Demetrius D. Northern-Allison v. John Seymour ( 2021 )

RENDERED: MARCH 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0637-MR
DEMETRIUS D. NORTHERN- APPELLANT
ALLISON
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCH PERRY, JUDGE
ACTION NO. 18-CI-001963
JOHN SEYMOUR; MARK APPELLEES
GRANHOLM; DAVID LEDBETTER;
AND WILLIAM PEARSON
OPINION
REVERSING AND REMANDING
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BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
GOODWINE, JUDGE: Demetrius D. Northern-Allison (“Northern-Allison”) filed
suit against several Louisville Metro Police Department (“LMPD”) officers in their
individual and official capacities for injuries sustained during the execution of a
valid search warrant. The officers moved for summary judgment, which the
Jefferson Circuit Court granted. After careful review, we reverse and remand.
On April 4, 2018, Northern-Allison filed suit against each LMPD
officer at the scene during the execution of a search warrant, alleging excessive
force, assault and battery, negligence, gross negligence, and negligence per se
based on violations of KRS1 95.015, KRS 503.090, and KRS 431.025. On
November 26, 2019, the officers filed a joint motion for summary judgment, and
Northern-Allison filed a response on December 16, 2019. On February 4, 2020,
the circuit court entered an agreed order, dismissing with prejudice several
defendants, leaving Appellees John Seymour, Mark Granholm, David Ledbetter,
and William Pearson as remaining defendants.
On February 19, 2020, the circuit court heard the officers’ motion for
summary judgment. During the hearing, Northern-Allison agreed to dismiss
claims against the four remaining officers in their official capacities and to dismiss
all claims except excessive force, civil battery, and civil assault.
The parties presented their version of events in both written and oral
arguments.2 On April 1, 2017, members of the LMPD SWAT unit assisted LMPD
Narcotics Detective Richard Wiedo in the execution of a high-risk search warrant
at a residence in Louisville. The officers contend the search warrant was properly
1
Kentucky Revised Statutes.
2
Neither Northern-Allison nor the remaining officers testified during the hearing. Instead,
counsel made arguments based on the deposition testimony and affidavits of the parties. The
officers point out that Northern-Allison’s version of events is based on his deposition testimony,
but the relevant portions were not part of the certified record on appeal.
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executed and characterize the events as follows. When officers did not receive a
response, they breached the exterior security door, shattering the glass of the
exterior door and partially knocking open the interior door. Officers saw Northern-
Allison, a resident and potential target of the warrant, in the doorway. However,
Northern-Allison did not let the officers in, failed to comply with their commands,
and slammed the door shut. When the door was finally opened, officers observed
Northern-Allison with his two children, holding at least one of them in front of him
and slamming the door shut again. During this time, Northern-Allison moved in
and out of the officers’ vision, destroying evidence by attempting to flush cocaine
down a toilet.
The officers ultimately entered the home, and Northern-Allison
initially complied with commands to get down on the ground. Then, he turned
from lying face down on the ground to lying on his back, facing up. He began to
resist the officers’ attempts to arrest and secure him by failing to comply with
commands and refusing to place his hands behind his back.
In response, Officer Seymour and Officer Granholm “delivered
several ‘hammer fist strikes’” to Northern-Allison, attempting to gain his
compliance and to ensure everyone’s safety. Record at 308. Northern-Allison
continued to be non-compliant even after officers secured his hands behind him.
Once secured, officers escorted Northern-Allison out of the residence under his
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own power until he reached the front door. Appearing to feign severe injury, he
fell to the ground into shards of glass from the broken security door.
Northern-Allison disagreed with the officers’ characterization of the
events and presented his own version.3 Northern-Allison alleged he was at home
with his children when the SWAT team attempted to breach his front door.
Because his children were present, he asked them to stop. He attempted to secure
his children in a room away from the door and admits he attempted to flush
cocaine and conceal evidence after securing his children. Northern-Allison alleged
he then opened the door and was struck in the face with what he believed to be the
butt of a gun after complying with the officers’ command to raise his hands. He
testified during his deposition that the force of the blow caused him to fall onto the
broken glass from the exterior door. Northern-Allison alleged several officers
began stepping on, choking, kicking, and hitting him to the point that he blacked
out.
Following his arrest, Northern-Allison was charged with and pled
guilty to tampering with physical evidence, trafficking in a controlled substance,
and resisting arrest. The parties did not dispute that Northern-Allison suffered an
orbital bone fracture and several lacerations and attempted to flush cocaine down
the toilet during the execution of the warrant.
3
See footnote 2, supra.
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On March 16, 2020, the circuit court granted the officers’ motion for
summary judgment, relying on the United States Supreme Court’s ruling in Heck v.
Humprey, 512 U.S. 477 (1994). Northern-Allison’s subsequent motion to alter,
amend, or vacate was denied. This appeal followed.
On appeal, Northern-Allison argues: (1) the circuit court erred in
basing its decision on case law that only applies to 42 U.S.C.4 § 1983 actions; (2)
the officers’ intentional acts are not protected by the doctrine of qualified
immunity; and (3) if qualified immunity applies, the officers acted in bad faith and
are not protected by the doctrine. We review de novo a trial court’s ruling on a
motion for summary judgment. Ashland Hospital Corporation v. Lewis, 581
S.W.3d 572, 577 (Ky. 2019).
First, Northern-Allison argues the circuit court erred in applying Heck
v. Humphrey, 512 U.S. 477, and Cummings v. City of Akron, 418 F.3d 676 (6th
Cir. 2005), in finding his plea of guilty to resisting arrest barred his civil claims. In
Heck and Cummings, both plaintiffs filed civil rights actions under 42 U.S.C. §
1983. Both cases only allow recovery under § 1983 when a plaintiff proves “that
the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
4
United States Code.
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habeas corpus[.]” Heck, 512 U.S. at 487. The circuit court erred in granting
summary judgment based on the application of these cases because Northern-
Allison filed a “claim under state law, not a § 1983 claim based on an outstanding
criminal judgment. Thus, Heck has no application here.” Dunn v. Felty, 226
S.W.3d 68, 73 (Ky. 2007).
Next, Northern-Allison argues the officers were not entitled to
qualified immunity because their actions were intentional, and they acted in bad
faith. Although the officers argued they were entitled to qualified immunity in
their motion for summary judgment, and Northern-Allison objected, the circuit
court did not address qualified immunity in its order granting summary judgment.
“‘Official immunity’ is immunity from tort liability afforded to public
officers and employees for acts performed in the exercise of their discretionary
functions. It rests not on the status or title of the officer or employee, but on the
function performed.” Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001) (citation
omitted). When an officer is sued in his representative capacity, the officer’s
“actions are afforded the same immunity, if any, to which the agency, itself, would
be entitled[.]” Id. at 522. However, when sued in his individual capacity, “public
officers and employees enjoy only qualified official immunity, which affords
protection from damages liability for good faith judgment calls made in a legally
uncertain environment.” Id. (citation omitted).
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A public official sued in his individual capacity is entitled to qualified
immunity for his negligent acts when he performs: “(1) discretionary acts or
functions, i.e., those involving the exercise of discretion and judgment, or personal
deliberation, decision, and judgment . . . ; (2) in good faith; and (3) within the
scope of [his] authority.” Id. (citations omitted). However, “an officer or
employee is afforded no immunity from tort liability for the negligent performance
of a ministerial act, i.e., one that requires only obedience to the orders of others, or
when the officer’s duty is absolute, certain, and imperative, involving merely
execution of a specific act arising from fixed and designated facts.” Id. (citation
omitted).
As discussed above, government officials, sued in their individual
capacities, are entitled to qualified immunity when they perform a discretionary
act. Despite Northern-Allison’s argument that we should distinguish between
intentional and negligent acts, our analysis focuses solely on the distinction
between ministerial and discretionary acts. “[T]he law affords qualified immunity
to the discretionary acts of peace officers performed in an official capacity, thereby
shielding them ‘from [ ] liability for good faith judgment calls made in a legally
uncertain environment.’” Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky.
App. 2007) (quoting Yanero, 65 S.W.3d at 521-23). The discretionary category
encompasses “the kind of discretion exercised at the operational level rather than
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exclusively at the policy-making or planning level.” Marson v. Thomason, 438
S.W.3d 292 (Ky. 2014) (quoting 63C AM. JUR. 2D Public Officers and
Employees § 318 (updated through Feb. 2014)).
As discussed above, the officers are entitled to qualified immunity if
they performed: (1) a discretionary act, (2) in good faith, and (3) within the scope
of their authority. Yanero, 65 S.W.2d at 522. First, there is no dispute that the
officers acted within the scope of their authority. Second, we must consider
whether the officers’ use of force in arresting Northern-Allison while executing a
search warrant was discretionary or ministerial. Executing a search warrant is a
job requirement for police officers. However, the decision “to use nonlethal force
to quickly subdue” a subject is an action within police discretion. Haugh, 242
S.W.3d at 686. The officers were required to use their discretion in using force
when Northern-Allison failed to comply with their commands and attempted to
destroy evidence. Thus, the officers clearly performed a discretionary act in
applying force during Northern-Allison’s arrest.
The crux of Northern-Allison’s argument is that the officers acted in
bad faith by using excessive force during his arrest. The “good faith” element of
qualified immunity has “both an objective and subjective aspect.” Yanero, 65
S.W.3d at 523.
The objective element involves a presumptive knowledge
of and respect for “basic, unquestioned constitutional
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rights.” Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct.
992, 1001, 43 L.Ed.2d 214 (1975). The subjective
component refers to “permissible intentions.” Ibid.Characteristically the Court has defined these elements
by identifying the circumstances in which qualified
immunity would not be available. Referring both to the
objective and subjective elements, we have held that
qualified immunity would be defeated if an official
“knew or reasonably should have known that the action
he took within his sphere of official responsibility would
violate the constitutional rights of the [plaintiff], or if he
took the action with the malicious intention to cause a
deprivation of constitutional rights or other injury. . . .”
Ibid. (emphasis added).
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
Because the circuit court did not address the parties’ arguments
regarding qualified immunity, we must reverse the circuit court’s judgment. The
circuit court is in the best position to weigh the credibility of the parties’ testimony
and what weight should be given thereto. On remand, the circuit court must
determine whether the officers acted in good faith in using force during Northern-
Allison’s arrest. If this element is satisfied, then the officers, in their individual
capacities, are entitled to qualified immunity.
For the foregoing reasons, we reverse the order of the Jefferson
Circuit Court and remand the case with instructions to determine whether the
officers are entitled to qualified official immunity under Yanero.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Lonita Baker Michael J. O’Connell
Sam Aguiar Jefferson County Attorney
Louisville, Kentucky
Roy C. Denny
Assistant Jefferson County Attorney
Louisville, Kentucky
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