Nance, et al v. Kilpatrick, et al (TV1)
Filing
70
MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 3/28/19. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
LARRY DARNELL NANCE, JR.,
SHERRY NANCE, and SHERRY
NANCE, as Conservator for and
Best Friend of JUSTIN NANCE,
Plaintiffs,
v.
TRENT MARTIN KILPATRICK,
in his individual capacity as a
Chattanooga Police Officer, and
HANS ANDERSON,
in his individual capacity as a
Chattanooga Police Officer,
Defendants.
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No.:
1:18-CV-11-TAV-CHS
MEMORANDUM OPINION
This civil action is before the Court on plaintiffs’ motion for partial summary
judgment [Doc. 32] and defendants’ motions for summary judgment [Docs. 45, 48].
Defendants responded in opposition to plaintiffs’ motion [Docs. 39, 40], and plaintiffs
replied [Doc. 41]. Plaintiffs also responded to defendants’ motions [Docs. 56, 57], to which
defendants replied [Docs. 61, 62]. For the reasons that follow, the Court will deny
plaintiffs’ partial motion for summary judgment, grant defendant Hans Anderson’s motion
for summary judgment, and grant in part and deny in part defendant Trent Kilpatrick’s
motion for summary judgment.
I.
Background
This case arises out of an arrest that took place on March 25, 2017, in Hamilton
County, Tennessee [Doc. 1]. Plaintiffs were at their home when, at approximately 10:45
p.m., three City of Chattanooga police officers, Officers Kilpatrick, Anderson, and Gunn,
arrived at the premise in response to a “disorder” call.
This was the second police visit to plaintiffs’ house that day. As they arrived,
Officers Gunn and Anderson advised Officer Kilpatrick that earlier in the day they had
previously responded to a “shots fired” call at the same address, which was made by a
neighbor who claimed that plaintiff Larry Nance was firing shots from his home [Doc. 401]. Officers Gunn and Anderson also advised Officer Kilpatrick that, during this prior
encounter, Mr. Nance had refused their commands to take his hands out of his pockets,
acted belligerently, and that the officers left the scene shortly thereafter without further
contact [Docs. 39-1, 40-1].
Following this update, Officers Kilpatrick and Gunn approached plaintiff’s front
door by way of the front porch, while Officer Anderson positioned himself beside the
porch, so that he could observe anyone potentially coming from the side of the house [Id.].
No porch lights were on, so the officers used flashlights to make their approach.
Plaintiffs have a screen door, which opens outward over the porch, outside of their
front door, which opens inward back into the house [Id.]. The parties dispute the specifics
of whether the screen door was opened, by whom, and at what point, during the following
interaction. However, the parties agree that plaintiff Sherry Nance opened the interior door
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of the home to speak with the officers once they accessed the porch [Id.]. Audio heard
from Officer Kilpatrick’s police-car camera shows that Mrs. Nance asked the police
officers if she could help them, and was quickly joined by her husband, both of whom
began to question why the officers were outside their door [Doc. 47]. Although not
everything that was said can be heard clearly from the car video footage, it is evident that
the officers responded that they had received a “disorder” call for this location [Id.]. The
following exchange then occurs:
Mr. Nance: Listen, you guys got to stop this, man. If this weirdo—
Officer Kilpatrick: Hey listen to me, you aren’t going to tell me what I am
and not going to do.
Ms. Nance: We haven’t done anything
Officer Kilpatrick: And that’s fine, but just give us a chance to come up
here and talk to you; don’t just start mouthing off.
Mr. Nance: I’m going to tell you something right now.
Officer Kilpatrick: Go ahead and tell me.
Mr. Nance: This is done. This is done. This is done.
Mr. Kilpatrick: Okay.
Mr. Nance: This guy has been doing weird things—
Mr. Kilpatrick: And that’s fine, but you’re not going to jump on me, buddy.
Each party states that the other acted aggressively during this interaction, and it is
undisputed that after this encounter Officer Kilpatrick entered into the Nance home to arrest
Mr. Nance [Docs. 30, 31, 46-1]. The parties disagree as to why.
Plaintiffs assert in their affidavits that Mr. Nance attempted to end the conversation
with the officers by closing the front door, after which Officer Kilpatrick opened the screen
door, pushed upon the front door, and entered the Nance home [Docs. 30, 31]. However,
Officer Kilpatrick states that Mr. Nance “made a sudden movement just inside the doorway
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that obstructed my view of his hands” [Doc. 40-1] and that, given the previous “shots fired”
call and Mr. Nance’s belligerent attitude (which Officer Kilpatrick attributes to intoxication
and Mr. Nance denies), Officer Kilpatrick feared that Mr. Nance was attempting to grab a
weapon, and so he leaned forward into the open doorway to retain his visual [Docs. 40-1,
54]. Mr. Nance maintains that he made no sudden movements to warrant Officer Kilpatrick
leaning across the threshold of his home in this manner [Doc. 41-1]. When Mr. Nance
slammed the door, Officer Kilpatrick alleges that he raised his leg and arm to stop the door
from striking his face [Id.].
At this point, Officer Kilpatrick states that he was the victim of an assault, and he
therefore entered plaintiffs’ residence, along with Officer Gunn, to arrest Mr. Nance [Doc.
40-1]. The arrest did not go smoothly, the fault for which the parties attribute to each other.
Several household items ended up disordered and on the floor.
Concerned by the
commotion, Defendant Anderson entered the house and saw that Mr. Nance, Officer Gunn,
and Officer Kilpatrick were on the floor, with the officers on top of Mr. Nance [Doc. 391]. Officer Anderson states that he positioned himself between the three persons on the
floor and Mrs. Nance, who at this point was screaming and on one side of the room [Doc.
39-1]. Officers Kilpatrick and Anderson then handcuffed Mr. Nance and removed him to
Officer Kilpatrick’s patrol car. The officers subsequently decided to transfer Mr. Nance
from Officer Kilpatrick’s car to Officer Anderson’s car, since Officer Kilpatrick was
identifying himself as the victim of an assault [Doc. 40-1].
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That car transfer is also the subject of serious dispute. Officer Kilpatrick alleges
that Mr. Nance lunged at him while being moved, forcing Officer Kilpatrick to block the
lunge, which in turn caused Mr. Nance to lose his footing and fall [Id.]. Officer Anderson
confirms that account [Doc. 39-1]. Mr. Nance, however, avers that he never lunged, but
that Officer Kilpatrick nevertheless “body slammed” him onto the asphalt, breaking two of
his ribs and causing other injuries [Doc. 1]. Once Mr. Nance was successfully deposited
into Officer Anderson’s police car, he was transported to the Hamilton County jail and
charged with assault [Doc. 1].
Based on these events, plaintiffs accuse defendants of assault, battery, false
imprisonment, intentional infliction of emotional distress, trespass to land, trespass to
chattels, invasion of privacy, malicious prosecution, and various violations of the United
States and Tennessee Constitutions [Doc. 1]. Plaintiffs request partial summary judgment
on their claims brought under the Fourth and Fourteenth Amendments of the United States
Constitution and Article 1, Section 7 of the Tennessee State Constitution [Doc. 32].
Defendants argue that they are entitled to summary judgment for all of plaintiffs’ federal
claims because they did not violate plaintiffs’ constitutional rights. To the extent that the
evidence reveals a constitutional violation, defendants state that summary judgment is
appropriate under the doctrine of qualified immunity. Defendants request that all state law
claims be remanded to state court, or alternatively, dismissed. This matter is now ripe for
review.
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II.
Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper
“if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears
the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th
Cir. 1993). All facts and inferences to be drawn therefrom must be viewed in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).
Yet, “[o]nce the moving party presents evidence sufficient to support a motion under
Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.”
Curtis Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn.
1991) (citing Celotex, 477 U.S. at 317). To establish a genuine issue as to the existence of
a particular element, the nonmoving party must point to evidence in the record upon which
a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve
facts that might affect the outcome of the suit under the governing law. Id.
In a case such as this one, where parties have filed competing motions for summary
judgment, each party, as movant, must establish that no genuine issue of material fact exists
and that it is entitled to a judgment as a matter of law. When evaluating cross-motions for
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summary judgment the Court should “evaluate each motion on its own merits and view all
facts and inferences in the light more favorable to the nonmoving party.” Wiley v. United
States, 20 F.3d 222, 224 (6th Cir. 1994). If the Court finds that one party has failed meet
its burden the other party is not considered to have automatically met theirs. Rather, the
Court must evaluate each party’s motions individually to determine if they have complied
with Rule 56. “The filing of cross-motions for summary judgment does not necessarily
mean that the parties consent to the resolution of the case on the existing record or that the
district court is free to treat the case as if it was submitted for final resolution on a stipulated
record.” Taft Broad Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991). If the Court
determines that a genuine issue of material fact exists, both motions must be denied. In the
alternative, if the Court finds that no genuine issue of material fact exists and a party is
entitled to prevail as a matter of law, the Court will render judgment. Klaus v. Hilb, Rogal
& Hamilton Co. of Ohio, 437 F. Supp. 2d 706, 732 (S.D. Ohio 2006).
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
for the factfinder. Id. at 250. The Court does not weigh the evidence or determine the truth
of the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft
of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–
80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold inquiry of determining
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whether there is a need for a trial—whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.” Anderson, 477 U.S. at 250.
III.
Analysis
A.
Federal Constitutional Claims
In their motions for summary judgment, both Officers Kilpatrick and Anderson raise
the defense of qualified immunity. Government officials are entitled to qualified immunity
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.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The relevant inquiry is “(1) taken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional
right, and (2) was the right clearly established to the extent that a reasonable person in the
officer’s position would know that the conduct complained of was unlawful.” Kennedy v.
City of Cincinnati, 595 F.3d 327, 336 (6th Cir. 2010) (quoting Saucier v. Katz, 533 U.S.
194, 201 (U.S. 2001)) (internal quotation marks omitted). With respect to the second
prong, courts must look at the specific facts relevant to each case, and not whether a right
is clearly established “as a broad general proposition.” Saucier v. Katz, 533 U.S. at 201.
A failure to establish either prong is fatal to plaintiff’s case, so a court may address them
in the order it sees fit. See Pearson, 555 U.S. at 236.
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The doctrine protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Qualified immunity is an
immunity from suit, not a defense to liability. Pearson, 555 U.S. at 231. Where a
defendant asserts qualified immunity, the plaintiff bears the burden of demonstrating that
defendant is not entitled to it. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.
2006). The plaintiff must produce “sufficient evidence to indicate that what the official
allegedly did was objectively unreasonable in light of clearly established constitutional
rights.” Andrews v. Hickman County, 700 F.3d 845, 853 (6th Cir. 2012). Where a plaintiff
fails to offer sufficient evidence as to any prong he fails to carry his burden and summary
judgment is appropriate for the defendant. Chappell v. City of Cleveland, 585 F.3d 901,
907 (6th Cir. 2009). Courts must keep in mind that “where the legal question of qualified
immunity turns upon which version of the facts one accepts, the jury, not the judge, must
determine liability.” McKenna v. Edgell, 617 F.3d 432, 437 (6th Cir. 2010).
Plaintiffs have brought several claims against Officers Anderson and Kilpatrick
pursuant to the Fourth, Fifth, and Fourteenth Amendments of the United States
Constitution [Doc. 1].
Specifically, they allege that defendants conducted an
unconstitutional search of their property, illegally entered their home and invaded their
privacy, used illegal force to effectuate an illegal arrest of plaintiff Larry Nance, and
illegally attempted to force plaintiffs to speak with them.
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1.
The Officers’ Presence Outside of Plaintiffs’ Home
Officers Anderson and Kilpatrick are shielded by qualified immunity from
plaintiffs’ invasion of privacy claims. Plaintiffs allege that the co-defendants violated the
Fourth and Fourteenth Amendments of the United States Constitution by approaching
plaintiffs’ front door and shining their flashlights onto their front porch [Doc. 1]. The
Fourth Amendment1 states, “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the places to be searched, and the persons or things to be seized.”
U.S. CONST. amend. IV. It is presumptively unreasonable for police officers to enter into
a private home without a warrant. Payton v. New York, 445 U.S. 573, 586 (1980). Fourth
Amendment protections also extend to the curtilage of a house. U.S. v. Dunn, 480 U.S.
294, 300 (1987). The Fourth Amendment, however, does not serve to completely bar
police officers from ever entering onto someone’s property unless accompanied by a valid
warrant. Instead, the Supreme Court has stated that there is an “implicit license” by
homeowners which allows persons to “approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”
Florida v. Jardines, 569 U.S. 1, 8 (2013). Therefore, “a police officer not armed with a
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The Fourteenth Amendment renders the Fourth Amendment applicable to states. Mapp v.
Ohio, 367 U.S. 643, 655 (1961).
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warrant may approach a home and knock, precisely because that is no more than any private
citizen might do.” Id.
In light of these standards, the evidence shows that the officers did not conduct an
unconstitutional search of plaintiffs’ property. Officers Kilpatrick, Gunn, and Anderson
were responding to a call when they arrived at plaintiffs’ house. They were allowed to
approach plaintiffs’ house by way of the front porch to knock on the door. See Florida v.
Jardines, 569 U.S. at 8. The parties agree that no porch light was on when the officers
arrived at the Nance home. Therefore, the officers were entitled to use flashlights to aid
them in making their approach. See United States v. Clay, 2011 U.S. Dist. LEXIS 65657,
at *14 (E.D. Tenn. Apr. 11, 2011) (police officer did not violate the Fourth Amendment
when he used a flashlight to enter onto a defendant’s property and access the front stoop).
This calculus does not change because plaintiff Sherry Nance opened the front door
to speak with the officers before they had fully made their way onto the porch and knocked
on the door [Doc. 30]. Rather, this demonstrates that defendants were in the process of
approaching the home, and therefore still acting under the implicit license which allowed
them to do so.
Furthermore, Officer Anderson did not violate plaintiffs’ constitutional rights by
remaining to the side of the porch “so that [he] could see if anyone was coming from the
side of the house” [Doc. 39-1] while Officers Kilpatrick and Gunn approached plaintiff in
her doorway. First, Officer Anderson was within his rights to pause on his approach to the
home and remain off the porch while officers Gunn and Kilpatrick engaged with Mrs.
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Nance. If he were to have remained there longer than it took for Officers Gunn and
Kilpatrick to knock on the front door and briefly wait for an answer, then perhaps the
implicit license he had to be there would expire. See Jardines, 569 U.S. at 8. However,
plaintiff Sherry Nance opened the door and engaged with the officers before they could
knock [Doc. 30]. His license to remain where he was, therefore, had not expired.
Second, the fact that Officer Anderson was looking to see if anyone would approach
from the side of the house does not transform his conduct into an impermissible search.
See 1 Wayne R. LaFave et al., Search & Seizure § 2.3(f) (5th ed., 2018 update) (“[W]hen
the police come on to private property to conduct an investigation or for some other
legitimate purpose and restrict their movements to places visitors could be expected to go
(e.g., walkways, driveways, porches), observations made from such vantage points are not
covered by the Fourth Amendment.” (footnotes omitted)). The officers were responding
to a “disorder” call, the second call concerning plaintiff Larry Nance that day, and were
entitled to approach the residence with caution. It was permissible for Officer Anderson
to stand beside plaintiffs’ porch, a place he was entitled to be under plaintiffs’ implicit
license. Viewing the evidence in a light most favorable to plaintiffs, plaintiffs have failed
to establish that either officer’s approach to plaintiffs’ residence violated their Fourth
Amendment rights. Officers Anderson and Kilpatrick are therefore entitled to qualified
immunity. Because summary judgment is appropriate for defendants, plaintiffs’ motion
for summary judgment as to this count will be denied.
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2.
Entry Into Home
Furthermore, neither officers’ entry into plaintiffs’ home violated plaintiffs’ clearly
established constitutional rights.
Although warrantless entries are “presumptively
unreasonable,” officers are nevertheless allowed to enter a home without a warrant under
limited, “exigent” circumstances, including: “(1) hot pursuit of a fleeing felon, (2)
imminent destruction of evidence, (3) the need to prevent a suspect’s escape, and (4) a risk
of danger to the police or others.” United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir.
1996) (citing United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994). To determine
whether a circumstance is truly “exigent” the court considers three factors: “whether the
Government has demonstrated a need for immediate action,” “the governmental interest
being served by the officers’ entry into Defendant’s home,” and the weight of “this
governmental interest against Defendant’s interest in maintaining the privacy of his home.”
Rohrig, 98 F.3d at 1518. The court in Rohrig noted that a defendant’s reasonable
expectation of privacy in his home could be diminished by his own conduct. Id.
First, plaintiffs have failed to meet their burden demonstrating that qualified
immunity does not apply to Officer Kilpatrick’s warrantless entry into their home.
Specifically, plaintiffs have not shown that Officer Kilpatrick violated one of their clearly
established rights in a particularized sense—a necessary component to overcoming
qualified immunity. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“We do not require
a case directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.”). Plaintiffs have offered no precedent to the facts
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at hand to demonstrate that plaintiffs’ rights were clearly established in this situation. In
their response, plaintiffs cite two cases, Payton v. New York, 445 U.S. 573 (1980) and
Florida v. Jardines, 569 U.S. 1 (2013), for the proposition that Officer Kilpatrick’s
warrantless entry onto their property and into their home violated their constitutional rights
[Doc. 57]. However, the Supreme Court has repeatedly admonished lower courts to refrain
from defining clearly established law at high levels of generality. See, e.g., Ashcroft, 563
U.S. at 742 (“The general proposition, for example, that an unreasonable search or seizure
violates the Fourth Amendment is of little help in determining whether the violative nature
of particular conduct is clearly established.”).
Neither of the cases cited by plaintiffs assist the Court in determining whether their
rights were violated based on the specific facts at issue in this case. Payton stands for the
general proposition that police cannot engage in warrantless entries into suspects’ homes
to make routine felony-arrests. Payton, 445 U.S. at 576. However, in this case the officers
were responding to a “disorder” call, and Officer Kilpatrick maintains that his warrantless
entry into plaintiffs’ home was justified by exigent circumstances [Doc. 46]. Therefore,
Payton’s more general holding is not directly applicable here. Jardines stated that law
enforcement officers who used drug-sniffing dogs on the front porch of a home without a
warrant executed a “search” for the purposes of the Fourth Amendment. Jardines, 569
U.S. at 7. As discussed above, the officers in this case did not violate the Jardines ruling
by approaching plaintiffs’ home by way of the front porch in order to knock on the door to
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speak with plaintiffs. Neither of the cases cited by plaintiffs, therefore, offer effective
rebuttals of defendants’ qualified immunity defense.
Furthermore, Officer Kilpatrick cites two cases, Cummings v. City of Akron, 418
F.3d 676 (6th Cir. 2005) and U.S. v. Santana, 427 U.S. 38 (1976), to demonstrate his belief
that his entry into plaintiffs’ home was justified under the circumstances and legal under
relevant caselaw [Doc. 46]. Officer Kilpatrick highlights the facts in these cases to
demonstrate that interactions between police officers and citizens in the doorways of
private homes can at times be considered interactions held in public space, during which,
if probable cause arises, an officer can effectuate a warrantless arrest [Id.].
On one side of the spectrum is Cummings, whose circumstances demonstrate an
interaction which took place in a private space. In Cummings police officers approached
the defendant’s home, opened a screen door, and knocked on defendant’s front door. 418
F.3d at 679. Defendant clearly manifested an intent to keep his home private, first by
attempting to talk to the officers through his window, and later by only partially opening
his door at their request. Id. at 685. During the subsequent conversation, an officer
intentionally stuck his foot in the door, and when the defendant refused the officers’ request
to enter the home and tried to shut the door, he was prevented from doing so by this
officer’s foot. Id. The officer maintained that defendant’s act of shutting the door on his
foot constituted an assault, and therefore he was justified in entering the home to arrest the
defendant under the hot pursuit exception to the warrant requirement. Id. The Sixth Circuit
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disagreed, pointing out that “the key to the hot pursuit exception is that a suspect may not
defeat an arrest which has been set in motion in a public place by the expedient of escaping
to a private place.” Id. at 686 (citing United States v. Santana, 427 U.S. 38, 43 (1976)).
The court found that the defendant did not commit a crime in a public space because he
“never fully exposed himself to public view, given that he opened the door very slightly,
and only at the request of the police.” Id.
In contrast, in Santana the Supreme Court determined that a defendant who was
standing in the open doorway of a house was in a public space because “[s]he was not
merely visible to the public but was as exposed to public view, speech, hearing, and touch
as if she had been standing completely outside her house.” 427 U.S. at 42. The Court
found that she had no expectation of privacy there and so the police, who had probable
cause to arrest her, could do so. Id. When the defendant attempted to retreat into the home
to avoid her impending arrest, the Court found that the officers’ warrantless entry into the
home was appropriate under the hot pursuit exception. Id. The Court noted that “[t]he fact
that the pursuit here ended almost as soon as it began did not render it any the less a ‘hot
pursuit’ sufficient to justify the warrantless entry into [defendant]’s house.” Id. at 43. The
facts in Santana therefore demonstrate that a plaintiff standing in a doorway deemed to be
a public space cannot necessarily reacquire Fourth Amendment protection simply by
retreating back into the home. Co-defendant Kilpatrick argues that the present situation is
more analogous to the facts in Santana than Cummings, and plaintiffs do not present
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relevant caselaw, or indeed even engage in an analysis of the two cases cited by Officer
Kilpatrick, to rebut this assertion.
It is important to note that under the doctrine of qualified immunity it is not
necessary for the Court to determine conclusively the constitutionality of an officer’s
conduct. Rather, the Court must grant immunity unless “the contours of a right are
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right,” and it is “beyond debate” that the officer’s actions violated the clearly
established law. Ashcroft v. al-Kidd, 563 U.S. at 741. The Court first finds that, given
plaintiffs’ proximity to their open door and their interactions with the police, the question
of whether they placed themselves in the public view, and therefore in a public space, is
not beyond debate.
The Court reaches this conclusion even when viewing the evidence in a light most
favorable to plaintiffs. The undisputed evidence shows that, as Officers Kilpatrick and
Gunn approached plaintiffs’ front door, Mrs. Nance preemptively opened the door to
engage in conversation with them [Doc. 30]. This is unlike the plaintiff in Cummings, who
came to a window to speak with officers only after they knocked on his door. 418 F.3d at
679. Furthermore, the facts demonstrate that Mrs. Nance opened the door wide enough for
both herself and Larry Nance to view the officers and converse with them [Doc. 31].
Again, this is in contrast to the plaintiff in Cummings, who only opened his door “very
slightly,” when asked by plaintiffs to come to the front door. 418 F.3d at 686. Whereas
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the court in Cummings found that the plaintiff “never fully exposed himself to the public
view, given that he only opened the door very slightly, and only at the request of the
police,” 418 F.3d at 686, here Mrs. Nance opened the door before the police could request
that she do so, and opened it wide enough for the police and both Larry and Sherry Nance
to clearly see and converse with each other.2 This is similar to the situation in Santana,
where the plaintiff was exposed to public view and hearing. Santana, 427 U.S. at 42.
Given these circumstances, a reasonable officer could have believed that the plaintiffs
exposed themselves to public view.
Once exposed to the public view, and if probable cause arose, plaintiffs could not
necessarily reclaim their Fourth Amendment protections merely by attempting to end their
interaction with the police and retreating back into their house. See e.g. Santana, 427 U.S.
at 43 (“A suspect may not defeat an arrest which has been set in motion in a public place.”).
The question next becomes whether Officer Kilpatrick violated plaintiffs’ clearly
established rights by entering their home, or whether this entrance was justified due to
Apart from the interior door, plaintiffs’ home also has a screen door. As stated, the parties
dispute when the screen door was opened and by whom. However, even if the screen door was
initially closed when Sherry Nance first spoke with the officers, the facts demonstrate that the
parties could still clearly see and hear each other. Furthermore, even if the officers were the ones
to eventually open the screen door, this fact is immaterial. In Cummings, the home also had a
screen door outside of the house door. 418 F.3d at 679. The officers there opened the screen door
in order to knock on the interior door. Id. The court did not find this action to violate plaintiff’s
constitutional right; instead, the violation occurred when the officer attempted to enter into the
home when plaintiff had clearly manifested an intent that it should remain a private space. Id. at
686. Here, as discussed above, plaintiffs did not clearly manifest an intent to keep their home
private. Moreover, even if the officers did open the screen door in this case, the facts show that it
swung outward over the porch, an area the police officers were legally allowed to be [Docs. 30,
31].
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2
exigent circumstances.
In that regard, the Court finds that a reasonable officer in
Kilpatrick’s situation could have concluded that exigent circumstances justified his
entrance. Again, plaintiffs do not point to relevant caselaw to demonstrate that Officer
Kilpatrick must have understood his actions violated plaintiffs’ rights.
See City of
Escondido, Cal. v. Emmons, 139 S. Ct. 500, 504 (“We have stressed the need to identify a
case where an officer acting under similar circumstances was held to have violated the
Fourth Amendment . . . While there does not have to be a case directly on point, existing
precedent must place the lawfulness of the particular action beyond debate.”) (internal
quotations and citation omitted).
And, viewing the evidence in a light most favorable to the plaintiffs, the Court does
not find that it was objectively unreasonable for Officer Anderson to have initially crossed
plaintiffs’ threshold without a warrant due to his perception of immediate risk of danger to
police or others. Johnson, 22 F.3d at 680. Both parties describe their interaction as very
heated, and the audio footage of the encounter supports the contentious nature of the
encounter [Docs. 30, 31, 46-1, 47]. It is also undisputed that police officers had twice been
called to plaintiffs’ residence that day, once for a “shots fired” call, and then again for a
“disorder” call. It is here that the recollections diverge. Plaintiffs allege that they tried to
end the interaction by closing their front door, whereupon Officer Kilpatrick opened the
screen door and subsequently “[threw] his arm out” in order to stop the interior door from
also closing [Docs. 30, 31]. Although Mr. Nance asserts that he did not make any
threatening movements toward Officer Kilpatrick or hide his hands from Kilpatrick during
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their encounter [Doc. 54], Officer Kilpatrick states that nevertheless at one point during
their interaction his view of Mr. Nance’s hands was obstructed, and given the previous
“shots fired” call and the hostile situation then occurring, Officer Kilpatrick feared that Mr.
Nance was attempting to grab a weapon [Doc. 46-1]. Officer Kilpatrick maintains that he
leaned across the threshold of the Nance home in order to keep a visual on Mr. Nance’s
hands [id.].
Under the totality of the circumstances, Officer Kilpatrick’s actions were not
objectively unreasonable, even given plaintiffs’ version of events. The parties were
involved in a highly antagonistic encounter, and Officer Kilpatrick was aware that this was
the second police call against plaintiffs that day, the first of which involved the alleged use
of a gun. Even if Larry Nance was not reaching for a firearm, and was instead reaching for
his interior door to close it and end the encounter with Officer Kilpatrick, under the
circumstances Officer Kilpatrick was not objectively unreasonable to fear that Mr. Nance
could be reaching for a firearm, as he believed Mr. Nance had been in possession of one
earlier in the day. Therefore, based on the hostile situation and his knowledge of plaintiff,
it was not objectively unreasonable for Officer Kilpatrick to fear that there was an
immediate risk of danger to the police or others, which would justify his opening of the
screen door and leaning across the threshold in an attempt to maintain a visual on Mr.
Nance’s hands. See Bing ex rel. Bing v. City of Whitehall, Ohio, 456 F.3d 555, 564 (holding
that dangerous exigent circumstances justified a warrantless home entry where the police
knew plaintiff had access to a gun, the police had previously been called to plaintiff’s
20
residence because of shots fired, and plaintiff exhibited unstable behavior); see also Daniel
v. Cox, 1997 WL 234615, at *3 (6th Cir. 1997) (qualified immunity appropriate for police
officer who opened the screen door of a home in an attempt to identify the source of
movements in a house whose residents were knowingly prone to acts of violence and
possibly armed).
Although Officer Kilpatrick may have only leaned across the threshold to retain a
visual on Mr. Nance’s hands, we know that Mr. Nance was not reaching for a gun, but was
instead grabbing the door in order to shut it. Officer Kilpatrick, lacking the ability of
hindsight which we now possess, saw the door swinging toward him and put up his hands
to stop the door from closing on him. He then was not objectively unreasonable to believe
himself to be the victim of an assault in a public space, here the doorway of the home.3
Once Officer Kilpatrick believed he had probable cause to arrest the defendant for his
assault, Mr. Nance could not necessarily “defeat an arrest which has been set in motion in
a public place . . . by the expedient escaping to a private place.” Santana, 427 U.S. at 43.
Officer Kilpatrick was then was able to fully enter plaintiffs’ home under the hot pursuit
exception to warrantless entries. See Johnson, 22 F.3d at 680.
Furthermore, plaintiffs have also failed to show that Officer Anderson’s warrantless
entry into plaintiffs’ home violated their clearly established rights. Officer Anderson also
Under Tennessee law, “A person commits assault who: (1) Intentionally, knowingly or
recklessly causes bodily injury to another; (2) Intentionally or knowingly causes another to
reasonably fear imminent bodily injury; or (3) Intentionally or knowingly causes physical contact
with another and a reasonable person would regard the contact as extremely offensive or
provocative.” TENN. CODE ANN. § 39-13-101 (2018).
21
3
raised the defense of qualified immunity, asserting that his entrance was justified by
exigent circumstances, namely his reasonable perception of the risk of danger to his fellow
police officers and others within the home. See Rohrig, 98 F.3d at 1515. In response,
plaintiffs again cite the holdings in Payton v. New York and Florida v. Jardines. See
Payton, 445 U.S. at 576; Jardines, 569 U.S. at 7. As discussed above, the facts and
circumstances in those cases do not aid the Court in determining whether qualified
immunity should apply in this case. Plaintiffs have therefore failed to establish that Officer
Anderson violated a clearly established right. The undisputed facts show that Officer
Anderson responded to a “disorder” call at a location where, earlier in the day, he had
responded to a “shot fired” complaint. Then, while standing to the side of the porch, he
heard a verbal altercation between Officers Gunn, Kilpatrick, and Mr. Nance, saw the other
two officers enter the house, and heard a commotion from inside the house which sounded
like a fight. Based on these circumstances, it was reasonable for Officer Anderson to
believe there was a risk of danger to his fellow police officers and others in the home so as
to justify him passing through the doorway without a warrant.
Because plaintiffs fail to demonstrate that qualified immunity should not apply to
both officers, summary judgment for defendants is therefore appropriate.
Because
summary judgment is appropriate for both defendants, plaintiffs’ motion for summary
judgment as to this count will be denied.
22
3.
Arrest
Both officers are also entitled to qualified immunity against plaintiff Larry Nance’s
false arrest charge. To bring a false arrest claim under 42 U.S.C. § 1983, a plaintiff must
show that the arresting officer lacked probable cause to arrest him. Voyticky v. Vill. Of
Timberlake, 412 F.3d 669, 677 (6th Cir. 2005) (citing Fridley v. Horrighs, 291 F.3d 867,
872 (6th Cir. 2002)). Probable cause exists where there are “facts and circumstances within
the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has committed, is
committing or is about to commit an offense.” Crockett v. Cumberland College, 316 F.3d
571, 580 (6th Cir. 2003) (quoting Michigan v. DeFillippo, 433 U.S. 31, 37 (1979)). The
reasonableness of a police officer’s determination of probable cause is assessed based on
an officer’s knowledge at the time of an arrest. Id. (citing Estate of Dietrich v. Burrows,
167 F.3d 1007, 1012 (6th Cir. 1999)). In situations such as this, where there are multiple
police officers involved in the incident, courts must look at each defendant individually to
determine if they violated the plaintiff’s constitutional rights. Newbill v. Neville, 2018 U.S.
Dist. LEXIS 166399, at *14 (S.D. Ohio Sept. 27, 2018).
In the instant case, Officer Kilpatrick ordered Mr. Nance’s arrest and Officer
Anderson executed it. As discussed above, it was not objectively unreasonable for Officer
Kilpatrick to believe himself to be the victim of an assault by Mr. Nance, thereby providing
23
probable cause to order Mr. Nance’s arrest.4 Because plaintiffs cannot therefore establish
that Officer Kilpatrick violated Mr. Nance’s constitutional rights, qualified immunity is
appropriate.
Furthermore, Officer Anderson only partially witnessed the events leading up to the
arrest and therefore, when formulating probable cause to effectuate the arrest, relied in part
on Officer Kilpatrick’s assertion that Mr. Nance assaulted him. This reliance was justified
based on the “collective knowledge” or “fellow officer” rule: “This doctrine recognizes
the practical reality that effective law enforcement cannot be conducted unless police
officers can act on directions and information transmitted by one officer to another.”
United States v. Lyons, 687 F.3d 754, 766 (6th Cir. 2012) (citing United States v. Hensley,
469 U.S. 221, 229 (1985)) (internal quotation omitted). The rule allows officers to rely in
good faith on reports of other officers. To evaluate whether qualified immunity applies in
these situations, courts consider “(1) what information was clear or should have been clear
to the individual officer at the time of the incident; and (2) what information that officer
was reasonably entitled to rely on in deciding how to act, based on an objective reading of
the information.” Humphrey v. Mabry, 482 F.3d 840, 848 (6th Cir. 2007).
Here the fellow officer rule establishes probable cause on the part of Officer
Anderson; therefore, there was no constitutional violation. Officer Anderson did not see
all of the events culminating in Mr. Nance’s arrest. He did however, hear a commotion
This is accordance with Tennessee law, which provides that “an officer may, without a
warrant, arrest a person for a public offense committed or a breach of the peace threatened in the
officer’s presence.” Tenn. Code Ann. § 40-7-103.
24
4
and then, upon entering the Nance home, see Officer Kilpatrick and Mr. Nance on the floor
together [Doc. 39-1].
Based on his perceptions, his reasonable reliance on Officer
Kilpatrick’s claim of assault, and Officer Kilpatrick’s order to arrest Mr. Nance, Officer
Anderson was justified in effectuating Mr. Nance’s arrest.
At the summary judgment stage it is plaintiffs’ burden to show that Officers
Kilpatrick and Anderson are not entitled to qualified immunity, and here plaintiffs fail to
do so, either by demonstrating that Officer Kilpatrick’s belief that he was assaulted was
objectively unreasonable or by adducing proof that Officer Anderson’s reliance on Officer
Kilpatrick’s information and instructions was unreasonable. Plaintiffs have failed to meet
their burden and qualified immunity therefore applies. Summary judgment for defendants
is appropriate. Because summary judgment is appropriate for defendants, plaintiffs’
motion for summary judgment as to this count will be denied.
4.
Rights under Miranda
Both defendants are entitled to summary judgment on plaintiffs’ claim that they
“attempted to force [plaintiffs] to talk” to them in violation of the Fifth and Fourteenth
Amendments [Doc. 1]. Plaintiffs fail to put forth any facts to support this claim. As
discussed above, the officers were allowed to respond to a police call and approach
plaintiffs’ home. There is no evidence in the record that either officer attempted to
interrogate plaintiffs in violation of their Miranda rights, which provide that defendants
must be warned of their constitutional rights against self-incrimination. Miranda v.
Arizona, 384 U.S. 436, 444 (1966). To the extent that plaintiffs allege a violation of their
25
Miranda rights before Mr. Nance’s arrest, these rights do not apply to persons not in
custody. See id. To the extent that Mr. Nance alleges a violation of his Miranda rights
after his arrest, defendant does not point to any evidence in the record supporting this
assertion. Because there is no factual evidence supporting this claim, summary judgment
for Officers Kilpatrick and Anderson is appropriate. Plaintiffs’ motion for summary
judgment as to this count will be denied.
5.
Excessive Force
The right to make an arrest “necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396
(1989).
However, arresting and investigating officers are prohibited by the Fourth
Amendment from using excessive force. Wells v. City of Dearborn Heights, 538 Fed.
Appx. 631, 637 (6th Cir. 2013).
Courts use the “objective reasonableness” test to
determine whether this prohibition has been violated, asking “whether the officers’ actions
were ‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Id. (quoting Graham v. Connor,
490 U.S. at 386). “The test is fact specific, not mechanical, and the three most important
factors for each case are: (1) the severity of the crime at issue; (2) the threat of immediate
danger to the officers or bystanders; and (3) the suspect’s attempts to resist arrest or flee.”
Id. The test aids the Court in balancing “the nature and quality of the intrusion on a
plaintiff’s Fourth Amendment interests against the countervailing governmental interests
at stake.” Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013) (internal citation and
26
quotations omitted). Moreover, this “reasonableness” inquiry is objective and “must be
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must
embody allowance for 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.
Plaintiff Larry Nance appears to assert that Officer Kilpatrick twice used excessive
force on him: once when effectuating his arrest within plaintiffs’ home, and again when
moving him from one police car to another [Doc. 1]. In their motion for summary judgment
plaintiffs do not analyze their excessive force claim at all [Doc. 34], and in their reply to
Officer Kilpatrick’s motion for summary judgment plaintiffs cite no case law to
demonstrate with particularity how Officer Kilpatrick’s use of force was unreasonable or
excessive [Doc. 57]. Instead, in their reply brief, plaintiffs devote less than a page to their
argument that Officer Kilpatrick’s use of force was excessive, stating first that, “there is
nothing objectively reasonable about a law enforcement officer entering someone’s home
to make an arrest without consent, without a warrant, and in clear violation of a U.S.
Supreme Court case proscribing such misconduct” [Doc. 57]. The case plaintiffs reference
is, once again, Payton v. New York [Id.]. Plaintiffs’ reliance on this case has already been
addressed and the Court reiterates that “a plaintiff may not allege the violation [of a
constitutional right] in terms of a general, abstract right in order to survive summary
judgment.” Lee v. Ritter, 2005 U.S. Dist. LEXIS 34988, at *27 (E.D. Tenn. Dec. 12, 2005).
27
Payton’s facts are dissimilar to the facts here and its holding does not rebut Officer
Kilpatrick’s assertion that he made his warrantless entry based on exigent circumstances.
Plaintiffs then state, without any citation, that “Mr. Kilpatrick had no right to use
any force to arrest Mr. Nance in his home without a warrant. His use of force was illegal
and he did not have the protection of the law” [Doc. 57] (emphasis in original). These base
legal allegations are neither supported by relevant facts nor case law. Plaintiffs have again
failed to meet their burden in rebutting Officer Kilpatrick’s defense of qualified immunity.
See Lee, 2005 U.S. Dist. LEXIS 34988, at *27 (“Plaintiff [] bear[s] the burden of
establishing that the constitutional right allegedly violated was sufficiently clear at the time
of the alleged violation and in relation to the acts committed, ‘that a reasonable official
would understand that his or her conduct violated that right.’”) (quoting Wagener v. City
of Covington, 933 F.2d 390, 392 (6th Cir. 1991)).
First, the Court holds that, even viewing the evidence in a light most favorable to
plaintiffs, qualified immunity applies to Officer Kilpatrick’s use of force in effectuating
the arrest of Mr. Nance within plaintiffs’ home. Mr. Nance alleges that “Trent Kilpatrick
grabbed me by the throat and pushed me into appliances and furniture” [Doc. 31]. The
Court is not prepared to say that Officer Kilpatrick’s actions were objectively unreasonable.
In effectuating Mr. Nance’s arrest, Officer Kilpatrick was responding to a rapidly-evolving
situation. He had just engaged in a heated conversation with plaintiff, which ended in what
Kilpatrick reasonably believed to be an assault against his person. Officer Kilpatrick was
furthermore at plaintiffs’ residence in the first place because he was responding to a
28
“disorder” call, the second call against plaintiff that day. In deciding whether Officer
Kilpatrick’s actions were objectively reasonable, the Court has evaluated the Graham
factors and notes that although assault is a misdemeanor charge, the alleged assault was
made against Officer Kilpatrick immediately preceding the arrest. Given the contentious
nature of the parties’ interaction, the alleged assault, and this history, Officer Kilpatrick
was not objectively unreasonable in using this non-lethal force to detain Mr. Nance. See
Graham v. Connor, 490 U.S. 386, 396 (1989) (“Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers violates the Fourth
Amendment.”) (internal quotation and citation omitted).
The Court will not, however, grant summary judgment to either party on Mr.
Nance’s claim of excessive force as to Officer Kilpatrick based on the transfer of Mr.
Nance’s from one police car to the other. When evaluating multiple incidents of alleged
excessive force, courts analyze the events in “segments” and “judge each [segment] on its
own terms to see if the officer was reasonable at each stage.” Dickerson v. McClellan, 101
F.3d 1151, 1161 (6th Cir. 1996) (quoting Plakas v. Drinksi, 19 F.3d 1143, 1150 (7th Cir.
1994)). Therefore, just because Officer Kilpatrick’s use of force against plaintiff inside the
house was reasonable, his later-alleged use of force is not shielded under a general aura of
appropriacy.
It is undisputed that Mr. Nance was handcuffed and in Officer Kilpatrick’s car when
the officers decided to transfer Mr. Nance to Officer Anderson’s car. Officers Kilpatrick
and Anderson both state that, in the midst of this transfer, they saw Mr. Nance suddenly
29
lunge at Officer Kilpatrick, who put his hands up to stop Mr. Nance from hitting him [Docs.
39-1, 46-1]. Both officers also state that Mr. Nance subsequently fell to the ground, and
then was placed in Officer Anderson’s patrol car without further incident [Id.]. Mr. Nance,
however, recounts the incident differently. He states that he never lunged at Officer
Kilpatrick, but was instead “thrown” to the ground by Officer Kilpatrick, breaking two of
his ribs in the process [Doc. 54]. The video footage contains neither audio nor video of
this incident.
When assessing Officer Kilpatrick’s motion for summary judgment, the Court must
view the facts in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp, 475 U.S. 574 (1986). Here, there are factual discrepancies which
are material to the Court’s reasonableness inquiry and which preclude summary judgment
for Officer Kilpatrick. In particular, there are questions of fact regarding whether Mr.
Nance posed a threat to the officers on the scene or in any other way actively resisted his
arrest. Using Mr. Nance’s version of events, we must first ask if there was a constitutional
violation. Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007). Particularly, does a
constitutional violation occur when a handcuffed defendant, making no sudden movements
and posing no discernable threat, is “thrown” to the ground by an arresting police officer?
The answer is yes. Looking at the Graham factors and the particular circumstances
of this case, the crime for which Mr. Nance was arrested, assault of a police officer,
although serious, is still a misdemeanor. See TENN. CODE ANN. § 39-13-101 (2018).
Moreover, Mr. Nance’s threat to the police and others was greatly reduced. As opposed to
30
the earlier situation inside the house, here Mr. Nance was handcuffed and surrounded by
two police officers who were securely monitoring him as he was moved from one police
car to the other. Taking plaintiffs’ facts as true, Mr. Nance at this point was not acting
violently, threatening the police verbally, or in any other way acting in a potentially
dangerous manner. Further, apart from alleging that Mr. Nance lunged, the officers do not
state that Mr. Nance was behaving in a dangerous manner. Finally, Mr. Nance alleges that
he did not try to resist the police officers or flee.
Based on the totality of these
circumstances, it would be objectively unreasonable for Officer Kilpatrick to throw Mr.
Nance to the ground without prompt and with enough force to break his ribs.
Moreover, Mr. Nance’s right to be free from excessive force while restrained and
non-hostile is clearly established. Our circuit’s caselaw makes clear “the right of [persons]
who pose no safety risk to the police to be free from gratuitous violence during arrest.”
Baker v. City of Hamilton, Ohio, 471 F.2d 601, 608 (6th Cir. 2006) (quoting Shreve v.
Jessamine Cnty. Fiscal Court, 453 F.3d 681, 688 (6th Cir. 2006)). For example, in Phelps
v. Coy, 286 F.3d 296 (6th Cir. 2002), a handcuffed plaintiff was in the custody of police
officers when one officer asked the plaintiff to lift his feet. 286 F.3d at 297. When the
plaintiff tried to comply, another officer interpreted the movement as the plaintiff trying to
kick at the first officer. The second officer tackled the plaintiff, hit him twice in the face,
and banged his head on the floor several times. The court, applying the Fourth Amendment
objective reasonableness test, found that qualitive immunity did not apply to the plaintiff’s
excessive force claim, explaining “there was simply no governmental interest in continuing
31
to beat [plaintiff] after he had been neutralized, nor could a reasonable officer have thought
there was.” Id. at 301.
Similarly, in Burgess v. Fischer, 735 F.3d 462 (6th Cir. 2013), the court decided
that qualified immunity did not apply in a situation where a handcuffed plaintiff,
surrounded by four jail officials, was subjected to a takedown which resulted in several
fractures to plaintiff’s face and head. In McDowell v. Rogers, 863 F.2d 1302, 1307 (6th
Cir. 1988), a plaintiff who was handcuffed and not attempting violence or escape was
allegedly hit with a nightstick by a police officer. Given the circumstances, the court stated
that the “need for the application of force was thus nonexistent; the alleged force could
only have been applied maliciously, and the amount of force allegedly used was sufficient
to break [plaintiff’s] rib.” Id. See also, Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir.
2010) (“[S]triking a neutralized suspect who is secured by handcuffs is objectively
unreasonable).
Here, taking plaintiffs’ version of events, Mr. Nance was handcuffed, securely
between officers, and did not pose a safety risk. Given these circumstances, the need to
use force against him was nonexistent, and given this circuit’s case law, the application of
gratuitous force enough to break Mr. Nance ribs would be objectively unreasonable.
The Court, however, will also deny Mr. Nance’s motion for summary judgment as
to the unconstitutionality of Officer Kilpatrick’s use of force. As discussed above, there is
a material factual dispute as to whether Mr. Nance lunged at Officer Kilpatrick. When
viewing plaintiff’s motion, the Court analyzes all facts in a light most favorable to
32
defendant. Here, both officers assert in their affidavits that Mr. Nance lunged at Officer
Kilpatrick [Docs. 39-1, 46-1].
Considering the factors relevant to the objective
reasonableness test we note that, although the crime at issue was a misdemeanor assault, it
was made against Officer Kilpatrick. Furthermore, it would be reasonable for Officer
Kilpatrick, seeing the plaintiff lunge in his direction, to believe that Mr. Nance was
attempting to assault him again and actively resist his arrest. Because there is a genuine
issue as to this material fact, summary judgment for Mr. Nance is likewise inappropriate
and will be denied.
Officer Anderson, however, is entitled to summary judgment on Mr. Nance’s claim
of excessive force. The record shows that Officer Anderson only touched Mr. Nance in
order to put handcuffs on him, which he was entitled to do in effectuating the arrest [Doc.
48-2]. There is no evidence in the record that Mr. Nance was hurt by this act of
handcuffing, or that this incident is the encounter on which he bases his use force claim.
Because defendant Anderson has shown that there is no genuine dispute as to any material
fact with respect to this claim, summary judgment is appropriate.
As to Mrs. Nance and Justin Nance’s claims of excessive force, both officers are
entitled to summary judgment, because plaintiffs have not asserted any facts to support
allegations of excessive force.
B.
State Claims
Plaintiffs additionally assert several state-law claims based on the facts in this case.
The Court has supplemental jurisdiction over these claims under 28 U.S.C. § 1367(a).
33
Although plaintiffs’ motion for summary judgment only relates to their federal and state
constitutional claims [Doc. 32], defendants have moved for summary judgment on all
claims [Docs. 45, 48]. The Court will thus evaluate plaintiffs’ state-constitution claims
based on the dueling motions and plaintiffs’ common law and statutory claims based only
on defendants’ motions. See Wiley, 20 F.3d at 224.
Tennessee courts have provided that the doctrine of qualified immunity applies
additionally to police officers charged in state causes of action. See Youngblood v. Clepper,
856 S.W.2d 405, 406 (Tenn. Ct. App. 1993) (applying “common law” immunity to state
law claims brought against a state trooper); see also Rogers v. Gooding, 84 Fed. Appx.
473, 477 (6th Cir. 2003) (finding that the district court properly applied qualified immunity
to assault and battery claims). The Court will thus evaluate each of plaintiffs’ claims to
determine whether qualified immunity applies and summary judgment is appropriate.
1.
State Constitutional Claims
Plaintiffs’ state constitutional claims must be dismissed against both defendants
because Tennessee does not recognize a private right of action for violations of the
Tennessee Constitution. Cline v. Rogers, 87 F.3d 176, 180 (6th Cir. 1996) (“The plaintiff
can state no claim of a state constitutional violation in this case because Tennessee does
not recognize a private cause of action for violations of the Tennessee Constitution.”)
(citing Lee v. Lad, 834 S.W2d 323, 325 (Tenn. Ct. App. 1992)). Therefore, plaintiffs’
motion for summary judgment brought pursuant Article 1, sections 7 and 9 of the
Constitution of the State of Tennessee will be denied.
34
2.
Assault and Battery
Under Tennessee law, assault and battery claims alleged against police officers turn
on the use of force, and whether it was reasonable or unreasonable. When alleging both
claims for the same action, “a battery includes the assault and cannot be separated from it.”
Lewis v. Metropolitan General Sessions Court for Nashville, 949 S.W.2d 696, 703 (Tenn.
Ct. Crim. App. Feb. 13, 1996) (citing State v. Chaffin, 32 Tenn. 493, 494 (1852)). An
assault is “any act tending to do corporal injury to another, accompanied with such
circumstances to denote at the time an intention, coupled with the present ability, of using
actual violence against the person.” Butler v. City of Englewood, 2008 WL 4006786, at
*14 (E.D. Tenn. 2008) (citing Lewis, 949 S.W.2d at 703). Battery is defined as “an
intentional act that causes an unpermitted harmful or offensive bodily contact.” Doe v.
Pizza, 2001 Tenn. App. LEXIS 224, at *14 (Tenn. Ct. App. Apr. 5, 2001) (citing Cary v.
Arrowsmith, 777 S.W.2d 8, 21 (Tenn. Ct. App. 1989)).
Police officers may be held liable for damages caused by their excessive use of force
based on these state-law theories. City of Mason v. Banks, 581 S.W.3d 621, 626 (Tenn.
1979). Conversely, “[t]he use of reasonable force to effectuate an arrest defeats a battery
or an assault claim.” Brown v. Christian Bros. Univ., 428 S.W.3d 38, 58 (Tenn. Ct. App.
2013). When effectuating an arrest, “an officer may only use the force reasonably
necessary to accomplish the arrest, with due regard to other attendant circumstances, such
as his own safety or that of others present.” Id. at 625. Tennessee courts employ the same
excessive-force analysis in assault and battery claims as federal courts do to analyze these
35
claims under § 1983. Harris v. Metro. Gov’t of Nashville, 2007 WL 4481176, at *9 (M.D.
Tenn. Dec. 18, 2007).
As explained previously, plaintiff Larry Nance has asserted adequate factual
grounds for his second claim of excessive force against Officer Kilpatrick based on the
circumstances surrounding his transfer between Officer Kilpatrick and Officer Anderson’s
police cars. Because Tennessee assault and battery claims are analyzed under the same
federal § 1983 “excessive force” standard, see Harris, 2007 WL 4481176, at *9, plaintiff
Larry Nance has set forth adequate grounds for his state-law assault and battery claims
against Officer Kilpatrick. All other assault and battery claims against Officer Kilpatrick,
and all assault and battery claims against Officer Anderson will be dismissed.
3.
False Imprisonment
Under Tennessee law, false imprisonment is the unlawful detention or restraint of
another without justification. Two elements must be proven by a plaintiff: (1) that he was
restrained or detained against his will; and (2) the unlawfulness of this restraint or
detention. Cunningham v. Sisk, 2003 WL 23471541, at *17 (E.D. Tenn. 2003). To be
liable for false imprisonment, a defendant must act without probable cause. Brown v.
SCOA Industries, Inc., 741 S.W.2d 916, 920 (Tenn. Ct. App. 1987).
The Court has already determined that both Officer Kilpatrick and Officer Anderson
had probable cause to arrest plaintiff Larry Nance. Officer Kilpatrick’s probable cause to
order the arrest was based upon his reasonable belief that Larry Nance assaulted him, and
Officer Anderson had probable cause to effectuate the arrest, based on his own perceptions
36
and Officer Kilpatrick’s order.5 Mr. Nance has therefore failed to establish the second
element necessary for a false-imprisonment claim. Plaintiffs Sherry Nance and Justin
Nance have not asserted any facts to indicate they were falsely arrested. Summary
judgment in favor of defendants on this issue is therefore appropriate.
4.
Trespass to Land
Under Tennessee law, “every unauthorized, and therefore unlawful entry, into the
close of another, is a trespass.” Stout v. Carmax Auto Fin., 2013 U.S. Dist. Lexis 169707,
at *9 (W.D. Tenn. Oct. 7, 2013). However, police officers may enter onto private land,
approach the front door of a residence, knock, and ask questions of the residents. See
United States v. Clay, 2011 U.S. Dist. LEXIS 65657, at *12 (E.D. Tenn. 2011) (citing
Hardesty v. Hamburg Twp., 461 F.3d 646, 654 (6th Cir. 2006)). Both Officer Kilpatrick
and Officer Anderson lawfully entered onto plaintiffs’ land in order to approach plaintiffs’
front door and engage with them. Furthermore, as already discussed, both officers legally
entered into the Nance’s home based on exigent circumstances. See Rohrig, 98 F.3d 1506
(6th Cir. 1996). Because the officers’ entry onto plaintiffs’ land and into plaintiffs’ home
was lawful, summary judgment will be granted for defendants.
Tennessee courts utilize a doctrine similar to the federal “fellow officer” rule discussed by
this Court when analyzing the lawfulness of Mr. Nance’s arrest under federal law. Tennessee has
adopted the “police team” rule so that police officers may “combine their collective perceptions
so that if the composite otherwise satisfies the presence requirement that requirement is deemed
satisfied although the arresting officer does not himself witness all the elements of the offense.”
State v. Ash, 12 S.W.3d 800, 806 (Tenn. Crim. App. 1999). Therefore, under Tennessee law as
well as federal law, Officer Anderson was allowed to rely on Officer Kilpatrick’s account of Mr.
Nance’s alleged assault when formulating probable cause to arrest Mr. Nance.
37
5
5.
Trespass to Chattels
Plaintiffs allege that Officer Kilpatrick is liable for trespass to chattels because
several household goods were damaged during Officer Kilpatrick’s arrest of Larry Nance’s
[Doc. 1]. “A trespass to chattels occurs when one party intentionally uses or intermeddles
with personal property in rightful possession of another without authorization.” Garner v.
Coffee County Bank, 2015 WL 6445601, at *6 (Tenn. Ct. App. Oct 23, 2015). To maintain
this claim plaintiffs must be able to prove that defendants “wrongfully interfered with or
injured plaintiff’s property [] causing actual damage to the property or depriving the
Plaintiff of its use for a substantial period. Id. at 7.
Plaintiffs’ claim fails. First, there is no indication that Officer Kilpatrick intended
to use or intermeddle with the Nance’s household goods. In fact, the complaint doesn’t
allege that Officer Kilpatrick touched or intended to touch the household goods; it instead
says that the goods were damaged by Larry Nance when he was “thrown into” them and
“consequently knocked [them] over” [Doc. 1]. Based on the circumstances, it is clear that
Officer Kilpatrick’s intent was to subdue and arrest Mr. Nance, not intentionally
intermeddle with the Nance’s household goods. Furthermore, plaintiffs cannot prove that
Officer Kilpatrick wrongfully interfered with the goods because Officer Kilpatrick was
effectuating a lawful arrest and is entitled to qualified immunity for his non-lethal use of
force. Summary judgment is therefore appropriate for Officer Kilpatrick.
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6.
Invasion of Privacy
Plaintiffs allege that both officers invaded their privacy by entering into plaintiffs’
home without permission or a warrant [Doc. 1]. Under Tennessee law, an invasion of
privacy occurs when a person “intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another.” Roberts v. Essex Microtel Associates, II. L.P., 46 S.W.3d
205, 210–11 (Tenn. Ct. App. 2000). Warrantless entries into private homes can be
considered invasions of privacy, however, an officer’s warrantless entry into a private
home is not considered an invasion of privacy if that entry is based on exigent
circumstances. Basden v. Lawson, 1992 Tenn. App. LEXIS 285, at *6 (Tenn. Ct. App.
Mar. 27, 1992). Because both Officers Kilpatrick and Anderson’s warrantless entries into
plaintiffs’ home were justified by exigent circumstances, plaintiffs’ claim of invasion of
privacy must fail and summary judgment is appropriate for both defendants.
7.
Malicious Prosecution
To succeed on a claim of malicious prosecution, plaintiffs must show that an earlier
civil or criminal action was (1) filed without probable cause; 2) filed with malice; and (3)
terminated in favor of the plaintiffs. Himmelfarb v. Allain, 380 S.W.3d 35, 38 (Tenn.
2012).
A grand jury’s indictment creates a rebuttable presumption that probable cause to
institute the criminal proceeding existed . . . At the summary judgment stage,
evidence of a grand jury’s indictment negates the element of lack of probable cause
if the indictment is uncontested. To avoid this result, the nonmovant must produce
evidence, at the summary judgment stage, that the indictment was procured by
fraud. If the nonmovant fails to do so, then the fact that a grand jury issued an
indictment equates to a finding of probable cause.
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Gordon v. Tractor Supply Co., No. M2015-01049-COA-R3-CV, 2016 Tenn. App. LEXIS
401, at *28–29 (Ct. App. June 8, 2016) (internal quotations and citations omitted).
Although it is unclear from the complaint, it appears that only Mr. Nance is filing a
malicious-prosecution claim, as he was the only plaintiff charged with a crime in Hamilton
County Sessions Court. As discussed earlier in this opinion, Officers Kilpatrick and
Anderson had probable cause to arrest Mr. Nance. Furthermore, a neutral and detached
magistrate at the Hamilton County Jail found probable cause to allow the case to proceed
to Hamilton County Sessions Court, where Mr. Nance then waived his right to challenge
probable cause at a preliminary hearing and bound his case over the Hamilton County
Grand Jury. The grand jury, comprised of twelve impartial jurors, then found probable
cause when they indicted Mr. Nance for assault on a police officer. An indictment is
required in order for a case to proceed to a court hearing, where, in this instance, it was
dismissed [Doc. 48-1].
The grand jury’s indictment in the Hamilton County case creates a rebuttable
presumption that probable cause existed to institute that criminal proceeding. Furthermore,
Mr. Nance has not produced evidence demonstrating that this indictment was obtained
through fraud. Because Mr. Nance cannot prove this element, summary judgment for both
defendants is appropriate.
8.
Intentional Infliction of Emotional Distress
To sustain an intentional-infliction-of-emotional-distress claim in Tennessee, a
plaintiff must show that the complained of conduct (1) was intentional or reckless; (2) was
40
so outrageous as to not be tolerated by civil society; and (3) resulted in serious mental
injury.
Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).
Plaintiff’s burden for
demonstrating outrageous conduct is high; the Tennessee Supreme Court has explained
that defendant’s conduct must be “extreme” and “outrageous” and that, under Tennessee
jurisprudence,
It has not been enough that the defendant has acted with an intent which is tortious
or even criminal, or that he has intended to inflict emotional distress, or even that
his conduct has been characterized by malice or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort. Liability has been
found only where the conduct has been so outrageous in character, and so extreme
in degree, as to go beyond all bounds of decency, and to be regarded as atrocious
and utterly intolerable in a civilized community.
Id. at 622–23.
First, summary judgment should be granted to Officer Anderson on plaintiffs’
claims of intentional infliction of emotional distress. Officer Anderson’s arrest of Mr.
Nance, based on probable cause, was neither “extreme” nor “outrageous.” As explained
above, Officer Anderson’s actions were legal when he entered onto the Nance’s property,
entered the Nance’s home, participated in Mr. Nance’s arrest, escorted Mr. Nance outside,
and transferred Mr. Nance into his police car. None of these actions can be characterized
as atrocious or utterly intolerable. Because plaintiffs’ have failed to allege sufficient facts
with respect to this second element, summary judgment for Officer Anderson is
appropriate.
Summary judgment is also appropriate for Officer Kilpatrick on plaintiffs’
intentional-infliction-of-emotional-distress claims. The third element, demonstrating a
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serious or severe mental injury, also carries a high burden. A severe or serious emotional
injury occurs “where a reasonable person, normally constituted, would be unable to
adequately cope with the mental stress engendered by the circumstances of the case.”
Rogers v. Louisville Land Co., 367 S.W.3d 196, 208 (Tenn. 2012) (quoting Camper v.
Minor, 915 S.W.2d 437, 446 (Tenn. 1996)). Courts analyze plaintiffs’ claims of severe
mental injury based on the following non-exclusive factors:
(1)
Evidence of physiological manifestations of emotional distress,
including but not limited to nausea, vomiting, headaches, severe weight loss
or gain, and the like;
(2)
Evidence of psychological manifestations of emotional distress,
including but not limited to sleeplessness, depression, anxiety, crying spells
or emotional outbursts, nightmares, drug and/or alcohol abuse, and
unpleasant mental reactions such as fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, and worry;
(3)
Evidence that the plaintiff sought medical treatment, was diagnosed
with a medical or psychiatric disorder such as post-traumatic stress disorder,
clinical depression, traumatically induced neurosis or psychosis, or phobia,
and/or was prescribed medication;
(4)
Evidence regarding the duration and intensity of the claimant’s
physiological symptoms, psychological symptoms, and medical treatment;
(5)
Other evidence that the defendant’s conduct caused the plaintiff to
suffer significant impairment in his or her daily functioning; and
(6)
In certain instances, the extreme and outrageous character of the
defendant’s conduct is itself important evidence of serious mental injury.
Rogers, 367 S.W.3d at 209–10.
Based on these factors, plaintiffs have failed to point to evidence in the record
sufficient for a reasonable jury to conclude that they were unable to cope with the mental
stress engendered by Officer Kilpatrick and Officer Anderson’s conduct. First, Larry
Nance states in his deposition that any mental injuries he struggles with relate to several
things, including the death of his mother, witnessing a co-worker die in his vehicle, and
42
this incident [Doc. 48-1]. Furthermore, he states that he was only out of work for three or
four days following this incident, and seems to attribute this missed work to his physical
injuries following the event, rather than because of mental distress [Doc. 46-2]. Finally,
he states that following this incident he chose not to be seen by a counselor, psychologist,
or other mental-health professional [Doc. 48-1]. Looking at the nonexclusive factors in
Rogers, the Court notes that Larry Nance has not alleged physiological symptoms related
to this incident and did not appear to suffer significant impairment in his day-to-day
functioning. Moreover, he has not sought counseling and he attributes his sleep troubles
to several causes. Based on this analysis, the Court finds that Larry Nance has not
demonstrated a serious or severe mental injury required to sustain his emotional-distress
claim.
Sherry Nance has not offered any evidence regarding serious or severe emotional
injuries she has suffered as a result of this incident. Her claim will therefore be dismissed.
The facts also do not establish that Justin Nance suffered serious or severe emotional
hardship due to this event. Plaintiffs’ complaint alleges that Justin Nance, who has severe
autism and suffers intellectual challenges, observed his father’s arrest and “was
emotionally traumatized and suffered seizures for approximately two months” [Doc. 1].
However, Justin Nance did not visit his physician until five months following this incident
[Doc. 46-4]. Moreover, the doctor’s notes from that subsequent visit report that he did not
detect any changes in Justin’s condition and that he “does sleep well and is doing very
well,” “he is doing extremely well,” “he had no seizures and no behavior problems were
43
reported,” and his seizures have been “well controlled for more than two years now” [Id.].
Plaintiffs have not offered any proof to rebut this assessment. Because there is no evidence
of any physiological or psychological manifestations of stress, and because it does not
appear Justin sought medical treatment or was otherwise severely impaired based on this
incident, the Court will grant summary judgment on Justin Nance’s emotional distress
claim to both defendants.
IV.
Conclusion
For the reasons discussed above, the Court GRANTS defendant Hans Anderson’s
motion for summary judgment [Doc. 48], GRANTS in part and DENIES in part
defendant Trent Kilpatrick’s motion for summary judgment [Doc. 45], and DENIES
plaintiffs’ partial motion for summary judgment [Doc. 32].
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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