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Bennett v. Young

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

March 30, 2018

EDWIN EUGENE BENNETT, et al., Plaintiffs,
v.
THOMAS YOUNG, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge United States District Court

         On January 7, 2016, Hardinsburg, Kentucky, police officer Thomas Young arrived at Plaintiff Gene Bennett's residence with two warrants for Bennett's arrest. (Docket No. 38-6, PageID # 400) Young sought to arrest Bennett immediately, but Bennett pleaded that he needed ten minutes to find someone to watch his sick wife. (D.N. 38-5, PageID # 398) Bennett's pleas eventually turned to outright noncompliance, which resulted in Young tasing Bennett. (Id., PageID # 398-99) The primary question before the Court is whether Bennett's noncompliance rose to the level of “active resistance” such as to justify the use of force. Even when viewing the record in the light most favorable to Bennett, the Court finds from the undisputed facts that he was actively resisting arrest at the time he was tased, and therefore Young's use of force was reasonable. Accordingly, Bennett's excessive-force claim under the Fourth Amendment fails as a matter of law. Without an underlying constitutional violation, Bennett cannot succeed on his claims of supervisory and municipal liability. The Court will therefore grant in part Defendants' motion for summary judgment and remand Plaintiffs' remaining state-law claims to state court.

         I. Background

         Officers Thomas Young, Adam Lucas, and Brad Norwood arrived at Bennett's residence on January 7, 2016, to serve two warrants for his arrest. (D.N. 38-6, PageID # 400) At the officers' request, Bennett walked down his driveway to speak with the officers, who remained on the public roadway. (D.N. 33, PageID # 255) Young told Bennett that he was under arrest pursuant to the outstanding warrants and that he needed to leave with them immediately. (Id., PageID # 257) In light of Bennett's claim that his attorney had taken care of the warrants, Young called a dispatcher who confirmed that the warrants were still outstanding. (D.N. 36, PageID # 323) Young then informed Bennett that he now “had no choice” but to arrest him. (D.N. 35, PageID # 296)

         The parties present different versions of the subsequent events. Bennett asserts that his noncompliance was due to the fact that his wife, Norma Bennett, could not be left alone given her medical condition. (D.N. 33, PageID # 255) He claims that he asked Young if he could leave with the officers in ten minutes so that he could find someone to look after Norma. (Id.) Young refused, allegedly saying that he did not care about Bennett's wife. (Id.) The back-and-forth continued, and Young eventually reached for his taser. (Id.) Bennett contends that upon seeing this, he explained to Young that given Bennett's defibrillator and pacemaker, Young should not tase him. (Id., PageID # 256) Young again insisted that Bennett must leave with the officers immediately. (Id.) Bennett told Young one last time that he could not tase him, to which Young allegedly replied, “the fuck I can't.” (D.N. 38-5, PageID # 399)

         The officers' version of events depicts Bennett as much more aggressive. According to Defendants, upon Young's insistence that Bennett leave immediately with the officers, Bennett began barraging the officers with profanity, actively pacing around the vehicles, and refusing Young's repeated commands to leave with the officers. (D.N. 35, PageID # 297; D.N. 38-4, PageID # 396) He purportedly called the officers “sons-of-bitches” and stated that “[it would] take more than you three sons-of-bitches to take me to jail.” (D.N. 33, PageID # 258, 265) The officers further attest that Bennett's behavior took on a physical tone and that he began (i) clenching his fists (D.N. 38-6, PageID # 401); (ii) swaying his shoulders (id.); (iii) wringing his hands (D.N. 35, PageID # 302); (iv) swinging and twisting his arms (id., PageID # 296); (v) “huffing and puffing” (id.); and (vi) “squaring up” and approaching Young so as to signal an eagerness to fight (id., PageID # 305). In response to this behavior, the officers claim to have implemented several de-escalation techniques, which included Young giving Bennett a specific warning that he was going to tase him if he did not cease his aggression. (Id., PageID # 302) Although Bennett denies many of the officers' assertions, he agrees with or fails to refute several material aspects of the officers' account.

         Both sides agree that after issuing a final warning to Bennett, Young deployed his taser in “probe mode' from a distance of about six feet. (D.N. 33, PageID # 258; D.N. 35, PageID # 302) The probes hit Bennett in the front of his torso and the front of his left arm. (D.N. 38-7) The single taser shot lasted somewhere between five and eight seconds. (D.N. 38-8; D.N. 33, PageID # 256) As a result of the incident, Bennett was charged with disorderly conduct, second degree, a misdemeanor under Kentucky law. See Ky. Rev. Stat. § 525.060. (D.N. 33, PageID # 257)

         Gene and Norma Bennett brought this action against Officer Young, Hardinsburg Chief of Police Mike Robinson, and the City of Hardinsburg, alleging violations of federal and state law.[1] (D.N. 1-1) Defendants move for summary judgment on all claims. (D.N. 38) Defendants also move to exclude and limit Plaintiffs' proposed expert witnesses. (D.N. 39)

         II. Standard

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a motion for summary judgment, the movant “bears the initial responsibility of informing the district court of the basis for its motion[] and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may do so by merely showing that the nonmoving party lacks evidence to support an essential element of its case for which it has the burden of proof. See id.

         If the moving party satisfies this burden, the nonmoving party must point to specific facts in the record demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To survive a motion for summary judgment, the nonmoving party must establish a genuine issue of material fact with respect to each element of each of its claims. Celotex Corp., 477 U.S. at 323 (1986) (noting that “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial”). The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient; instead, the nonmoving party must present evidence upon which the jury could reasonably find for it. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (citing Anderson, 477 U.S. at 252). This “requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). For purposes of summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014) (citing Anderson, 477 U.S. at 255).

         III. Discussion

         A. Fourth Amendment Constitutional Claim

         1. Constitutional Violation

         Plaintiffs allege that Young “did wrongfully and with malice apply excessive force.” (D.N. 1-1, PageID # 8) Although Plaintiffs do not explicitly tie this allegation to a constitutional provision, the Court will construe the claim as an allegation of excessive force under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394 (1989) (holding that the Fourth rather than Fourteenth Amendment governs excessive-force claims that “arise[] in the context of an arrest or investigatory stop of a free citizen”).

         Claims of excessive force are analyzed under a standard of reasonableness. Graham, 490 U.S. at 388. “Determining whether the force used to effect a particular seizure is ‘reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Id. (internal quotations omitted). Courts must evaluate excessive-force claims by assuming “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. The Supreme Court has articulated three factors for courts to consider when analyzing the reasonableness of an officer's use of force: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate safety threat to the police or the public; and (3) whether the suspect is attempting to resist or evade arrest. Id.

         When addressing claims of excessive force arising out of an officer's use of a taser, however, the Sixth Circuit Court of Appeals has occasionally collapsed the Graham test into a more straightforward inquiry.[2] “Cases from [the Sixth Circuit] . . . adhere to this line: If a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a taser to subdue him.” Hagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 509 (6th Cir. 2012). Recently, the Sixth Circuit held that active resistance alone justifies the use of a taser. See Thomas v. City of Eastpointe, No. 16-2594, 2017 WL 4461072, at *2 (6th Cir. Oct. 6, 2017) (“If the suspect was actively resisting, use of a taser to subdue him was reasonable. If not, then tasing was unreasonable.”). The Sixth Circuit has “found active resistance where a suspect physically struggles with police, threatens or disobeys officers, or refuses to be handcuffed.” Id. In defining “active resistance, ” the Court of Appeals has contrasted active resistance with passive resistance. “The former can be characterized by physical force, a show of force, or verbal hostility coupled with failure to comply with police orders. The latter is generally shown by the lack of physical resistance or verbal antagonism.” Jackson v. Washtenaw, 678 Fed.Appx. 302, 306 (6th Cir. 2017) (citing Goodwin v. City of Painesville, 781 F.3d 314, 323 (6th Cir. 2015); Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015); Austin v. Redford Twp. Police Dep't, 690 F.3d 490, 498 (6th Cir. 2012); Eldridge v. City of Warren, 533 Fed.Appx. 529, 535 (6th Cir. 2013)). Indeed, verbal hostility alone may constitute active resistance where it is “the final straw in a series of consciously-resistive acts.” Eldridge, 533 Fed.Appx. at 534; see also Kent v. Oakland Cty., 810 F.3d 384, 392 (6th Cir. 2016) (“[A]ctive resistance [can] be characterized as ‘noncompliance' that is coupled with ‘some outward manifestation-either verbal or physical-on the part of the suspect that suggests volitional and conscious defiance.'” (quoting Eldridge, 533 Fed.Appx. at 534) (internal alterations omitted)).

         The parties dispute some facts regarding Bennett's arrest. Defendants present a version in which Bennett became alarmingly aggressive towards the officers. Bennett, on the other hand, contends that while he refused Officer Young's instructions, he told Young his reason for refusing his orders and remained relatively calm during the ordeal. But Bennett either admits or fails to refute several material aspects of Defendants' version of the event. First, at Young's insistence that Bennett must leave with the officers immediately, Bennett admits that he told the officers that the only way he was going with them was if “you three son of a bitches . . . take me, ” and that it would “take [the officers] longer than 15 minutes to put [him] in the [squad vehicle].” (D.N. 38-5, PageID # 399; D.N. 33, PageID # 256) Second, Bennett admits that Young told him that he was under arrest and that he instructed Bennett multiple times to leave with them immediately. (D.N. 38-5, PageID # 399; D.N. 33, PageID # 257) Third, Bennett admits that Young warned him one last time to ...


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