United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. WILHOIT, JR. UNITED STATES DISTRICT JUDGE
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.
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. 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.
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.
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].
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.
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 ...