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Ayala v. Hogsten

United States District Court, E.D. Kentucky, Northern Division, Ashland

March 25, 2019

MICHAEL HOGSTEN, Individually and In his Official Capacity as Greenup County Deputy Sheriff And GREENUP COUNTY OFFICE OF SHERIFF, DEFENDANTS.



         This matter is before the Court upon Defendants' Motion for Summary Judgment [Docket No. 32]. The matter has been fully briefed [Docket Nos. 36 and 39]. For the reasons set forth herein, the Court finds summary judgment is not warranted and the motion will be overruled.


         This civil rights case arises from the circumstances surrounding Plaintiff Dustin Ayala's arrest for menacing on May 28, 2016. The salient facts are set forth in detail in Plaintiffs response to Defendant's dispositive motion and, to a lesser extent, in Defendants' motion[1]. On that day, Defendant Greenup County Sherriff Deputy Michael Hogsten arrived at Ayala's residence with the purpose of serving him with an Emergency Protective Order ("EPO"), pursuant to KRS 403.745. [Deposition of Michael Hogsten, Docket No. 31');">31');">31');">31');">31');">31');">31');">31, 29');">p. 29]. The statute provides:

An emergency protective order and a domestic violence order shall become effective and binding on the respondent when the respondent is given notice of the existence and terms of the order by a peace officer or the court or upon personal service of the order, whichever is earlier.

KRS 403.745.

         When Hogsten arrived at Ayala's residence, Ayala was in the bedroom with his girlfriend, Breanna Ison. [Deposition of Justin Ayala, Docket No. 30, p29');">p. 29-30]. According to Ayala, when he heard Hogsten "bang" on the front door, he got out of bed and began to dress. Id., p. 30. Ayala testified that as he was putting on his shorts, he heard Hogsten "jiggle" the front door handle and attempt to enter the residence. Id. At this time, Ayala looked out the window and saw that a deputy sheriff trying to enter his home. Id. He asked Ison to use her phone to record the deputy's actions and proceeded to the front door. Id. According to Ayala, by this time, Hogsten had walked to the back of the residence and Ayala testified that he heard Hogsten try to open the back door. Id., p. 31');">31');">31');">31');">31');">31');">31');">31. It is unclear whether Hogsten disputes trying to gain entry to Ayala's residence. It is undisputed, however, that Hogsten never entered the residence. At this time, Ayala stated he stepped onto the small deck in front of his house and yelled to Hogsten that he was "out front." Id.

         As Hogsten came back around to the front of the residence, he heard Ayala ask "[w]hat the fuck are you doing trying to get into my house?" [Docket No. 31');">31');">31');">31');">31');">31');">31');">31, p.43]. Ison, who testified she witnessed the exchange, stated that Hogsten replied "[y]ou're a little prick, you know that?" [Deposition of Breanna Ison, Docket No. 29, p. 14]. Hogsten admits he called Ayala a "prick." [Docket No. 31');">31');">31');">31');">31');">31');">31');">31, p. 74]. He also testified that he told Ayala to "calm down." Id. Hogsten then informed Ayala that he was there to serve him with an Emergency Protective Order and then handed the order to Ayala. [Docket No. 31');">31');">31');">31');">31');">31');">31');">31, p. 43 and 60].

         Hogsten testified that after he gave the EPO to Ayala, Ayala asked Hogsten to leave but that he did not leave. Id. p. 66. Hogsten testified that he believed he was required to remain at the residence in order to explain to the terms and conditions of the order to Ayala. Id.

         It is at this point that Ison began filming using her phone. The video captures approximately eight seconds and begins by showing Ayala on the front porch, holding the EPO in his hand, facing Hogsten, who is standing below the porch, at the foot of the steps which connect the porch to the front yard. Although Ayala is not seen in the fame, he can be heard yelling to Hogsten "get the fuck out of my yard." [Docket No. 36-1, Video]. The exchange continues:

Mr. Hogsten: Come here boy.
Mr. Ayala: Man Fuck you.
Mr. Hogsten: Come on.
Mr. Ayala: Get the fuck out of -
Mr. Hogsten: Come on.
Mr. Ayala: - my yard -
Mr. Hogsten: Come down here boy.
Mr. Ayala: motherfucker go.
Mr. Hogsten: No. Come on.
Mr. Ayala: No. Fuck you. Go. You don't have no - you don't have no warrant.
Mr. Hogsten: You're under arrest.
Mr. Ayala: For what? You just said that ...

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