an
officer’s knowledge at the time of an arrest.”). Whether probable cause existed to arrest
the plaintiff is a question “left for the jury, unless there is only one reasonable determination
possible.” Criss, 867 F.2d at 262.
If the plaintiff was charged with multiple offenses, his or her claim will not survive
unless probable cause is lacking as to all of the charges. See Weaver v. Shadoan, 340
F.3d 398, 407 (6th Cir. 2003) (finding that defendant police officers did not violate plaintiff’s
Fourth Amendment rights, even though they lacked probable cause to arrest him for
evading arrest, because there was probable cause to arrest him for drug possession);
Lyons v. City of Xenia, 417 F.3d 565 (6th Cir. 2005) (“To the extent probable cause exists
for any one of these charges, the arrest was lawful and our analysis is complete.”).
In the instant case, Officer Hallau charged Tollison with four misdemeanor offenses:
(1) second-degree disorderly conduct; (2) third-degree terroristic threatening; (3) menacing;
and (4) resisting arrest. (Doc. # 38-3). The Court must therefore consider whether Officer
9

Hallau had probable cause to arrest Tollison for any of these offenses, based upon his
behavior at IPD on April 12, 2012.
KRS § 525.060 defines disorderly conduct in the second degree as follows:
1.

A person is guilty of disorderly conduct in the second degree when in
a public place and with intent to cause public inconvenience,
annoyance, or alarm, or wantonly creating a risk thereof, he:
a.

Engages in fighting or in violent, tumultuous, or threatening
behavior;

b.

Makes unreasonable noise;

c.

Refuses to obey an official order to disperse issued to maintain
public safety in dangerous proximity to a fire, hazard, or other
emergency; or

d.

Creates a hazardous or physically offensive condition by any
act that serves no legitimate purpose.

Officer Hallau and Captain Lucas maintain that there was probable cause to arrest
Tollison for second-degree disorderly conduct because he engaged in threatening behavior
and made unreasonable noise in a public place. After Officer Hallau refused to amend the
accident report, Tollison exclaimed “Why are you such a jerk?” thus sparking a heated
verbal altercation between the two men. (Doc. # 38-2 at 3). Officer Hallau repeatedly
yelled “Leave” at Tollison while following him out of the Soft Interview Room into the IPD
lobby. (Id. at 4). As Tollison walked towards the exit, he shouted “One of these days, you
and me, Jack,” at Officer Hallau, who interpreted this statement as a threat. (Id.). Their
exchange was so loud that it caused Captain Lucas to run to Officer Hallau’s aid, while
desk clerks Catherine Weger and Nancy Slusher abandoned their work stations and ran
to inform Chief Butler of the disturbance. (Docs. # 54 at 15-16; 56 at 8; 57 at 6).

10

Tollison maintains that his statement should not be construed as a threat because
he did not clearly evince an intent to harm Officer Hallau. In fact, when Officer Hallau
asked Tollison if he was threatening him, Tollison answered “No, I’m talking to you.” (Docs.
# 39; 38-2 at 4). Tollison also insists that he did not move towards Officer Hallau in a
threatening manner or touch him. Tollison finally claims that Officer Hallau was the cause
of the unreasonable noise because he continued to shout at Tollison as he walked towards
the exit.
Having reviewed the surveillance footage from the Soft Interview Room and the IPD
lobby several times, the Court finds that reasonable minds could differ as to whether the
facts and circumstances within Officer Hallau and Captain Lucas’ knowledge were sufficient
to warrant a prudent person in believing that Tollison had committed or was about to
commit second-degree disorderly conduct. On the one hand, Officer Hallau testified that
he interpreted Tollison’s statement as a threat towards him. (Doc. # 53 at 22). On the
other hand, Tollison did not explicitly express an intent to harm Officer Hallau; rather, he
denied making any threats. (Id.). As for the unreasonable noise, both men can be heard
shouting on the video. (Doc. # 39). Tollison may have been the first to raise his voice in
the Soft Interview Room, but Officer Hallau followed Tollison into the lobby and shouted at
him as he walked towards the exit. (Id.). Because there is more than one reasonable
determination possible on this probable cause inquiry, the Court must reserve it for the jury.
KRS § 508.080 proscribes terroristic threatening in the third degree:
1.

Except as provided in 508.075 and 508.078, a person is guilty of
terroristic threatening in the third degree when:
a.

He threatens to commit any crime likely to result in death or
serious physical injury to another person or likely to result in
substantial property damage to another person; or
11

b.

He intentionally makes false statements for the purpose of
causing evacuation of a building, place of assembly, or facility
of public transportation.

KRS § 508.050 defines menacing as follows:
1.

A person is guilty of menacing when he intentionally places another
person in reasonable apprehension of imminent physical injury.

Officer Hallau and Captain Lucas maintain that there probable cause to arrest
Tollison for third-degree terroristic threatening and menacing. Specifically, they claim that
Tollison threatened to commit a crime likely to result in serious physical injury, or at least
placed Officer Hallau in reasonable apprehension of imminent physical injury, by shouting
“One of these days, you and me, Jack.” As the Court has already noted, some of the
alleged facts suggest that Tollison’s statement could constitute a threat, while others cast
doubt on such a conclusion. Therefore, reasonable minds could differ as to whether
reasonable officials in their position would have believed that Tollison was committing thirddegree terroristic threatening and/or menacing. The Court must also reserve these
probable cause determinations for the jury.
KRS § 520.090 proscribes resisting arrest:
1.

A person is guilty of resisting arrest when he intentionally prevents or
attempts to prevent a peace officer, recognized to be acting under
color of his official authority, from effecting an arrest of the actor or
another by:
a.

Using or threatening to use physical force or violence against
the peace officer or another; or

b.

Using any other means creating a substantial risk of causing
physical injury to the peace officer or another.

12

Officer Hallau insists that Tollison pulled away as he tried to handcuff him. (Doc. #
53 at 22-23). Phyllis Vetter testified similarly. (Doc. # 56 at 7). By contrast, Tollison
asserts that Officer Hallau and Captain Lucas swept him to the ground, even though he
was not struggling. (Doc. # 51 at 26). Captain Lucas, who assisted Officer Hallau in
making the arrest, could not say for sure whether Tollison actually pulled away from them
or whether all three men simply lost their balance and fell. (Doc. # 54 at 15).
The lobby video shows Officer Hallau grabbing Tollison’s arm as Captain Lucas runs
to assist him. (Doc. # 39). One can see the three men stumble, then fall to the ground.
(Id.). Tollison lands partially on top of Officer Hallau, dragging Captain Lucas to his knees.
(Id.). However, it is not clear whether the fall was caused by Tollison’s resistance, the use
of force by Officer Hallau and Captain Lucas or a mere loss of balance. In light of the
conflicting witness testimony and the inconclusive nature of the lobby video, the Court
again finds that reasonable minds could differ as to whether a reasonable official in Officer
Hallau’s position would have believed that Tollison was resisting arrest.
Because there is more than one reasonable conclusion as to probable cause for all
four charged offenses, the Court finds that there is a genuine issue of material fact as to
whether Officer Hallau and Captain Lucas violated Tollison’s right to be free from false
arrest. The question now becomes whether or not they are entitled to qualified immunity.
2.

Qualified Immunity on the False Arrest Claim

“The doctrine of qualified immunity 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 (2009) (internal quotations omitted). Courts utilize a two-part
13

test to determine whether a government official is entitled to qualified immunity. Pearson,
555 U.S. at 815-16 (citing Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). First, courts ask
whether “the facts alleged show the officer’s conduct violated a constitutional right.”
Saucier, 533 U.S. at 201. Once plaintiffs demonstrate that a constitutional violation
occurred, courts must then determine “whether the right was clearly established . . . in light
of the specific context of the case, not as a broad general proposition.” Id.
This second prong “requires the court[ ] to examine the asserted right at a relatively
high level of specificity, and on a fact-specific, case-by-case basis.” Bletz v. Gribble, 641
F.3d 743, 750 (6th Cir. 2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right. This is not to say
that an official action is protected by qualified immunity unless the very action
in question has previously been held unlawful, but it is to say that in the light
of pre-existing law the unlawfulness must be apparent.
Pre-existing law includes “binding precedent from the Supreme Court, the Sixth Circuit, the
district court itself, or other circuits that is directly on point.” Holzemer, 621 F.3d 512, 527
(6th Cir. 2010); see also Kennedy v. City of Villa Hills, 635 F.3d 210, 215 (6th Cir. 2011)
(explaining that “state law defines the offense for which an officer may arrest a person,
while federal law dictates whether probable cause existed for an arrest”).
In the previous section, the Court found that there was a genuine issue of material
fact as to whether Officer Hallau and Captain Lucas violated Tollison’s right to be free from
unlawful arrest. Nevertheless, they contend that they are entitled to qualified immunity
because Tollison has not pointed to any case law clearly establishing that his arrest lacked
probable cause. Tollison insists that they are not entitled to qualified immunity because he
had a clearly established right to be free from arrest without probable cause. The Court will
14

address these arguments, as they pertain to each Defendant.
a.

Officer Hallau

Federal courts sitting in Kentucky have found that probable cause existed to arrest
plaintiffs for menacing when they committed “overt physical acts of aggression directed
toward another person.” Martin v. Coyt, No. 1:10-CV-00176-R, 2012 WL 1574823, at *10
(W.D. Ky. May 3, 2012) (collecting cases). In some cases, “verbal threats alone may
compose the underpinning for probable cause to arrest.” Id. These principles have been
applied in cases where an arrestee threatened police officers. See Hatter v. Livingood, Civ.
A. No. 5:07-2-JMH, 2008 WL 2228878, at * (E.D. Ky. May 29, 2008) (finding that police
officers had probable cause to arrest a plaintiff for menacing when he grabbed their badges
and fought with them); Fultz v. Whittaker, 187 F. Supp.2d 695, 702-03 (W.D. Ky. 2001)
(concluding that police officers had probable cause to arrest a plaintiff where he came very
close to them, assumed an aggressive posture and was yelling).
However, case law suggests that there is a distinction to be made between threats
and mere coarse language or criticism. Kennedy v. City of Villa Hills, 635 F.3d at 215
(quoting City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment
protects a significant amount of verbal criticism a certain amount of verbal criticism and
challenge directed at police officers.”)); see also Payne v. Pauley, 337 F.3d 767, 777 (7th
Cir. 2003) (noting that “[p]olice officers must be more thick skinned than the ordinary citizen
. . . and must not conceive that every threatening or insulting word, gesture, or motion
amounts to disorderly conduct”).
Having considered the above-cited case law, the question before the Court is this:
Could a reasonable policeman in Officer Hallau’s position reasonably believe that he had
15

probable cause to arrest Tollison for second-degree disorderly conduct, third-degree
terroristic threatening or menacing based on his alleged threat? The case law certainly
suggests that individuals may have a right to be free from arrest based on mere offensive
remarks directed at police officers. However, it falls far short of clearly establishing such
a right under these circumstances. Compare Caie v. West Bloomfield Twp., 485 F. App’x
92, 96-97 (6th Cir. 2012) (explicitly stating that “the right to be free from physical force
when one is not resisting the police is a clearly established right”).

Under these

circumstances, the Court finds that Officer Hallau could reasonably believe that he had
probable cause to arrest Tollison for second-degree disorderly conduct based on
threatening behavior, third-degree terroristic threatening and menacing.
The case law is similarly unsettled as to the propriety of Tollison’s arrest for seconddegree disorderly conduct based on unreasonable noise. See Nails v. Riggs, 195 F. App’x
303, 311 (6th Cir. 2006) (noting that Kentucky case law on the disorderly conduct statutes
was sparse). The Sixth Circuit has held that a police officer could not reasonably believe
that probable cause existed to arrest a plaintiff for second-degree disorderly conduct based
on unreasonable noise when “only city employees heard [plaintiff] speak and the city
building was not ‘open for business’ at the time,” reasoning that these circumstances
“minimize[d] any risk of public alarm.” Kennedy, 635 F.3d at 215-16 (6th Cir. 2011) (noting
that “Kentucky law does not criminalize arguments and noise that disturb only police
officers because such conduct does not risk public alarm”). Accord Ky. Rev. Stat. Ann. §
525.060 cmt. (“The statute is not intended to cover the situation in which a private citizen
engages in argument with the police so long as the argument proceeds without offensively
coarse language or conduct which intentionally or wantonly creates a risk of public
16

disturbance.”) (emphasis added).
Although the altercation between Officer Hallau and Tollison took place at IPD and
in front of IPD employees only, the Court does not believe that Kennedy disposes of the
qualified immunity issue. Offices for the City and IPD are located in the same building and
share a lobby area, which is exactly where the dispute occurred. (Doc. # at 12). Although
the exact timing of the incident is unknown, deposition testimony suggests that it was
somewhere between 11 a.m. and 1 p.m. (Docs. # 51 at 21 and 55 at 4). Thus, both offices
were open for business. An unsuspecting citizen could have walked in at any moment and
happened upon this altercation, which would no doubt cause public alarm. In this particular
situation, the Court concludes that Officer Hallau reasonably believed that he had probable
cause to arrest Tollison for second-degree disorderly conduct based on unreasonable
noise.
Because Officer Hallau’s conduct did not violate clearly established statutory or
constitutional rights of which a reasonable policeman would have known, the Court
concludes that he is entitled to qualified immunity on the § 1983 false arrest claim.
b.

Captain Lucas

When an officer simply assists in an arrest, they are entitled to rely on the arresting
officer’s determination of probable cause. Ghaith v. Rauschenberger, 778 F. Supp. 2d 787,
801 (E.D. Mich. 2011). He is “not required to conduct an independent investigation to
personally satisfy [himself] that probable cause existed to make the arrest.” Id. at 801-02
(citing Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985) (referring to this principle as the
“fellow officer” rule)).

17

Officer Hallau, Captain Lucas and Tollison all testified that Captain Lucas reached
the lobby just as Officer Hallau was attempting to handcuff Tollison. (Docs. # 51 at 26; 53
at 23; 54 at 14-15). He did not hear the alleged threat that led to the second-degree
disorderly conduct, third-degree terroristic threatening and menacing charges. He simply
assisted Officer Hallau in making the arrest, and in doing so, he permissibly relied upon his
fellow officer’s probable cause determination. Accordingly, the Court concludes that
Captain Lucas reasonably believed there was probable cause to arrest Tollison. He is
therefore entitled to qualified immunity on the § 1983 false arrest claim.
3.

Excessive Force Claim Against Officer Hallau and Captain Lucas

“Determining whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal
quotations omitted). The key inquiry is “whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. at 397. Reasonableness “must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. (noting further that “police officers are often forced to make split-second
judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the
amount of force that is necessary in a particular situation”).
The Sixth Circuit has held that police officers do not violate the Fourth Amendment
by using force to subdue an actively resisting subject. See, e.g., Caie v. West Bloomfield
Twp., 485 F. App’x at 96-97 (finding that an officer’s single use of a taser “served the
18

purpose of gaining control over a highly intoxicated, volatile, and uncooperative subject”
who pulled his arms underneath his body after being taken to the ground, thus preventing
officers from handcuffing him). However, the Sixth Circuit has found force to be excessive
when applied to a subject who is either cooperative or no longer resisting arrest. See, e.g.,
Kijowski v. City of Niles, 372 F. App’x 595, 600 (6th Cir. 2010) (finding that officers violated
the Fourth Amendment by dragging a non-resistant subject from his truck and tasing him).
Officer Hallau and Captain Lucas maintain that they appropriately used minor force
to restrain Tollison, who allegedly threatened Officer Hallau and ignored repeated orders
to leave the station. Tollison denies threatening Officer Hallau; in fact, he was attempting
to leave the station as Officer Hallau shouted across the lobby at him. He also claims that
Officer Hallau and Captain Lucas swept him to the ground, even though he did not resist
arrest.
As the Court has already explained, reasonable minds could differ as to whether
Officer Hallau had probable cause to arrest Tollison for threatening behavior and resisting
arrest. These factors directly impact the objective reasonableness of the force used to
effectuate the arrest. See Graham, 490 U.S. at 397 (directing courts to consider “the
severity of the crime at issue, whether the subject poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight”). Thus, the Court finds that there is a genuine issue of material fact as to
whether the force used on Tollison was objectively reasonable under the circumstances.
The Court must now consider whether Officer Hallau and Captain Lucas are entitled to
qualified immunity.

19

4.

Qualified Immunity for the Excessive Force Claim

As noted in the previous section, the Sixth Circuit has repeatedly held that police
officers may use force to subdue an actively resisting suspect without running afoul of the
Fourth Amendment. However, that force becomes excessive when applied to a subject
who is either no longer resisting or cooperative. See, e.g., Caie v. West Bloomfield Twp.,
485 F. App’x at 96-97. “[T]he right to be free from physical force when one is not resisting
the police is a clearly established right.” Kijowski v. City of Niles, 372 F. App’x 595, 601
(6th Cir. 2010) (emphasis added) (quoting Wysong v. City of Heath, 260 F. App’x 848, 856
(6th Cir. 2008)).
If Officer Hallau and Captain Lucas applied minor force to subdue a resistant
Tollison, then it is likely that a constitutional violation did not occur. On the other hand, if
Officer Hallau and Captain Lucas applied minor force to a compliant Tollison, then it is likely
that they violated a clearly established constitutional right. However, the Court cannot
make this determination without deciding whether or not Tollison resisted arrest, which is
a question reserved for the jury. In such situations, the Court must deny summary
judgment on qualified immunity grounds. See Poe v. Haydon, 853 F.2d 418, 426 (6th Cir.
1988) (stating that summary judgment is inappropriate “if there is a factual dispute . . .
involving an issue on which the question of immunity turns, such that it cannot be
determined before trial whether the defendant did acts that violate clearly established
rights”). Thus, Officer Hallau and Captain Lucas are not entitled to qualified immunity on
Tollison’s § 1983 excessive force claim.

20

5.

Supervisory Liability Against Chief Butler and Mayor Moriconi
a.

Chief Shawn Butler

Liability under § 1983 “must be based on more than respondeat superior, or the right
to control employees.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Therefore,
“a supervisory official’s failure to supervise, control or train the offending individual is not
actionable unless the supervisor ‘either encouraged the specific incident of misconduct or
in some other way directly participated in it.’” Id. (quoting Hays v. Jefferson Cnty., Ky., 668
F.2d 869, 874 (6th Cir. 1982)). “At a minimum a plaintiff must show that the official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of
the offending officers.” Hays, 668 F.2d at 874.
Chief Butler argues that he is entitled to summary judgment on the § 1983
supervisory liability claim because he did not directly participate in Tollison’s arrest. He
reached the lobby just as Officer Hallau and Captain Lucas handcuffed Tollison. (Doc. #
52 at 12). After making sure that everyone was alright, he pulled Officer Hallau’s cruiser
around to the front entrance so he could escort Tollison to jail. (Doc. # 54 at 16). Although
Captain Lucas testified that he instructed Officer Hallau to administer a breathalyzer test,
Tollison claims that Chief Butler was actually the one who ordered the test. (Doc. # 51 at
29). For this reason, Tollison claims that Chief Butler was complicit in the alleged
constitutional violations.
Assuming, without deciding, that Tollison’s recollection is accurate, the use of a
breathalyzer is not relevant to the § 1983 false arrest and excessive force claims. Tollison
does not allege that he was arrested on a bogus public intoxication charge, nor does he
suggest that administration of a breathalyzer test constituted excessive force. Thus, the
21

act of ordering the test does not establish that Chief Butler authorized, approved or
knowingly acquiesced to the alleged false arrest and use of excessive force. The fact that
Chief Butler parked Officer Hallau’s cruiser in front of IPD is similarly insufficient to show
that he encouraged or otherwise participated in the arrest. Because Tollison has failed to
identify a genuine issue of material fact as to Chief Butler’s direct involvement in or
approval of the alleged constitutional violations, the Court concludes that Chief Butler is
entitled to summary judgment on the § 1983 supervisory liability claim.
b.

Mayor Chris Moriconi

Mayor Moriconi argues that he is entitled to summary judgment on the § 1983
supervisory liability claim because he had no involvement in Tollison’s arrest. He did not
even witness the altercation between Tollison and Officer Hallau. There is also no
evidence in the record to suggest that he otherwise encouraged or authorized police
officers to violate constitutional rights. Tollison makes no attempt to defend this claim.
Having reviewed the record, and found no genuine issues of material fact on this point, the
Court concurs with Mayor Moriconi. He is therefore entitled to summary judgment on the
§ 1983 supervisory liability claim.
6.

Municipal Liability Against the City of Independence3

3) Tollison technically brings this § 1983 municipal liability claim against IPD as well as the City. (Doc. # 23
at 17-18). However, IPD is not an entity capable of suing and being sued. See Matthews v. Jones, 35 F.3d
1046, 1049 (6th Cir. 1994) (stating in the § 1983 context that a local police department was not an entity which
could be sued); Rodgers v. City of Cleveland, No. 1:05-CV-2349, 2006 WL 2371981, at *1, n. 1 (N.D. Ohio
Aug. 15, 2006) (applying this principle in the Title VII context); Jones v. Marcum, 197 F. Supp. 2d 991, 997
(S.D. Ohio 2002) (“Police departments are not sui juris; they are merely sub-units of the municipalities they
serve.”). Accordingly, this claim against IPD cannot proceed. The Court has limited its analysis to the
municipal liability claim against the City itself.
Tollison also asserts a § 1983 conspiracy claim against the Independence Defendants. (Doc. # 23 at 1516). To prevail on such a claim, a plaintiff must establish that: (1) a single plan existed; (2) the conspirators
shared a general conspiratorial objective to deprive the plaintiff of a constitutional right; and (3) an overt act
was committed. Monroe v. McNairy Cnty., Tenn., 850 F. Supp. 2d 848, 871 (W.D. Tenn. 2012) (citing Revis

22

Liability under § 1983 “may not [be] imposed upon a municipality merely because
it employed an individual who engaged in some form of unconstitutional conduct.”
Monistere v. City of Memphis, 115 F. App’x 845, 850 (6th Cir. 2004) (citing Monell v. Dep’t
of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978)). Rather, “[i]it is when execution of
a government’s policy or custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983.” Monell, 436 U.S. at 694.
A “custom” for purposes of Monell liability must “be so permanent and well
settled as to constitute a custom or usage with the force of law.” . . . In turn,
the notion of “law” must include “[d]eeply embedded traditional ways of
carrying out state policy.” . . . It must reflect a course of action deliberately
chosen from among various alternatives. In short, a “custom” is a “legal
institution” not memorialized by written law . . .
Monistere, 115 F. App’x at 850-51 (quoting Doe v. Claiborne Cnty., Tenn., 103 F.3d 495,
507-08 (6th Cir. 1996)).
The City insists that it is entitled to summary judgment on the § 1983 municipal
liability claim because Tollison has failed to produce evidence of a City policy or custom
that caused the alleged constitutional deprivation. Tollison makes no attempt to defend this
claim. Having reviewed the record, and found no genuine issues of material fact on this
point, the Court concludes that the City is entitled to summary judgment on the § 1983
municipal liability claim.
c.

Claims Under Kentucky Law
1.

Assault and Battery Claims Against Officer Hallau and Captain
Lucas

v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007)). As the Court makes clear in its analysis of the other § 1983
claims, there is simply no evidence of a conspiratorial objective to deprive Tollison of his right to be free from
unlawful arrest and excessive force. Defendants are entitled to summary judgment on this claim.

23

“Assault is a tort which merely requires the threat of unwanted touching of the victim,
while battery requires an actual unwanted touching.” Banks v. Fritsch, 39 S.W.3d 474, 480
(Ky. Ct. App. 2001). However, Kentucky law partially shields police officers from liability
for such torts. KRS § 503.090 provides in pertinent part:
(1)

The use of physical force by a defendant upon another person is
justifiable when the defendant, acting under official authority, is
making or assisting in making an arrest, and he:
(a)

Believes that such force is necessary to effect the arrest;

(b)

Makes known the purpose of the arrest or believes that it is
otherwise known or cannot reasonably be made known to the
person to be arrested; and

(c)

Believes the arrest to be lawful.

Stated simply, “[t]he use of physical force by a defendant upon another person is justifiable
when the defendant believes that such force is necessary to protect himself against the use
or imminent use of unlawful physical force by the other person.” Fultz v. Whittaker, 261 F.
Supp. 2d 767, 783 (W.D. Ky. 2003).
Officer Hallau and Captain Lucas argue that they cannot be held liable for assault
and battery because they were “privileged to use reasonable force in effectuating an arrest
pursuant to KRS § 503.090.” (Doc. # 38 at 19). Tollison insists that the privilege does not
apply to Officer Hallau and Captain Lucas because they “did not have reasonable grounds
for the arrest and ultimately used more force than was necessary to effect that arrest.”
(Doc. # 46 at 28). As the case law above states, whether Officer Hallau and Captain Lucas
are protected by KRS § 503.090 depends upon whether their use of force was reasonable.
This is precisely the same question that lies at the heart of Tollison’s § 1983 excessive
24

force claim. As the Court noted in analyzing that claim, reasonable minds could reach
different conclusions on the issue of reasonable force. Thus, the Court concludes that
there is a genuine issue of material fact as to whether the force used on Tollison was
objectively reasonable under the circumstances. Officer Hallau and Captain Lucas are not
entitled to summary judgment on the assault claim.
2.

False Imprisonment Claim Against Officer Hallau and Captain
Lucas

“Kentucky cases define false imprisonment as being any deprivation of the liberty
of one person by another or detention for however short a time without such person’s
consent and against his will, whether done by actual violence, threats or otherwise.”
Banks, 39 S.W.3d at 479. “[T]he restraint must be wrongful, improper, or without a claim
or reasonable justification, authority or privilege.” Id.
Officer Hallau and Captain Lucas contend that they are entitled to summary
judgment on this claim because they had probable cause to arrest Tollison for one or more
of the charged offenses. Tollison opposes summary judgment, arguing that Officer Hallau
and Captain Lucas did not have probable cause to arrest Tollison. Much like the assault
and battery claims, this claim also turns upon an issue addressed by the Court in the
context of the § 1983 false arrest claim, i.e., whether Tollison’s arrest was supported by
probable cause. In analyzing that claim, the Court found that reasonable minds could
reach different conclusions on the question of probable cause. Thus, because there is a
genuine issue of material fact as to whether the force used on Tollison was objectively
reasonable under the circumstances, the Court must deny summary judgment on this
claim.
25

3.

Malicious Prosecution Claim Against Officer Hallau and Captain
Lucas

There are six elements necessary to the maintenance of an action for malicious
prosecution: (1) the institution or continuation of original judicial proceedings, either civil or
criminal, or of administrative or disciplinary proceedings; (2) by, or at the instance, of the
plaintiff; (3) the termination of such proceedings in defendant’s favor; (4) malice in the
institution of such proceeding; (5) want or lack of probable cause for the proceeding; and
(6) the suffering of damage as a result of the proceeding. Raine v. Drasin, 621 S.W.2d
895, 899 (Ky. 1981).
A termination in favor of the accused requires more than just that the party prevailed
in the underlying action. See Davidson v. Caster-Knott Dry Goods Co., 202 S.W.3d 597,
605 (Ky. Ct. App. 2006). “The termination must go to the merits of the accused’s professed
innocence for the dismissal to be ‘favorable’ to him.” Ohnemus v. Thompson, 594 F. App’x
864, 867 (6th Cir. 2014). “[D]ismissal of a suit for technical or procedural reasons that do
not reflect on the merits of the case is not a favorable termination of the action.” Id.; see
also Alcorn v. Gordon, 762 S.W.2d 809, 812 (Ky. Ct. App. 1988) (finding that a dismissal
on statute of limitations grounds was not a termination in favor of plaintiff). Similarly, “the
dismissal must be one-sided and not the result of any settlement or compromise.” Id.
Officer Hallau and Captain Lucas argue that they are entitled to summary judgment
on Tollison’s malicious prosecution claim because the Kenton County District Court
proceedings did not terminate in his favor. Rather, the court followed the recommendation
of Kenton County Attorney Johnathan Hart, who felt that dismissal was appropriate based
on Tollison’s lack of criminal history and military service record. (Doc. # 40). Tollison
26

argues that the prosecutor’s explanation was nothing but “a post hoc justification for flimsy,
unsupportable charges,” as evidenced by the fact that his case was dismissed with
prejudice. (Doc. # 46 at 30).
According to the video of the Kenton County District Court proceedings, Tollison’s
case was not dismissed for procedural reasons, such as a statute of limitations bar. There
is no evidence to suggest that the parties entered into any formal compromise, such as a
plea agreement, culminating in dismissal. However, these facts do not automatically lead
to the conclusion that the termination of these proceedings went to the merits of Tollison’s
professed innocence. Rather, it seems that Hart exercised his prosecutorial discretion in
opting not to pursue this matter further. The Court simply cannot infer that Hart’s decision
was based on his assessment of the merits of this case. Similarly, the judge’s decision to
accept Hart’s recommendation cannot be construed as a comment on the merits of this
case. Thus, the dismissal with prejudice simply does not qualify as a termination in
Tollison’s favor under Kentucky law. Officer Hallau and Captain Lucas are entitled to
summary judgment on this claim.
4.

Abuse of Process Claim Against Officer Hallau and Captain
Lucas

“[W]hile an action for malicious prosecution consists in maliciously causing process
to be issued, [ ] an abuse of process is the employment of legal process for some other
purpose other than that which it was intended by law to effect.” Raine, 621 S.W.2d at 902.
“The cause of action for abuse of process has been defined as ‘the technical designation
of the irregular or wrongful employment of a judicial proceeding.’” Id.; see also Kinslow v.
Fifth Third Bank, Inc., Civ. A. No. 1:12-CV-74-JHM, 2012 WL 3637483 at *2 (W.D. Ky. Aug.
27

22, 2012) (stating that there must be “some form of coercion to obtain a collateral
advantage which is not properly involved in the proceeding itself”). Id. “There is no liability
for abuse of process where the defendant, even though harboring bad intentions, has done
nothing other than carry out the process to its authorized conclusions.”
Officer Hallau and Captain Lucas move for summary judgment on Tollison’s abuse
of process claim, reasoning that there is no evidence of an ulterior motive for their conduct;
they maintain that they did nothing more than carry the process to its authorized
conclusion.

Tollison asserts that Officer Hallau, aided by Captain Lucas, used the

proceedings to punish him for using coarse language and chill his constitutionally protected
speech.
While Officer Hallau may have disliked Tollison’s language, there is no evidence in
the record to suggest that he or Captain Lucas used the legal process to avenge a personal
insult. In fact, the record reflects that Officer Hallau and Captain Lucas had very little
involvement in the proceedings. They spoke to Johnathan Hart once about the status of
the case and never testified in Kenton County District Court. (Docs. # 53 at 26-27; 54 at
18). Tollison simply has not demonstrated that Officer Hallau and Captain Lucas did
anything more than carry out the process to its logical conclusion. Thus, the Court finds
that Officer Hallau and Captain Lucas are entitled to summary judgment on this claim.
5.

Intentional Infliction of Emotional Distress Claim Against Officer
Hallau and Captain Lucas

Under Kentucky law, “[o]ne who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
28

See Restatement (Second) of Torts § 46. Outrageous conduct “is a deviation from all
reasonable bounds of decency and is utterly intolerable in a civilized community.” Craft v.
Rice, 671 S.W.2d 247, 250-51 (Ky. 1984) (finding that the tortfeasor’s conduct was
outrageous where he kept a woman under surveillance, told her on CB radio that her
husband would be put in jail and drove so as to force her into an opposing lane of traffic).
Kentucky courts often characterize IIED as a gap-filler tort. See, e.g., Rigazio v.
Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky. App. 1993) (“[W]here an actor’s
conduct amounts to the commission of one of the traditional torts such as assault, battery,
or negligence for which recovery for emotional distress is allowed, and the conduct was not
intended only to cause extreme emotional distress in the victim, the tort of outrage will not
lie.”). Although it can also be “a stand-alone tort under the right facts,” the Kentucky
Supreme Court has stated that “there can be only one recovery on a given set of facts.”
Childers v. Geile, 367 S.W.3d 576, 582 (Ky. 2012) (acknowledging that IIED may be
pleaded in the alternative).
Officer Hallau and Captain Lucas argue that Tollison cannot use this “gap-filler” tort
because it is based upon the same alleged conduct that forms the basis for his assault,
battery, false imprisonment, malicious prosecution and abuse of process claims.
Specifically, all of those claims turn upon the alleged unlawful arrest and use of excessive
force. Tollison makes no attempt to defend the IIED claim. Having reviewed the relevant
case law, the Court finds that the IIED claim cannot lie because the alleged conduct of
Officer Hallau and Captain Lucas amounts to the commission of several traditional torts.
Accordingly, summary judgment is warranted on this claim.

29

6.

Negligence Claims Against Officer Hallau and Captain Lucas
a.

Breach of Duty

Under Kentucky law, negligence normally requires proof of the following: (1) the
defendant owed the plaintiff a duty of care; (2) the defendant breached the standard by
which his or her duty is measured; and (3) consequent injury.

Pathways, Inc. v.

Hammons,113 S.W.3d 85, 88 (Ky. 2003). Generally “[t]he most important factor in
determining whether a duty exists is foreseeability.” Id. (quoting Liebson, 10.3). “The actor
is required to recognize that his conduct involves a risk of causing an invasion of another’s
interest if a reasonable man would do so while exercising such attention, perception of the
circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment
as a reasonable man would have.” Id. (quoting Restatement (Second) of Torts 289(a)).
However “[t]he obligation of a police officer in regard to individual citizens is not
founded on foreseeability alone but rather upon the existence of a special relationship to
the person likely to be injured.” Pile v. City of Brandenburg, 215 S.W.3d 36, 40 (Ky. 2006).
Two conditions must be satisfied in order to establish such a relationship: (1) the victim
must have been in state custody or otherwise restrained by the state at the time the injury
producing act occurred, and (2) the violence or other offensive conduct must have been
committed by a state actor. Id.
The distinction between ordinary negligence and gross negligence lies in the
standard of care. Brotherton v. Victory Sports, Inc., 24 F. Supp. 3d 617, 620 (E.D. Ky.
2014) (stating that ordinary negligence is “the absence of ordinary care,” while gross
negligence is “the absence of slight care”). “[W]hile the courts of the Commonwealth have
not always used precisely the same language in defining gross negligence, the prevailing
30

understanding defines gross negligence as a ‘wanton or reckless disregard for the safety
of other persons.’” Kinney v. Butcher, 131 S.W.3d 357, 359 (Ky. Ct. App. 2004) (noting that
a jury need not find that the defendant “acted with express malice; rather it is possible that
a certain course of conduct can be so outrageous that malice can be implied from the facts
of the situation”).
Negligent infliction of emotional distress is also “analyzed in accordance with
common law negligence: (1) the defendant must have owed a duty of care to the plaintiff;
(2) which it breached; (3) legally causing; (4) injury to the plaintiff.” Jackson v. Steele, Civ.
A. No. 11-72-DLB-EBA, 2014 WL 2801337, at *12 (E.D. Ky. June 19, 2014) (citing
Osbourne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012). The emotional distress must be
“serious” or “severe,” meaning that “emotional injury occurs where a reasonable person,
normally constituted, would not be expected to endure the mental stress engendered by
the circumstances of the case.” Osbourne, 399 S.W.3d at 18.
Officer Hallau and Captain Lucas do not dispute that they owed Tollison a duty of
reasonable care. However, they argue that summary judgment is appropriate on these
three claims, citing a lack of evidence in the record to suggest that they breached a legal
duty owed to Tollison. In making this assertion, they again insist that they simply used
reasonable force to effectuate an arrest supported by probable cause. Tollison again
counters that Officer Hallau and Captain Lucas breached their duty to him by arresting him
without probable cause and using excessive force to do so.
The viability of all three negligence claims hinges on one common element: Did
Officer Hallau and Captain Lucas breach their duty to exercise reasonable care towards
Tollison by using excessive force to effectuate an unlawful arrest? This inquiry cannot be
31

answered without first determining whether the arrest was lawful and whether the use of
force was reasonable. As the Court has already noted, reasonable minds could reach
different conclusions as to these two sub-questions. Because the lawfulness of the arrest
and the reasonableness of the force are so closely tied to the question of breach, the Court
must conclude that there are genuine issues of material fact on these negligence claims.
b.

Qualified Immunity

“Under Kentucky law, public employees, including police officers, enjoy qualified
official immunity from tort liability for ‘good faith judgment calls made in a legally uncertain
environment.’” Woosley v. City of Paris, 591 F. Supp. 2d 913 (E.D. Ky. 2008) (quoting
Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001). Such immunity applies to the negligent
performance by a public officer or employee of (1) discretionary acts or functions, i.e., those
involving the exercise of discretion and judgment, or personal deliberation, decision and
judgment[;] (2) in good faith; and (3) within the scope of the employee’s authority.’” Yanero,
65 S.W.3d at 522. By contrast, “an officer or employee is afforded no immunity from tort
liability for the negligent performance of a ministerial act, i.e., one that requires only
obedience to the orders of others, or when the officer’s duty is absolute, certain, and
imperative, involving merely execution of a specific act arising from fixed and designated
facts.” Id.
“A peace-officer’s on -the-spot probable cause determination, as well as his decision
whether to arrest, is an inherently discretionary act.” Caudill v. Stephens, No. 2006-CA0004770MR, 2007 WL 625348, at *1 (Ky. Ct. App. Mar. 2, 2007) (unpub.) (citing Jeffers v.
Heavrin, 10 F.3d 380 (6th Cir. 1993)); see also Lewis v. Meyers, Civ. A. No. 5:09-CV00156-R, 2010 WL 3829200, at *4 (W.D. Ky. Sept. 24, 2010).
32

Similarly, “[t]he

determination of the amount of force required to effect an arrest is a discretionary act.”
Nichols v. Bourbon Cnty. Sheriff’s Dept., 26 F. Supp. 3d 634, 642 (E.D. Ky. 2014) (citing
Woosley, 591 F. Supp. 2d at 922). Thus, Officer Hallau and Captain Lucas performed a
discretionary act by deciding to arrest Tollison and apply minor restraining force.
Once an officer makes a prima facie showing that the act was within their
discretionary authority, the burden shifts to the plaintiff to show that it was not performed
in good faith. Id. at 523 (citing Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir.
1991)). The “good faith” requirement has objective and subjective components. Id. While
the objective component focuses on a presumptive knowledge of and respect for “basic,
unquestioned constitutional rights,” the subjective component refers to “permissible
intentions.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Thus, “‘bad faith’
can be predicated on a violation of a constitutional, statutory, or other clearly established
right which a person in the public employee’s position presumptively would have known
was afforded to a person in the plaintiff’s position, i.e., objective unreasonableness; or if the
officer or employee wilfully or maliciously intended to harm the plaintiff or acted with a
corrupt motive.” Yanero, 65 S.W.3d at 523.
In conducting its § 1983 analysis, the Court has already considered whether Tollison
had a clearly established right and whether someone in Officer Hallau and Captain Lucas’
position presumptively would have known that such a right afforded to someone in
Tollison’s position. The Court found that Officer Hallau and Captain Lucas were entitled
to qualified immunity on the § 1983 false arrest claim because there is no clearly
established right to be free from arrest for inflammatory remarks to police officers.
However, the Court decided that Officer Hallau and Captain Lucas were not entitled to
33

qualified immunity on the § 1983 excessive force claim because a non-resistant subject
does have a clearly established right to be free from the use of force. To the extent that
Tollison’s negligence claims are predicated on an alleged lack of probable cause for arrest,
Officer Hallau and Captain Lucas are entitled to qualified immunity under Kentucky law.
However, they are not entitled to qualified immunity with respect to Tollison’s negligence
claims based on an alleged use of excessive force.4
8.

Negligence Claims Against Chief Butler, Mayor Moriconi and the
City Based on Deficient Hiring, Training and Supervision
Practices

“Kentucky’s recognition of torts based upon negligent hiring, negligent training,
negligent supervision, and negligent retention is well established.” MV Transp., Inc. v.
Allgeier, 433 S.W.3d 324, 336 n. 10 (2014). As for negligent supervision, “Kentucky has
adopted the Restatement (Second) of Agency 213 which illustrates the requirements for
establishing a claim of negligent supervision.” Booker v. GTE.net LLC, 350 F.3d 515, 517
(6th Cir. 2003). “[A]n employer may be held liable for negligent supervision only if he or she
knew or had reason to know of the risk that the employment created.” Id.
4) In his Amended Complaint, Tollison asserts that the City, IPD, Chief Butler and Mayor Moriconi are liable
for each of the above-mentioned torts, intentional and negligence-based, on a respondeat superior theory.
(Doc. # 23 at 19-28). Under this doctrine, an employer may be held liable for the tortious acts of an employee
committed within the scope of his or her employment. Patterson v. Blair, 172 S.W.3d 361, 364-65 (Ky. 2005).
This doctrine seems to apply to Hughes v. City of Louisville, Civ. A. No. 3:02-CV-60-S, 2007 WL 1035008,
at *10 (W.D. Ky. Mar. 28, 2007) (“[U]nder Kentucky law, a municipality may be held liable for the actions of
a police officer in making an unnecessary assault upon an individual in carrying out an arrest under a
respondeat superior theory.”) (citing City of Lexington v. Yank, 431 S.W.2d 892 (Ky. App. 1968)).
“Lliability under a theory of respondeat superior can only exist when there is an underlying tort.” Jackson
v. Steele, Civ. A. No. 11-CV-72-DLB-EBA, 2014 WL 2801337, at *13 (E.D. Ky. June 19, 2014) (citing
Patterson, 172 S.W.3d at 363). Because the Court has granted summary judgment in favor of Officer Hallau
and Captain Lucas on the malicious prosecution, abuse of process and IIED claims, it must also grant
summary judgment in favor of the City, IPD, Chief Butler and Mayor Moriconi on a respondeat superior basis.
However, the Court found that there were genuine issues of material fact precluding summary judgment on
the other intentional tort and negligence claims. Because it is not yet clear whether Officer Hallau and Captain
Lucas committed tortious conduct, it would be premature to grant summary judgment on the respondeat
superior Defendants.

34

Chief Butler, Mayor Moriconi and the City move for summary judgment on this claim,
relying on the lack of evidence in the record to suggest that they knew or had reason to
know of a risk created by employing Officer Hallau and Captain Lucas. Tollison maintains
that they did know of such a risk vis a vis Officer Hallau. After all, Chief Butler signed off
on Officer Hallau’s employee review in 2000, which referenced one verbal reprimand.
(Doc. # 47-6). It also stated that Officer Hallau’s “emotions get the best of him at times and
he should learn more control and patience.” (Id.). Tollison cites this as proof that Officer
Hallau had “long-documented issues of working with the public.” (Doc. # 46 at 35).
Tollison’s argument fails for two reasons. First, simply observing that Officer Hallau
should be more patient does not automatically lead to the conclusion that he could not
interact appropriately with the public. Second, Tollison points to only one evaluation from
fifteen years ago. This is insufficient to establish any persistent issues with Officer Hallau’s
performance. There being no other evidence in the record to suggest that Chief Butler,
Mayor Moriconi and the City knew or had reason to know of a risk created by employing
Officer Hallau or Captain Lucas, the Court finds that summary judgment is appropriate on
this claim.5
d.

Availability of Punitive Damages Against the City of Independence

“Judicial disinclination to award punitive damages against a municipality has
persisted to the present day in the vast majority of jurisdictions.” City of Newport v. Fact

5) The above analysis pertains solely to allegations of negligence on the part of the City, IPD, Mayor Moriconi
and Chief Butler. It does not dispose of the negligence claims asserted against the City, IPD, Mayor Moriconi
and Chief Butler on a respondeat superior basis. See MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 337 (Ky.
2014) (stating that “a plaintiff may assert and pursue in the same action a claim against an employer based
under respondeat superior based upon the agent’s negligence, and a separate claim based upon the
employer’s own direct negligence in hiring, retention, supervision or training”).

35

Concerts, Inc., 453 U.S. 247, 260 (1981). Thus, “[t]he general rule today is that no punitive
damages are allowed [against a municipality] unless expressly authorized by statute.” Id.;
see also D.H. v. Matti, Civ. A. No. , 2015 WL 4530419, at *8-9 (W.D. Ky. July 27, 2015)
(noting that “the deterrent effect of punitive damages on municipal officials is limited and
far outweighed by the cost to taxpayers”). Thus, “a municipality is immune from punitive
damages under 42 U.S.C. § 1983.” City of Newport, 453 U.S. at 271.
Under Kentucky law, “[t]he amount of damages recoverable against a local
government for death, personal injury or property damages arising out of a single accident
or occurrence, or sequence of accidents or occurrences, shall not exceed the total
damages suffered by plaintiff, reduced by the percentage of fault including contributory
fault, attributed by the trier of fact to other parties, if any.” Ky. Rev. Stat. Ann. § 65.2002.
Because “punitive damages serve to punish and deter,” it stands to reason that “they
exceed the ‘total damages suffered by plaintiff.’” Matti, 2015 4530419, at *10 (predicting
that Kentucky courts would follow the general rule announced in City of Newport); see also
Louisville Metro Hous. Auth. v. Burns, 198 S.W.3d 147, 151 (Ky. Ct. App. 2005) (describing
KRS § 65.2002 as a “protection[ ] against punitive damage awards”).
The Independence Defendants argue that Tollison cannot recover punitive damages
from the City under § 1983 or Kentucky law. Tollison does not respond to this argument.
The Court having reviewed the relevant case law, it agrees that Tollison may not recover
punitive damages against the City.
IV.

Conclusion
Accordingly, IT IS ORDERED as follows:

36

(1)

Officer Hallau and Captain Lucas’ Motion for Summary Judgment (Doc. # 38)

is GRANTED IN PART AND DENIED IN PART;
(a)

The Motion is GRANTED as to Count I (§ 1983 unlawful arrest),

Count II (§ 1983 unlawful detention/confinement), Count IV (§ 1983 conspiracy), Count
IX (malicious prosecution), Count X (abuse of process) and Count XI (intentional infliction
of emotional distress);
(b)

The Motion is DENIED as to Count III (§ 1983 excessive force), Count

VI (assault), Count VII (battery), Count VIII (false imprisonment), Count XII (negligent
infliction of emotional distress), Count XIII (negligence) and Count XIV (gross negligence);
(2)

Chief Butler and Mayor Moriconi’s Motion for Summary Judgment (Doc. # 38)

is GRANTED IN PART AND DENIED IN PART;
(a)

The Motion is GRANTED as to Count V (§ 1983 refusing or neglecting

to prevent harm) and Counts XII–XIV (negligent hiring, training and supervision);
(b)

The Motion is DENIED as to Count VI (assault based on a respondeat

superior theory), Count VII (battery based on a respondeat superior theory), Count VIII
(false imprisonment based on a respondeat superior theory), Count XII (negligent infliction
of emotional distress based on a respondeat superior theory), Count XIII (negligence
based on a respondeat superior theory) and Count XIV (gross negligence on a respondeat
superior theory);
(3)

The City and IPD’s Motion for Summary Judgment (Doc. # 38) is GRANTED

IN PART AND DENIED IN PART;

37

(a)

The Motion is GRANTED as to Count IV (§ 1983 conspiracy), Count

V (§ 1983 refusing or neglecting to prevent harm) and Counts XII–XIV (negligent hiring,
training and supervision);
(b)

The Motion is DENIED as to Count VI (assault based on a respondeat

superior theory), Count VII (battery based on a respondeat superior theory), Count VIII
(false imprisonment based on a respondeat superior theory), Count XII (negligent infliction
of emotional distress based on a respondeat superior theory), Count XIII (negligence
based on a respondeat superior theory) and Count XIV (gross negligence on a respondeat
superior theory); and
(4)

The parties to this action shall file a Joint Notice of available pre-trial and trial

dates within twenty (20) days of the date of entry of this Order.
This 25th day of September, 2015.

G:\DATA\Opinions\Covington\2013\13-55 Tollison MOO re MSJ.wpd

38