Lacer v. Taylor County, Kentucky et al

Filing 61

OPINION AND ORDER by Chief Judge Thomas B. Russell on 7/18/2011 re 54 Defendant's Motion to Continue. For the foregoing reasons, IT IS HEREBY ORDERED that Defendant's motion 54 is GRANTED. This action is STAYED pending the resolution of the criminal matter in the Taylor County District Court. The stay will expire, and the case will be dismissed, one year from the entry of this order unless Plaintiff petitions the Court by that date for other action. cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CASE NO. 1:05-CV-00094-R

PAMELA LYNN LACER

PLAINTIFF

v.
DEPUTY BRIAN M. PICKARD

DEFENDANT

OPINION AND ORDER
Defendant moves to continue this matter until the end of a parallel criminal proceeding
(DN 54). Plaintiff has responded in opposition (DN 55) and Defendant has replied (DN 60).
This matter is now ripe for adjudication. For the reasons that follow, this motion is GRANTED.
On October 1, 2004, Defendant Brian M. Pickard, a deputy sheriff with the Taylor
County Sheriff’s Department, arrested Plaintiff Pamela Lacer. During the arrest, Pickard
physically restrained and used pepper spray on Lacer. She was subsequently charged with
criminal trespass in the third degree, resisting arrest, assault in the fourth degree, and disorderly
conduct. On July 7, 2005, Lacer brought suit against Pickard, claiming that his actions
constituted excessive force in violation of the Fourth Amendment and the state law torts of
assault, battery and outrage.1 In August of 2006, a criminal trial was held in the matter in the

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Although Lacer’s complaint and motion for summary judgment have alluded to
violations of her substantive due process rights under the Fourteenth Amendment, the Court does
not consider them for this motion; her claims of excessive force should only be reviewed under
the Fourth Amendment alone. See Graham v. Connor, 490 U.S. 386, 395 (1989) (“[A]ll claims
that law enforcement officers have used excessive force - deadly or not - in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’
approach.” (emphasis in original)); see also Henderson v. Reyda, 192 F. App’x 392, 395 (6th
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Taylor County District Court. The case ended in a mistrial when the jury was unable to reach a
verdict on a number of the charges. Pickard asks that this matter be delayed indefinitely until
another criminal trial is held.
“[T]he authority of a federal court to abstain from exercising its jurisdiction extends to all
cases in which the court has discretion to grant or deny relief.” Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 718 (1996). The instant request appears directly impacted by the complicated
jurisprudence surrounding Heck v. Humphrey, 512 U.S. 447 (1994) and Wallace v. Kato, 549
U.S. 384 (2007). In Heck, the Supreme Court addressed when a civil-rights plaintiff under
section 1983 could bring suit for “harm caused by [constitutional violations] whose unlawfulness
would render a conviction or sentence invalid.” Heck, 512 U.S. at 486-87 (footnote omitted).
The Court held that only where a plaintiff can show the conviction was reversed, expunged,
declared invalid, or if the lawsuit would not hold the conviction invalid should a trial court
permit a civil action to proceed. Id. In Wallace, the Supreme Court revisited Heck and refused
to extend Heck’s bar to legal actions that “would impugn an anticipated future conviction.”
Wallace, 549 U.S. at 393 (emphasis in original). Instead, the Court offered the following
guidance:
If a plaintiff files a false-arrest claim before he has been convicted (or files any other
claim related to rulings that will likely be made in a pending or anticipated criminal
trial), it is within the power of the district court, and in accord with common practice,
to stay the civil action until the criminal case or the likelihood of a criminal case is
ended. If the plaintiff is ultimately convicted, and if the stayed civil suit would
impugn that conviction, Heck will require dismissal; otherwise, the civil action will
proceed, absent some other bar to suit.
Id. at 393-94 (internal citations omitted).

Cir. 2006); 5 Am. Jur. 2d Arrest § 81 (2011).
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Although Wallace does not bar all pre-conviction litigation under section 1983, district
courts move cautiously in allowing civil litigation to continue in the face of state criminal
proceedings. Many have agreed that “Wallace . . . stands for the principle that courts should
refrain from considering alleged [section] 1983 claims where there are pending or potential state
criminal proceedings and resolution of the constitutional tort claims would impugn the integrity
of a possible future criminal conviction.” Kennedy v. City of Villa Hills, 2008 WL 650341, No.
07-CV-122-B, at *5 (E.D. Ky. Mar. 6, 2008); see Starks v. City of Waukegan, No. 09-CV-348,
2010 WL 481290, at *4 (N.D. Ill. Feb. 4, 2010) (both staying a civil action under section 1983
where it would have impugned a parallel criminal proceeding and listing similar decisions in the
Seventh Circuit); Quinn v. Guerrero, No. 4:09-CV-166, 2010 WL 412901, at *2 (E.D. Tex. Jan.
28, 2010) (staying section 1983 constitutional claims in the face of active criminal proceedings);
Jenkins v. Moyer, No. 1:08-CV-00445, 2008 WL 2944606, at *4 (S.D. Ohio July 31, 2008)
(“[C]ourts should refrain from considering section 1983 claims where there are pending or
potential state criminal proceedings and resolution of the constitutional tort claims would
impugn the integrity of a possible future criminal conviction.”); Watson v. Oldroyd, No. 07CV-3175, 2008 WL 687068, at *2 (D.N.J. Mar. 12, 2008) (choosing to stay civil action under
section 1983 where it would have impugned parallel criminal proceedings).
The Sixth Circuit has recently addressed the impact of a criminal conviction for resisting
arrest on a claim of excessive force. In Schreiber v. Moe, 596 F.3d 323 (6th Cir. 2010), the court
described whether Heck barred a plaintiff’s claim of excessive force where he had been
convicted of resisting arrest under Michigan law. Id. at 332-35. Reversing the district court’s
grant of summary judgment, the court of appeals said that the constitutional claim did not

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undermine the resisting arrest conviction because under Michigan law excessive force was not a
defense to the charge. Id. at 334-35. It also offered the following advice to other courts
confronted with similar scenarios:
There are two circumstances, . . . in which an excessive-force claim might conflict
with a conviction. The first is when the criminal provision makes the lack of
excessive force an element of the crime. The second is when excessive force is an
affirmative defense to the crime . . . . In both of these circumstances, the § 1983 suit
seeks a determination of a fact that, if true, would have precluded the conviction.
Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010). Such precedent parallels a number of other
decisions handed down by the court of appeals. See e.g., Karttunen v. Clark, 369 F. App’x 705
(6th Cir. 2010) (assault and battery torts would not undermine criminal conviction of resisting
arrest conviction because excessive force was not an affirmative defense under Michigan law);
Cummings v. City of Akron, 418 F.3d 676, 683-84 (6th Cir. 2005) (noting that since an excessive
force claim was a defense to a criminal conviction to assault, the constitutional claim was barred
by Heck).
This Court has also confronted a similar situation in the context of a post-conviction
claim of excessive force. In Lamar v. Beymer, No. 5:02-CV-00289, 2005 WL 2464178 (W.D.
Ky. Oct. 4, 2005), a plaintiff sought to proceed on a claim of excessive force even though he had
entered a guilty plea on third degree assault. Id. at *1-3. After reviewing the requirements of
Heck and Cummings, the Court ruled the action was barred because the plaintiff could have
raised the defense of excessive force during a criminal trial for third degree assault, and therefore
a potential verdict in his favor would undermine the conviction. Id. at *3.
Armed with this precedent, the Court concludes that a civil trial held in advance of
Lacer’s criminal matter would impugn its integrity. The commentary to Kentucky’s resisting

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arrest statute says that while generally “the unlawfulness of an arrest may not be raised as a
defense to a prosecution under this section[,]” it is permitted “where the officer used more force
than is reasonably necessary to affect the arrest so that his conduct constitutes an assault on the
person arrested.” KRS § 520.090 (1974 commentary). In addition, under certain circumstances
self protection is a defense for assault in the fourth degree.2 Judge William S. Cooper, Kentucky
Instructions to Juries §§ 3.50-3.55 (4th ed. 1999). Ergo, if Lacer was to establish that Pickard
was libel for excessive force, battery, or assault, it would undoubtedly impact the prosecution’s
success at the criminal trial. Though the elements of outrage do not precisely overlap with the
criminal charges that Lacer faces, this tort would also impugn the criminal matter; it would be
near impossible for a jury to find that Pickard’s conduct was outrageous and intolerable without
simultaneously believing that he used more force than was necessary to restrain Lacer. For that
reason, the outrage claim is improper to proceed upon.
The Court shares in Lacer’s frustration that her criminal matter is stalled in the Taylor
County District Court. A motion to dismiss for failure to prosecute may spur the state into
action. Notwithstanding these misgivings however, the prevailing legal precedent dictates that a
stay is the appropriate form of relief at this time.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s motion (DN 54)

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While Lacer was originally charged with third degree assault, the charge was later
amended to fourth degree assault at trial. DN 55-1 at 1. For that reason, the Court will assume
that any other criminal trial will adopt the same approach. Furthermore, although a person may
be convicted of fourth degree assault for recklessly causing injury with a deadly weapon, see
KRS § 508.030(1)(b), there is no indication that Lacer was armed; therefore the Court does not
address this section.
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is GRANTED. This action is STAYED pending the resolution of the criminal matter in the
Taylor County District Court. The stay will expire, and the case will be dismissed, one year
from the entry of this order unless Plaintiff petitions the Court by that date for other action.

July 18, 2011

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