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Hartman v. Thompson

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

February 6, 2018



          Greg N. Stivers, Judge United States District Court

         This matter is before the Court on Defendants' Motion for Summary Judgment (DN 17). The motion has been fully briefed by the parties and is ripe for adjudication. For the reasons outlined below, the motion is GRANTED.


         This is a civil rights action under 42 U.S.C. § 1983, with pendent state law claims, arising from Plaintiffs' arrest at the 2015 Kentucky Farm Bureau Federation (“KFB”) country ham breakfast. KFB sponsors the breakfast annually at the Kentucky State Fair, at which members of the Fairness Campaign, the American Civil Liberties Union of Kentucky, Inc. (“ACLU”), and the Jefferson County Teachers Association (“JCTA”) have regularly protested. (Pls.' Resp. Defs.' Mot. Summ. J. 2, 4-5, DN 22 [hereinafter Pls.' Resp.]). These organizations oppose what they term the “discriminatory policies” of KFB. (Pls.' Resp. 2-4).

         Prior to the 2015 breakfast, the Fairness Campaign issued a press release regarding its stance on KFB's objectionable policies, as well as the group's intent to renew its protest activities along with the ACLU and JCTA. (Pls.' Resp. 5; Defs.' Mem. Supp. Mot. Summ. J. 6, DN 17 [hereinafter Defs.' Mem.]; Defs.' Mot. Summ. J. Ex. 2, DN 17-2). The press release came to the attention of Defendant Jeremy Thompson (“Thompson”), who was the officer-in-charge of a two-week security detail for the Kentucky State Police (“KSP”) at the State Fair. (Pls.' Resp. 5; Defs.' Mem. 12). Despite the short notice of the planned protest, [1] Thompson and fairgrounds personnel decided to allow the protest, but to confine it to a designated, flagged area. (Defs.' Mem. 12). The location was selected considering what would be “most appropriate for the protest . . . based on handicap accessible parking . . . .” (Defs.' Mem. 13).

         On the morning of the 2015 breakfast, Thompson had a conversation (characterized alternatively as a “discussion” or “confrontation”) with one of the protestors, Plaintiff Chris Hartman (“Hartman”), the director of the Fairness Campaign. (Hartman Dep. 7:13-20, 30:8-16, Sept. 23, 2016, DN 17-1). During their conversation, Thompson referred to the Fairness Campaign's press release and notified Hartman that his group's protest would be confined to an area designated for protestors, across from the entrance to the building where the breakfast was held. (Defs.' Mem. 6-7; Pls.' Resp. 7). In response, Hartman stated that he was going to “ramp up” the group's activities[2] until KFB changed its policies. (Defs.' Mem. 7). Thompson told Hartman that “‘we do not want to arrest you in here. Please do not make a scene and protest inside the venue.' And [Hartman] said, ‘I'm going to do what I have to do.'” (Thompson Dep. 84:22-85:1, Sept. 14, 2016, DN 17-5).

         Plaintiffs and their fellow protestors complied with the request to move their protest to the designated area, but claim that other individuals who “held out signs and passed out information regarding various commercial and political issues” were allowed to protest. (Pls.' Resp. 7). Thompson indicated that this distinction was due to the fact that only the Fairness Campaign group designated themselves as “protestors” with the fairgrounds. (Thompson Dep. 49:13-52:25).

         Although the group originally planned to silently protest within the event space as they had the previous year, following Hartman's conversation with Thompson they decided instead to stand silently at their tables for one minute during the first speech. (Pls.' Resp. 8; Defs.' Mem. 7). Following the opening invocation of the breakfast, the members of the protest group rose from their seats and stood at the three tables at the back of the auditorium where they had been seated. (Pls.' Resp. 8-9; Defs.' Mem. 15-16).

         There is some dispute about what transpired next. Plaintiffs maintain that none of the individuals were told to sit down or leave and that within three to five seconds of standing Hartman had been seized by the arms, placed under arrest, and escorted from the venue. (Pls.' Resp. 9). Thompson testified that he “‘personally walked over to Chris [Hartman] and said, “Chris, take your seat. I've already warned you about protesting inside here.' And Chris was silent. He wouldn't answer me.'” (Thompson Dep. 107:17-20). Defendant Jason Drane (“Drane”) testified that he and other troopers went over to the tables and asked the protestors to sit down. (Drane Dep. 9:9-10:7, Sept. 14, 2016, DN 17-8). After being escorted to the hallway outside the breakfast room, Hartman was placed in handcuffs and arrested. (Defs.' Mem. 18; Pls.' Resp. 9). Hartman testified that, as he was looking back at his fellow protesters, he was jerked forward and “dead dropped, ” letting his legs go limp, and was dragged from the building. (Hartman Dep. 41:21-42:6). Drane claims that Hartman picked his feet up and had to be “pack[ed] out” by the troopers, which Drane considered to be disorderly conduct. (Pls.' Resp. 10; Drane Dep. 15:1-20; Defs.' Mem. 18-19). Drane arrested Hartman and charged him with failure to disperse and disorderly conduct in the second degree. (Pls.' Resp. 9-10).

         Thompson testified that he then reentered the room and, finding that the other individuals were still standing, walked up to one of the tables and said, “[f]olks, it's time to leave.” (Thompson Dep. 109:8-11). Thompson stated that all the protestors except for two complied with his order, but noted:

The other two young ladies refused to walk out. I specifically walked up to one of them - and I don't recall which one - and said, “It's time to go.” She said, “I'm not leaving.” She said, “I'm not leaving” two or three times in my presence, and then she was arrested.

(Thompson Dep. 109:15-23).

         Plaintiff Sonja DeVries (“DeVries”) testified that following Hartman's arrest Defendant Brian Hill (“Hill”) approached her and told her she had to leave. (DeVries Dep. 24:21-23, Sept. 23, 2016, DN 17-3). DeVries told Hill she was getting ready to leave but was waiting for her friends, and she was then placed under arrest, handcuffed, and escorted from the room by Hill. (DeVries Dep. 24:12-25:12; Hill Dep. 9:4-6, Sept. 14, 2016, DN 17-7). Thompson and Hill arrested DeVries and charged her with failure to disperse. (Pls.' Resp. 10).

         Plaintiff Carla F. Wallace (“Wallace”) claims that after Hartman's arrest troopers approached her and told her to leave, but that before she could do so she was arrested and removed from the building. (Wallace Dep. 37:6-17, Oct. 5, 2016, DN 17-4). Thompson arrested Wallace and charged her with failure to disperse. (Pls.' Resp. 10).

         The day before trial in state court on the disorderly conduct and failure to disperse charges, the Jefferson County Attorney moved to dismiss all charges against Plaintiffs; the motions were granted and all charges were dismissed. (Pls.' Resp. 11). Plaintiffs then filed suit in Jefferson Circuit Court alleging four separate 42 U.S.C. §§ 1983 and 1988 claims: false arrest, malicious prosecution, and two claims under the First Amendment (for violation of free speech and retaliation). In addition, they assert state law tort actions for wrongful arrest, malicious prosecution, and battery. Defendants removed the case to this Court.


         The Court has subject matter jurisdiction under 28 U.S.C. § 1331 because a federal question is presented and has supplemental jurisdiction over Plaintiffs' state-law claims arising from the same case or controversy pursuant to 28 U.S.C. § 1367.


         In ruling on a motion for summary judgment, the Court must determine whether there is any genuine issue of material fact that would preclude entry of judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden of stating the basis for the motion and identifying evidence in the record that demonstrates an absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies its burden, the non-moving party must then produce specific evidence proving the existence of a genuine dispute of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         While the Court must view the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show the existence of some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Rather, the non-moving party must present specific facts proving that a genuine factual dispute exists by “citing to particular parts of the materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient” to overcome summary judgment. Anderson, 477 U.S. at 252.

         This analysis is slightly altered for questions of qualified immunity: “[e]ven if there is a material fact in dispute, summary judgment is appropriate if the Court finds that-viewing the facts in the light most favorable to the plaintiff-the plaintiff has failed to establish a violation of clearly established constitutional law.” Smith v. Peyman, 93 F.Supp.3d 738, 744 (E.D. Ky. 2015) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001); Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996)).


         A. Section 1983 False Arrest Claim

          First, Defendants seek summary judgment on Plaintiffs' false arrest claim. Defendants argue that they are entitled to judgment on both the merits of the claim and the defense of qualified immunity. (Defs.' Mem. 38-48).

         1. Merits

         To make a viable claim under 42 U.S.C. § 1983, a claimant must allege that he or she was deprived of a right, privilege, or immunity secured by the U.S. Constitution or federal law by one acting under color of state law while causing the deprivation. Smith v. Williams-Ash, 520 F.3d 596, 599 (6th Cir. 2008) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56 (1978); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). “A false arrest claim under federal law requires a plaintiff to prove that the arresting officer lacked probable cause to arrest the plaintiff.” Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005) (citation omitted). Officers have probable cause to make an arrest when, “at the moment [of] the arrest, ” they possess knowledge of “reasonably trustworthy information” regarding “facts and circumstances . . . sufficient to warrant a prudent man in believing that [the arrestee] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964) (citations omitted).

         “In the [Section] 1983 context, the question of whether probable cause existed is left for the jury, unless there is only one reasonable determination possible.” Crockett v. Cumberland Coll., 316 F.3d 571, 581 (6th Cir. 2003) (citations omitted); Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995). Crockett involved a series of arrests made following the report of a rape on the campus of Cumberland College. The court discussed at length the facts giving rise to a finding of probable cause for the arrests at issue. Id. at 582-83. Critically, all facts creating probable cause in Crockett were garnered from the victim and an eyewitness, with no contradiction from any of the arrestees prior to their arrests. Id. The court thus concluded under those facts that no reasonable jury could find the officer in question lacked probable cause for the arrests. Id. at 583.

         As DeVries testified, when she was instructed to leave by an officer she “responded that [she] was getting ready to leave and that [she] was waiting for [her] friends at the other table.” (DeVries Dep. 24:21-23). Because DeVries admits that she failed to follow the officer's instructions to leave (replying instead that she was waiting on her friends), the arresting officer had probable cause to believe DeVries was committing the offense of failing to disperse in violation of KRS 525.160.[3] Beck, 379 U.S. at 91. DeVries was participating in the protest with several other participants; they collectively had obstructed the prior year's breakfast and had promised to ramp up their activities shortly before DeVries-by her own admission-was told to disperse and failed to do so.

         By contrast, a factual dispute exists regarding whether Hartman and Wallace were ordered to disperse before they were arrested. Hartman and Wallace both insist they were arrested without any warning. (Hartman Dep. 40:11-25; Wallace Dep. 37:6-17). Regardless, the U.S. Supreme Court has eliminated the requirement “that the offense establishing probable cause [] be ‘closely related' to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest . . . .” Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004).

Instead, an arrest is proper as long as the facts known to the officer at the time of arrest establish probable cause to believe that the individual was committing an offense. It is irrelevant whether the officer had probable cause to arrest for the specific offense that he identifies as the basis for the arrest at the time of the incident.

Warren v. Lexington-Fayette Urban Cty. Gov't Police Dep't, No. 5:16-140-DCR, 2017 U.S. Dist. LEXIS 104225, at *10-11 (E.D. Ky. July 6, 2017) (internal citation omitted) (citing Devenpeck, 543 U.S. at 153-54).

         Plaintiffs were charged with failure to disperse in violation of KRS 525.160. Hartman and Wallace deny they were ordered to disperse before their arrest. However, the arresting officers did have good cause to believe that both were engaged in activity intended to disrupt the breakfast in violation of KRS 525.150, which provides that “[a] person is guilty of disrupting meetings and processions . . . when, with intent to prevent or disrupt a lawful meeting, procession, or gathering, he or she does any act tending to obstruct or interfere with it physically or makes any utterance, gesture, or display designed to outrage the sensibilities of the group.” KRS 525.160(1). Failure to disperse is a Class B misdemeanor. KRS 525.160(2).

         KRS 525.150(1). It is undisputed that the protestors, led by Hartman and including both Wallace and DeVries, attended the breakfast program wearing brightly colored shirts emblazoned with slogans antithetical to KFB's policies. Having vowed to escalate their protest from the previous year when cautioned against demonstrating inside the event, the actions of Plaintiffs' group standing in unison[4] certainly provided a reasonable basis for the security detail to believe the protestors intended to disrupt the breakfast program. Under these circumstances, Thompson and the other troopers had probable cause to believe that Plaintiffs were violating the law-albeit a different law than cited at the time of arrest. The Court therefore finds that Defendants had probable cause to arrest Hartman, DeVries, and Wallace under KRS 525.150. Defendants had an unquestionable factual basis to believe that Plaintiffs intended to disrupt the meeting by their protest at the breakfast event, as they had the year before. Defendants are thus entitled to summary judgment as to each Plaintiff's claim of false arrest under Section 1983.

         2. Qualified Immunity

         Separate from the merits of the wrongful arrest claims is the question of whether Defendants are entitled to the protection of qualified immunity against any or all of Plaintiffs' claims. (Answer 3-4, DN 4). The doctrine of qualified immunity shields government officials from individual liability for claims arising from their performance of discretionary functions as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted); White v. Pauly, 137 S.Ct. 548, 551 (2017). Since qualified immunity is “an immunity from suit rather than a mere defense to liability . . . it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis deleted); see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (“[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” (citations omitted)).

         a. Discretionary versus Ministerial Function

         The Court must first determine whether the Defendants' acts constituted discretionary or ministerial functions. Defendants argue that the challenged actions occurred in their performance of a discretionary function because “when the protestors stood at the ham breakfast on August 27, 2015, the officers exercised their discretion and made a good faith judgment call to remove the protestors from the room.”[5] (Defs.' Mem. 42 (citing Yanero, 65 S.W.3d 510; Haney, 311 S.W.3d 235; Gaither, 447 S.W.3d 628). Plaintiffs did not address the issue of discretionary versus ministerial function in their response.

         By way of distinguishing discretionary from ministerial functions, “[a] law that fails to specify the precise action that the official must take in each instance creates only discretionary authority; and that authority remains discretionary however egregiously it is abused.” Davis v. Scherer, 468 U.S. 183, 196 n.14 (1984) (citation omitted). “The courts also tend to construe the term ‘discretionary' very liberally in an effort to promote the policies behind immunity.” 33 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 8320 (1st ed. 2017). The Supreme Court has noted that it has “been unwilling to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials' duties or the precise character of the particular rights alleged to have been violated.” Anderson v. Creighton, 483 U.S. 635, 643 (1987). Examples of discretionary functions that have been entitled to qualified immunity include arresting a suspect based on a reasonable mistake as to probable cause and a warrantless entry and search of a residence incident to arrest, whereas ministerial duties include training and supervising employees as to established duties and policies. Hunter, 502 U.S. at 228-29; Pearson v. Callahan, 555 U.S. 223, 243-45 (2009); Hedgepath v. Pelphrey, 520 F. App'x 385, 391-92 (6th Cir. 2013).

         Addressing their discretionary authority, Defendants' motion notes that the police detail at the Kentucky State Fair was tasked with “general law enforcement duties . . . including security, accidents, theft reports, missing children, lost children, ” and further cites KRS 247.140, .145, .150, and .160, which describe the powers of the State Fair Board that include provisions for contracting with the KSP to police the fairgrounds and exhibition center. (Defs.' Mem. 12, 25-26). Defendants also recite that KRS 431.015(1)(b)(3) allows police officers to make an arrest without a warrant for a misdemeanor committed in their presence involving refusal to follow officers' reasonable instructions. (Defs.' Mem. 42). KRS 431.005(1)(d) further provides that a police officer may make an arrest “without a warrant when a misdemeanor, as defined in KRS 431.060, has been committed in his or her presence . . . .”

         Given the discretionary language of KRS 431.015(1)(b)(3) and 431.005(1)(d), and the misdemeanor nature of both KRS 525.160 and KRS 525.150, the Court is satisfied that Defendants have adequately argued facts, as discussed above, to establish they acted within the scope of their discretionary authority in effecting Plaintiffs' arrests. Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000) (citation omitted). Even if Plaintiff had an arguable defense to any of the elements of the crimes charged or for the similar infraction for disrupting a public meeting, Defendants' actions in removing Plaintiffs from the breakfast and arresting them appear to have been a good-faith judgment call under uncertain circumstances.

         b. Saucier Factors

         Defendants having established facts supporting qualified immunity, “the burden shifts to the plaintiff to establish that the defendant's conduct violated a right so clearly established that any official in his position would have clearly understood that he was under an affirmative duty to refrain from such conduct.” Id. (citation omitted). The two-part analysis used is taken from Saucier, under which the Court must decide whether the facts show a violation of a constitutional right which was “clearly established” at the time of Defendants' alleged misconduct. Saucier, 533 U.S. at 200-01. The Supreme Court noted that the trial court has discretion to “decid[e] which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. “If the undisputed facts show that defendant's conduct, as a matter of law, did not violate clearly established legal rights, then the district court must grant the defendant summary judgment on the basis of qualified immunity.” Poe v. Haydon, 853 F.2d 418, 425 (6th Cir. 1988) (citation omitted). Summary judgment is not appropriate, however, where there is a genuine dispute of material fact involving an issue on which immunity turns, or “if the undisputed facts show that the defendant's conduct did indeed violate clearly established rights.” Id. at 426 (citation omitted).

         i. Clearly Established Right

          The “dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202; see Wilson v. Layne, 526 U.S. 603, 614 (1999) (stating that the inquiry turns on the “objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” (internal quotation marks omitted) (citation omitted)). Both the Sixth Circuit and Supreme Court have a long history of holding that warrantless arrests must be supported by probable cause. See Crockett, 316 F.3d at 580 (“[I]t is well established that any arrest without probable cause violates the Fourth Amendment.” (citations omitted)); see also Baker v. McCollan, 443 U.S. 137, 142-43 (1979); Donovan v. Thames, 105 F.3d 291, 297-98 (6th Cir. 1997). Given this history, the right to be free from warrantless arrest absent probable cause is clearly established, meeting the first prong of the Saucier analysis.

         ii. Violation of ...

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