United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, Senior District Judge.
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.
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 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 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. 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 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. 20-1, 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 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.
A. He wanted to pull these out.
Q. Okay. And did you say no?
(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. 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 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.
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 ...