Phat's Bar & Grill, Inc. et al v. Louisville-Jefferson County Metro Government et al
Filing
100
MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 1/18/13 denying 41 Motion for Summary Judgment by Defendant Kevin Smith on the state and federal claims of malicious prosecution. cc:counsel (DAK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:10-CV-00491-H
PHAT’S BAR & GRILL, et al.,
PLAINTIFFS
V.
LOUISVILLE JEFFERSON COUNTY
METRO GOVERNMENT, et al.,
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiffs, Bert Williams, Jr. and Bert Williams, Sr., sued a number of defendants, including
Louisville Jefferson County Metro Government (“Louisville Metro”) and more than twenty
Louisville Metro police officers (collectively, “Defendants”) over a series of raids and arrests
occurring at or near their business, Plaintiff Phat’s Bar & Grill (“Phat’s”). A number of dispositive
motions are currently pending. This memorandum begins the process of addressing each motion in
due course.
One of the more significant motions is that of Officer Kevin Smith for summary judgment.
Prior to filing this motion, this Court dismissed all claims against Officer Smith with the exception
of malicious prosecution under both state and federal law. In his instant motion, Officer Smith seeks
dismissal of the malicious prosecution claims on qualified immunity grounds or for Plaintiffs’ failure
to prove the elements of the tort of malicious prosecution under both federal and state law. Both of
these issues involve many interrelated disputed facts as well as serious questions of law. For the
reasons that follow, the Court will deny Officer Smith’s Motion for Summary Judgment.
I.
Although Plaintiffs allege that all Defendants committed a number of unlawful acts over a
period of time, the factual scope of the present motion is limited to the arrest and subsequent
prosecution of Williams, Jr., because Officer Smith was only involved in this portion of the alleged
illicit activity.
On April 19, 2007, Officer Smith arrested Williams, Jr. at Phat’s. Officer Smith and
Williams, Jr. offer significantly different accounts of events the night of the arrest. The following,
however, is undisputed: Louisville Metro Police received a 911 phone call early in the morning on
April 19, 2007 from a woman claiming an assault and robbery inside Phat’s. Responding to the call,
Officer Smith and his partner arrived at Phat’s around 4:30 am, knocked on its door and eventually
entered. Once inside, he asked patrons twice whether anyone inside needed police assistance. No
one answered “yes.” He then went back to the entrance where he requested that Williams, Jr. hand
over his identification. Moments later, Officer Smith arrested Williams, Jr. on four charges: (1)
Obstructing Governmental Operations, (2) Terroristic Threatening, (3) Alcohol Intoxication, and
(4) Disorderly Conduct. He then placed Williams, Jr. in the backseat of his police car and drove off
towards the police station.
The other details of the event are disputed. Officer Smith says that Williams, Jr. specifically
denied him access to Phat’s, both in orally refusing and in physically blocking the entrance way.
He says that these actions prevented his ability to investigate the 911 call. Officer Smith then says
that in his initial discussions at Phat’s doorway, Williams, Jr. was uncooperative, hostile and
verbally threatening. Officer Smith says that he remained hostile throughout their interaction.
Officer Smith, in his testimony provided at Williams, Jr.’s subsequent trial, stated that he was
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concerned about the woman who made the 911 phone call and sought entry to ensure her safety.
In his motion, Officer Smith claims that both a denial of access to Phat’s and Williams, Jr.’s
otherwise uncooperative behavior led to his arrest. The otherwise uncooperative behavior in part
refers to Officer Smith’s request for Williams, Jr.’s identification, which Officer Smith claims
Williams, Jr. refused to provide absent significant pressure from him and his partner.
Williams, Jr.’s account of this night is different in a number of important ways. He says that
when Officer Smith first arrived at Phat’s, the door was properly locked because business operations
were closed. When Williams, Jr. came to the door, Officer Smith immediately began questioning
him about his failure to change the deadbolt lock. According to Williams, Jr., Officer Smith had
visited Phat’s in the recent past over other concerns, and had specifically commented about this lock.
Moving on from this topic, Williams, Jr. says that he explained the context for the 911 call and told
Officer Smith that the alleged victim had left the building.
Williams, Jr. asserts that he had recently consulted with his attorney at the time, Douglas
Weaver, about his rights when the police came to Phat’s. According to Williams, Jr., his attorney
informed him that he did not have to allow the police entrance unless the police had probable cause.
Because the alleged victim was no longer present, when Officer Smith asked to look around,
Williams, Jr. objected. Nevertheless, Williams, Jr. contends that Officer Smith shoved him aside,
and made a perfunctory investigation regarding the phone call. Although Phat’s is a multiple-storied
establishment and several people remained in the building at the time, Officer Smith conducted an
investigation in around twenty seconds. Accordingly, Williams, Jr. claims the 911 call was pretext
for gaining entry to Phat’s.
Williams, Jr. then claims that when he and Officer Smith met again in the entranceway,
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Officer Smith requested his identification. When Williams, Jr. inquired into the purpose, Officer
Smith became hostile. Williams, Jr. did hand over his identification to Officer Smith’s partner.
However, Officer Smith forced Williams, Jr. to turn around in the doorway and put his hands behind
his back, and then arrested him.
Officer Smith’s uniform citation says that he drove Williams, Jr. to the police station.
However, it is unclear from the record exactly what happened immediately thereafter. On the
citation, Officer Smith alleged the four charges listed above and provided several statements
explaining the circumstances behind the arrest. At some later time, three of the four charges were
dropped. Williams, Jr. claims that the prosecutors would not drop the final charge at the insistence
of Officer Smith, who was present at most of the meetings between him and prosecutors, unless
Williams, Jr. stipulated to probable cause. Nevertheless, Williams, Jr. refused to stipulate to
probable cause. The Jefferson County Attorney’s Office prosecuted Williams, Jr. on the remaining
charge for Obstructing Governmental Functions. Nearly two years later, a jury acquitted Williams,
Jr. of the charge.
In the briefs on this motion, all parties refer to the following three sets of videos in the record
to support their accounts of the events that transpired on April 19, 2007: (1) videos taken from
Phat’s security system, (2) a video of the arrest taken by one of Williams, Jr.’s employees, and (3)
videos of the underlying state court criminal prosecution at which both Williams, Jr. and Officer
Smith testified. The security videos do not contain audio of the conversations that took place
between Officer Smith and Williams, Jr., so it is unclear from those videos the true nature and
content of the encounter.
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The only claims remaining against Officer Smith are for malicious prosecution under both
state and federal law. He moves for summary judgment on grounds that he is entitled to qualified
immunity and that Plaintiffs have failed to show that genuine issues of material fact exist for both
the state and federal law malicious prosecution claims. Kentucky and federal law as to both
qualified immunity and malicious prosecution are distinct in important ways, so the Court will
analyze the federal and state law claims separately. Under this framework, the Court will resolve
both the qualified immunity and summary judgment issues.
II.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); FED. R. CIV. P. 56(c). The moving party bears the burden of
proof to show that there is an absence of evidence to prove the nonmoving party’s case. Id. at 325.
Only when moving party shows that the record, taken as a whole, could not support the trier of fact
finding for the nonmoving party, will the motion for summary judgment be sustained. Matsushita
Electric Indus. Co., LTD. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To counter this, the
nonmoving party must produce evidence that is sufficient to require submission of the issue to the
jury. Id. The Court holds that the Plaintiffs have achieved this requirement.
III.
Under federal law, “qualified immunity is an affirmative defense that shields government
officials ‘from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’” Causey v. City
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of Bay City, 442 F.3d 524, 528 (6th Cir. 2006)(quoting Estate of Carter v. City of Detroit, 408 F.3d
305, 310 (6th Cir. 2005)). The Sixth Circuit applies a two-step analysis to determine whether a
government official is entitled to it. First, the official must have violated a constitutional right, and
second, that right must have been clearly established. King v. Ambs, 519 F.3d 607, 612 (6th Cir.
2008). To determine whether Officer Smith violated Williams, Jr.’s constitutional rights, the Court
will analyze the malicious prosecution claim as a Fourth Amendment violation under 42 U.S.C. §
1983. See Thacker v. City of Columbus, 328 F.3d 244, 259 (6th Cir. 2003) (recognizing “a separate
constitutionally cognizable claim of malicious prosecution under the Fourth Amendment”).
The Sixth Circuit recognizes that a malicious prosecution claim under the Fourth
Amendment provides a cause of action for damages caused by “wrongful investigation, prosecution,
conviction, and incarceration.” Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006). The Circuit
has identified the following elements to maintain such an action:
First, the plaintiff must show that a criminal prosecution was initiated against the
plaintiff and that the defendant made, influenced, or participated in the decision to
prosecute. Second, because a § 1983 claim is premised on the violation of a
constitutional right, the plaintiff must show that there was a lack of probable cause
for the criminal prosecution. Third, the plaintiff must show that, as a consequence
of a legal proceeding, the plaintiff suffered a deprivation of liberty, as understood in
our Fourth Amendment jurisprudence, apart from the initial seizure. Fourth, the
criminal proceeding must have been resolved in the plaintiff’s favor.
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010)(internal citations and quotations omitted).
The Sixth Circuit does not require proof of malice. However, to be successful on a malicious
prosecution claim, the Plaintiff bears the burden of proof. Id.
Both parties seem to concede that the criminal charges were initiated against Williams, Jr.
and were resolved in his favor by dismissal or acquittal. Thus, the remaining questions are (1)
whether Defendant made, influenced or participated in the decision to prosecute; (2) whether Officer
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Smith had probable cause to arrest and prosecute; and (3) whether Williams, Jr. suffered a
deprivation of liberty distinct from the initial seizure. Because Defendant Smith would succeed on
his summary judgment motion if he disproves any one of these essential elements, the Court will
examine each element in turn. Celotex Corp., 477 U.S. at 323 (stating that “there can be ‘no genuine
issue as to any material fact,’ since a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial”).
A.
The seminal Sixth Circuit case discussing the elements of a federal malicious prosecution
claim also explained that “very little case law [exists] discussing precisely what role an investigating
officer must play in initiating a prosecution such that liability for malicious prosecution is warranted,
but . . . the fact that they did not make the decision to prosecute does not per se absolve them from
liability.” Sykes, 625 F.3d at 311. The Sykes Court stated that the term “participated” should be
construed to mean “aided”, so that “[t]o be liable for ‘participating’ in the decision to prosecute, the
officer must participate in a way that aids in the decision, as opposed to passively or neutrally
participating.” Sykes, 625 F.3d at 309 n.5. The Sixth Circuit has not provided any further
explanation.
Officer Smith argues that the Jefferson County Attorney made the decision to prosecute
Williams, Jr. and that he did not influence this decision. However, “[i]f police officers have been
instrumental in the plaintiff’s continued confinement or prosecution, they cannot escape liability by
pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute him.
They cannot hide behind the officials whom they have defrauded.” Sykes, 625 F.3d at 318 (quoting
Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)).
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Here, it is actually unclear from the record if and to what extent Officer Smith pressured the
County Attorney’s Office to prosecute Williams, Jr. However, Plaintiffs assert that Williams, Jr.
refused to stipulate to probable cause, and at Officer Smith’s insistence, the County Attorney’s
Office decided to pursue prosecution due to this refusal. Plaintiffs support this assertion with
evidence that Officer Smith was present at some of the meetings between the prosecutors and
Williams, Jr. and his counsel, and contend that Officer Smith’s presence at the meetings suggest that
he aided in the prosecution’s decisions. Moreover, Officer Smith testified on behalf of the
prosecution in Williams, Jr.’s criminal trial, the only testifying witness the prosecution put forth.
From these facts, the Court concludes that a reasonable juror could conclude that Officer Smith
participated in the decision to prosecute.
Importantly, Plaintiffs could also satisfy this element by showing that the officer presented
false information to the prosecuting authorities. Id. at 312. In such a circumstance, the plaintiff
must provide evidence that the officer “(1) stated a deliberate falsehood or showed reckless
disregard for the truth and (2) that the alleged false or omitted information was material to the
finding of probable cause.” Gregory v. City of Louisville, 444 F.3d 725, 758 (6th Cir. 2006). The
Court concludes that factual disputes remain whether Officer Smith deliberately falsified
information upon which the prosecutor allegedly relied to prosecute Williams, Jr. According to
Officer Smith’s Citation, Williams, Jr. told the police officers that they could not enter the premises.
Williams, Jr. claims that he was just asserting his property rights. Officer Smith characterized
Williams, Jr. as increasingly aggressive, exhibiting hostile behavior and launching verbal threats.
Finally, Officer Smith stated that he smelled alcohol on Williams, Jr.’s breath. All of this Williams,
Jr. vehemently denies. The determination of whether Officer Smith made either deliberate
8
falsehoods or statements with reckless disregard for the truth, and whether these statements were
material to the prosecution, depend on whether the factfinder believes Officer Smith’s or Williams,
Jr.’s account. This issue presents a genuine issue of material fact which bars Officer Smith’s
summary judgment on this element.
B.
For the next element, Williams, Jr. must show that Officer Smith lacked probable cause to
both arrest Williams, Jr. and to initiate the criminal proceedings against him. Sykes, 62 F.3d at 31011.
To determine whether probable cause existed, courts must view “the totality of the
circumstances at the time of the Plaintiffs’ arrest and through the time that the criminal proceeding
against them commenced.” Id. at 311. An officer has probable cause when “the facts and
circumstances known to the officer warrant a prudent man in believing that an offense has been
committed.” Henry v. United States, 361 U.S. 98, 102 (1959).
Whether probable cause exists here depends on whose version of events the factfinder
adopts. The substance of the conversations between these two individuals, and the nature of their
tones and body language, have a real and significant impact on whether Officer Smith indeed had
a reasonable belief that Williams, Jr. was committing the offense of Obstructing Governmental
Functions as defined in Kentucky law.1 “‘When no material dispute of fact exists, probable cause
determinations are legal determinations that should be made’ by the court. But, ‘[i]f disputed factual
issues underlying probable cause exist, those issues must be submitted to a jury for the jury to
determine the appropriate facts.’” Alman v. Reed, -- F.3d ----, 2013 WL 64370, at *6 (6th Cir. Jan.
7, 2013)(quoting Hale v. Kart, 396 F.3d 721, 728 (6th Cir. 2005)).
1
Pursuant to Kentucky statute, “A person is guilty of obstructing governmental operations when he intentionally
obstructs, impairs or hinders the performance of a governmental function by using or threatening to use violence,
force or physical interference.” KRS § 519.020.
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The video evidence submitted to the Court does not resolve this dispute. Both sides have
presented reasonable accounts of the events that are factually at odds. A reasonable jury could
believe Williams, Jr.’s version. Consequently, the Court is inclined to let a jury determine the
appropriate facts that serve as the foundation for the existence of probable cause.
C.
Next Williams, Jr. must prove that he suffered a deprivation of liberty as understood under
the Fourth Amendment, apart from the initial seizure. Officer Smith does not contest that a
deprivation of liberty occurred, but the Court finds that this element warrants some discussion.
The damages suffered as a result of the acts underlying a malicious prosecution must have
subjected “the aggrieved individual to a deprivation of constitutional dimension.” Dean v. Earle,
866 F.Supp. 336, 340 (W.D. Ky. 1994)(citing Dunn v. Tenn., 697 F.2d 121, 125 (6th Cir. 1982)).
Therefore, where the plaintiffs were not arrested or incarcerated, see Rogers v. O’Donnell, 2012 WL
1831242, at *1 (E.D. Ky. May 18, 2012), and where all charges were dropped against a plaintiff who
was never arrested, see Cheolas v. City of Harper Woods, 467 F. App’x 374, 378 (6th Cir. 2012),
courts found that the plaintiff did not suffer a deprivation of liberty sufficient to satisfy this element
of a malicious prosecution claim.
However, district courts have found a deprivation sufficient to satisfy this malicious
prosecution element where the plaintiff was arrested, taken to jail, and arraigned, see Guerra v.
Rodriguez, 2012 WL 208083, at *10 (E.D. Ky. Jan. 24, 2012), or arrested, booked, and released
upon bond after a pretrial hearing, Amine v. King, 2011 WL 4387229, at * 12 (E.D. Mich. Sept. 21,
2011). One district court found that the plaintiff suffered a Fourth Amendment deprivation of liberty
without ever being transported to or booked at the police station. See Gordon v. Jones, 2011 WL
10
847926, at *8 (W.D. Ky. Mar. 8, 2011)(holding that because the police officers tackled and
handcuffed plaintiff twice and then escorted plaintiff to the hospital to receive treatments for the
injuries resulting from this incident, the plaintiff satisfied the deprivation of liberty element of the
malicious prosecution claim even though the plaintiff only received a citation for his alleged
unlawful conduct).
It is unclear from the record exactly what transpired between the time when Officer Smith
transported Williams, Jr. to the police station and when the prosecution began. However, based on
the information the Court presently possesses, the situation sub judice is more similar to the Guerra
and Amine line of cases. First, the initial seizure probably occurred when Officer Smith ordered
Williams, Jr. to face the wall, handcuffed him, and placed him under arrest outside Phat’s.
Certainly, seizure occurred when Officer Smith led Williams, Jr. to his police car and forced him
in the backseat. Next, Officer Smith removed Williams, Jr. from the location of his business and
transported him to the police station. Finally, prosecutors did not proceed on the remaining
obstruction charge for two years, making Williams, Jr. endure a relatively long period of time to
obtain a resolution of the charge and suffer the deprivation of liberty inherent in defending oneself
on criminal charges. The Court finds that these undisputed facts present enough evidence to show
a deprivation of liberty as understood under the Fourth Amendment apart from the initial seizure.
In sum, genuine issues of material fact remain as to two of the elements of the malicious
prosecution claim. The other three elements are resolved in Plaintiffs’ favor. Because Officer Smith
fails to show that a constitutional violation did not occur, he is not entitled to federal qualified
immunity at this time.
IV.
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Under Kentucky law, official immunity “is immunity from tort liability afforded to public
officers and employees for acts performed in the exercise of their discretionary functions. It rests
not on the status or title of the officer or employee, but on the function performed.” Yanero v. Davis,
65 S.W.3d 510, 521 (Ky. 2001). For officers sued in their individual capacities, qualified immunity
attaches once the officer proves three elements. First, the actions taken must be discretionary.
Second, the actions taken must have been within Officer Smith’s scope of authority. Finally, the
actions must have been taken in good faith. Id. at 522. The parties do not dispute that any of Officer
Smith’s relevant actions were discretionary. Moreover, because decisions to arrest and prosecute
are inherently within a police officer’s general responsibilities, the alleged unlawful acts were within
Officer Smith’s scope of authority. Therefore, the good faith requirement will determine qualified
immunity.
A.
Kentucky courts have analyzed the good faith requirement inversely, as proof of the absence
of bad faith. Rowan Cnty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006)(“‘Good faith,’ however, is
somewhat of a misnomer, as the proof is really of bad faith. In fact, in most cases, ‘good faith’ is
just a presumption that exists absent evidence of ‘bad faith’.”). Under Kentucky law, bad faith can
“be predicated on a violation of [causally related] constitutional, statutory, or other clearly
established right which a person in a public employee’s position presumptively would have known
was afforded to a person in the plaintiff’s position, i.e., objective unreasonableness.” Yanero, 65
S.W.3d at 523. Under Kentucky law, one can also prove bad faith “if the officer or employee
willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive.” Id. Thus,
Kentucky law adopts both an objective and a subjective approach to qualified immunity, whereas
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the federal law only provides immunity where the official objectively violated a person’s clearlyestablished rights.
Williams, Jr. argues that Officer Smith acted in bad faith both objectively and subjectively.
Objectively, he argues that Officer Smith violated his clearly-established right to be free from
prosecution without probable cause; subjectively, he contends that Officer Smith acted with a
corrupt motive. The Court first examines whether Officer Smith acted in bad faith objectively by
analyzing the elements of the tort of malicious prosecution under Kentucky law.
“In spite of the general disfavor, [Kentucky] case law recognizes that malicious prosecution
claims are necessary to deter persons from procuring the arrest of another maliciously and without
probable cause.” Hunt v. Lawson, 2008 WL 4691052, at *5 (Ky. Oct. 23, 2008). However, because
of this general disfavor, the complaining party “must strictly comply with the prerequisites of
maintaining an action for malicious prosecution.” Prewitt v. Sexton, 777 S.W.2d 891, 895 (Ky.
1989). There are six basic elements necessary to maintain a malicious prosecution claim.
They are: (1) the institution or continuation of original judicial proceedings, either
civil or criminal, or of administrative disciplinary proceedings, (2) by, or at the
instance, of the [officer], (3) the termination of such proceedings in [plaintiff’s]
favor, (4) malice in the institution of such proceeding, (5) want or lack of probable
cause for the proceedings, and (6) the suffering of damage as a result of the
proceeding.
Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). Both sides concede that a civil proceeding was
instigated against Williams, Jr., and that the proceeding terminated in his favor. The Court will
examine the other four elements.
B.
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The test for determining that the proceedings against plaintiff were “by, or at the instance,
of the officer”, is whether the defendant “sets the machinery of the law in motion.” McMaster v.
Cabinet for Human Res., 824 F.2d 518, 521 (6th Cir. 1987)(quoting First Nat’l Bank of Mayfield
v. Gardner, 376 S.W.2d 311, 316 (Ky. 1964)). “A wide variety of conduct may constitute the
‘institution,’ ‘initiation,’ or ‘instigation’ of proceedings, both under Kentucky law and the common
law generally.” Id. “The initiation of a criminal proceeding generally occurs upon either the actual
arrest of a person, the return of an indictment, the issuance of an arrest warrant, or a summons to
appear and answer criminal charges.” Johnson v. St. Claire Med. Ctr., Inc., 2003 WL 22149386, at
*2 (Ky. Ct. App. Sept. 19, 2003).
Construing Kentucky law, the Sixth Circuit determined that the plaintiff could prevail on her
malicious prosecution claim where the officer decided to make the arrest and to charge the plaintiff
with felonies instead of misdemeanors. Arnold v. Wilder, 657 F.3d 353, 366 (6th Cir. 2011). In
Arnold, the defense attorney conceded this element, declaring the police officer instigated the
proceedings when he made the arrest and filled out the uniform citation. Id. Similarly, where the
officer issued a criminal citation to the plaintiff, a federal court analyzing Kentucky malicious
prosecution elements determined that plaintiff proved this element. Meogrossi v. Aubrey, 2011 WL
1235063, at *15 (W.D. Ky. Mar. 31, 2011). On the other hand, the Sixth Circuit, again construing
Kentucky law, found that the officers did not participate in the initiation of the proceedings against
the plaintiff where the officers merely conducted searches of the residence, and did not testify before
the grand jury. Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir. 2003).
The facts surrounding Williams, Jr.’s arrest and prosecution are more closely related to the
cases finding that the officer “initiated” the criminal proceedings. The case law outlined above
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seems to indicate that “initiation” occurs where the officer made the arrest and detailed potential
offenses against the plaintiff. Here, Officer Smith was more involved than just the arrest and
citation, because he participated in meetings between the prosecutor and Williams, Jr. and was the
government’s sole witness at Williams, Jr.’s trial. It is clear, therefore, that Officer Smith’s action
could amount to “initiation” of the proceedings against Williams, Jr. under Kentucky law.
C.
The Court will consider the malice and lack of probable cause elements together, because
under Kentucky law, “malice can be inferred from a lack of probable cause.” Massey v. McKinley,
690 S.W.2d 131, 134 (Ky. 1985). Thus the Court will find malice, defined as “the intentional doing
of a wrongful act to the injury of another, with an evil or unlawful motive or purpose,” where the
Court determines that the officer lacked probable cause in the arrest or prosecution of the plaintiff.
Johnson v. Baker, 2009 WL 3514576, at * 3 (W.D. Ky. Oct. 29, 2009)(quoting Stearns Coal Co. v.
Johnson, 37 S.W.2d 38, 40 (Ky. 1931)).
“Probable cause is a fluid concept—turning on the assessment of probabilities in particular
factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Commonwealth
v. Jones, 217 S.W.3d 190, 196 (Ky. 2007)(quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). To
decide whether probable cause exists, courts must examine both “the events which occurred leading
up to the stop or search, and then the decision whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to reasonable suspicion or probable
cause.” Id. (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). Generally speaking, the
probable cause determination is a question of law for the court to decide. Isham v. ABF Freight Sys.
Inc., 2006 WL 2641398, at *8 (Ky. Ct. App. Sept. 15, 2006). However, where the court determines
15
that under a certain reasonable reading of the facts, probable cause was lacking, and the parties
dispute those facts, then those fact questions must be submitted to the jury. Prewitt, 777 S.W.2d at
895.
As discussed above in the federal law context, based on a careful review of the record, the
Court finds that the determination as to whether probable cause exists depends on what set of facts
the jury would believe. Therefore, the Defendant has not shown an absence of a genuine issue of
material fact as to the probable cause element. Likewise, the question of malice remains undecided.
D.
Williams, Jr. must finally show that he suffered damages as a result of the prosecution for
his malicious prosecution claim to survive. Courts seem to allow a wide range of damages to satisfy
this element. In Raine v. Drasin, the seminal Kentucky malicious prosecution case, the Court
recognized recovery for the following types of damages: “mortification, humiliation, injury to the
reputation, character and health, mental suffering, and general impairment of social and mercantile
standing.” Raine, 621 S.W.2d at 900. Although Officer Smith does not contest this element, the
Court finds that sufficient facts have been asserted or established that would support a conclusion
that Williams, Jr. suffered several of these damages during the course of his arrest and trial.
Therefore, Officer Smith has failed to prove that a genuine issue of material fact does not exist as
to this element or that the element would be resolved in his favor.
Because Officer Smith cannot prove that he did not violate Williams, Jr.’s clearly-established
rights, Officer Smith’s claim to qualified official immunity on the Kentucky malicious prosecution
claim must be denied. Moreover, because the Court has determined that some of the elements of
a malicious prosecution claim fall in Williams, Jr.’s favor, and the remaining elements are subject
16
to extant genuine issues of material fact, Officer Smith is not entitled to summary judgment.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant, Kevin Smith’s Motion for Summary Judgment
on the state and federal claims of malicious prosecution is DENIED.
January 18, 2013
cc:
Counsel of Record
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