United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States District Court
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.
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)
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)
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.
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)
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
(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)
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.
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).
Fourth Amendment Constitutional Claim
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
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.
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. “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)).
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