United States District Court, W.D. Kentucky, Louisville Division
CHRIS HARTMAN, et al. PLAINTIFFS
JEREMY THOMPSON, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court
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.
STATEMENT OF FACTS AND CLAIMS
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.'
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,  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).
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 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
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
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.
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.
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,
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).
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).
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).
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.
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.
STANDARD OF REVIEW
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
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
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
Section 1983 False Arrest Claim
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).
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)
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.
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. 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.
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).
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).
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 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
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)).
Discretionary versus Ministerial Function
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.” (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.
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).
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 . . .
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.
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).
Clearly Established Right
“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
Violation of ...