Harris v. Klare

Filing 38

MEMORANDUM OPINION & ORDER: 1) Defendant Kimberly Klares Motion for Summary Judgment 30 is GRANTED; 2) Plaintiff Brittany Harriss Complaint is DISMISSED WITH PREJUDICE; 3) This matter is STRICKEN from the Courts active docket; and 4) A Judgment shall be entered contemporaneously herewith. Signed by Judge David L. Bunning on 08/04/2017.(KRB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 15-138-DLB-EBA
BRITTANY HARRIS

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

KIMBERLY KLARE

DEFENDANT
*** *** *** *** *** ***

This is an action brought pursuant to 42 U.S.C. § 1983 and Kentucky law to recover
for injuries arising from an allegedly unlawful search of Plaintiff Brittany Harris by
Defendant Officer Kimberly Klare.
I.

Factual and Procedural Background
On the night of May 22, 2014, seventeen year-old Brittany Harris was riding home

from dinner with her mother, father, and sister in a car driven by her mother. (Doc. # 33
at 42, 45-48). Before Harris and her family got home, Erlanger police pulled the car over
at a gas station. Id. at 49-52. According to Harris, the police officer had been peering at
the car’s license plate prior to the stop. Id. at 48-50. The officer then followed the car for
about a mile before flashing his lights and pulling them over. Id. When the officer
approached the vehicle, he told Harris’s mother that he pulled her over because he could
not read the license plate. Id. at 52-54. After asking for Harris’s mother’s license and
registration, the officer discovered that her license was suspended. Id. at 54. Another
officer arrived in a police cruiser, noticed Harris and her father sitting in the back of the

1

car, and opened the car’s rear door. Id. at 56-57. The police saw Harris’s father’s
equipment and tools on the floor and in containers in the car. Id. at 58-60.
A third police cruiser arrived, and the first officer asked Harris’s mother to step out
of the car. Id. at 62-63. Another officer told Harris and her other family members to wait
inside the car. Id. at 67-68. A fourth cruiser arrived. Id. at 68. While she was waiting in
the car with her father and sister, Harris told her father she needed to use the bathroom,
and he told a police officer. Id. at 67-68. The police officer told Harris she needed to wait.
Id. Later, an officer told Harris, her father, and her sister that Harris’s mother had a license
suspension from Ohio, and that was creating an issue in the system with how to respond.
Id. at 69. The officer asked Harris, her father, and her sister to step out of the car and
wait on the curb. Id. at 71-72. Harris sat on the grass while her father and sister sat on
the curb. Id. During this time, another officer asked them questions about their dates of
birth and social security numbers. Id. at 71-72. The officers then informed Harris that
they were arresting her mother. Id. After that, Harris and her family were told that the
police had requested a canine unit to sniff the vehicle. Id. at 79. When the dog arrived
to sniff the car, there were six police cruisers at the scene, and Harris’s mother had been
handcuffed and put in a police car. Id. at 77-78, 82. Defendant Kimberly Klare, another
Erlanger police officer, arrived after that, and the police asked Harris’s father whether
Officer Klare could escort Harris to the bathroom. Id. at 84. He agreed. Id.
The officers told Harris to go ahead, and she began to walk toward the bathroom,
crossing the pumps in front of the gas station. Id. at 84. Harris noticed that Klare was
not behind her, turned around, and saw Klare speaking to another police officer. Id. at

2

84-85. Klare motioned for Harris to approach her, and the two walked toward each other.
Id. at 85. At that point, the stories diverge.
According to Harris, Officer Klare asked if she had anything on her person that was
sharp or could cut Klare. Id. at 85-86. Harris said no. Harris claims that Officer Klare
never asked permission to search her, but told her she “may have to search her.” Id. at
86. Then, Officer Klare asked Harris “[w]ould you step over here,” to which Harris replied
“[y]es,” and stepped toward Klare. Id. at 86. Then Klare “had [Harris] face the gas pump”
and “told [Harris] to spread [her] legs and put [her] hands behind [her] back.” Id. Harris
did as she was told. Klare explained what she would be doing, patted Harris down, and
then told her she would search her bra. Id. at 86-87. Harris claims that Officer Klare
reached under her bra and pinched her breasts. Id. at 87-88. Harris says she did not
know what was going on, did not know she could refuse to be searched, and did not know
she was going to be searched when she walked over to Officer Klare. Id. at 88. Harris
admits that she never objected to the search, but claims that she saw Officer Klare “put
her hand on her gun” several times while Klare spoke to her. Id. at 89. Harris claims that
she “didn’t feel like [she] could say anything” because she was bothered and threatened
by Officer Klare putting her hand on the gun, which Harris claims was not snapped into
its holster. Id. at 90-91. Harris also states that she “didn’t feel threatened at first,” and
that “[i]t was only when the search started to happen that I felt like I couldn’t do anything
because, at first, I thought we were just going to the bathroom. I didn’t feel I was ever
going to be touched or hurt or anything.” Id. at 96.
According to Officer Klare, however, when the two first spoke, she explained to
Harris that Harris was not under arrest, and that Klare had been called to the scene

3

because the police usually call female officers to escort other females to the bathroom.
(Doc. # 34 at 36-37). Officer Klare agrees with Harris that she asked whether Harris had
anything sharp on her person that would stick or harm Klare, and that Harris said no. Id.
at 37. However, Officer Klare claims that she did ask for and receive permission to search
Harris. Id. at 37. Officer Klare asserts that she pulled the underwire of Harris’s bra out
slightly so that anything tucked underneath would fall out, and used the back of her hand
to feel underneath and between Harris’s breasts. Id. at 40. After conducting the search,
Officer Klare escorted Harris to the bathroom, then brought Harris back to the traffic stop.
Id. at 37.
Defendant has moved for summary judgment.

(Doc. # 30).

Plaintiff filed a

response, and Defendant replied. (Docs. # 36 & 37). The motion is therefore ripe for the
Court’s review
II.

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.
56(a). If there is a dispute over facts that might affect the outcome of the case under
governing law, 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 she 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

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showing that there is a genuine issue for trial.” Id. at 250. However, the “mere existence
of a scintilla of evidence” in support of the non-moving party’s position is insufficient;
“there must be evidence on which the jury could reasonably find for the [non-moving
party].” Id. at 252.
B.

Plaintiff Was Lawfully Detained

Otherwise valid consent to be searched can be “tainted by the illegality” if the
detention that precedes it is unlawful. Florida v. Royer, 460 U.S. 491, 507-08 (1983). In
her response brief, Plaintiff argues that she could not have validly consented to a search
under any circumstances because the initial stop of her mother lacked probable cause,
and because officers “had no particularized and objective basis to believe that Harris was
engaging in any criminal activity.” (Doc. # 36 at 8-10). Harris also argues that Officer
Klare is not entitled to qualified immunity because she had no reason to believe that
Harris’s seizure was supported by probable cause, and therefore acted unreasonably in
searching her, even if Harris had validly consented.

Id. at 12-13.

Each of those

contentions is incorrect.
The Sixth Circuit has held that “so long as the officer has probable cause to believe
that a traffic violation has occurred or was occurring, the resultant stop is not unlawful and
does not violate the Fourth Amendment.” United States v. Bradshaw, 102 F.3d 204, 210
(6th Cir. 1996) (quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993)).1 “The
probable cause determination turns on what the officer knew at the time he made the

1
The Sixth Circuit has said that a Ferguson stop (requiring probable cause) and a Terry
stop (requiring less-stringent reasonable suspicion) are “analogous” because both are
“legitimate detentions that do not rise to the level of an arrest.” Bradshaw, 102 F.3d at
211 n.13. As explained below, the stop of Harris’s mother, and the passengers in the car,
is legitimate under either standard.

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stop.” Id. Harris herself explained that, before the police officer pulled over her mother,
he peered with “interes[t]” and “confus[ion]” at the back of the car. (Doc. # 33 at 50). The
officer then explained to Harris’s mother that he pulled her over because he could not
read the license plate. Id. at 52. Therefore, the officer had probable cause for a stop
based on a traffic violation. See, e.g., Ky. Rev. Stat. Ann. § 186.170(1) (“No rim, frame,
or other covering around the plate shall in any way obscure or cover any lettering or decal
on the plate.”).
During a traffic stop, an officer seizes not only the driver, but every passenger in
the vehicle. Brendlin v. California, 551 U.S. 249, 255-59 (2007). Therefore, Harris, along
with her father and sister, were lawfully seized when her mother was pulled over, and no
individualized suspicion was required. What’s more, “[t]he temporary seizure of driver
and passengers ordinarily continues, and remains reasonable, for the duration of the
stop.” Arizona v. Johnson, 555 U.S. 323, 333 (2009). “An officer’s inquiries into matters
unrelated to the justification for the traffic stop, this Court has made plain, do not convert
the encounter into something other than a lawful seizure, so long as those inquiries do
not measurably extend the duration of the stop.” Id. In addition, as happened here, “an
officer making a traffic stop may order passengers to get out of the car pending completion
of the stop.” Maryland v. Wilson, 519 U.S. 408, 414-15 (1997).
In this case, the stop was prolonged by the officers’ reasonable suspicion of drug
activity due to the presence of Harris’s father’s tools and equipment in the car.2 (Doc. #

2
Although Harris argues that the record “contains no evidence to support the conclusion
that any of the officers on the scene had any particularized and objective basis to believe
that Harris was engaging in any criminal activity,” Harris does not challenge the lawfulness
of the request for a canine unit in light of the tools and equipment in the car. (Doc. # 36
at 9-10).

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34 at 21-22); see Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015) (police may
extend traffic stop on reasonable suspicion).

In light of that suspicion, the police

requested a dog sniff. “[A] dog sniff performed during a traffic stop does not violate the
Fourth Amendment.” Johnson, 555 U.S. at 333; see also United States v. Davis, 430
F.3d 345, 354 (6th Cir. 2005) (police had reasonable suspicion to detain defendant for
30-45 minutes for drug-sniffing dog to arrive). Therefore, Harris’s arguments that the
initial stop of her mother was unlawful, and that she herself was unlawfully detained, fail.
No particularized suspicion was needed to detain Harris because she was a passenger
in the car of a person who was lawfully detained. Moreover, Officer Klare testified that
she was informed by a fellow officer that the police had stopped Harris’s mother initially
for an obstructed license plate, and that at the time Officer Klare arrived the police were
investigating potential drug activity with a canine unit. (Doc. # 34 at 21). Officer Klare
also knew that she had been called to the scene because a female wanted to use the
restroom. Id. at 24. An objective officer in Officer Klare’s position would therefore have
no reason to believe that Harris was unlawfully detained and unable to voluntarily
consent.
C.

Qualified Immunity on Fourth Amendment Claims

Harris brings a civil-rights claim under 42 U.S.C. § 1983, alleging that Officer Klare
violated her Fourth Amendment right to be free from unreasonable searches when Officer
Klare conducted a warrantless search of her person on May 22, 2014. Whether Harris
voluntarily consented to Officer Klare’s search is the critical question in this case.3

3
Officer Klare raises no other grounds for summary judgment, and offers no other
justification for her search of Harris. There is no evidence to suggest, and Officer Klare
does not argue, that she had a reasonable suspicion that Harris was “armed and

7

Government officials sued for constitutional violations under § 1983 in their
individual capacities are shielded by qualified immunity. Qualified immunity may be
overcome, however, if a plaintiff can show that a constitutional right was clearly
established at the time of the alleged misconduct and that the officer’s conduct amounts
to a constitutional violation. Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court may
address those two prongs in either order. Id. at 236. In this case, the Court will assume
a constitutional violation arguendo and determine whether qualified immunity protects
Officer Klare from suit nonetheless.
“The qualified immunity question itself can be understood as a two-part analysis.”
Smith v. City of Wyoming, 821 F.3d 697, 708-09 (6th Cir. 2016). “First, we consider the
clarity at the time of the alleged civil rights violation to determine whether the right at issue
was clearly established.” Id. (internal quotation marks omitted). “Second, we consider
the specific factual circumstances known to the officer to determine whether a reasonable
officer would have known that her conduct violated that right.” Id.
For a right to be clearly established, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “It is important to emphasize that this
inquiry must be undertaken in light of the specific context of the case, not as a broad
general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (internal quotation
marks omitted). “The general proposition, for example, that an unreasonable search or
seizure violates the Fourth Amendment is of little help in determining whether the violative

dangerous” to justify a Terry frisk. See Terry v. Ohio, 392 U.S. 1, 27 (1968). Therefore,
the Court focuses solely on the issue of consent.

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nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2084 (2011).
In considering the specific factual circumstances, “[t]he relevant, dispositive inquiry
. . . is whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “If no reasonably
competent officer would have taken the same action, then qualified immunity should be
denied; however, ‘if officers of reasonable competence could disagree on [the legality of
the action], immunity should be recognized.’” Humphrey v. Mabry, 482 F.3d 840, 847
(6th Cir. 2007) (quoting Malley v. Briss, 475 U.S. 335, 341 (1986)).
The broad legal principles in this case are well established. “It is well settled under
the Fourth and Fourteenth Amendments that a search conducted without a warrant issued
upon probable cause is per se unreasonable subject only to a few specifically established
and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 219, 219 (1973)
(internal quotation marks and alteration omitted). “It is equally well settled” that one of
those exceptions is a search conducted with consent. Id.
In this case, Officer Klare argues that she is entitled to qualified immunity on
Harris’s Fourth Amendment claim because her actions did not violate Harris’s clearly
established right not to be searched without consent. “The burden to establish that the
exception [to the warrant requirement] applies is on the officer invoking consent.”
Andrews v. Hickman Cty., Tenn., 700 F.3d 845, 854 (6th Cir. 2012). “This burden cannot
be discharged by showing no more than acquiescence to a claim of lawful authority.”
Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). Instead, “[t]he consent to search
must be ‘voluntary, unequivocal, specific, intelligently given, and uncontaminated by

9

duress or coercion.’” Andrews, 700 F.3d at 854 (quoting United States v. Canipe, 569
F.3d 597, 602 (6th Cir. 2009)). Consent “may be in the form of words, gesture, or
conduct,” United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc), but it is
valid only if given voluntarily, Ohio v. Robinette, 519 U.S. 33, 40 (1996).
“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of
duress or coercion, express or implied, is a question of fact to be determined from the
totality of all the circumstances.” Schneckloth, 418 U.S. at 227. In making this inquiry,
“[f]irst, a court should examine the characteristics of the accused, including the age,
intelligence, and education of the individual; whether the individual understands the right
to refuse to consent; and whether the individual understands his or her constitutional
rights.” United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998). “Second, a court should
consider the details of the detention, including the length and nature of detention; the use
of coercive or punishing conduct by the police, and indications of more subtle forms of
coercion that might flaw [an individual’s] judgment.” Id. (internal quotation marks omitted).
To determine whether Officer Klare is entitled to qualified immunity, the Court
“must consider the particular circumstances” of the case and “whether [she] could
reasonably have believed that [her] actions were consistent with clearly established law.”
Smith, 821 F.3d at 709 (citing Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). In doing so,
the Court will consider the facts as shown by Harris and make all reasonable inferences
in her favor. Id.
1.

Characteristics of Harris

Harris was seventeen years old, had graduated from high school at the time of the
search, and appeared to be of reasonable intelligence. (Docs. # 33 at 9; # 1 at ¶ 4). All

10

of those factors suggest that she was capable of giving voluntary consent to a search,
and none of them are dispositive of her ability to consent under clearly established law.
According to Harris, Officer Klare did not ask for or receive specific permission to
search. (Officer Klare disagrees, Doc. # 34 at 37, but at this stage of the analysis, the
Court credits the testimony of Harris.) Harris testified that Klare told her “[w]e may have
to search you” and that “[s]he didn’t really ask it like a question.” (Doc. # 33 at 86). For
that reason, Harris explains, she did not know that she could refuse to consent to the
search. Id. at 88. However, “knowledge of the right to refuse is one factor to be taken
into account” when determining whether consent is voluntary, and the Supreme Court
has held that it is not a prerequisite to voluntary consent. Schneckloth, 412 U.S. at 227
(emphasis added). Therefore, Officer Klare’s alleged failure to advise Harris of her right
to refuse and Harris’s professed lack of awareness of that right does not violate a clearly
established right. Id.
The Sixth Circuit has instructed that “the court must look to the revealed
circumstances of the encounter and not simply to the searched party’s later testimony as
to [her] consciousness at the time of the encounter” when evaluating questions of
voluntariness. Aquino v. Honda of Am., Inc., 158 F. App’x 667, 673 (6th Cir. 2005) (finding
a search voluntary where the searched party “did not object in any discernable way to the
officer’s questions or to the subsequent search”). At the time of the encounter, Harris
admits that Officer Klare said she “may have to search” Harris, that Klare asked Harris
“[w]ould you step over here” to begin the search, that Harris said “[y]es, that Harris
followed Officer Klare’s directions about how and where to stand, and that she did not

11

object to the search at any point while it happened. (Doc. # 33 at 86-88); see Aquino,
158 F. App’x at 673.
This situation is distinguishable from cases like Worley, where the Sixth Circuit
found a search to be non-consensual because an individual told the officer who requested
to search his bag, “[y]ou’ve got the badge, I guess you can [search].” See United States
v. Worley, 193 F.3d 380, 384 (6th Cir. 1999). The Sixth Circuit held that, in situations
“where the government purports to rely on a defendant’s statement to establish that valid
and voluntary consent was rendered,” the court must examine the content of the
statement to ensure that it “unequivocally, specifically, and intelligently” indicates that the
defendant consented. Id. at 386 (internal quotation marks omitted). Statements that
express that a person to be searched is only complying because he believes he has no
choice are not constitutionally valid. But in this case, Harris did not make a statement
that indicated that she believed she had no choice but to comply. Instead, after being
told she may have to be searched, she said “yes” when Officer Klare asked her to move
over to her, continued to follow Officer Klare’s directions, and did not object. Thus, Officer
Klare’s actions do not violate the clearly established law in Worley or its progeny.
Harris argues that a reasonable juror could conclude that Harris believed she had
no other choice but to comply with Officer Klare’s instructions, and therefore, she merely
submitted to Officer Klare’s authority and did not voluntarily consent. (Doc. # 36 at 15).
However, a reasonable officer could conclude that Harris was aware that she did have
other choices besides complying, meaning that her consent was voluntary. For example,
Harris knew that Officer Klare was at the gas station to escort her to the bathroom and
that the search was related to that request, not because Harris was under arrest or

12

suspected of a crime. (Doc. # 33 at 84-86). Harris also heard another police officer ask
her father if it was okay for Officer Klare to escort her to the bathroom. Id. at 84. For that
reason, the factual scenario here is similar to the situation in Waldon, where an
individual’s conduct amounted to voluntary consent to a search in part because the officer
gave the individual “no indication he was not free to leave [or] to refuse to respond to
questioning.” United States v. Waldon, 206 F.3d 597, 603 (6th Cir. 2013). There is no
evidence that Officer Klare indicated to Harris she was not free to leave the encounter
and rejoin her father.4
2.

Details of Harris’s Detention

With respect to the second set of factors courts examine when determining
whether consent is voluntary—the details of the detention—Harris does not argue that
Officer Klare’s behavior was overtly coercive towards her. For example, Harris does not
allege that Officer Klare used force or threatened to use force against her before the
search. (Doc. # 33 at 90). Harris does claim that Officer Klare touched her gun several
times while she was talking to her “right before the search,” and that Officer Klare’s holster
was unsnapped, which Harris claims made her fearful. (See Doc. # 36 at 7-8; Doc. # 33
at 91-93). The video from the gas station security camera is grainy and does not have
audio, but it does show Harris walking toward the bathroom, stopping, turning around,
and Harris and Officer Klare walking toward each other. (Doc. # 30-2 at 10:17:06 p.m. to
10:17:18 p.m.). Then, Officer Klare appears to be speaking to Harris for approximately
twenty seconds. Id. at 10:17:18 p.m. to 10:17:37 p.m. After that, Klare directs Harris to
face the gas pump and conducts the search. Despite Harris’s testimony that Officer Klare

4
Harris does not claim that her need to use the bathroom was urgent or argue that any
denial of that request would have had other constitutional implications.

13

touched the handle of her gun several times while they were talking (Doc. # 33 at 91-93),
the Court saw no evidence of that in the video. Instead, it appeared that Officer Klare’s
right arm and hand were in front of her body during the entire conversation at the gas
pump. The video therefore does not show that Officer Klare’s conduct was coercive or
objectively unreasonable. Griffin v. Hardrick, 604 F.3d 949, 954 (6th Cir. 2010). Even
crediting Harris’s testimony, however, Officer Klare’s touching of her holstered gun,
without more, is not sufficiently coercive to “overb[ear]” Harris’s will in a way that vitiates
consent. Schneckloth, 412 U.S. at 226; cf. United States v. Beauchamp, 659 F.3d 560,
575 (6th Cir. 2011) (Kethledge, J., dissenting) (examples that coercive behavior include
“the threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled”) (quoting United
States v. Peters, 194 F.3d 692, 697 (6th Cir. 1999)).
However, overt duress or coercion are not the only circumstances that can vitiate
consent; “indications of more subtle forms of coercion that might flaw [an individual’s]
judgment” must also be considered. Ivy, 165 F.3d at 402 (internal quotation marks
omitted). In this case, Harris and her family had been required to wait in their car, and
then on the curb, for approximately forty-five minutes while police determined whether
Harris’s mother’s license was suspended and while the dog sniffed the car. (Docs. # 33
at 42; # 30-2 at 10:18 p.m.) (initial traffic stop began at about 9:30 p.m., security footage
from gas station of search has approximate timestamp of 10:18 p.m.). During that time,
Harris told her father she needed to use the bathroom, and he told a police officer, who
told Harris she needed to wait. Id. at 68. Harris testified that while the canine sniffed the

14

car, there were six police cruisers at the scene, and her mother had been handcuffed and
put in a police cruiser. Id. at 77-78, 82. After the dog sniff, Officer Klare arrived, and the
police asked Harris’s father whether Officer Klare could escort Harris to the bathroom. Id.
at 84. The presence of multiple police officers, their degree of control over Harris and her
family’s movement, the length of time she was detained, and the fact that Harris was not
allowed to go to the bathroom until Officer Klare arrived are all relevant to the
voluntariness of Harris’s consent. But ultimately, the question of voluntariness does not
“tur[n] on the presence or absence of a single controlling criterion” but must “reflec[t] a
careful scrutiny of all the surrounding circumstances.” Schneckloth, 412 U.S. at 226.
“While th[e Supreme] Court’s case law does not require a case directly on point for a right
to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017)
(internal quotation marks and alterations omitted). Harris does not offer, and the Court
could not find, such precedent.
In this case, after “defin[ing] the plaintiff’s asserted right with specificity, and
focus[ing] on the particular facts known to the officer at the time,” the Court concludes
that Officer Klare is entitled to qualified immunity on Harris’s Fourth Amendment claim.
Smith, 821 F.3d at 708-09.

The totality of the circumstances make it objectively

reasonable for Officer Klare to believe, even if mistakenly, that Harris had voluntarily
consented to the search of her person. It would therefore not be clear to a reasonable
officer that her conduct was unlawful in the situation Officer Klare confronted.

15

D.

Qualified Immunity on State-Law Claim

In addition to her Fourth Amendment claim under § 1983, Harris alleges that
Officer Klare intentionally assaulted her during the search in violation of Kentucky state
law. (Doc. # 1 at ¶¶ 10-11). As Officer Klare points out in her summary judgment motion,
this is properly construed as a claim for battery, not assault. Banks v. Fritsch, 39 S.W.3d
474, 480 (Ky. Ct. App. 2001) (“Assault is a tort which merely requires the threat of
unwanted touching of the victim, while battery requires an actual unwanted touching.”).
In Kentucky, state officials sued in their individual capacity received qualified official
immunity for violations of state law, “which affords protection from damages liability for
good faith judgment calls made in a legally uncertain environment.” Yanero v. Davis, 65
S.W.3d 510, 522 (Ky. 2001).
Harris does not dispute that Officer Klare acted in the scope of her duties as a
police officer when she searched Harris, or that her decision to conduct a search was
discretionary under Kentucky law. Id. (discretionary acts involve exercise of “personal
deliberation, decision, and judgment”). Under Yanero, the burden then shifts to the
plaintiff to show that the discretionary act was not performed in good faith. Id. Harris
reasserts her Fourth Amendment qualified immunity arguments on this point. (Doc. # 36
at 16). As explained above, those arguments fail, and Defendant is entitled to official
immunity on the state-law claims as well.
III.

Conclusion
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
1)

Defendant Kimberly Klare’s Motion for Summary Judgment (Doc. # 30) is

GRANTED;

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2)

Plaintiff Brittany Harris’s Complaint is DISMISSED WITH PREJUDICE;

3)

This matter is STRICKEN from the Court’s active docket; and

4)

A Judgment shall be entered contemporaneously herewith.

This 4th day of August, 2017.

K:\DATA\ORDERS\Cov15\15-138 Harris v. Klare MOO.docx

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