Browning et al v. Edmonson County, Kentucky et al
Filing
83
MEMORANDUM OPINION AND ORDER signed by Chief Judge Greg N. Stivers on 8/13/2020 granting 54 Motion for Leave to Exceed Page Limitations; granting 55 Motion for Leave to Exceed Page Limitations; denying 56 Motion in Limine to Exclude Plaintif fs' Expert Witness; granting in part and denying in part 57 Motion for Summary Judgment; granting in part and denying in part 58 Motion for Summary Judgment; granting in part and denying in part 59 Motion for Summary Judgment; granting 65 Motion for Leave to Exceed Page Limitations; and granting 78 Motion for Leave to Exceed Page Limitations. cc: Counsel of Record(MNM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:18-CV-00057-GNS-HBB
WENDY BROWNING, mother and
next friend of C.S., a minor; and
DARRELL SMITH, as guardian of
M.S., a minor
PLAINTIFFS
v.
EDMONSON COUNTY, KENTUCKY;
SHANE DOYLE;
JORDAN JONES; and
AUSTIN MEREDITH
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motions for Summary Judgment (DNs 57,
58, 59), the parties’ Motions for Leave to Exceed Page Limitations (DNs 54, 55, 65, 78), and
Defendants’ Motion to Exclude Plaintiffs’ Expert Witness (DN 56). The motions are ripe for
adjudication. For the reasons that follow: (1) the Motions for Leave to Exceed Page Limitations
are GRANTED; (2) Defendants’ Motions for Summary Judgment (DNs 57, 58, 59) are
GRANTED IN PART and DENIED IN PART; and (3) Defendants’ Motion to Exclude
Plaintiffs’ Expert Witness (DN 56) is DENIED.
I.
BACKGROUND
At approximately 9:30 p.m. on February 27, 2018, Defendant Austin Meredith
(“Meredith”), an Edmonson County Special Deputy Sheriff, attempted to initiate a traffic stop on
an automobile due to an unilluminated license plate and failure to wear seatbelts. (Meredith Dep.
9:20-25, 16:6-23, Oct. 28, 2019, DN 68-4; Jones & Meredith Mem. Supp. Mot. Summ. J. 1, DN
58-1; C.S. Dep. 26:17-25, Oct. 14, 2019, DN 75-1; M.S. Dep. 43:3-19, Nov. 6, 2019, DN 75-2).
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Plaintiffs C.S. and M.S., who were minors, were passengers in the vehicle driven by Brandon
Embry (“Embry”). When Meredith turned on his police cruiser lights, the automobile immediately
accelerated. (Meredith Dep. 18:24-19:6). Meredith pursued the automobile and was joined in
pursuit by Defendant Jordan Jones (“Jones”), an Edmonson County Deputy Sheriff. (Meredith
Dep. 22:16-25). The 12-minute chaser covering 18 miles and reaching speeds of around 120 miles
per hour ended when the automobile collided with a third party’s vehicle. (Jones & Meredith
Mem. Supp. Mot. Summ. J. 3; Jones Dep. 21:21-22:6, 44:2-7, Nov. 4, 2019, DN 68-3; Meredith
Dep. 12:13-23).
After the collision, Jones exited his vehicle, pulled his gun out, pointed the gun at Embry,
and ordered him to get out. (Jones Dep. 45:6-46:11). As Embry exited the vehicle, Jones punched
him in the forehead, apparently to stop him from fleeing. (Jones Dep. 47:3-13). Jones then turned
his attention to C.S. and ordered C.S. to show his hands multiple times without receiving a
response. (Jones Dep. 51:21-52:3, 52:14-17). According to Jones, he then tased C.S. because of
information Jones received about ammunition being in the car and C.S. not showing his hands
after multiple orders to do so. (Jones Dep. 53:23-54:3). C.S. does not remember anything after
the crash because he believes he lost consciousness and did not regain consciousness until he was
lying face down on the ground handcuffed. (C.S. Dep. 32:23-34:2).
M.S. had to be mechanically extracted from the automobile. (Jones Dep. 55:10-14). C.S.
and M.S. were flown by helicopter to a hospital to receive treatment for their injuries. (C.S. Dep.
35:5-38:4; Pls.’ Resp. Defs.’ Mots. Summ. J. Ex. 12, at 2, DN 66-12).
Plaintiffs allege liability on the part of Defendants for M.S. and C.S.’s injuries. (Second
Am. Compl. ¶ 3, DN 6). Specifically, Plaintiffs assert 42 U.S.C. § 1983 claims for violations of
the Fourth and Fourteenth Amendments against all Defendants, state law negligence and gross
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negligence claims against all Defendants, and assault and battery claims against Meredith and
Jones. (Second Am. Compl. ¶¶ 16-20). All Defendants have moved for summary judgment on
Plaintiffs’ claims, and both sides have moved to exceed the page limits on their supporting
memoranda. (Jones & Meredith Mot. Summ. J. 1, DN 58; Doyle Mot. Summ. J. 1, DN 57; Jones
& Meredith Mot. Exceed Page Limit 1, DN 54; Jones Mot. Exceed Page Limit 1, DN 55;
Edmonson Cty. Mot. Summ. J. 1, DN 59; Pls.’ Mot. Exceed Page Limit 1, DN 65; Defs.’ Mot.
Exceed Page Limit Reply 1, DN 78). Defendants have also moved to preclude Plaintiffs’ expert
witness from testifying at trial in lieu of the potential denial of their summary judgment motions.
(Defs.’ Mot. Exclude Expert Witness 1, DN 56).
II.
JURISDICTION
The Court possesses federal question jurisdiction over Plaintiffs’ federal law claims and
supplemental jurisdiction over Plaintiffs’ state law claims. See 28 U.S.C. §§ 1331, 1367(a).
III.
STANDARD OF REVIEW
In ruling on a motion for summary judgment, the Court must determine whether there is
any genuine issue of material fact that would preclude entry of judgment for the moving party as
a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of stating the
basis for the motion and identifying the evidence demonstrating an absence of a genuine dispute
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party
satisfies its burden, the nonmoving party must then produce specific evidence proving the
existence of a genuine dispute of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986).
While the Court must view the evidence in the light most favorable for the nonmoving
party, the nonmoving party must do more than merely show the existence of some “metaphysical
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doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (citation omitted). Rather, the nonmoving party must present facts proving that a
genuine factual dispute exists by “citing to particular parts of the materials in the record” or by
“showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .” Fed.
R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [nonmoving
party’s] position will be insufficient” to overcome summary judgment. Anderson, 477 U.S. at 252.
IV.
DISCUSSION
Generally, when both federal and state law claims are before a federal court, a federal court
is to apply federal law to the plaintiff’s federal law claims and state substantive law to the state
law claims. Super Sulky, Inc. v. U.S. Trotting Ass’n, 174 F.3d 733, 737, 741 (6th Cir. 1999)
(citations omitted). Kentucky substantive law applies to Plaintiffs’ state law claims. Id. at 741
(“A federal court exercising supplemental jurisdiction over state law claims is bound to apply the
law of the forum state to the same extent as if it were exercising its diversity jurisdiction.” (citation
omitted)).
A.
Motions to Exceed Page Limits
As an initial matter, regarding the parties’ motions to exceed the page limit on their
supporting memoranda, the only opposition to any of these motions is Plaintiffs’ challenge to
Defendants’ collective motion to exceed the page limit on Defendants’ reply to Plaintiffs’ response
to Defendants’ summary judgment motions. (Pls.’ Resp. Defs.’ Mot. Exceed Page Limit Reply 13, DN 81). Defendants’ combined reply is 37 pages. (Defs.’ Reply Mots. Summ. J. 1-37, DN 60).
Local Rule 7.1(d) provides that a reply is not to exceed 15 pages. That being said, Defendants
filed three separate motions (without objection from Plaintiffs), which would technically allow
Defendants three replies of 15 pages each, for a total of 45 pages. As Defendants’ combined reply
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is eight pages less than what would be allotted to them in total, and because the parties do not
otherwise object to each other’s motions for leave to exceed the page limit, all parties’ motions for
leave to exceed the page limit will be granted.
B.
Defendants’ Motions for Summary Judgment
1.
Withdrawn and Remaining Claims
At the outset, Plaintiffs have conceded that they cannot continue to maintain some of their
claims. Specifically, Plaintiffs have conceded dismissal of the following: (1) all claims against
Meredith; (2) any state law claims against Defendant Edmonson County; and (3) any Fourth
Amendment claims stemming from M.S. and C.S.’s injuries suffered as a result of the collision.
(Pls.’ Resp. Defs.’ Mots. Summ. J. 1 n.1, 14 n.11, 22, DN 66). These claims will therefore be
dismissed with prejudice. See Rivera v. PNS Stores, Inc., 647 F.3d 188, 194 (5th Cir. 2011)
(dismissing claim with prejudice on motion for summary judgment after recognizing that
“[s]ummary judgment . . . is the procedural equivalent of a trial and is an adjudication of the claim
on the merits.” (citation omitted)); see also Kline v. Mortg. Elec. Sec. Sys., 154 F. Supp. 3d 567,
572 (S.D. Ohio 2015) (dismissing with prejudice abandoned claims on motion for summary
judgment). Plaintiffs also arguably asserted an assault claim against Jones but make no mention
of that claim in response to Jones’ summary judgment motion on that claim. (Second Am. Compl.
¶ 20; Jones & Meredith Mem. Supp. Mot. Summ. J. 21-22; Pls.’ Resp. Defs.’ Mots. Summ. J. 14,
20). Because Plaintiffs have not opposed Jones’ summary judgment motion on that claim, to the
extent Plaintiffs intended to assert an assault claim against Jones, that claim will be dismissed with
prejudice.
Plaintiffs’ remaining claims currently at issue are: (1) a Fourth Amendment excessive
force claim against Jones for tasing C.S.; (2) a Fourteenth Amendment claim against Jones for his
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role in the pursuit that led to M.S. and C.S.’s injuries; (3) Section 1983 failure to train and supervise
claims stemming from the pursuit against Defendant Edmonson County and Defendant Shane
Doyle (“Doyle”), the Edmonson County Sheriff; (4) state law negligence and gross negligence
claims related to the pursuit against Jones and Doyle; and (5) a state law battery claim against
Jones for use of force against C.S. (Second Am. Compl. ¶¶ 6, 16-20).
2.
Fourth Amendment Excessive Force Claim
Plaintiffs’ remaining Fourth Amendment claim against Jones alleges excessive force from
Jones’ tasing of C.S. (Second Am. Compl. ¶ 17). Jones seeks qualified immunity on this claim.
(Jones & Meredith Mem. Supp. Mot. Summ. J. 13-16).
In determining whether Jones used excessive force against C.S. when tasing him, “the
question is whether the officer[’s] actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.” Graham
v. Connor, 490 U.S. 386, 397 (1989) (citation omitted). The Sixth Circuit has addressed an
officer’s invocation of the qualified immunity doctrine in the context of taser use and the
reasonability of that taser use:
In this qualified-immunity case, we have two questions to consider: (1) whether
Officer . . . violated [Plaintiff]’s constitutional rights when he tased . . . him; and, if
so, (2) whether those rights were clearly established at the time of Officer[’s] . . .
actions . . . . We can consider only the facts that were knowable to Officer . . . at
the time of the incident. . . . [W]e . . . construe disputed facts in the light most
favorable to [Plaintiff], the non-moving party.
Before asking whether Officer . . . violated [Plaintiff]’s rights, it makes sense to ask
whether those rights were clearly established at the time of the incident. The reason
is simple: If [Plaintiff]’s rights were not clearly established, Officer . . . is entitled
to qualified immunity. So we turn first to a “particularized” determination based
on the facts at hand. . . .
This circuit—and several others—have drawn the line at the suspect’s “active
resistance.” If the suspect was actively resisting, use of a taser to subdue him was
reasonable. If not, then tasing was unreasonable. We have found active resistance
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where a suspect physically struggles with police, threatens or disobeys officers, or
refuses to be handcuffed. But when a suspect is “compliant or ha[s] stopped
resisting,” the law is clearly established that using a taser constitutes excessive
force.
...
[In Eldridge v. City of Warren, 533 F. App’x 529, 530 (6th Cir. 2013)], the officer
tased a visibly “lethargic driver who clutched his car’s steering wheel and provided
unhelpful responses to the officers’ queries. . . . The court found that tasing the
driver was unreasonable because the suspect’s “noncompliance was not paired with
any signs of verbal hostility or physical resistance.”
Thomas v. City of Eastpointe, 715 F. App’x 458, 459-62 (6th Cir. 2017) (internal citations omitted)
(citation omitted).
As Thomas instructs, the starting point is what was known to Jones at the time of the
incident. During the pursuit, Jones was told ammunition had been thrown out of the vehicle.
(Jones Dep. 18:7-22). The pursuit ended when the car in which C.S. was riding was smashed on
the passenger side by a third party’s vehicle. (Jones Dep. 21:21-22:6; Pls.’ Resp. Defs.’ Mots.
Summ. J. Ex. 11, DN 66-11). According to Jones:
Once I got [the driver] on the ground and cuffed, I then moved to the rear of the
vehicle where I could see someone else. I could see an individual slumped over
kind of rocking back-and-forth, give them multiple commands to show me their
hands with no comp – or they didn’t comply at all. I then pulled out my baton and
broke the window because I couldn’t get the door open, put my baton back up. The
individual still would not show me their hands and was still rocking back-and-forth
hiding their hands. Due to [officers] telling me that there’s ammunition, I – I
figured that there could have been a weapon of some sort inside the vehicle that
they were trying to conceal from me. It’s at that time I activated my taser and gave
the commands again and no comply. I deployed the taser into the back region of
this male.
(Jones Dep. 25:8-23). Jones also testified that his observation of C.S. “rocking back-and-forth”
could have been due to the car itself rocking back and forth as the car was coming to a rest. (Jones
Dep. 56:4-16).
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Jones’ primary reason articulated for the use of force was noncompliance. As explained in
Eldridge, however, “noncompliance . . . not paired with any signs of verbal hostility or physical
resistance . . . cannot be deemed active resistance.” Eldridge, 533 F. App’x at 535 (citation
omitted). And, if a suspect is not “actively resisting, . . . tasing [is] unreasonable.” Thomas, 715
F. App’x at 460 (citations omitted). Additionally, the Sixth Circuit in Correa v. Simone, 528 F.
App’x 531 (6th Cir. 2013), rejected the assertion that an officer’s suspicion that an individual
possesses a firearm in and of itself justifies the officer’s use of a taser. Id. at 533-36. “The
precedent in this Circuit clearly holds that a police officer must encounter some level of resistance
by the defendant to justify using a taser. The mere possession of a gun is not, in and of itself,
resistance unless coupled with something more, such as a physical or verbal action.” Id. at 53536. Finally, as for C.S.’s moving or rocking back and forth, Jones himself did not attribute C.S.’s
movements in this regard as verbal hostility or physical resistance but rather an attempt to conceal
something from Jones. In sum, “it is unreasonable to tase a nonresisting suspect[,]” and a
“[plaintiff’s] right to be free from a taser shock is clearly established where they have done nothing
to resist arrest . . . .” Eldridge, 533 F. App’x at 533 (citation omitted); Correa, 528 F. App’x at
535. Accordingly, Plaintiffs have established both that Jones is not entitled to qualified immunity
and that a genuine issue of material fact exists as to whether Jones used excessive force against
C.S. in violation of C.S.’s Fourth Amendment rights.
Jones also argues that because C.S. was purportedly unconscious during the tasing, suffered
no injuries and received no treatment as a result of the tasing, and did not even know of the tasing
until someone else told him about it, C.S. suffered no actual injury, so his excessive force claim
should be dismissed. (Jones & Meredith Mem. Supp. Mot. Summ. J. 17). Plaintiffs’ respond to
this argument by asserting that C.S. can potentially recover nominal damages for Jones’ alleged
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excessive force. (Pls.’ Resp. Defs.’ Mots. Summ. J. 27, DN 66). The closest the Sixth Circuit has
come to explicitly holding that a Fourth Amendment excessive force claim may proceed on
nominal damages, even when the plaintiff has not suffered an actual injury, is its decision in
Morrison v. Board of Trustees of Green Township, 583 F.3d 394 (6th Cir. 2009). In Morrison, the
plaintiff brought a Fourth Amendment excessive force claim based on an officer pushing her face
into the ground whenever the plaintiff tried to talk while she lay handcuffed and prone in a
neighbor’s yard. Id. at 404. The Sixth Circuit addressed the plaintiff’s claim as follows:
Officer Celender separately argues that the nature and extent of the injuries alleged
by [Plaintiff] as a result of the pushing of her face into the ground are fatal to her
excessive force claim. He contends [Plaintiff] “sustained no real injury,” relying
heavily on the fact that [Plaintiff] described her injury as a “minor scratch, not even
deep enough to cause [the skin] to bleed,” and likened it to when “you scratch
yourself with your fingernail [and] it just kind of turns red.”
Officer Celender essentially asks this Court to impose a blanket de minimis injury
requirement for excessive force claims. . . . But while an excessive use of force
claim may be established through evidence of severe injury or physical contact, this
Court has not required that this must be the case. Rather, we have held that a
plaintiff may “allege use of excessive force even where the physical contact
between the parties did not leave excessive marks or cause extensive physical
damage. We have gone so far as to state that the “extent of the injury inflicted” is
not “crucial to an analysis of a claim for excessive force in violation of the Fourth
Amendment.”
“Gratuitous violence” inflicted upon an incapacitated detainee constitutes an
excessive use of force, even when the injuries suffered are not substantial. In
Pigram, it was alleged that the defendant police officer slapped the handcuffed
plaintiff in the face because the latter was being unruly and had a “smart-ass
mouth.” Finding the defendant’s conduct to be unreasonable under the Fourth
Amendment for the purposes of summary judgment, Pigram emphasized that a
“slap to the face of a handcuffed suspect—even a verbally unruly suspect—is not a
reasonable means of achieving anything more than perhaps further antagonizing or
humiliating the suspect.” The Court reached this conclusion notwithstanding the
relatively minimal use of force applied and the absence of any resulting injury.
As in Pigram, [Plaintiff] alleges that Officer Celender applied force to her head
when she posed no threat to officer safety. She specifically claims Officer Celender
repeatedly pushed her face to the ground every time she attempted to speak while
she was already handcuffed, lying down, and compliant with the officer’s
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commands. Given that we must assume on summary judgment that a reasonable
officer would not have felt a threat to officer safety under the circumstances, Officer
Celender’s alleged behavior represents the sort of “gratuitous violence” which we
have found unconstitutional in Pigram. Such “antagonizing” and “humiliating”
conduct is unreasonable under the Fourth Amendment, regardless of the existence
of injury, and crosses the line “into physical abuse of an incapacitated suspect.”
Id. at 406-07 (third emphasis added) (citations omitted) ; see also Ealy v. City of Dayton, 103 F.3d
129, 1996 WL 724368, at *5 (6th Cir. 1996) (discussing issue of whether a plaintiff is
automatically entitled to nominal damages on a Fourth Amendment excessive force claim and
noting that “the Supreme Court has said that the violation of a constitutional right should be
‘actionable’ for nominal damages without proof of actual damages . . . .” (citing Carey v. Piphus,
435 U.S. 247, 266 (1978))); G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 634 (6th Cir. 2013)
(favorably citing Slicker v. Jackson, 215 F.3d 1225, 1231-32 (11th Cir. 2000)); Prado v. Thomas,
2019 WL 1283823, at *11 n.10 (S.D. Ohio Mar. 20, 2019) (“[A]ssuming excessive force is
established, without proof of compensatory damages, a plaintiff has only a technical violation [of
the Fourth Amendment] and a claim for nominal damages.”); Bryan N. Georgiady, An Excessively
Painful Encounter: The Reasonableness of Pain and De Minimis Injuries for Fourth Amendment
Excessive Force Claims, 59 Syracuse L. Rev. 123, 138 (2008) (“[T]he Sixth . . . Circuit[] ha[s]
expressly repudiated actual injury requirements for all excessive force claims except claims based
on allegations of tight handcuffing.” (citations omitted)).
Based on all of the aforementioned, even though C.S. has apparently conceded that he
suffered no actual injury, C.S. may still recover nominal damages should he prove his Fourth
Amendment excessive force claim to the jury. Summary judgment on C.S.’s Fourth Amendment
excessive force claim therefore cannot be granted in favor of Jones based on his argument that
C.S. suffered no actual injury.
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For all of these reasons, Jones’ motion for summary judgment on C.S.’s Fourth
Amendment excessive force claim will be denied.
3.
Fourteenth Amendment Claim
Plaintiffs also assert a Fourteenth Amendment substantive due process claim against Jones
based on Jones’ conduct during the pursuit. (Second Am. Compl. ¶¶ 16-18). Jones seeks the
protection of qualified immunity to bar this claim. (Jones & Meredith Mem. Supp. Mot. Summ.
J. 12-13).
As it relates to a Fourteenth Amendment claim for a defendant-officer’s actions during a
police pursuit, “high-speed chases with no intent to harm suspects physically or to worsen their
legal plight do not give rise to liability under the Fourteenth Amendment . . . .” Cty. of Sacramento
v. Lewis, 523 U.S. 833, 854 (1998). “Qualified immunity attaches when an official’s conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (internal quotation marks omitted)
(citation omitted). In Jones v. Byrnes, 585 F.3d 971 (6th Cir. 2009), the Sixth Circuit specifically
addressed the qualified immunity doctrine as it relates to Fourteenth Amendment police pursuit
cases:
[E]ven if the officers’ actions did rise to the level of violating [Plaintiff’s]
constitutional rights, it was not clearly established at the time of the incident that
actions of that sort crossed the constitutional line. Neither side has cited any case,
from any circuit or district court, in which an officer’s actions in a police chase
have ultimately been found to shock the conscience, nor are we aware of any such
case. As a result, although Lewis established in 1998 that an officer’s conduct in a
police chase could theoretically shock the conscience, there have been no examples
of what specific kinds of conduct rise to that level. The “clearly established”
inquiry “must be undertaken in consideration of the specific context of the case, not
as a broad general proposition . . . .” Thus, at present, it would be exceedingly
difficult for an officer to be aware of what specific actions violate the clearly
established general right of suspects and third parties to be free from arbitrary
deprivation of life and liberty in police-pursuit scenarios. Certainly [the officer
defendants] had no guidance from this Court or the Supreme Court on what would
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shock the conscience, just what would not. The officers, therefore, would be
entitled to qualified immunity even had we found that their actions shocked the
conscience.
Byrnes, 585 F.3d at 978 (internal citation omitted). The Court in Byrnes also noted that “[s]everal
district courts have denied summary judgment in police-pursuit cases on the basis that a jury could
find that the officer’s conduct shocked the conscience, but all of those courts have been reversed
on appeal.” Id. at 978 n.4 (citing Meals v. City of Memphis, 493 F.3d 720, 730-31 (6th Cir. 2007)).
The parties’ briefs and the Court’s own research confirms the scarcity of case law
establishing the contours of unacceptable police pursuit for Fourteenth Amendment liability
purposes. That being said, the Sixth Circuit in Byrnes appears to have overlooked the Fifth
Circuit’s decision in Checki v. Webb, 785 F.2d 534 (5th Cir. 1986), which was viewed as clearly
established precedent on this issue in Meals. Although Checki was decided before the U.S.
Supreme Court’s seminal decision on Fourteenth Amendment police pursuit liability in Lewis,
Checki was cited in Lewis and is consistently cited by modern courts, including the Sixth Circuit
in Meals, as establishing the benchmark for conduct that does shock the conscience in violation of
an individual’s Fourteenth Amendment rights. See, e.g., Lewis, 523 U.S. at 854 n.13; Meals, 493
F.3d at 730; Steen v. Myers, 486 F.3d 1017, 1024 (7th Cir. 2007) (“Although Checki predates
Lewis, and comes to us from another circuit, we consider it for persuasive purposes, particularly
in light of the fact that the Court in Lewis cited to it with approval.” (citation omitted)); Helseth
v. Burch, 258 F.3d 867, 872 (8th Cir. 2001) (noting that “the Court in Lewis cited [to Checki] as
an example of intent to cause harm unrelated to the legitimate object of an arrest.” (citing Lewis,
523 U.S. at 854 n.13).
The question for this Court is whether the facts of the case sub judice, compared to the
facts of Checki, Meals, and Byrnes, allow Plaintiffs’ Fourteenth Amendment claim to proceed. In
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support of their argument that Jones intended to harm them, Plaintiffs point to the length of the
chase, the high speeds reached, and the arguably minor crimes of an unilluminated license plate
and a seat belt violation giving rise to the traffic stop leading to the pursuit. (Pls.’ Resp. Defs.’
Mots. Summ. J. 22-24).1 The plaintiffs in Meals similarly pointed to the fact that the officers
pursued the suspect for a traffic violation at high rates of speeds and after “the pursuit has reached
an unacceptable level,” yet the Court there found no Fourteenth Amendment violation. Meals,
493 F.3d at 723-24. In any event, the pursuit’s level of acceptability in terms of speed, length, and
suspected crime do not appear to have been the kinds of indicia that the Court in Checki found to
have shed light on an officer’s intent to harm. Rather, there are two key facts separating Checki
on one hand and Meals and Byrnes on the other: (1) the absence of any indication to the suspects
in Checki that the officers were law enforcement for the first 20 miles of the chase; and (2) the
officers’ post-pursuit conduct in Checki of striking the plaintiff with a revolver after having already
handcuffed him and breaking the plaintiff’s companion’s arm and subjecting him to verbal abuse.
Checki, 785 F.2d at 535-36.
In contrast, in the present case Jones had his lights and siren on the entire pursuit.2 (Jones
Dep. 21:3-7).
The only arguable similarity between the case at hand and Checki is the existence
of post-pursuit physical acts perpetuated by an officer against the plaintiff. Jones punched the
1
In this case, the pursuit lasted 18 miles, while the pursuit in Checki lasted 31 miles and in Byrnes
no shorter than six miles. (Jones & Meredith Mem. Supp. Mot. Summ. J. 3; Jones Dep. 21:2122:6, 44:2-7; Meredith Dep. 12:13-23); Checki, 785 F.2d at 535; Byrnes, 585 F.3d at 974. Jones
did not initiate the pursuit and only joined in after pursuit began, but it is unclear at what point.
(Pls.’ Resp. Defs.’ Mots. Summ. J. 6; Jones Dep. 14:25-15:18).
2
Interestingly, the fact that the officer in Meals turned off her lights and siren when pursuing the
suspect still did not convince the Sixth Circuit that the officer in Meals “inten[ded] to harm [the]
suspect[] physically or to worsen [his] legal plight . . . .” Meals, 493 F.3d at 730 (internal quotation
marks omitted) (quoting Lewis, 523 U.S. at 854). Regardless, the case at hand is distinguishable
from Checki and identical to Byrnes, as Jones had his lights and siren on the entire pursuit.
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driver of the vehicle in the head, allegedly because he believed the driver to be attempting to
escape, and tased C.S, allegedly because he thought C.S. was harboring a weapon and because
C.S. was unresponsive to his commands. (Jones Dep. 24:21-25, 25:8-23, 47:3-13, 53:23-54:3). In
Checki, the officer struck the plaintiff with a revolver after having already handcuffed him and
broke the plaintiff’s companion’s arm and subjected the companion to verbal abuse. Checki, 785
F.2d at 536. Even Jones’ use of physical force after the accident is different from the officers’ use
of physical force in Checki, however. Jones was essentially in the process of subduing the driver
and C.S., whereas the officer in Checki physically abused the plaintiff and physical and verbally
abused the plaintiff’s companion after those individuals where already subdued. Additionally,
there is no allegation that Jones verbally abused anyone involved in the pursuit.3
Although Plaintiffs believe Jones’ post-accident conduct reveals an intent to harm during
the pursuit, Plaintiffs point to no evidence establishing any greater culpability on the part of Jones
than objective unreasonableness. In other words, Plaintiffs point to no evidence challenging Jones’
assertion that he punched Embry to prevent him from escaping and that he tased C.S. because he
thought C.S. may have had a weapon and was not responding to his commands. While a jury could
find that these acts were objectively unreasonable under a Fourth Amendment excessive force
standard, Plaintiffs do not present any evidence challenging Jones’ assertion that his intent in
taking physical action against Embry and C.S. was to subdue them instead of some sort of a
continuation of an intent to harm those individuals during the pursuit.4
3
Although it is true that Jones admitted he had a history with Embry, Plaintiffs do not challenge
Jones’ assertion that he did not recognize Embry until after the collision, specifically, when he saw
Embry attempt to exit the vehicle. (Jones Dep. 22:10-23:5, 24:21-25, 45:6-17, 68:18-23).
4
Plaintiffs could have, for example, deposed Embry who is not only a witness in this case but also
a third-party defendant. (Third Party Compl. ¶ 4, DN 9). Embry may have provided testimony
challenging Jones’ assertion that Embry’s attempt to escape necessitated physical force, for
example, by asserting that he in fact obeyed Jones’ commands and was not attempting to escape.
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The Court here is constrained to conclude that Jones is protected by qualified immunity on
Plaintiffs’ Fourteenth Amendment claim against him. As the Sixth Circuit in Byrnes noted, there
is scant precedent that clearly establishing specific actions that violate the right of suspects to be
free from arbitrary deprivation of life and liberty in police-pursuit scenarios. Moreover, the facts
of the case at hand are simply too different from the only cited pertinent case, Checki, holding that
law enforcement’s intent to harm a suspect physically or worsen his legal plight5 is a jury question.
For these reasons, summary judgment will be granted in Jones’ favor on Plaintiffs’ Fourteenth
Amendment claim against him stemming from the pursuit. Plaintiffs’ claim in this regard will be
dismissed with prejudice.
4.
Failure to Train and Supervise Claims
Although Plaintiffs originally asserted failure to train and supervise claims against Doyle
in his individual capacity and Edmonson County based both on the pursuit and on Jones’ tasing of
C.S., it appears that Plaintiffs continue to maintain such claims based only on the pursuit. (Second
Am. Compl. ¶ 17; Pls.’ Resp. Defs.’ Mots. Summ. J. 24-26). Importantly, Plaintiffs’ claims against
Doyle and Edmonson County for failure to train and supervisory liability based on Jones’ pursuit
Had Plaintiffs challenged Jones’ true intent in this way, such post-pursuit use of force could have
shed light on Jones’ intent during the pursuit. See Johnson v. Baltimore Police Dep’t, No. 18-CV2375-SAG, 2020 WL 1694349, at *11 (D. Md. Apr. 7, 2020) (officers post-pursuit conduct of
planting drugs and falsifying police reports evidenced officers’ intent during pursuit).
5
Plaintiffs allege an intent to harm them on the part of Jones but nothing specific as it pertains to
Jones worsening their legal plight. (Second Am. Compl. ¶¶ 2, 8, 16-17; Pls.’ Resp. Defs.’ Mots.
Summ. J. 9-10, 22-24); see Philebaum v. Myers, No. 1:04-CV-218-TS, 2006 WL 335518, at *15
(N.D. Ind. Feb. 13, 2006) (“[T]he language regarding intent to worsen the legal plight of a suspect
applies to cases involving an intent to do something other than physically harm[ing] a suspect that
shocks the conscience. The facts of Checki provide an example. Though it is unclear what the
officer’s intent was in chasing the car for twenty miles without activating lights and sirens, one
can imagine several conscience-shocking motives other than causing physical harm. Perhaps the
chase of an innocent motorist was intended to give the appearance of cause to arrest the motorist,
collect a greater fine, or seize his car.” (discussing Slusarchuk v. Hoff, 346 F.3d 1178, 1183 (8th
Cir. 2003))).
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require Plaintiffs to first demonstrate that Jones violated Plaintiffs’ constitutional rights. See
McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 470 (6th Cir. 2006) (“[A] prerequisite of
supervisory liability under § 1983 is unconstitutional conduct by a subordinate of the supervisor.”);
Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001) (“Plaintiff argues that the City
of Battle Creek and the Calhoun County Sheriff failed to properly train the individual
defendants . . . . If no constitutional violation by the individual defendants is established, the
municipal defendants cannot be held liable under § 1983.” (citation omitted)). Because Plaintiffs
are unable to demonstrate that Jones violated their Fourteenth Amendment rights as it pertains to
the pursuit, Plaintiffs’ failure to train and supervise claims against Doyle and Edmonson County
will be dismissed with prejudice, as well.
5.
Battery Claim
Plaintiffs also assert a battery claim against Jones for tasing C.S. (Second Am. Compl. ¶
20). Jones reiterates his previous argument made that C.S. suffered no actual damages, so Jones
cannot be held liable for battery. (Jones & Meredith Mem. Supp. Mot. Summ. J. 21). This
argument is easily dispensed with: “A plaintiff need not prove actual damages in a claim for
battery because a showing of actual damages is not an element of battery and, when no actual
damages are shown for a battery, nominal damages may be awarded.” Vitale v. Henchey, 24
S.W.3d 651, 659 (Ky. 2000) (citations omitted). This is the only specific argument Jones makes
in support of his contention that Plaintiffs’ battery claim for tasing C.S. should be dismissed.6
Jones’ motion for summary judgment on this claim will be denied.
6
Jones invokes Kentucky Revised Statutes (“KRS”) 503.090(1) as protection against Plaintiffs’
negligence and gross negligence claims against him. (Jones & Meredith Mem. Supp. Mot. Summ.
J. 22-24, 30; Defs.’ Reply Mots. Summ. J. 29). The entirety of Jones’ argument for the application
of KRS 503.090(1) to protect him from Plaintiffs’ battery claim is a one-sentence statement in his
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6.
Negligence and Gross Negligence Claims
The final set of claims at issue are Plaintiffs’ negligence and gross negligence claims
against Jones and Doyle for their roles in the pursuit that eventually culminated in C.S. and M.S.
suffering injuries. “In any negligence case, a plaintiff must prove the existence of a duty, breach
of that duty, causation between the breach of duty and the [plaintiffs’] injury, and damages.”
Hayes v. D.C.I. Props.-D KY, LLC, 563 S.W.3d 619, 622 (Ky. 2018); see also McIntosh v. Data
RX Mgmt., Inc., No. 5:13-CV-140-TBR, 2014 WL 774609, at *5 n.5 (W.D. Ky. Feb. 25, 2014)
(noting that under Kentucky law, gross negligence claim has the same elements as a negligence
claim). “Ordinary negligence is ‘the absence of ordinary care,’ and gross negligence is ‘the
absence of slight care.’” Brotherton v. Victory Sports, Inc., 24 F. Supp. 3d 617, 620 (E.D. Ky.
2014) (citations omitted). Jones and Doyle make several arguments supporting summary judgment
in their favor on these claims.
a.
Jones
To start, Jones questions whether he owed a duty of care to C.S. and M.S. in this case.
Jones acknowledges that KRS 189.940(7) and the Kentucky Supreme Court’s decision in Gonzalez
v. Johnson, 581 S.W.3d 529 (Ky. 2019), establish a duty of care owed by the “driver of any
emergency or public safety vehicle . . . to drive with due regard for the safety of all persons and
property . . . .” KRS 189.940(7); Gonzalez, 581 S.W.3d at 535 (analyzing KRS 189.940(7)).
However, Jones cites to this Court’s decision in Walker v. Davis, 643 F. Supp. 2d 921 (W.D. Ky.
2009), for the proposition that “the Court questions whether a pursuing police officer owes a duty
of care to fleeing suspects. . . . [C]ourts from other jurisdictions that have addressed the question[]
reply. (Defs.’ Reply Mots. Summ. J. 29). In any event, as explained in the next section,
Defendants’ application of KRS 503.090(1) is flawed.
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have found that police officers do not owe such a duty to fleeing suspects.” Id. at 933 n.10. In
other words, while Jones recognizes that Kentucky mandates officers exercise due regard for the
safety of the public generally when driving, Jones argues that duty is abrogated as it pertains to a
fleeing suspect.
The first problem with Jones’ argument is that he has not established that C.S. and M.S.
were “fleeing suspects”; rather, C.S. and M.S. were minors riding in the car of the actual fleeing
suspect at the time of the pursuit. Even accepting Jones’ contention that he owed no duty to fleeing
suspects to exercise reasonable care in his pursuit, Jones does not explain how anyone besides the
driver of the vehicle in this case can be properly characterized as a “fleeing suspect.” More
importantly, even if C.S. and M.S. could be characterized as fleeing suspects, Jones cites to no
Kentucky precedent establishing that an officer owes no duty of care to a fleeing suspect in pursuit.
Indeed, KRS 189.940(7) mandates that officers “drive with due regard for the safety of all persons
. . . .” (emphasis added); see also Pile v. City of Brandenburg, 215 S.W.3d 36, 42 (Ky. 2006) (“All
owners, operators and persons in control of motor vehicles owe a duty to all other persons using
the roadway pursuant to KRS 304.39, the Motor Vehicle Reparations Act. There is nothing in that
Act that exonerates police officers from the duty of care not to be negligent in the operation or
control of their vehicle.”). This Court will not create a carveout to a police officer’s general duty
of care owed to all persons when operating their vehicles absent precedent under Kentucky law.
Next, citing to several non-Kentucky cases, Jones argues that whether a defendant
exercised ordinary care is a question of law for the Court. (Jones & Meredith Mem. Supp. Mot.
Summ. J. 18). This argument is easily dispelled:
Plaintiff contends that when the facts are not in dispute the issue of negligence is
one of law and the court should have directed a verdict for him. Plaintiff
misconceives the law. It is only where but one reasonable conclusion of negligence
or non-negligence can be drawn by fair minded men that the court may decide the
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issue as a matter of law. If different conclusions or inferences from the evidence
may be reached by reasonable men, then the question is for the jury. Even if the
facts are uncontroverted, the inferences of negligence or non-negligence are for the
jury. This is so whenever there is room for honest differences of opinion as to the
effect of facts or reasonable inferences to be drawn therefrom.
Middleton v. Partin, 347 S.W.2d 75, 76 (Ky. 1961) (internal citations omitted) (citation omitted).
In other words, Jones must establish that only one reasonable conclusion of non-negligence can be
drawn by fair minded individuals; otherwise, summary judgment in his favor must be denied.
On that point, Jones cites to no relevant case law establishing that his actions satisfied his
duty of ordinary care as a matter of law. More specifically, Jones cites to no Kentucky precedent7
establishing that police are not negligent as a matter of law when pursuing a suspect for 12 minutes
covering 18 miles and reaching speeds of around 120 miles per hour. (Jones & Meredith Mem.
Supp. Mot. Summ. J. 3, 18-20; Jones Dep. 21:21-22:6, 44:2-7, Nov. 4, 2019, DN 68-3; Meredith
Dep. 12:13-23). Nor does Jones cite to any pertinent decision establishing that he was not grossly
negligent under the facts of this case as a matter of law. (Jones & Meredith Mem. Supp. Mot.
Summ. J. 20). It is simply for the jury, not this Court, to determine whether Jones exercised
ordinary or any care in the pursuit.8
Jones next Jones seeks to invoke the protection of KRS 503.090(1), which provides:
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:
7
While Jones cites to Roach v. City of Fredericktown, 882 F.2d 294 (8th Cir. 1989), and Galas v.
McKee, 801 F.2d 200 (6th Cir. 1986), these cases do not interpret Kentucky law on this issue.
(Jones & Meredith Mem. Supp. Mot. Summ. J. 18).
8
In their reply, Defendants contend that Plaintiffs cannot satisfy the causation element either.
(Defs.’ Reply Mots. Summ. J. 19). Yet the Kentucky Supreme Court in Gonzalez established that
“an officer can be the cause-in-fact and legal cause of damages inflicted upon a third party as a
result of a negligent pursuit.” Gonzalez, 581 S.W.3d at 535. Defendants completely ignore the
fact that Gonzalez establishes that the actions of law enforcement involved in a pursuit can be the
cause of a party’s injuries correlated with the pursuit. Factually, it is for the jury to decide whether
Defendants’ pursuit caused C.S. and M.S’s injuries.
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(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.
KRS 503.090(1). Jones appears to urge that as long as he satisfies the elements of KRS 503.090(1),
he is immune from any liability stemming from his pursuit. (Jones & Meredith Mem. Supp. Mot.
Summ. J. 22-24). Jones is mistaken: “[A]lthough an officer may be justified in using force against
a person, any defense of justification or privilege is lost if the force used is excessive.” Brown v.
Fournier, No. 2015-CA-001429-MR, 2017 WL 2391709, at *6 (Ky. App. June 2, 2017) (citations
omitted). Under Kentucky law, simply meeting the requisites of KRS 503.090(1) does not
automatically preclude the imposition of civil liability for an officer’s use of force. More
importantly, KRS 503.090(1), which justifies an officer’s use of force, is inapposite here; Jones
cites to no precedent for the assertion that a police pursuit in and of itself constitutes the use of
force by law enforcement. In fact, in Galas, a case Jones cites in support of his motion, the Sixth
Circuit concluded, “[b]y engaging in high-speed pursuits, without more, police use absolutely no
force.” Galas, 801 F.2d at 203. A statute that only justifies an officer’s use of force does not apply
to protect an officer in a situation where no force is used.
Jones’ final argument seeks to invoke Kentucky’s qualified immunity doctrine. “The Court
must apply Kentucky law to determine whether Defendants are entitled to immunity from state
tort liability . . . .” Funke v. Coogle, No. 3:11-CV-310-H, 2013 WL 209602, at *2 (W.D. Ky. Jan.
17, 2013) (citing Lexington-Fayette Urban Cty. Gov’t, No. 06-299-JBC, 2007 WL 101862, at *4
(E.D. Ky. Jan. 10. 2007); King v. Taylor, 694 F.3d 650, 662-64 (6th Cir. 2012)). Under Kentucky
law:
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[P]ublic officers and employees are entitled to “qualified official immunity” for
negligent conduct when the negligent act or omissions were (1) discretionary acts
or functions, that (2) were made in good faith (i.e.[,] were not made in “bad faith”),
and (3) were within the scope of the employee’s authority. Conversely, no
immunity is afforded for the negligent performance or omissions of a ministerial
act, or if the officer or employee willfully or maliciously intended to harm the
plaintiff or acted with a corrupt motive, i.e., again the “bad faith” element.
Rowan Cty. v. Sloas, 201 S.W.3d 469, 475-76 (Ky. 2006) (internal citations omitted) (citation
omitted). In that vein, precedent dictates that the initiation, continuation, and termination of a
police pursuit is generally a ministerial act to which qualified immunity does not attach. Chastain
v. Ansman, No. 3:07-CV-601-S, 2009 WL 2761740, at *3 (W.D. Ky. Aug. 31, 2009) (“The act of
safely driving a police cruiser, even in responding to an emergency, is not a discretionary
function.” (citing Jones v. Lathram, 150 S.W.3d 50, 53-54 (Ky. 2004))); Walker v. Davis, 643 F.
Supp. 2d 921, 933 (W.D. Ky. 2009) (“[The officer]’s driving during the pursuit is controlled by
Jones.”); Mattingly v. Mitchell, 425 S.W.3d 85, 90-91 (Ky. App. 2013) (an officer’s discretion in
“initiating and continuing a pursuit” is limited by police department’s policies and is therefore a
ministerial act); Browder v. Fentress, No. 2013-CA-002178-MR, 2018 WL 3202975, at *3 (Ky.
App. June 29, 2018) (Because “[t]he Hardin County Sheriff’s Department has specific and
comprehensive procedures that deputies are required to follow when initiating, continuing, and
terminating vehicular pursuits of suspects. . . . Accordingly, the [pursuit] was ministerial, not
discretionary.”).
There are two reasons why Jones is not entitled to qualified immunity here. First, Walker
and Chastain dictate that Jones’ actions during the pursuit are ministerial, which are not protected
by qualified immunity. Second, Mattingly and Browder provide that an officer’s initiation,
continuation, and termination of a pursuit are all ministerial acts when dictated by law enforcement
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departmental policies.
The Edmonson County Sheriff’s Office (“ECSO”) policy regarding
“Pursuit and Emergency Response Driving” states:
K.R.S. Chapter 189 sets forth traffic law exemptions for the operation of emergency
vehicles during vehicular pursuits . . . but, at the same time, mandates due regard
for the safety of all persons and property on the highway. The E.C.S.O. will
apprehend fleeing violators when conditions exist that do not endanger the lives,
property, or safety of motorists, citizens or other members of the E.C.S.O. The
protection of life and property must be the primary concern in the operation of
emergency vehicles.
It is impossible to develop guidelines to cover every conceivable situation that may
occur. Therefore, it is important that all employees follow the guidelines outlined
in the following directive, exercise their best judgment in emergency vehicle
operation, and fully utilize their training, experience, and common sense.
The decision to initiate pursuit . . . driving will be discretionary with each individual
officer. The officer must weigh the need for immediate apprehension against the
risk created to all others by the pursuit. The factors to be considered in initiating
and continuing a pursuit . . . should include, but are not limited to the following:
1. Seriousness of the . . . violators offence (i.e., if the offender is allowed to
flee, he would present a danger to human life or cause serious physical
injury.);
2. Identify the offender, if known, and the likelihood of apprehension;
3. Factors such as pursuit/emergency response speed, weather, roadway
conditions, time of day, location of the pursuit/emergency response, and the
condition and capabilities of the pursuit and pursued vehicles.;
4. Amount of vehicular and pedestrian traffic.
OFFICER RESPONSIBILITIES IN EMERGENCY RESPONSE DRIVING
1. The officer shall have his siren and emergency lights operational and shall
continue to have them operational throughout the emergency response driving
situation.
2. The officer will notify dispatch when initiating the pursuit, all information
about the pursued vehicle, location, direction of travel, and upon terminating
the pursuit.
3. The officer will use extreme caution in condensed traffic areas such as
commercial, residential, or school zones.
4. The officer shall slow down upon approaching any red light or stop sign, and
only proceed through when it is safe to do so.
5. The officer will operate his emergency vehicle with due regard for the safety of
all persons and property upon the highway.
6. The officer will maintain reasonable control of his vehicle at all times.
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7. The officer will use his discretion and terminate the pursuit if the danger to
human life is greater than the need to continue the pursuit. Is the pursued person
a danger to the public if not apprehended?
(Pls.’ Resp. Defs.’ Mots. Summ. J. Ex. 1, at 3, DN 66-1).
ECSO’s pursuit policy is not materially different from the policies at issue in Mattingly
and Browder. Compare (Pls.’ Resp. Defs.’ Mots. Summ. J. Ex. 1, at 3), with Mattingly, 425
S.W.3d at 87-88 and Browder, 2018 WL 3202975, at *2. Obviously, all three policies possess
discretionary elements. See (Pls.’ Resp. Defs.’ Mots. Summ. J. Ex. 1, at 3); Mattingly, 425 S.W.3d
at 87-88; Browder, 2018 WL 3202975, at *2. As noted in Mattingly, however, “[b]ecause few
acts are purely discretionary or purely ministerial, the courts must look for the ‘dominant nature
of the act.’” Mattingly, 425 S.W.3d at 89-90 (quoting Haney v. Monsky, 311 S.W.3d 235, 240
(Ky. 2010)).
ECSO’s policy requires officers to weigh a list of factors but leaves the ultimate decision
to initiate pursuit in the hands of the officer; similarly, while the policies at issue in Mattingly and
Browder outline a series of pursuit determinations an officer must make, those policies still placed
the ultimate decisions surrounding a pursuit in the hands and discretion of the officer. (Pls.’ Resp.
Defs.’ Mots. Summ. J. Ex. 1, at 3); see Mattingly, 425 S.W.3d at 87 (“The officer must weigh the
immediate danger or potential danger to the public should the suspect be allowed to remain at large
against the danger or potential danger created by the pursuit itself. . . . Pursuits shall be terminated
when the risks created by continuing the pursuit outweigh the need for immediate apprehension.”);
Browder, 2018 WL 3202975, at *2 (“Pursuit, especially prolonged high-speed pursuit should be
used only as a last resort; whenever safer alternative actions are possible, they should be taken. .
. . The responsibility for initiating the pursuit rests with the individual deputy . . . . Deputies [w]ill
[t]erminate a [p]ursuit [w]hen . . . [t]he circumstances of the pursuit present an extreme safety
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hazard to the public, the deputy, or the suspect.”). Although written in mandatory language, the
policies in Mattingly and Browder still put the final risks/benefits analysis in the hands of the
officer, just like the ECSO policies. Importantly, even with this discretion, the courts in Mattingly
and Browder found the “dominant nature” of an officer’s actions surrounding a pursuit to be
ministerial. Mattingly, 425 S.W.3d at 90-91; Browder, 2018 WL 3202975, at *3.
Additionally, the ECSO policies seemingly remove discretion regarding conduct taken
during the pursuit, evidenced by items one through six under the “Officer Responsibilities” section.
(Pls.’ Resp. Defs.’ Mots. Summ. J. Ex. 1, at 3). Although the policies at issue here explicitly state
that the decision to terminate a pursuit requires the officer to “use his discretion[,]” the policies
then remove that discretion by mandating the officer terminate the pursuit “if the danger to human
life is greater than the need to continue the pursuit. Is the pursued person a danger to the public if
not apprehended?” (Pls.’ Resp. Defs.’ Mots. Summ. J. Ex. 1, at 3). ECSO’s termination policy is
essentially the same as those in Mattingly and Browder, which require an officer to terminate a
pursuit “when the risks created by continuing the pursuit outweigh the need for immediate
apprehension” and when “[t]he circumstances of the pursuit present an extreme safety hazard to
the public, the deputy, or the suspect.” Mattingly, 425 S.W.3d at 88; Browder, 2018 WL 3202975,
at *2.
In sum, the policies at issue in the case sub judice do not materially differ from those in
Mattingly and Browder, policies that were deemed to establish ministerial duties on the part of
pursuing officers. As such, qualified immunity is unavailable to Jones as protection from
Plaintiffs’ negligence and gross negligence claims stemming from Jones’ pursuit-related conduct.
For all of the aforementioned reasons, Jones’ motion for summary judgment on Plaintiffs’
negligence and gross negligence claims will be denied.
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b.
Doyle
Plaintiffs allege negligence and gross negligence on the part of Sheriff Doyle for his
involvement in the pursuit. Doyle argues both for qualified immunity from these claims and that
he was not negligent or grossly negligent as a matter of law. (Doyle Mem. Supp. Mot. Summ. J.
20-27, DN 57-1; Defs.’ Reply Mots. Summ. J. 25-29).
This Court in Walker applied Kentucky’s qualified immunity doctrine to the factual
circumstances surrounding a sheriff’s supervision of a pursuit:
It is true that under Kentucky law, the “[p]romulgation of rules is a discretionary
function[,]” and the “enforcement of those rules is a ministerial function.” It [is]
also true that [the sheriff] enacted a policy for [the] [c]ounty that may have been
violated several times during [the sheriff’s] tenure, including during the pursuit of
[the suspect]. However, the policy charges those officers involved in the pursuit
and those supervising the pursuit with the enforcement of the policy. Therefore,
only to the extent [the sheriff] is performing one of those functions would he be
under a duty to comply with the policy’s directives. Here, the plaintiff does not
contend that [the sheriff] was involved in the pursuit of [the suspect]. Nor does the
plaintiff point to any policy that required [the sheriff] to supervise the enforcement
of the pursuit policy in any particular manner. Under such circumstances, the
manner in which he supervises the pursuit policy is discretionary in nature.
Walker, 643 F. Supp. 2d at 933-34 (internal citations omitted) (citation omitted).
As Walker instructs, if a policy instructs a sheriff to supervise a pursuit and enforce pursuit
policies during that pursuit, or if the sheriff is not the named supervisor but still undertakes those
duties, the sheriff’s supervision over the pursuit is a ministerial act, thus precluding the sheriff
from invoking qualified immunity. The ECSO’s Policy and Procedures Manual Chapter 11 states:
“Every deputy of the department assigned to operate a departmental vehicle shall be held
accountable for the proper use and care of the vehicle. . . . Supervisors will be responsible to ensure
compliance with this criteria.” (Pls.’ Resp. Defs.’ Mots. Summ. J. Ex. 1, at 1). Although which
supervisors must ensure compliance is not specified, Doyle admitted that he generally possesses
the duty “to make sure that the deputies that work for [him] . . . follow policy and procedure.”
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(Doyle Dep. 6:1-13, Oct. 28, 2019, DN 68-2). Doyle’s involvement in the pursuit also evidences
that he could be characterized as a supervisor charged with enforcing the ECSO pursuit policies:
Q
A
Q
A
Q
A
. . . Tell me what you remember about this particular pursuit that we’re
talking about today.
Well, I’d gotten a phone call from—I’m trying – I think it was my dispatch
center called me and said, “[Jones] has—[Jones] and [Meredith] are
involved in a pursuit. They told me to let you know.” So I went and turned
my radio on to try to monitor radio traffic the best I could. At that time, the
radio system we had was having a lot of problems. So I was catching some,
not catching some, because I was listening on a little handheld inside my
home—
Okay.
—so I—I wasn’t catching all the radio traffic, but I got a phone call from
Deputy Meredith. I think it was [Meredith]’s phone, but actually, maybe
Devin Lindsey, who was another volunteer that was riding with him because
[Meredith] was driving—so Devin made the phone call to let, you know,
kind of give me a little bit of an update—
Uh-huh.
—I just told him, you know, “Keep me informed on what’s going on,” and
then I got a phone call after that the pursued vehicle . . . had been involved
in a collision there in Bowling Green. And so at that point, I just said, “All
right. I’m on my way.” And I got ready and headed out the door.
(Doyle Dep. 16:23-17:23). Doyle’s involvement with the pursuit suggests that he had a ministerial
duty to enforce the ECSO policies during the incident. As Doyle testified, dispatch notified him
of the pursuit because it was told to do so. (Doyle Dep. 16:25-17:3). Doyle also noted that
Meredith’s passenger called him during the pursuit to give an update. (Doyle Dep. 17:10-16).
Finally, Doyle followed the pursuit over the radio, in addition to telling Meredith’s passenger to
“keep [him] informed.” (Doyle Dep. 17:3-20). Even if there were no written policy establishing
a supervisory duty over pursuits on the part of Doyle, his actions would otherwise indicate such a
policy, i.e., requiring his employees to notify him of a pursuit so that he would ensure compliance
with the ECSO pursuit policies. A policy requiring Doyle to ensure compliance with the ECSO
policies is a ministerial duty to which qualified immunity does not apply. See Hedgepath v.
Pelphrey, 520 F. App’x 385, 391-92 (6th Cir. 2013) (Under Kentucky law, “the supervision of
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employees is a ministerial act when it merely involves enforcing known policies.” (citation
omitted)).
There are factual issues in this case at this point that preclude the Court from characterizing
Doyle’s oversight of the pursuit at issue in this case as discretionary or ministerial. See Sloas, 201
S.W.3d at 475 (Only “once the material facts are resolved, whether a particular defendant is
protected by official immunity a question of law . . . .” (citation omitted)). Although not entirely
clear, the ECSO policies could reasonably be read to establish a supervisory duty over police
pursuits on the part of Doyle. Even without a written ECSO policy, the actions of those involved
in the pursuit suggest the existence of an established practice of Doyle providing oversight during
pursuits. The evidence suggests that Doyle had a ministerial, not discretionary, duty to ensure
Meredith and Jones were following the ECSO policies. At this time Doyle cannot, as a matter of
law, invoke the protections of qualified immunity.
Furthermore, whether Doyle breached his duty is a question to be resolved for the jury.9
While the ECSO pursuit policy outlines a plethora of information a pursuing officer is to consider
in initiating and maintaining a pursuit, Doyle specifically knew that this pursuit involved speeds
of over 100 miles an hour. (Doyle Dep. 18:9-15). Doyle admits that he did not know the original
purpose of the stop, which is a factor that must be considered under the ECSO pursuit policies
when initiating and continuing the pursuit. (Doyle Dep. 18:5-8; Pls.’ Resp. Defs.’ Mots. Summ.
J. Ex. 1, at 3). The extent of Doyle’s involvement was listening to a malfunctioning radio system
relaying information about the pursuit, receiving a call from Meredith’s passenger, and instructing
9
Doyle does not dispute that he owed a general duty to Plaintiffs to exercise reasonable care under
the circumstances. See James v. Meow Media, Inc., 300 F.3d 683, 690 (6th Cir. 2002) (“Kentucky
courts . . . [have] establish[ed] a ‘universal duty of care.’ Under the universal duty of care, ‘every
person owes a duty to every other person to exercise ordinary care in his activities to prevent
foreseeable injury.’” (internal citations omitted) (citation omitted)).
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Meredith’s passenger to “keep [Doyle] informed” about the pursuit. Doyle admits he did not
attempt to communicate with Jones or Meredith, reasoning that he “didn’t think [he] had anything
to offer that they needed to hear from [him] at that time because they were trying to concentrate
on apprehending that suspect.” (Doyle Dep. 18:16-21). Doyle, however, had other sources of
communication through dispatch or Meredith’s passenger, without breaking Meredith and Jones’
concentration during their 12-minute pursuit. It will likely be for the jury to resolve whether Doyle
exercised ordinary or any care when carrying out his ministerial duty of ensuring that Meredith
and Jones followed the ECSO policies.
Doyle makes no other argument that summary judgment in his favor is appropriate on
Plaintiffs’ negligence and gross negligence claims. For all of the aforementioned reasons, Doyle’s
request for qualified immunity and summary judgment on Plaintiffs’ negligence and gross
negligence claims will be denied.
C.
Defendants’ Motion to Exclude Plaintiffs’ Expert Witness
Defendants move to exclude Plaintiffs’ proffered expert witness, William Fryer (“Fryer”),
from testifying at trial. (Defs.’ Mot. Exclude Expert Witness 1, DN 56). Generally speaking, the
substance of Fryer’s proposed testimony is an evaluation of the propriety of the pursuit. (Pls.’
Expert Witness Disclosures Ex. 1, at 1-14, DN 48-1 [hereinafter “Fryer Report”]).
1.
Legal Standards
Fed. R. Evid. 702 permits expert testimony relating to technical or specialized knowledge
where it will assist the trier of fact to determine a fact in issue. As a prerequisite, such testimony
must meet the following criteria:
(a)
the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b)
the testimony is based on sufficient facts or data;
(c)
the testimony is the product of reliable principles and methods; and
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(d)
case.
the expert has reliably applied the principles and methods to the facts of the
Fed. R. Evid. 702(a)-(d); see also Fed. R. Evid. 702 advisory committee’s note to 2000 amendment
(“[N]o single factor is necessarily dispositive of the reliability of a particular expert’s testimony.”).
Under this rule, the trial judge is the gatekeeper to ensure that expert testimony satisfies the
requirements of reliability and relevance. Mike’s Train House Inc. v. Lionel, L.L.C., 472 F.3d 398,
407 (6th Cir. 2006) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)). As the
Sixth Circuit has further noted:
Parsing the language of [Fed. R. Evid. 702], it is evident that a proposed expert’s
opinion is admissible, at the discretion of the trial court, if the opinion satisfies three
requirements. First, the witness must be qualified by “knowledge, skill, experience,
training, or education.” Second, the testimony must be relevant, meaning that it
“will assist the trier of fact to understand the evidence or to determine a fact in
issue.” Third, the testimony must be reliable.
In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008) (internal citations omitted)
(citation omitted). “Experts are permitted wide latitude in their opinions, including those not based
on firsthand knowledge, so long as ‘the expert’s opinion [has] a reliable basis in the knowledge
and experience of the discipline.’” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000)
(second alteration in original) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592
(1993)).
The Court’s role is to examine “not the qualifications of a witness in the abstract, but
whether those qualifications provide a foundation for a witness to answer a specific question.”
Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir. 1997) (quoting Berry v. City of Detroit,
25 F.3d 1342, 1351 (6th Cir. 1994)). “Rule 702 directs courts to focus on the reliability of expert
testimony, rather than the ‘credibility and accuracy’ of that testimony.” Superior Prod. P’ship v.
Gordon Auto Body Parts Co., 784 F.3d 311, 323 (6th Cir. 2015) (quoting Scrap Metal, 527 F.3d
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at 529). Although the U.S. Supreme Court in Daubert identified a non-exhaustive list of factors a
trial court may consider in evaluating an expert’s proposed testimony, “the four specific factors
utilized in Daubert may be of limited utility in the context of non-scientific expert testimony.”
First Tenn. Bank Nat’l Ass’n v. Barreto, 268 F.3d 319, 334 (6th Cir. 2001) (citing United States v.
Jones, 107 F.3d 1147, 1158 (6th Cir. 1997)).
“It is the proponent of the testimony that must establish its admissibility by a
preponderance of proof.” Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001)
(citing Daubert, 509 U.S. at 592 n.10). That being said, “[a]ny doubts regarding the admissibility
of an expert’s testimony should be resolved in favor of admissibility.” In re E. I. Du Pont de
Nemours & Co. C-8 Pers. Inj. Litig., 337 F. Supp. 3d 728, 739 (S.D. Ohio 2015) (citations omitted).
“[R]ejection of expert testimony is the exception, rather than the rule . . . .” Scrap Metal, 527 F.3d
at 530 (citation omitted).
2.
Foundation of Fryer’s Purported Testimony
Fryer is a 25-year veteran of the Lexington Division of Police. (Fryer Report 1). Fryer
earned several certifications there, including as an Emergency/Police Driving Academy Instructor.
(Fryer Report 1). During his 34 years as a certified driving instructor, Fryer has been responsible
for training police officers in vehicle operation, including pursuit driving. (Fryer Report 1; Fryer
Dep. 23:14-18, 29:2-9, Jan. 7, 2020, DN 68-1). Fryer is currently certified by the Kentucky Law
Enforcement Council as an instructor in several areas, including Emergency Driving and Skills
Vehicle Operations: Motor Vehicles. (Fryer Report 1; Pls.’ Expert Witness Disclosures Ex. 4, at
4, DN 48-1 [hereinafter Fryer CV]). Implicit in Fryer’s deposition testimony and expert witness
report is that he based his opinions on the standards that qualify him to be an instructor on police
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pursuit driving. (Fryer Dep. 71:22-72:9; Fryer Report 10).10 Plaintiffs have met their burden of
evidencing that Fryer’s background and his past and present certifications to instruct officers on
pursuit driving provide a reliable foundation to his evaluation of the propriety of the pursuit at
issue in this case.
Defendants argue that Fryer is not qualified to offer his opinions on the propriety of the
pursuit at issue in this case for two reasons: (1) Fryer’s police pursuit policy knowledge is out of
date; and (2) Fryer has limited practical experience with police pursuits. (Defs.’ Mem. Supp. Mot.
Exclude Witness 3-5, DN 56-1; Defs.’ Reply Mot. Exclude Witness 1-3, DN 79). Both of these
arguments are easily dispelled considering that Fryer is currently certified by the Kentucky Law
Enforcement Council as an instructor for emergency driving skills. (Fryer Report 1; Fryer Dep.
44:10-13 (“Emergency driving . . . includes pursuit driving.”); Fryer Dep. 29:2-16 (“[P]ursuit
driving . . . was one of the areas that I went back to . . . keep my certifications for . . . being an
instructor . . . .”); Fryer CV 4). It is incongruent for Defendants to argue that Fryer is not qualified
to testify about the propriety of the police pursuit when he is currently certified by the
Commonwealth to teach law enforcement personnel about pursuit driving.
Defendants do not explain how police pursuit driving policy has changed over the years to
render Fryer’s testimony out-of-date. Neither have Defendants proffered any evidence suggesting
that Fryer’s knowledge and expertise on police pursuit policy is no longer compatible with socalled “modern” police pursuit policy. Similarly, Defendants have not explained why Fryer’s
experience in the three pursuits with which he has been involved is insufficient experience through
which to render an opinion about the propriety of a police pursuit. Defendants essentially argue
10
In these cited portions of the record, Fryer describes that he relied on “[s]tandards that [he’s]
been trained [on]” in forming his opinions and uses pursuit terminology that appears to be drawn
from his knowledge as a certified police pursuit instructor.
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that Fryer would need to be involved in a police pursuit that mirrors the circumstances of the
pursuit at issue in this case. As this Court has noted:
The law does not require that an admissible expert have every conceivable
qualification, only that his background provides a proper foundation for testimony
which will ‘assist the trier of fact in understanding and disposing of issues relevant
to the case.’ . . . The law does not require [an expert to] be the most qualified expert
conceivable . . . .”
Faughn v. Upright, Inc., No. 5:03-CV-000237-TBR, 2007 WL 854259, at *1, *3 (W.D. Ky. Mar.
15, 2007); see also Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 294 (6th Cir.
2007) (“It is of little consequence to questions of admissibility that [an expert] lack[s] expertise in
the very specialized area [the challenger defines] . . . .” (citations omitted)). “Whether [an
expert’s] expertise is dated or his [specific] experience . . . too limited go to the weight of his
testimony, not its admissibility.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 596 F. Supp.
2d 1101, 1122 (M.D. Tenn. 2009).
Although Defendants challenge the basis for Fryer’s opinions, they fail to acknowledge
that Fryer is relying on the standards that currently qualify him to instruct law enforcement
personnel on pursuit driving. (Defs.’ Mem. Supp. Mot. Exclude Expert Witness 9-10; Fryer Dep.
29:2-16, 34:10-12). Defendants’ challenge to the foundation of Fryer’s opinions about the
propriety of the pursuit at issue in this case is rejected.
3.
Substance of Fryer’s Opinions
Defendants also take issue with the substance of Fryer’s testimony in other ways. First,
Defendants take issue with Fryer’s proposed testimony to the extent that he seeks to testify as to
matters of law. (Defs.’ Mem. Supp. Mot. Exclude Witness 5-9; Defs.’ Reply Mot. Exclude
Witness 4-6). Defendants, however, cite little specific proposed testimony they challenge. A sister
court has provided the appropriate guidance on this issue:
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[Movant] is correct in stating that expert testimony expressing legal conclusions is
improper and should be excluded. Here, [the expert] used common terms that can
sometimes be construed as legal terms, depending on the context in which they are
used. However, the court finds that [the expert] did not use the challenged words
in the context of improper legal conclusions. Therefore, [Movant]’s motion as to
this point is denied.
Askew v. City of Memphis, No. 14-cv-02080-STA-TMP, 2016 WL 4533584, at *7 (W.D. Tenn.
Feb. 29, 2016) (internal citations omitted) (citation omitted). At this point, Defendants have not
established that Fryer’s testimony at trial will stray out of the bounds. The little proposed
testimony Defendants point to consists of Fryer’s use of the term “reasonableness”; however, this
appears to be a colloquial reference to reasonableness rather than a legal one. (Fryer Dep. 71:2272:9).
Second, to the extent Defendants take issue with Fryer’s testimony on the ultimate issue in
this case, “[a]n opinion is not objectionable just because it embraces an ultimate issue.” Fed. R.
Evid. 704(a). In the context of a specific example:
Although an expert’s opinion may “embrace[] an ultimate issue to be decided by
the trier of fact[,]’ the issue embraced must be a factual one. The expert can testify,
if a proper foundation is laid, that the discipline in the [police department] was lax.
He also could testify regarding what he believed to be the consequences of lax
discipline. He may not testify, however, that the lax discipline policies of the
[police department] indicated that the City was deliberately indifferent to the
welfare of its citizens.
Berry, 25 F.3d at 1353 (citation omitted). Again, Defendants have not shown that Fryer’s proposed
testimony will stray beyond the Sixth Circuit’s instruction on an expert’s testimony regarding the
“ultimate issue.”
Third, Defendants take issue with what they call “contradictions” in Fryer’s proposed
testimony. (Defs.’ Mem. Supp. Mot. Exclude Expert Witness 10-12; Defs.’ Reply Mot. Exclude
Witness 6-7). This argument is easily dispensed with: “Defendant’s argument that [Expert’s]
testimony is self-contradictory . . . is not sufficient to warrant preclusion.” Clark v. Travelers Cos.,
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No. 2:16-cv-02503-ADS-SIL, 2020 WL 473616, at *5 (E.D.N.Y. Jan. 29, 2020) (citing In re
Namenda Direct Purchaser Antitrust Litig., 331 F. Supp. 3d 152, 174 (S.D.N.Y. 2018); In re
Fosamax Prod. Liab. Litig., 924 F. Supp. 2d 477, 496 (S.D.N.Y. 2013)).
Finally, although Defendants assert that Fryer’s testimony is contrary to the law, they have
failed to identify any of Fryer’s testimony that is actually contrary to the law. (Defs.’ Mem. Supp.
Mot. Exclude Expert Witness 12-14; Defs.’ Reply Mot. Exclude Witness 7-8). For example,
Defendants take issue with Fryer’s position that Meredith should not have attempted to stop the
car for an unilluminated license plate. (Defs.’ Mem. Supp. Mot. Exclude Expert Witness 12).
While Defendants insinuate that Fryer asserts that Meredith did not have the legal justification for
initiating a stop, Fryer simply stated his personal belief that an officer should not initiate a stop for
an unilluminated license plate. (Fryer Dep. 79:16-80:9). The rest of Defendants’ criticisms of
Fryer’s testimony reflect similar misconstructions of that testimony. There is no indication that
Fryer’s testimony at trial will “invade[] the province of the court to determine the applicable law
and to instruct the jury as to that law.” Torres v. Cty. of Oakland, 758 F.2d 147, 150 (6th Cir.
1985) (citations omitted).
At this point, Plaintiffs have met their burden of evidencing the admissibility of Fryer’s
testimony at trial, and Defendants have failed to provide a justification for preventing Fryer from
testifying at trial.
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V.
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that:
1.
The parties’ Motions for Leave to Exceed Page Limitations (DNs 54, 55, 65, 78)
are GRANTED.
2.
Defendants’ Motions for Summary Judgment (DNs 57, 58, 59) are GRANTED IN
PART and DENIED IN PART. All claims against Defendant Austin Meredith are DISMISSED
WITH PREJUDICE. All claims against Defendant Edmonson County are DISMISSED WITH
PREJUDICE. All Fourth and Fourteenth Amendment claims stemming from M.S. and C.S.’s
injuries suffered as a result of the collision are DISMISSED WITH PREJUDICE. Plaintiffs’
assault claims are DISMISSED WITH PREJUDICE. All other claims survive.
3.
Defendants’ Motion to Exclude Plaintiffs’ Expert Witness (DN 56) is DENIED.
August 13, 2020
cc:
counsel of record
35
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