Covington et al v. Brockman et al
Filing
46
MEMORANDUM OPINION & ORDER: That Defendant Jonathan Ball's motion for summary judgment 28 is GRANTED. Signed by Judge William O. Bertelsman on 6/7/2018.(ECO)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO.:
2:16-cv-163 (WOB-CJS)
MELISSA & DONALD COVINGTON JR.
VS.
PLAINTIFFS
MEMORANDUM OPINION AND ORDER
BOONE COUNTY, KY ET. AL.
I.
DEFENDANTS
INTRODUCTION
This action is brought under 42 U.S.C. § 1983 for alleged Fourth Amendment excessive
force and false arrest violations. Melissa and Donald Covington Jr. (“Melissa”, “Covington Jr.”,
or collectively “Plaintiffs”) allege that Boone County deputy Jonathan Ball (“Ball”) failed to
intervene to protect Plaintiffs’ constitutional rights when fellow deputies Wesley Mackey
(“Mackey”) and Tyler Brockman (“Brockman”) arrested them for disorderly conduct and resisting
arrest for protesting Donald Covington III (“Covington III”)’s arrest on two outstanding bench
warrants. The matter is before this Court on Defendants’ summary judgment motion solely related
to Ball’s actions. Having previously heard oral argument on this motion, the Court now issues the
following memorandum opinion and order.
II.
FACTUAL & PROCEDURAL BACKGROUND
On February 26, 2016 at approximately 11:15 PM, Boone County deputies Ball, Mackey,
and Brockman were preparing to serve two bench warrants for unpaid fines on Covington III at
Plaintiffs’ Florence, Kentucky residence. (Doc. 29, PageID# 117; Doc. 31, PageID# 193; Doc. 34,
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PageID# 298; Doc. 38-1, PageID# 411.) Typically, Boone County only requires two deputies to
serve a warrant, but Ball had requested that Brockman accompany them with a canine unit. (Doc.
31 at 193.) Ball explained to Mackey that he had been involved in a prior 2015 arrest involving
Covington III where he had attempted to flee the crime scene on foot before capture. (Doc. 32 at
229; Doc. 38-2, PageID# 415-16.) The canine’s presence would ensure that a similar flight would
not occur in this instance. (Doc. 33 at 265.)
With all law enforcement parties present, the deputies departed their staging area and
arrived at Plaintiffs’ home one block away. (Doc. 31 at 193.) The deputies’ plan involved Ball
and Mackey directly engaging Covington III at the home’s entrance while Brockman took up
position along the side of the residence closer to its rear. (Doc. 33 at 265.) Ball then proceeded to
knock on Plaintiffs’ door with Mackey positioned directly next to him. (Doc. 31 at 196.)
The knock alerted Melissa and Covington III to the deputies’ presence. (Doc. 29 at 134;
Doc. 34 at 296.) Melissa answered and asked Ball for clarification regarding which “Donald
Covington” they sought. (Doc. 29 at 136.) Ball improperly responded that the warrants concerned
Covington Jr. (Doc. 34 at 297.) Melissa indicated to both deputies that their information did not
make sense as Covington Jr. had no pending charges against him, but she insisted on waking her
husband for clarification and returned inside the residence. (Doc. 29 at 136, 138.) The deputies
then proceeded to clarify that the subject of both warrants was Covington III. 1
Melissa pressed both deputies to show her the actual warrants and asked about the specific
charges leveled against Covington Jr., but they declined. (Id. at 136.) An unspecified deputy
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Melissa’s deposition asserts that Mackey radioed dispatch to clarify the subject’s birthdate while Mackey
contends that Ball informed him that there were, in fact, multiple male Covingtons with the same name.
(Doc. 29 at 136; Doc. 32 at 230.)
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further responded that both warrants were for fleeing arrest and assault to which Melissa argued
again that a mistake had occurred since Covington III had already completed his sentence for those
crimes. (Id.) Hearing the exchange between Melissa and the deputies and being visually identified
by Brockman, Covington III exited the residence and approached Ball moving away from the front
porch. (Doc. 34 at 297.) Ball remained facing the front of the house as Covington III neared.
(Doc. 31 at 200.)
At this point, Ball and Covington III exchanged pleasantries and Ball asked if Covington
III had a license for identification purposes and began confirming the warrants with dispatch via
radio. (Doc. 31 at 198; Doc. 34 at 302.) While awaiting confirmation, Covington III allegedly
began to yell and scream for his neighbor, David Dehner (“Dehner”), to come outside and
videotape the deputies’ conduct towards Melissa and Covington Jr., who had joined his wife by
their front door. (Doc. 31 at 198; Doc. 38-4, PageID# 428.) Ball allegedly warned Covington III
to stop yelling and screaming or he would face a disorderly conduct charge and be placed under
arrest. When Covington III refused to comply, Ball placed him under arrest in handcuffs. (Doc.
31 at 198; Doc. 34 at 305.)
At the front door, Plaintiffs continued to seek clarity from Mackey regarding the unfolding
situation. Melissa allegedly became agitated over the sight of Covington III in handcuffs and was
warned by Mackey to return fully inside the house. (Doc. 32 at 231.) Melissa declined to do so
and allegedly began to violate Mackey’s “personal space” inching closer to him in the doorway.
(Id.) At this juncture, Mackey glanced at Brockman, who had repositioned himself at the front of
the house, for further guidance. (Id.) Brockman advised Mackey to arrest Melissa on the rationale
that she was about to interfere with Covington III’s arrest. (Doc. 32 at 231; Doc. 33 at 266.) As
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Melissa stepped out of the doorway, Mackey allegedly grabbed her by the arm and twisted it before
or while applying handcuffs. (Doc. 29 at 142.)
Melissa’s arrest catalyzed Covington Jr. to continue to ask why Brockman and Mackey
were now arresting his wife. (Doc. 30, PageID# 172.) Covington Jr. began to question Brockman
and Mackey’s maturity which led Mackey to attempt to grab him while he was still positioned in
his house. (Id.) Covington Jr. moved backwards in response. (Id.) His reaction caused Mackey
to reach for his gun while Covington Jr. allegedly asked Mackey if Mackey was going to shoot
him in his own home. (Id.) Mackey then pulled Covington Jr. out of his home and placed him in
handcuffs. (Id.)
According to the record, Ball’s position during these events remained static with him facing
the front of Plaintiffs’ home with Covington III in handcuffs. (Doc. 31 at 200.) He does not recall
Plaintiffs’ positioning relative to Brockman and Mackey or the substance of their conversations.
(Id. at 201.) He only testifies to the fact that throughout Plaintiffs’ exchange with Mackey and
Brockman, Covington III continued to yell at a neighbor to videotape the events and for Mackey
and Brockman to leave his parents alone. (Doc. 31 at 202; Doc. 34 at 305.) From Ball’s
perspective, the entire situation unfolded in minutes. (Doc. 31 at 203.)
The deputies then began to move Plaintiffs and Covington III to their respective cruisers.
Ball placed Covington III in his cruiser as Dehner continued to record the event, but Ball does not
recall which deputy transported Plaintiffs in theirs. (Doc. 31 at 202.)
Covington III then
proceeded to ask Ball to speak to the deputies’ superior. (Doc. 34 at 307.) As the officer-incharge, Brockman approached Ball’s cruiser, but was rebuffed by Covington III who desired to
speak to a lieutenant or other higher ranking officer. (Id.)
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Ball transported Covington III to the police station and began composing his citation.
(Doc. 31 at 203.) Ultimately, Covington III was charged with second-degree disorderly conduct.
(Id. at 206.) While Ball composed Covington III’s citation, Plaintiffs spoke to Lieutenant
Christopher Hall (“Hall”) and tried to explain to him that a mistake had been made concerning
their arrests, but Hall ultimately decided not to overturn the arrests. (Doc. 29 at 148.) Covington
III was released on bond a few hours later while Plaintiffs were released the following day. (Doc.
30 at 178; Doc. 34 at 311.)
On March 24, 2016, Covington III entered a guilty plea for the second-degree disorderly
conduct charge that involved no jail time, but would increase his probationary period from 335 to
360 days. (Doc. 34 at 312.) Plaintiffs agreed to participate in a diversion program in exchange for
their guilty pleas. (Id.) Following the conclusion of the state criminal action, Plaintiffs brought
this federal suit for excessive force and false arrest under 42 U.S.C. § 1983 in September 2016
seeking unspecified compensatory and punitive damages against the deputies in their individual
and official capacities.
(Doc. 1.)
Plaintiffs also brought state assault, battery, and false
imprisonment charges, but have dropped them as they relate to Ball. (Doc 1; Doc. 38, PageID#
409.) Following discovery, Defendant has now moved for summary judgment, again, only
regarding Ball’s actions vis a vis Plaintiffs’ arrests.
III.
LEGAL STANDARD
Summary judgment is appropriate if “the movant shows that 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). When deciding a summary judgment motion, courts are compelled to view the evidence
and draw all reasonable inferences in the non-moving party’s favor. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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The “moving party possesses the burden of showing the absence of any genuine issues of
material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). Once this
burden is satisfied, the non-moving party must produce specific facts demonstrating that a genuine
fact issue remains. Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). If a rational fact
finder could not find in the non-moving party’s favor after reviewing the record’s entirety,
summary judgment should be granted. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
349 (6th Cir. 1998).
IV.
ANALYSIS
Section 1983 provides a federal cause of action regarding the deprivation of “any rights,
privileges or immunities secured by the Constitution and law” including the Fourth Amendment.
42 U.S.C. § 1983. However, state actors sued under this statute are generally afforded qualified
immunity meaning that “government officials performing discretionary functions generally are
shielded 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.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
To withstand a summary judgment motion where, as here, Defendants have asserted a
qualified immunity defense, a plaintiff must satisfy two elements. First, they must show from the
facts alleged that the government official violated a clearly-established statutory or constitutional
right. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Second, they must demonstrate whether
the right violated was clearly-established such “that a reasonable officer would understand that
what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Federal
courts may address these elements in any order. Pearson, 555 U.S. at 236.
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1.
Excessive Force
a.
Lack of Constitutional Violation
This case implicates a particular species of Section 1983 excessive force actions where a
law enforcement official is alleged to have failed to intervene in a potentially unconstitutional
force application by his fellow officers. In general, mere presence at the scene of a search, without
a showing of direct responsibility for the alleged use of excessive force, will not expose an officer
to liability. Ghandi v. Police Dep’t of the City of Detroit, 747 F.2d 338, 352 (6th Cir. 1984).
However, the Sixth Circuit has recognized an “inaction theory” of excessive force liability. See
Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982) (“[I]t is not necessary, in order to hold a
police officer liable under Section 1983, to demonstrate that the officer actively participated in
striking a plaintiff.”) (emphasis added). Under this theory, a law enforcement official may be held
liable in failing to act to prevent an excessive force application when “(1) the officer observed or
had reason to know that the excessive force would be or was being used, and (2) the officer had
both the opportunity and the means to prevent the harm from occurring.” Turner v. Scott, 119 F.3d
425, 429 (6th Cir. 1997).
Since the latter element is dispositive, the Court addresses it first keeping in mind some
broader principles concerning an asserted qualified immunity defense in a Section 1983 action.
Particularly, the Supreme Court has, twice this very term, reinforced the considerable deference
given to law enforcement officials in this context. E.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153
(2018); D.C. v. Wesby, 138 S. Ct. 577, 589 (2018). Both cases reaffirmed the highly fact-driven
analysis that is applied from the perspective of a reasonable law enforcement official to determine
whether liability attaches. (Id.) Put succinctly, “‘this demanding standard protects all but the
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plainly incompetent or those who knowingly violate the law.’” Wesby, 138 S. Ct. at 589 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Examining the means and opportunity element from this perspective in light of the
evidentiary record indicates that Ball did not possess either to prevent Plaintiffs’ arrests. The
record is rife with testimony that Ball’s responsibilities following Covington III’s exit from
Plaintiffs’ home were to supervise Covington III and monitor the unfolding situation regarding
Dehner’s act of recording the event on his cell phone. Covington Jr. testified that when he arrived
at the front door Ball “was looking at [him], and across the street, and back and forth.” (Doc. 30
at 171.) Likewise, Melissa indicated that Covington III and Ball were talking throughout her
interactions with Mackey and Brockman. (Doc. 29 at 142.) In fact, Ball was the sole deputy in
charge of quieting Covington III as he allegedly began to shout for Dehner to come out of his
neighboring house and begin recording the event. (Doc. 31 at 202; Doc. 34 at 305.) Such evidence
remains consistent with Ball’s testimony that he was “concentrating on [Covington III]”
throughout these events. (Doc. 31 at 200.) The situation, itself, also remained tenuous with Dehner
moving closer to the deputies to record the events. (Doc. 38-4 at 430.)
Fellow district courts both within and outside of this Circuit have granted qualified
immunity where, as here, a law enforcement official’s attention is diverted from the application of
alleged excessive force by developing circumstances. Phelps v. Coy, 164 F. Supp. 2d 961, 965,
974 (S.D. Ohio, 2000), granted qualified immunity to an officer who confronted an arrestee who
moved towards an altercation between the officer’s partner and another arrestee where alleged
excessive force was applied on the grounds that the intervening officer could not have possessed
the opportunity or means to do so. Likewise, in Dawson v. Brown, No. 12-3330, 2015 WL 859451,
at *6 (C.D. Ill. Feb. 26, 2015), a district court granted summary judgment and qualified immunity
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to an observing officer who was attempting to subdue another suspect while his colleagues
allegedly engaged in a false arrest and applied excessive force. The rationale for doing so remained
that “no jury could find an officer who was preoccupied with apprehending another individual
could be liable for failure to intervene under these circumstances.” Id. at *5.
Similar diversion abounds in this case. Here, Ball’s concentration focused on quelling
Covington III’s alleged shouting, monitoring Dehner’s recording, and ensuring that Covington III
did not flee as he had done during a prior arrest. This evidence strains logic that any factfinder
would determine that Ball should have abandoned Covington III to assess and intervene in a
possible excessive force application involving his colleagues and would undercut the substantial
deference afforded to law enforcement officials to make split-second strategic judgments in these
unsettled situations. Since the record remains devoid of any evidence that Ball could have
successfully abandoned Covington III to intervene with Mackey and Brockman’s arrest of
Plaintiffs in a way that did not compromise safety, a summary judgment grant and qualified
immunity award is appropriate here.
Assuming for argument’s sake that Plaintiffs could demonstrate that Ball possessed the
means to intervene in this instance, summary judgment also remains proper under the inaction
theory’s observation element. In guiding lower courts, the Sixth Circuit has emphasized repeatedly
that examining the event in question’s temporality remains the analytical lodestar since temporality
correlates directly to a law enforcement officer’s ability to identify an opportunity to intervene and
develop a means to do so. Indeed, case law is unambiguous that where an alleged instance of
excessive force lasts for a matter of seconds, officers possess no opportunity to intercede and
cannot be held liable for failing to prevent any violation. See e.g., Amerson v. Waterford Twp.,
562 F. App’x 484, 490 (6th Cir. 2014) (determining that an officer possessed no opportunity to
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prevent two blows to a plaintiff’s head because the duration for intervention “could not have been
more than a few seconds”); Wells v. City of Dearborn, 538 F. App’x 631, 640 (6th Cir. 2013)
(holding that no opportunity to prevent a knee strike and tasing existed where the acts were
“rapid”); Burgess v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013) (concluding that no opportunity
existed to prevent a “takedown” where the event’s duration was no more than ten seconds);
Kowolonek v. Moore, 463 F. App’x 531, 539 (6th Cir. 2012) (holding that no opportunity to
intervene arose to stop a tasing that “could only have lasted for a fraction” of the entire altercation
with law enforcement that lasted mere minutes).
Here, the record is replete with descriptions of Plaintiffs’ arrests as occurring within a rapid
timeframe that would align with the above holdings. A quick overview proves this point. Ball
testified that the entire event “was quick. It wasn’t drug [sic] out” and that he was “concentrating
on [Covington III]” throughout. (Doc. 31 at 203, 209.) Likewise, Plaintiffs’ own testimony
confirms that their arrests happened very quickly. Melissa indicated that “as soon as [she] stepped
onto the front porch, Officer Mackey grabbed [her] right wrist.” (Doc. 29 at 141.) Likewise,
Covington Jr. asserted that Mackey “grabbed [him] [and] started to pull [him] out of [his] house.”
(Doc. 30 at 172.) Mackey also described the situation as “fairly chaotic.” (Doc. 32 at 231.) Such
descriptions demonstrate that the alleged excessive force incident transpired within seconds to
minutes and comport with case law involving similar factual situations where the excessive force
application occurred rapidly in unsettled circumstances.
Plaintiffs argue that the use of force report points to a much longer application of excessive
force due to the event’s total duration which lasted approximately thirty minutes. (Doc 38-5,
PageID# 478.) From this perspective, Plaintiffs maintain that Ball would have had sufficient time
to react to the unfolding situation surrounding Plaintiffs’ arrests. (Doc. 38 at 402-03.) This
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argument is unavailing. While the Sixth Circuit has recognized a duty to intervene where the
underlying excessive force application spanned a sufficient time period, courts do not look to the
event’s entire duration but only to the application of alleged excessive force itself to determine
whether law enforcement possessed adequate time to react. See e.g., Durham v. Nu’man, 97 F.3d
862, 868 (6th Cir. 1996) (reversing a summary judgment grant where a beating “lasted
approximately ten minutes” and the defendant nurse “watched the beating unfold on her monitor
from the nurse’s station, and then from the doorway of . . . the room where the beating took place”),
cert. denied, 520 U.S. 1157 (1997). Consistent with the record, Plaintiffs’ arrests occurred within
a matter of seconds to minutes precluding Ball from interfering with this event and entitling him
to qualified immunity.
b. Lack of a Clearly-Established Right
Because the Court holds that Ball’s lack of intervention did not run afoul of Plaintiffs’
Fourth Amendment right to be free from the use of excessive force, the question of whether this
alleged right was clearly-established becomes irrelevant. See Tony L., et. al v. Childers, et. al., 71
F.3d 1182, 1184 (6th Cir. 1995) (declining to address the clearly-established element of a qualified
immunity defense in a Section 1983 action where no constitutional violation was present); see also
Tallman v. Elizabethtown Police Dep’t, 344 F. Supp. 2d 992, 995 (W.D. Ky. 2004) (applying same
principle in a Fourth Amendment excessive force context). The Court, therefore, need not address
this component of the qualified immunity analysis regarding Plaintiffs’ Fourth Amendment
excessive force claim.
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2.
False Arrest
Plaintiffs’ false arrest claims against Ball for an alleged failure to intervene also fail under
the same rationale as their excessive force counterparts. The Supreme Court has not directly held
that law enforcement liability may attach for a failure to intervene outside of the excessive force
context. The Sixth Circuit, however, has indirectly established a basis for bringing failure to
intervene claims outside of this context. In Smith v. Ross, 482 F.2d 33 (6th Cir. 1973) (per curiam),
the appellate court did not include qualifying language to the excessive force context in outlining
the scope of law enforcement liability in a Section 1983 action. Under its rationale:
a law enforcement officer can be liable under § 1983 when by his inaction he fails
to perform a statutorily imposed duty to enforce the laws equally and fairly, and
thereby denies equal protection to persons legitimately exercising rights guaranteed
them under state or federal laws. Acts of omission are actionable in this context to
the same extent as are acts of commission.
Id. at 36-37.
Furthermore in Jacobs v. Vill. of Ottawa Hills, 5 F. App’x 390, 395 (6th Cir. 2001), the Sixth
Circuit went on to cite to a Second Circuit holding in Anderson v. Branen, 17 F.3d 552 (2d Cir.
1994), which found that an officer who fails to intervene is liable for the acts of fellow officers
where that officer observes or has reason to know that a citizen was, among other things,
unjustifiably arrested.
At least three district courts within this Circuit have adopted Smith and Anderson’s
expanded theory of liability and applied it to the false arrest context. E.g., Bunkley v. City of
Detroit, 16-cv-11593, 2017 WL 4005919, at *4 (E.D. Mich. September 12, 2017); Holloran v.
Duncan, 92 F. Supp. 3d 774, 795 (W.D. Tenn. 2015); Kaylor v. Rankin, 356 F. Supp. 2d 839, 85051 (N.D. Ohio 2005). In doing so, they have applied Turner’s analytical framework or a close
analogue for failure to intervene in the excessive force context. See Rankin, 356 F. Supp. 2d at
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850 (applying Anderson’s mandate that an officer must have had a realistic opportunity to
intervene to prevent an alleged constitutional violation).
Here, an application of Turner’s framework precludes Plaintiffs from carrying the day for
the exact same reasons as in the excessive force context. Again, the evidence is such that no
rational factfinder would determine that Ball possessed the means and opportunity to intervene to
stop Plaintiffs’ arrests in an unsettled situation involving an arrestee with a flight-risk history and
which transpired in a matter of seconds. As there is no constitutional violation for failure to
intervene to prevent a false arrest in this matter, the right to do so also cannot be clearlyestablished. See Tallman, 344 F. Supp. 2d at 995. Defendants are entitled to summary judgment
and qualified immunity on Plaintiffs’ false arrest claim.
V.
CONCLUSION
For the reasons stated therein, it is ORDERED that:
Defendant Jonathan Ball’s motion for summary judgment (Doc. 28.) be, and is
hereby GRANTED.
This 7th Day of June, 2018.
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