Turner v. Hill

Filing 38

MEMORANDUM OPINION & ORDER granting in part and denying in part 17 Motion for Summary Judgment. Signed by Senior Judge Thomas B. Russell on 2/10/2014. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:12-CV-00195-TBR
MISTY TURNER

Plaintiff

v.
BRIAN D. HILL

Defendant

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Brian D. Hill’s Motion for
Summary Judgment. (Docket No. 17.) Plaintiff Misty Turner has responded, (Docket
No. 19), and Defendant has replied, (Docket No. 33). For the reasons that follow,
Defendant’s Motion will be GRANTED IN PART and DENIED IN PART.
BACKGROUND
This action arises out of the warrantless arrest of Plaintiff Misty Turner by
Defendant Brian Hill, a trooper with the Kentucky State Police (KSP), on September
21, 2012. The undisputed facts are as follows. Plaintiff had given permission for her
ex-boyfriend, Murray Akers, to remove certain lawnmowers and appliances from her
property. When Plaintiff returned home the afternoon of September 21, she learned that
Akers also had taken some scrap copper from an adjacent trailer without Plaintiff’s
permission. Plaintiff and two other individuals, Elizabeth Moore and Ronald Hoyley,
then drove to Akers’ residence to address his taking of the copper. Once at Akers’
home, Plaintiff advised Akers she was taking the copper back, and a disagreement
ensued. Akers, apparently upset and in an attempt to prevent Plaintiff from retaking the
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copper, began firing a handgun into the air and ground. Plaintiff advised Akers she was
going to call 911 and did so, and at some point Akers struck Plaintiff in the face and jaw
with his elbow. Plaintiff instructed Moore to get back in Plaintiff’s vehicle, and Moore
and Hoyley drove away. Plaintiff, still at Akers’, attempted further discussions with
Akers for a time but was unsuccessful in resolving the dispute. When Akers again
pulled out his handgun, Plaintiff executed her own escape by driving off in Akers’
pickup truck. Plaintiff drove Akers’ truck approximately a half mile away from Akers’
residence where she met up with Moore, who was still driving Plaintiff’s vehicle.
Plaintiff left Akers’ truck parked there on the side of the road and, after transferring
some of the stolen copper from Akers’ truck into her own vehicle, returned home,
dropping off Moore along the way. Plaintiff later telephoned Akers to tell him where
his truck was parked, afraid that he might come looking for her and/or his truck. Akers,
thinking Plaintiff had stolen his truck, called 911 to report the theft.
The 911 calls were routed to KSP Post #1 in Mayfield, Kentucky, which
assigned the investigation to Defendant. Defendant proceeded to Akers’ residence to
investigate and, while en route, spotted Akers’ truck parked on the side of the road.
Defendant then continued to Akers’ home where he spoke with Akers and Akers’
girlfriend. Defendant ascertained from Akers that there had been a dispute over some
scrap copper. Akers initially stated that he did not want to press charges against
Plaintiff, and Defendant left; however, Akers subsequently telephoned dispatch and
advised that he had changed his mind and did want to press charges, so Defendant
returned to speak with Akers again. Akers provided Defendant with Plaintiff’s cell
phone number, and Defendant called Plaintiff to ask if he could come by her residence
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and speak to her. Plaintiff assented and provided her address, telling him she would be
waiting in the driveway. When Defendant arrived, he questioned Plaintiff about the
copper, and Plaintiff showed him the copper that had been transferred to her vehicle
from Akers’ truck. Defendant, aware that there had been a series of recent copper thefts
at a nearby train yard, asked if he could look around Plaintiff’s property. Plaintiff
agreed and showed him the adjacent trailer from which the copper had been taken.
Plaintiff also allowed Defendant to look into a garage or shed on her property.
Defendant then asked if he could look inside the home, and Plaintiff allowed
him in. 1 The parties’ accounts diverge significantly as to the events thereafter. For
purposes of this Opinion, the Court will presume Plaintiff’s version of the facts to be
true. Once inside the home, Defendant detected a strong odor of marijuana. Plaintiff
testified that Defendant began looking through her trash can for evidence of marijuana,
telling her she was “going to jail for a [marijuana] stem” he had found in the trash.
(Docket No. 20-1, at 20.) Plaintiff then began to place a phone call to her mother to ask
her mother to come to her home and to contact an attorney. Fearing that Defendant was
going to take her phone away, Plaintiff went to the bathroom to make the call. Plaintiff
testified that Defendant “watched [her] walk away” and “didn’t try to stop [her].”
(Docket No. 20-1, at 20.) She maintains that Defendant did not instruct her not to leave

1

According to Defendant, he asked if they could go inside, and Plaintiff opened the door. (Docket
No. 20-2, at 10.) Plaintiff initially testified she did not allow Defendant to enter the home, stating, “[H]e
just opened the knob and went in.” (Docket No. 20-1, at 20.) However, this statement is inconsistent
with her Complaint, which states, “Trooper Hill then requested to come inside Ms. Turner’s home to look
for more copper, and she allowed him to come inside her home.” (Docket No. 1, at 2.) When this
discrepancy was pointed out during Plaintiff’s deposition, she ultimately conceded that she had allowed
Defendant into her home. (Docket No. 20-1, at 28-29.) Regardless of any factual disagreement in this
regard, Defendant’s entry into the home does not appear to be an issue that needs be addressed here.

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the room. (Docket No. 20-1, at 21.) Plaintiff states that Defendant then entered the
bathroom through an alternate door and grabbed her arm. In the process, she says
Defendant tripped over a table in the adjacent bedroom and fell onto a bed on the floor
of that room. Plaintiff maintains that she did not grab Defendant, but rather Defendant
“swatted” her with his flashlight, hitting her in the right wrist. (Docket No. 20-1, at 23.)
Plaintiff testified that Defendant then handcuffed her after she came out of the
bathroom. (Docket No. 20-1, at 21, 24.) She acknowledged that Defendant told her to
put her hands behind her back and testified that she complied with those instructions.
(Docket No. 20-1, at 23.) When asked whether she “ever wrestle[d] with [Defendant]
while he was trying to get [her] to comply,” Plaintiff responded, “No.” (Docket No. 201, at 23.) She also testified that Defendant did not have to struggle with her in order to
handcuff her. (Docket No. 20-1, at 24.)
After being handcuffed, Plaintiff says she “turn[ed] to walk out the door to wait
for [Defendant] outside,” asking him, “I’m going to jail . . . can I just go outside and
smoke a cigarette?” (Docket No. 20-1, at 21.) As she turned to walk away, still
handcuffed, Defendant told her he was going to tase her.

According to Plaintiff,

Defendant fired his Taser at the same time or immediately after he gave her that
warning. (Docket No. 20-1, at 21 (“I guess when he said taser shoot, he had already
shot it. . . . I think at the time he was saying it, he was shooting me.”).)
Plaintiff insists she was hit with a total of three probes from Defendant’s Taser:
two in her back and one in her ear. (Docket No. 20-1, at 22.) Plaintiff testified that
Defendant thereafter pulled out the probe that had hit her in the ear, telling her that “if

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he didn’t remove it, [she would] get lead poison[ing].” (Docket No. 20-1, at 28.) When
asked about the probe that hit her ear, Plaintiff testified:
Q.

. . . But Trooper Hill removed the one from your ear?

A.

Yeah, he jerked twice to get -- real hard.

Q.

Okay.

A.

He wanted to pull these out.

Q.

Okay. And did you say no?

A.

Correct.

(Docket No. 20-1, at 30.) The other two probes that hit Plaintiff in the back were
removed later by emergency medical personnel. (Docket No. 20-1, at 30.) Although
she was wearing earrings and had multiple piercings in her ear, Plaintiff denies that the
injury to her ear was caused by an earring becoming snagged in the carpet or hitting a
dresser as she fell. (Docket No. 20-1, at 26.)
At the time of the events in question, Defendant carried a Taser model X-26
electronic control device (ECD), which is the standard Taser issued to KSP troopers.
The KSP policy on ECDs is set out in General Order AM-G-5b. (See Docket No. 17-3.)
The basic operation and function of the Taser X-26 do not appear to be disputed. The
Taser uses removable cartridges, each of which contains two probes. 2 When the trigger
is pulled, the cartridge opens and the two probes are propelled by nitrogen toward the
target. After deployment, the probes remain connected to the device by two thin wires
that carry the electric charge from the ECD to the target. Each probe has a small barb
on the end, which helps the probe attach and remain in contact with the target. As long
as the probes remain in contact with the target, the trigger may be pulled again, each
2

The parties refer to these probes at various times as “barbs,” “darts,” “needles,” or “hooks.”

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time delivering a new “cycle” of electric current for a specified duration of time. When
the Taser is deployed, an internal memory device documents the sequence and records
such information as the model and individual serial numbers, the exact time the Taser
was fired, and the duration of the electrical discharge.

This data then can be

downloaded from the device to produce a report showing each time a particular Taser is
fired, the precise time it was fired, and the duration of the electrical charge transmitted
for each firing. 3
Defendant has produced a copy of report created by downloading the data from
his Taser. (See Docket No. 17-5.) That report shows that Defendant’s Taser was fired
twice on September 21, first at 9:03:06 p.m., local time, and again at 9:03:19, each time
delivering a five-second-long cycle of electric current. (Docket No. 17-5, at 1.) As
noted in the footnote below, the report does not show whether both five-second cycles
were delivered by one cartridge or whether two cartridges were fired. See supra note 3.
Plaintiff eventually was charged with four crimes: (1) theft by unlawful taking, a
class D felony; (2) possession of marijuana, a class B misdemeanor; (3) receiving stolen
property under $500, a class A misdemeanor; and (4) resisting arrest, a class A
misdemeanor. The resisting arrest charge was dropped, and the felony theft count was
amended down to unauthorized use of a motor vehicle, a class A misdemeanor. Plaintiff
thereafter pleaded guilty to possession of marijuana, theft by unlawful taking, and
receiving stolen property.
3

As best the Court can tell, although this report records each firing, it does not distinguish between
the firing of different cartridges—that is, the firing of two separate cartridges would appear on the report
much the same as would the firing of one cartridge followed by the firing of a subsequent cycle of electric
current delivered through that same cartridge.

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STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine
issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). The test is whether the party bearing the burden of proof has presented a jury
question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.
1996). The plaintiff must present more than a mere scintilla of evidence in support of
his position; he must present evidence on which the trier of fact could reasonably find
for him. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “[T]he
mere existence of a colorable factual dispute will not defeat a properly supported
motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Monette v. Elec.
Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by
Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012). In determining
whether summary judgment is appropriate, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Still, “[a] party asserting that a
fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . or showing that the materials cited do not
establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).

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DISCUSSION
In her Complaint, Plaintiff alleges four counts: (1) excessive force in violation of
the Fourth Amendment, brought under 28 U.S.C. § 1983; (2) battery, under Kentucky
law; (3) negligence, under Kentucky law; and (4) negligence per se/unnecessary force
in violation of Ky. Rev. Stat. § 431.025. Defendant presently moves for summary
judgment on each of these four claims.
I.

Excessive Force Claim under 28 U.S.C. § 1983
In order to prevail on her § 1983 claim for excessive force, Plaintiff must

establish that a constitutional violation occurred and that Defendant is not entitled to
qualified immunity. Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008). Because
Defendant asserts he is entitled to qualified immunity, the Court will first determine
whether Defendant’s actions were unconstitutional before turning to whether Defendant
is entitled to qualified immunity for any such violation.
A.

Constitutional Violation

There is no dispute whether Plaintiff was “seized” for purposes of triggering the
Fourth Amendment’s protections. Accordingly, the Court will proceed to determine
whether the force used was unreasonable under the Fourth Amendment. In making this
determination, courts employ an “objective reasonableness” standard.

Id. at 455.

“Relevant factors to consider in evaluating what level of force is reasonable include the
‘severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether [the suspect] is actively resisting arrest or
attempting to evade arrest by flight.’” Id. (alteration in original) (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). Still, the Sixth Circuit advises that “[t]hese factors

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are not an exhaustive list, and the ultimate inquiry is whether the seizure was reasonable
under the ‘totality of the circumstances.’” Id. (quoting Ciminillo v. Streicher, 434 F.3d
461, 467 (6th Cir. 2006)). Additionally, the “reasonableness” of a particular use of force
must be judged from the perspective of a reasonable officer on the scene rather than
with the benefit of hindsight. Caie v. W. Bloomfield Twp., 485 F. App’x 92, 95 (6th Cir.
2012) (citing Graham, 490 U.S. at 396). This means that courts must take into account
“the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Id. (quoting Graham, 490 U.S. at 397).
“Ultimately, however, the ‘reasonableness’ inquiry in an excessive force case is an
objective one: the question is whether the officers’ actions are ‘objectively reasonable’
in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.”

Id. (internal quotation marks omitted) (quoting

Graham, 490 U.S. at 397).
1.

Severity of the crimes

Defendant argues that “[t]his case involves serious criminal activity,” reasoning
that “[t]he facts giving rise to this arrest involves [sic] a convicted felon, illegal drugs,
gunplay, ex-lovers, multiple physical assaults, and other serious criminal activity.”
(Docket No. 17-1, at 12.)

Defendant specifically points out the events at Akers’

residence and places much emphasis on Akers’ firing a handgun and the fact that Akers
was “a convicted felon and known Meth addict.” (Docket No. 17-1, at 13.)

But

contrary to Defendant’s position, Akers’ actions and the events at Akers’ residence have
little, if any, relevance to the Court’s consideration of this first factor. Defendant’s

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involvement began when he responded to the 911 call in which Akers reported that
Plaintiff had driven off in his truck. Defendant located Akers’ truck prior to arriving at
Akers’ home and speaking to Akers. Defendant testified in his deposition that upon
recovering the truck and speaking to Akers, his investigation was essentially complete:
“[Akers] advised that he didn’t want to press charges, he didn’t want anybody to go to
jail. So at that point, I’ve recovered the truck, I’ve got his property back, my victim is
satisfied; I would typically leave the scene, and I did.” (Docket No. 20-2, at 8.)
Defendant’s investigation only resumed after Akers had a change of heart and called
back to say he wanted to press charges after all, at which point Defendant told Akers:
“I’m going to talk to her. We’ll figure this out and we’ll see where it goes.” (Docket
No. 20-2, at 8.) Yet even after arriving at Plaintiff’s residence and speaking with her
about the day’s events, Defendant still had not decided whether to arrest her in relation
to her driving off in Akers’ truck:
Q.

Okay. Well, at that point, had you decided to arrest
[Plaintiff] for the truck incident, as I’ll call it?

A.

At this point, I’m still gathering information. You know,
I don’t want to arrest her right then without getting all of
the facts. You know, I want to speak with her and figure
out what actually happened at [Akers’ residence].

(Docket No. 20-2, at 9.) Thus, the evidence of record—namely, Defendant’s own
testimony—suggests that he did not perceive any potential crime relative to Akers’ truck
as particularly severe. This inference is buttressed by the fact that Plaintiff was not
arrested for, or charged with, any crime relative to her driving off in Akers’ truck.
Ultimately, the Court concludes that none of the crimes at issue were particularly
serious or severe. The charges of marijuana possession and receiving stolen property
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were misdemeanors, and the theft charge, which was subsequently amended down to a
misdemeanor, was at best a nonviolent felony of the lowest class under Kentucky law.
See Ky. Rev. Stat. § 532.020(1). Akers’ alleged actions do not appear to have resulted
in any criminal charges and are not the proper focus of “the crimes at issue.” But
regardless of the severity of Akers’ actions, those actions were remote in time to
Plaintiff’s arrest and thus have no bearing on whether Defendant used excessive force in
effecting that arrest. Accordingly, the Court concludes that the severity of the crimes at
issue should weigh against finding that Defendant’s use of force was objectively
reasonable.
2.

Immediate threat to the safety of the officer or others

Defendant again places much emphasis on Akers’ actions of firing a handgun
and Akers’ alleged use of methamphetamines to argue that the situation presented a
serious risk both to Defendant’s safety and to that of others. For the same reasons
discussed above in relation to the severity-of-the-crime factor, this argument again is
misplaced.
Defendant also argues that “[t]here was a real threat of accomplices,” because he
“was unsure whether [Taylor] and [Hoyley] were lurking somewhere in the darkness
inside the residence.” (Docket No. 17-1, at 14.) In this regard, Defendant testified:
“There’s several things in my mind . . . . We haven’t talked about it, but I wasn’t so sure
[Plaintiff] was alone in that house. The information I had was there were multiple
people involved earlier, and there still possibly could be one more person or several.”
(Docket No. 20-2, at 17.) But this argument is contradicted by Plaintiff’s testimony, in

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which she expressly stated that when asked, she had informed Defendant that neither
Moore nor Hoyley was present. (Docket No. 20-1, at 26.)
Defendant further argues that an immediate threat existed because Plaintiff “got
physical” with him, “assaulted him,” and fled to the bathroom where she could have
obtained a weapon. (Docket No. 17-1, at 14.) However, assuming Plaintiff’s version of
the facts as true, there was little, if any, altercation that took place, and Defendant did
not have to struggle with her in order to handcuff her. (See Docket No. 20-1, at 23-24.)
Furthermore, assuming Plaintiff was handcuffed at the time she was tased, the threat she
posed to Defendant was minimal or at least seriously diminished, despite that it was
dark inside her home.
Therefore, in view of the totality of the circumstances present inside Plaintiff’s
home, the Court concludes that Plaintiff posed little, if any, threat to Defendant or to
others. As such, this factor also weighs against finding that Defendant’s use of force
was objectively reasonable.
3.

Actively resisting arrest or attempting to evade arrest by flight

Defendant contends that “there can be little doubt that [Plaintiff] actively
resisted arrest.” (Docket No. 17-1, at 16.) Aside from referencing his own deposition
testimony, Defendant bases his argument in this regard on the testimony of his expert,
William Gaut, Ph.D., stating:

“Dr. Gaut testifies that [Plaintiff] was combative,

assaulted [Defendant], grabbed his arm, and refused his verbal commands.” (Docket
No. 17-1, at 16.) Defendant also argues that Plaintiff attempted twice attempted to flee
from Defendant: first into the bathroom and second just before she was tased. Again,
Defendant points the Court to Dr. Gaut’s testimony that Plaintiff had “demonstrated the

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propensity for flight.” (Docket No. 17-1 (referencing Docket No. 20-3, at 21).) But
how Dr. Gaut—an expert on police practices retained for purposes of litigation—has
any insight into the factual happenings inside Plaintiff’s home escapes the Court.
Again, taking Plaintiff’s version of the facts as true, it would appear she did not actively
resist arrest or attempt to flee. (See Docket No. 20-1, at 23-24.) Accordingly, this factor
also weighs against finding that Defendant’s use of force was objectively reasonable.
4.

Further considerations

Beyond the three Graham factors discussed above, the totality of the
circumstances compels the conclusion that, taking Plaintiff’s version of the facts as
true, Defendant’s use of force was not objectively reasonable. Of principal importance
is the fact that Plaintiff was handcuffed when Defendant first deployed his Taser. The
Sixth Circuit has long held that the need for force is virtually “nonexistent” when a
suspect is handcuffed and not actively trying to resist or escape. See McDowell v.
Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988). In a recent decision, Austin v. Redford
Township Police Department, the Sixth Circuit recognized:
[T]he law is clear in this Circuit that the use of force, including a
Taser, on a suspect who has been subdued is unreasonable. . . . See
Grawey v. Drury, 567 F.3d 302, 314 (6th Cir. 2009).
....
Our “prior opinions clearly establish that it is unreasonable to
use significant force on a restrained subject, even if some level of
passive resistance is presented.” Meirthew v. Amore, 418 F. App’x
494, 497 (6th Cir. 2011)). Further, “a line of Sixth Circuit cases
holds that the use of non-lethal, temporarily incapacitating force on
a handcuffed suspect who no longer poses a safety threat, flight
risk, and/or is not resisting arrest constitutes excess force.”
Michaels v. City of Vermillion, 539 F. Supp. 2d 975, 985-86 (N.D.
Ohio 2008) (citing cases)).
“Absent some compelling
justification—such as the potential escape of a dangerous criminal
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or the threat of immediate harm—the use of such a weapon on a
non-resistant person is unreasonable.” Kijowski v. City of Niles,
372 F. App’x 595, 600 (6th Cir. 2010) (discussing use of a Taser).
690 F.3d 490, 496-98 (6th Cir. 2012).
Here, under Plaintiff’s version of the facts, she was not actively resisting arrest,
was not attempting to flee, and posed no real threat to Defendant or herself. Even under
Defendant’s version of the facts, the potential for Plaintiff to actually escape was
arguably minimal, as was the level of threat she posed. At the point that Defendant
deployed his Taser, it was clear to Defendant that Plaintiff was not armed, and there was
nothing to indicate that she then intended to arm herself.

Accordingly, these

considerations also weigh against finding that Defendant’s use of force was objectively
reasonable.
Of final note, Defendant raises a compelling argument as to the inherent
plausibility of several of Plaintiff’s factual assertions. By way of his Reply, Defendant
posits that Plaintiff’s testimony that she was tased while walking away, to go outside
and smoke a cigarette, already handcuffed, “begs the question - how was she going to
smoke a cigarette with both of her hands handcuffed behind her back?” (Docket No.
33, at 1.) Also, for the first time in his Reply, Defendant has produced an affidavit by
Charles Fisher, the paramedic who initially treated Plaintiff and removed the taser
probes from her back, which appears to refute Plaintiff’s assertion that she was hit in the
ear by a third Taser probe. (See Docket No. 33-1.) But despite the cogency of these
arguments, the veracity of Plaintiff’s testimony is a proper matter for cross-examination,
the plausibility of her version of the facts is a matter properly decided by a jury. A
factual dispute certainly remains whether Defendant fired one cartridge or two, and

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whether one of the Taser probes hit Plaintiff’s ear as she claims. Assuming Plaintiff was
handcuffed when Defendant first deployed his Taser, the Court’s analysis and
conclusion here would be the same regardless of how many cartridges were fired or
where or how many of the Taser probes hit her—if she was handcuffed and subdued as
she claims, Defendant’s use of force would not be objectively reasonable either
scenario. See, e.g., Austin, 690 F.3d at 496-98. Thus, in view of the facts testified to by
Plaintiff, the Court is left with the conclusion that a genuine factual dispute exists as to
whether the force used by Defendant was excessive.
For these reasons, the Court concludes that the reasonableness of force used by
Defendant—i.e., whether a constitutional violation occurred—presents a question of
fact not suitable for resolution by summary judgment.
B.

Qualified Immunity

The Court next must determine whether Defendant nonetheless is entitled to
qualified immunity. Under the doctrine of qualified immunity, “government officials
performing discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Feathers v. Aey,
319 F.3d 843, 847-48 (6th Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “The Supreme Court instructs lower courts to perform a two-tiered inquiry to
determine whether a defendant is entitled to qualified immunity.” Austin, 690 F.3d at
496 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). First, a court must determine
whether the facts alleged show that the defendant’s conduct violated a constitutional
right.”

Id. (citing Saucier, 533 U.S. at 201).

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“If the plaintiff establishes that a

constitutional violation occurred, a court must next consider ‘whether the right was
clearly established.’” Id. (quoting Saucier, 533 U.S. at 201). When a defendant raises
the defense of qualified immunity, the plaintiff bears the burden of showing that he is
not entitled to it. Id. (citing Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.
2006)).
As noted above, the facts viewed in the light most favorable to Plaintiff show
that a constitutional violation occurred. Defendant argues that “[Plaintiff] does not have
a clearly established constitutional right to be free from being tased by a law
enforcement officer, especially where the proof indicates that she assaulted him, fled,
and actively resisted arrest.” (Docket No. 17-1, at 32.) Defendant may be correct in
this assertion; however, the “proof” Defendant relies upon appears primarily to be his
own testimony regarding what transpired inside Plaintiff’s home. Contrary to
Defendant’s position, and again assuming Plaintiff’s version of the facts to be true,
Defendant’s actions unquestionably show a violation of the clearly established right to
be free from excessive force, which a reasonable officer would be aware of at the time
of the events in question. Austin, 690 F.3d at 496 (“[T]he law is clear in this Circuit
that the use of force, including a Taser, on a suspect who has been subdued is
unreasonable and a violation of a clearly established right.” (emphasis added)).
Because Plaintiff has offered sufficient evidence to indicate that Defendant’s actions
were objectively unreasonable in light of that clearly established right, Defendant is not
entitled to qualified immunity on Plaintiff’s excessive force claim.

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II.

Battery Claim Under Kentucky Law
Under Kentucky law, a battery is “any unlawful touching of the person of

another, either by the aggressor himself, or by any substance set in motion by him.”
Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000). A police officer is privileged to use
the amount of force that he reasonably believes is necessary to overcome resistance to
his lawful authority; however, when he deliberately exceeds the privileged amount of
force he is liable for the tort of battery. Ali v. City of Louisville, 2006 WL 2663018, at
*8 (W.D. Ky. Sept. 18, 2006) (citing City of Lexington v. Gray, 499 S.W.2d 72, 74 (Ky.
1973)). Defendant argues that summary judgment is warranted because he was acting
in a lawful manner and used only reasonable and necessary force to effect Plaintiff’s
arrest. (Docket No. 17-1, at 26-27.) Having concluded above that a genuine factual
dispute exists whether Defendant’s actions constitute excessive force, the Court
similarly concludes that a genuine dispute exists whether Defendant’s actions constitute
battery under Kentucky law. Cf. Atwell v. Hart Cnty., Ky., 122 F. App’x 215, 219 (6th
Cir. 2005) (finding that a plaintiff’s battery claim under Kentucky law was defeated by a
finding of objective reasonableness in regard to his § 1983 excessive force claim).
Still, Defendant insists that he is entitled to official immunity on Plaintiff’s state
law battery claim. In Kentucky, “‘[o]fficial immunity’ is immunity from tort liability
afforded to public officers and employees for acts performed in the exercise of their
discretionary functions.” Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001). Qualified
official immunity applies to the performance by a public officer of discretionary acts
that are taken in good faith and within the scope of the officer’s authority. Id. at 522. A
lack of good faith “can be predicated on a violation of a constitutional, statutory, or
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other clearly established right which a person in the public employee’s position
presumptively would have known was afforded to a person in the plaintiff’s position.”
Id. at 523. Thus, in effect, this inquiry tracks the inquiry for objective reasonableness
and qualified immunity discussed supra Part I. For the same reasons set forth above
relative to her § 1983 excessive force claim, the Court finds that Plaintiff has
sufficiently shown a violation of a clearly established right that an officer in
Defendant’s position presumptively would have known was afforded to her. Therefore,
Defendant is not entitled to official immunity on Plaintiff’s battery claim.
III.

Negligence/Negligence Per Se Claims Under Kentucky Law
Plaintiff asserts the additional state law claims of negligence and negligence per

se, arguing that Defendant’s use of his Taser while she was handcuffed as well as his
removal of the Taser probe from her ear constitute violations of the statutory standard of
care set forth in Ky. Rev. Stat. § 431.025(3), which commands that “[n]o unnecessary
force or violence shall be used in making an arrest.” Defendant argues that Plaintiff’s
negligence and negligence per se claims should be dismissed because she has no expert
proof, urging: “Whether [Defendant] owes a duty to [Plaintiff], what duty is owed, and
whether [Defendant] deviated from the applicable standard of care are issues that
demand expert testimony to assist the jury. Furthermore, expert testimony is needed to
establish causation.”

(Docket No. 17-1, at 30.)

The Court disagrees and finds

Defendant’s argument on these claims misguided; however, the Court nonetheless
concludes that Defendant’s alleged actions in this case cannot properly be analyzed as
negligence claims.

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As this Court previously explained in Ali v. City of Louisville, the use of
excessive force by a police officer constitutes the intentional tort of battery. 2006 WL
2663018, at *8. An officer is privileged to use the amount of force that he reasonably
believes is necessary to overcome resistance to his lawful authority, but no more. 2006
WL 2663018, at *8 (W.D. Ky. Sept. 18, 2006) (citing Gray, 499 S.W.2d at 74 (applying
Ky. Rev. Stat. § 431.025(3))). When he deliberately exceeds the privileged amount of
force by committing an unwarranted violence on the arrestee, he is liable for the tort of
battery, not for negligence. Id. (referencing Gray, 499 S.W.2d at 75). “There is no such
thing as a negligent battery.” Id. (citing Restatement (Second) of Torts § 13). That an
officer may have mistakenly believed he needed to use the amount of force he did does
not change the fact that his initial action was intentional, nor does it alter the objective
analysis of whether the force he used was excessive.

Id. “Thus, where an unwanted

touching (a battery), which is inherent in any arrest, escalates beyond that which is
reasonably necessary into excessive force, the cause of action is solely for battery, with
the officer’s privileged use of force ending when the excessive force began.” Id.

To

permit a separate claim for negligence premised on the same conduct by the officer is
logically and doctrinally unsupportable. Id. Since Ali, this Court and other federal
courts faced with concurrent claims for excessive force/battery and for negligence have
reached the same conclusion. See, e.g., Walker v. City of Lebanon, Ky., --- F. Supp. 2d --, 2013 WL 6185402, at *9-10 (W.D. Ky. Nov. 25, 2013); Marksbury v. Elder, 2011
WL 5598419, at *8 & n.7 (E.D. Ky. Nov. 17, 2011).
For these reasons, the Court finds that Plaintiff’s claims of negligence and
negligence per se fail as a matter of law and must be dismissed.

Page 19 of 20

CONCLUSION
Therefore, having considered the parties’ respective arguments, and being
otherwise sufficiently advised;
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment,
(Docket No. 17), is GRANTED IN PART and DENIED IN PART as follows:
(1)

Defendant’s Motion is DENIED relative to Plaintiff’s excessive
force and battery claims (Counts I & II);

(2)

Defendant’s Motion is GRANTED as to Plaintiff’s negligence and
negligence per se claims (Counts III & IV).

IT IS SO ORDERED.

Date:

cc:

February 10, 2014

Counsel

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