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Gough v. Louisville Jefferson County Metro Government

United States District Court, W.D. Kentucky, Louisville Division

May 23, 2017

ISHMAEL GOUGH, Plaintiff,
v.
LOUISVILLE JEFFERSON COUNTY METRO GOVERNMENT and CHAUNCEY CARTHAN, Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge United States District Judge.

         Plaintiff Ishmael Gough was shot by Defendant Chauncey Carthan, an intoxicated off-duty police officer, after Carthan pursued Gough for speeding. Gough sued Carthan and Carthan's employer, Louisville Jefferson County Metro Government. (Docket No. 1) Carthan asserts immunity, arguing that his actions were reasonable. (D.N. 70) Louisville Metro contends that it is not liable for failing to adequately train or supervise Carthan. (D.N. 72) The Court heard oral argument on the defendants' motions for summary judgment on April 13, 2017. For the reasons explained below, Carthan's motion will be granted in part and denied in part, and Louisville Metro's motion will be granted.

         I. BACKGROUND

         This case arises out of an encounter between Gough and Carthan, who was then a Louisville Metro Police Department detective, on September 4, 2012. Some facts are undisputed, but the parties disagree on a few key points, at least one of which is material.

         At approximately 11:00 p.m. on September 4, 2012, Carthan was driving on West Madison Street in Louisville after drinking a pint of brandy with a friend. (D.N. 70-2, PageID # 371-72) He was in an LMPD “pool car, ” an unmarked black Ford Mustang that had no police equipment. (Id., PageID # 371) Carthan began following Gough's car after noticing that Gough was speeding. (Id., PageID # 372)

         According to Carthan, Gough stopped in the middle of the street, exited his car, and approached Carthan's car. (Id., PageID # 372-73) Carthan then got out of the Mustang, displayed his badge, announced that he was a police officer, and told Gough to get back in his vehicle. (Id., PageID # 373-74) Carthan was holding a gun. (Id., PageID # 374) When Gough continued to approach, Carthan pointed the gun at Gough and “instructed him to get down on the ground.” (Id.) Gough initially complied, but as Carthan went to handcuff him, he “came up off the ground and . . . started swinging at [Carthan], . . . trying to grab [Carthan's] weapon.”[1] (Id., PageID # 375; see id., PageID # 374) Carthan again instructed Gough to get on the ground, and Gough again complied. (Id., PageID # 375) Meanwhile, Carthan recalls, he was “trying to create this distance between [himself] and [Gough]” to prevent Gough from “grab[bing his] weapon” or “strik[ing]” him. (Id.) As Carthan approached a second time to handcuff Gough, Gough “came up and did the exact same thing he did the first time[:] started trying to fight with [Carthan]” and take the gun. (Id., PageID # 377; see id., PageID # 376) Carthan “continued to create distance” between them, but Gough “kept coming toward” him, and Carthan fired one round, striking Gough in the leg. Carthan's estimates of the distance between him and Gough at the time of the shooting have varied. Although he testified on several occasions that the distance was five to seven yards (i.e., between fifteen and twenty-one feet), he stated at his deposition that he and Gough were five to seven feet apart. (Id., PageID # 377)

         In Gough's recollection, he stopped to see why he was being followed, and Carthan “came up to [Gough's] car with his gun drawn and told [Gough] to get out, that he was a police officer.” (D.N. 70-3, PageID # 382) When Gough got out of his vehicle, Carthan told him to lie down on the ground, and he complied. (Id., PageID # 383) Gough asked repeatedly what he had done wrong, but Carthan did not respond. (Id.) Gough saw no indication that Carthan, who was wearing a t-shirt, sweat shorts, and sandals, was in fact a police officer. (Id.; see D.N. 70-2, PageID # 370) After about a minute, Gough began to think he was being robbed, so he “got up off the ground” and “tried to reach for [Carthan's] gun.”[2] (D.N. 70-3, PageID # 383)

         Gough testified that just before he was shot,

I had like touched [Carthan's] hand, his arm and he had kind of cocked back so I couldn't grab it. So when he cocked his back [sic], I just had my hands up away from my body and everything and telling him not to shoot me.
. . . .
After like a couple of steps back towards like to my car, my door was still open so I just had my hands up towards my car telling him not to shoot me and he shot me in my leg.

(Id., PageID # 384) Carthan never told Gough he was under arrest or what he had done wrong, nor did he call for EMS after shooting Gough. (Id.) Lying on the ground, Gough got the attention of a bystander; the bystander called police. (Id.)

         When police arrived, they did not initially recognize Carthan as an officer. (Id.) Gough did not learn that Carthan was actually a police officer until he was interviewed by LMPD at the hospital later that night. (Id.; see D.N. 87-1, PIU 00043-44) A breathalyzer test administered to Carthan three and a half hours after the incident revealed an alcohol level of 0.081-above the legal limit. (D.N. 87-2, PageID # 730) He was placed on administrative leave as a result of the shooting. Following investigations by the LMPD Public Integrity Unit and Professional Standards Unit, Carthan was given the option of resigning or being terminated. (Id., PageID # 738) He opted to resign and was ultimately charged with and convicted of driving under the influence.

         Gough alleges that Carthan's actions constituted excessive force and unreasonable search and seizure under the Fourth and Fourteenth Amendments, as well as assault, battery, outrageous conduct, and intentional infliction of emotional distress under state law. (D.N. 1, PageID # 5-6) He seeks to hold Louisville Metro liable for negligent hiring, training, and supervision. (Id., PageID # 6-7) The defendants have moved for summary judgment on all of Gough's claims. (D.N. 70, 72)

         II. ANALYSIS

         A. Carthan

         Carthan asserts qualified immunity on Gough's § 1983 claims and qualified official immunity as to the state-law claims. (See D.N. 70-1, PageID # 353, 362) Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether qualified immunity applies, the Court engages in a two-step inquiry, asking whether the plaintiff has presented facts demonstrating a violation of a constitutional right and “whether the right at issue was ‘clearly established' at the time of [the] defendant's alleged misconduct.” Id. at 232 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Carthan's claim of immunity fails this test.

         1. Unreasonable Search and Seizure

         Gough first asserts that the “initial stop” was unlawful because Carthan lacked reasonable suspicion. (D.N. 87, PageID # 524; see id., PageID # 525-26) However, under either side's version of the facts, Carthan did not “stop” Gough: Gough testified that he pulled over on his own to see why he was being followed, with no inkling that the driver of the black Mustang was a police officer (D.N. 70-3, PageID # 382, 385); Carthan said he was merely following Gough's car to get the license-plate number when Gough suddenly stopped in the middle of the street. (D.N. 70-2, PageID # 372-73) “It is only when an officer restrains an individual's liberty ‘by means of physical force or show of authority' that Fourth Amendment protections attach.” Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir. 2005) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). “A person's liberty is restrained if a reasonable person in the circumstances would not believe that she were free to leave and ignore the officer's requests.” Id. (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). The Court's Fourth Amendment analysis therefore begins after the cars were stopped, when Carthan identified himself as a police officer and ordered Gough to the ground at gunpoint.

         Carthan argues that his actions were reasonable to ensure his safety. (See D.N. 70, PageID # 355; D.N. 91, PageID # 881) He asserts that he “was justifiably concerned for his safety” because “Gough's erratic driving, and the area of town that he was in, further combined with Gough's decision to stop his vehicle, signaled danger.” (D.N. 91, PageID # 881) For purposes of the qualified-immunity inquiry, however, the Court must view the facts in the light most favorable to Gough. See Bouggess v. Mattingly, 482 F.3d 886, 896 (6th Cir. 2007). Gough denied that he was driving erratically, and he testified that he pulled over, not that he “stopped his vehicle in the middle of the street, ” as Carthan represents. (D.N. 70-1, PageID # 355; see D.N. 70-3, PageID # 385) Gough also testified that after pulling over, he remained in his car. (D.N. 70-3, PageID # 382) According to Gough, Carthan approached “with his gun drawn and told [Gough] to get out, that he was a police officer, ” and once Gough was out of the car, Carthan ordered him to the ground. (Id.) Under these facts, the only suspicious activity Carthan had witnessed at the time he detained Gough was that Gough was driving “a little over the speed limit” in a neighborhood with a high crime rate. (Id., PageID # 385; D.N. 87, PageID # 526)

         Gough has admitted that he was speeding and that Carthan thus would have had a lawful reason to stop him. (D.N. 70-3, PageID # 385) But it is clearly established in the Sixth Circuit that

probable cause to detain a motorist for one violation of the law does not ordinarily provide probable cause to detain the motorist for another violation. Thus, “[o]nce a stop begins, . . . detaining the motorist any longer than is reasonably necessary to issue the traffic citation requires reasonable suspicion that the individual has engaged in more extensive criminal conduct.”

Green v. Throckmorton, 681 F.3d 853, 860 (6th Cir. 2012) (alteration and omission in original) (quoting United States v. Smith, 601 F.3d 350, 542 (6th Cir. 2010)); see also United States v. Urrieta, 520 F.3d 569, 578 (6th Cir. 2008) (explaining that “a motorist cannot be further detained” beyond the purpose of the traffic stop “unless something that occurred during the stop caused the officer to have a reasonable and articulable suspicion that criminal activity was afoot” (quoting United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999))). “[E]ven the briefest of detentions” violates the Fourth Amendment if reasonable suspicion is lacking. Urrieta, 520 F.3d at 578.

         “The Fourth Amendment prohibits detention based on an ‘inchoate and unparticularized suspicion or hunch, ' and instead requires law enforcement to provide ‘specific and articulable facts' showing that a crime has occurred.” Id. (quoting Terry, 392 U.S. at 21, 27, 30). In other words, a detention may not be “based on an officer's ‘gut feeling' that a suspect is up to no good.” Id. (citing Terry, 392 U.S. 21, 27, 30). The Court may take into account that the plaintiff was in a high crime area, but “[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” United States v. Bridges, 626 F.App'x 620, 624 (6th Cir. 2015) (citing Illinois v. Wardlaw, 528 U.S. 119, 124 (2000)).

         The evidence in this case does not show that Carthan's actions were supported by reasonable suspicion. Although a police officer may require a motorist to exit his vehicle during a traffic stop in the interest of officer safety, Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977), nothing had occurred to warrant further action by Carthan. At the time he told Gough to get on the ground, Carthan had reasonable suspicion only that Gough had committed a traffic offense. This was not enough to justify ordering Gough to the ground and attempting to handcuff him. Cf. Dorsey v. Barber, 517 F.3d 389, 400 (6th Cir. 2008) (finding defendant police officer's actions “at least arguably unreasonable”; because suspects for whom plaintiffs were mistaken “were wanted in connection with an auto theft investigation” and plaintiffs “did not manifestly pose an immediate threat to anyone's safety or risk of flight, ” the officer “should have been able to ‘stop and ...


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