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Stanley v. Smith

United States District Court, E.D. Kentucky, Southern Division, London

September 30, 2019

BILL STANLEY, Administrator of the Estate of Brandon Stanley, Plaintiff,
BOBBY JOE SMITH, et al., Defendants.

          OPINION & ORDER


         This case is about a constable that ignored the peace aspect of being a peace officer. Kentucky's Constitution requires the elective position of county constable, and the General Assembly regulates the duties of the office. Constables are long on power but short on required training and qualifications. State law makes the constable a “peace officer, ” with resultant authorities, but does not require the certification and training most other such Kentucky officers mandatorily undergo. In March 2016, Bobby Joe Smith, a constable elected in Laurel County, tried to arrest Brandon Stanley at an East Bernstadt convenience store. Stanley, on bond and evidently awaiting state sentencing, had failure-to-appear warrants and had recently run from Smith after a traffic stop. The tragic store encounter, days later, resulted in Smith shooting the unarmed Stanley to death in the front aisle of the crowded A&B Market. This Court is the second to have a say in the events. Previously, a Laurel Circuit jury convicted Smith of reckless homicide in the death of Stanley, and the Laurel Circuit Court sent Smith to prison for the felony. The state jury's verdict gets respect here and goes far in resolving this case, a constitutional and state tort action by Stanley's estate against Smith and the Laurel judge-executive.

         Each party seeks summary judgment. Plaintiff Stanley[1] seeks “partial” summary judgment, moving the court to preclude Defendant Smith, the former Laurel County constable, from denying his state reckless-homicide conviction and liability for Brandon's wrongful death. DE 69. Defendant Westerfield, Laurel County's judge-executive, having previously prevailed on several claims at the 12(b)(6) stage, see DE 25 (Order), now moves the Court for summary judgment on the two remaining claims against him: the § 1983 official-capacity claim and the state-law personal-capacity claims based on a failure to supervise or train. DE 67. Defendant Smith seeks summary judgment on all[2] claims against him, which include personal- and official-capacity § 1983 claims based on excessive force, Kentucky constitutional claims, a state-law wrongful-death claim, and a punitive-damages claim. DE 71. Westerfield argues that, as a constitutionally elected position, a constable answers to no one other than his constituents, and that the County Executive has no ability, and thus no duty, to supervise or train the office. Smith focuses his efforts on arguing that his conduct did not violate an established right. Both Defendants also argue various applications of immunity.

         As a matter of housekeeping, the Court acknowledges the disagreement between Stanley and Smith regarding the propriety of Smith's surreply (and Stanley's reply to the surreply). DE 100; DE 101; DE 103; DE 105; DE 106. “Although the Federal Rules of Civil Procedure do not expressly permit the filing of surreplies, such filings may be allowed in the appropriate circumstances, especially ‘[w]hen new submissions and/or arguments are included in a reply brief, and a nonmovant's ability to respond to the new evidence has been vitiated.'” Key v. Shelby Cty., 551 Fed.Appx. 262, 265 (6th Cir. 2014) (quoting Seay v. TVA, 339 F.3d 454, 481 (6th Cir. 2003). Here, Stanley acknowledges that his offensive motion lacks record citations, and he relies on documentary evidence and argument first raised in his reply. See DE 91. For example, Stanley attaches to his reply the jury instructions from Smith's criminal trial. DE 91-1. Thus, the Court considers Smith's surreply (DE 101). The Court does not allow or consider Stanley's proposed reply to Smith's surreply (DE 103), an excessive and unwarranted argument pathway.

         For the following reasons, the Court grants Stanley's partial motion for summary judgment. Coupling that decision with Stanley's responses to Smith's motions, the Court grants Stanley summary judgment against Smith as to the § 1983 individual-capacity and wrongful-death claims. The Court grants Smith summary judgment on the claims under the Kentucky Constitution. The Court grants Westerfield summary judgment on the state-law individual-capacity claims (relating to supervision and training) and the § 1983 official-capacity claim. Accordingly, punitive damages are not available against Westerfield, but may be recovered-if awarded by a factfinder-against Smith.

         I. BACKGROUND

         On March 1, 2016, Brandon fled arrest by Smith, a Laurel County Constable. Three days later, Smith received a tip about Brandon's whereabouts and went to the location-the A&B Market in East Bernstadt, Kentucky-to investigate. In attempting to arrest Brandon on outstanding warrants[3] for failing to report to his probation officer in relation to a state drug-trafficking conviction, Smith ultimately shot and killed Brandon. A grand jury charged Smith with Second-Degree Manslaughter, and, after a two-day trial, a Laurel Circuit jury, in April 2017, convicted Smith of reckless homicide, a felony. DE 91-1 (Commonwealth of Kentucky v. Bobby Joe Smith, 16-CR-49). Video surveillance captured the shooting and much of the interaction, but still, the parties dispute how the events unfolded. Despite the state conviction, Smith maintains that his use of deadly force was justified. Stanley argues that it was not. He blames Smith but also Westerfield, the judge-executive, faulting his lack of oversight and control.

         II. STANDARD

         A court “shall grant summary judgment 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). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not “weigh the evidence and determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).

         The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106. S.Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 106 S.Ct. at 2552; see also Id. at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” (emphasis in original)).

         A fact is “material” if the underlying substantive law identifies the fact as critical. Anderson, 106 S.Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S.Ct. at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”) (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 Fed.Appx. 428, 444-45 (6th Cir. 2006). In the cross- motion scenario, as here, each motion must pass through the analytical prism. The Court issues the relief justified by the record under the Rule 56 rubric.

         III. ANALYSIS

         Judge Bunning previously summarized Plaintiff's claims as follows:

Five claims have been asserted against Defendant Westerfield: violation of Stanley's rights under the United States Constitution (Count One), violation of Stanley's rights under the Kentucky Constitution and state Statutes (Count Two), negligent supervision (Count Four), negligent training (Count Five), and punitive damages (Count Six). . . .
Plaintiff's Complaint asserts four claims against Constable Smith: violation of Stanley's rights under the United States Constitution (Count One), violation of Stanley's rights under the Kentucky Constitution and state statutes (Count Two), wrongful death (Count Three), and punitive damages (Count Six).

DE 25 at 2-3 & n.3. After Westerfield's 12(b)(6) efforts, two claims remain against him: the § 1983 official-capacity claim and the state-law personal-capacity claims for negligent supervision and training. Id. at 20. Smith did not seek claim dismissal under Rule 12. The Court will first address Plaintiff's claims against Smith.


         1. Stanley's Partial Motion for Summary Judgment

         In his motion for summary judgment, Plaintiff Stanley argues that “Smith's conviction in the (state) criminal proceedings precludes him from denying liability for wrongful death and for causing the death of [Brandon] by actions which constituted a gross deviation from the standard of care that a reasonable person would observe in the situation as alleged in the matter before the court.” DE 69-1 at 9-10. As discussed below, the Court agrees, because the requirements for collateral estoppel here exist. However, the real question posed by application of collateral estoppel is whether Smith's conviction allows for dispositive adjudication of Stanley's claims. Stanley argues that “[g]iven the similarity in evidence in the past criminal action and the current civil case, the precedent for allowing offensive collateral estoppel under federal and Kentucky law, and to efficiently utilize judicial resources, the application of same to this case is clearly appropriate.” Id. at 1. Stanley asks the Court to “hold that the guilty verdict resolves the key liability issues in the civil proceedings-that Smith shot Brandon Stanley and unreasonably caused his death.” Id.

         In this regard, it appears that, when exclusively considering his offensive motion for summary judgment, Stanley may only be asking the Court to determine the conviction should be given preclusive effect, not that such issue preclusion, in turn, warrants summary judgment in Plaintiff's favor. Smith seizes on this and responds that “Stanley failed to show the elements of the crime which Stanley was convicted of are identical to the elements of the civil complaint against him.” DE 86 at 10. Smith urges that “Stanley's evidence does not show what the jury specifically found regarding the reasonableness of Smith's actions or that it considered the reasonableness of Smith's actions in the context of an excessive force claim.” Id. at 14. This observation is fair enough; in his offensive briefing, Stanley does not attempt to show that the elements considered for the reckless homicide verdict align with the contours of the § 1983 excessive-force claim or establish requisite wrongful-death elements. However, in light of the full briefing and argued record, collateral estoppel conclusively applies.

         To grant summary judgment against Smith on these claims on the basis of collateral estoppel, the criminal conviction must make it logically impossible for a reasonable juror- bound by the reckless-homicide verdict-to find for Smith on Stanley's excessive-force and wrongful-death claims. The conviction must likewise preclude Smith's entitlement to any form of immunity. For the following reasons, the Court finds the state conviction mandates judgment for Stanley on his § 1983 individual-capacity claim and wrongful-death claim against Smith.

         a. Collateral Estoppel Standard

         “[A] federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 104 S.Ct. 892, 896 (1984). Non-mutual collateral estoppel has been viable under Kentucky law since at least 1970. City of Covington v. Bd. of Trs. of the Policemen's & Firefighters' Ret. Fund, 903 S.W.2d 517, 522 (Ky. 1995) (citing Sedley v. City of West Buechel, 461 S.W.2d 556 (Ky. 1970)). “Offensive [non-mutual] collateral estoppel refers to the successful assertion by a party seeking affirmative relief that a party to a prior adjudication who was unsuccessful on a particular issue in that adjudication is barred from relitigating the issue in a subsequent proceeding.” Id. at 521. A court decides whether to apply offensive collateral estoppel on a case-by-case basis, bearing in mind that the doctrine may raise fairness concerns. Parklane Hosiery Co. v. Shore, 99 S.Ct. 645, 649-52 (1979) (“The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where . . . the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.”); Revenue Cabinet v. Samani, 757 S.W.2d 199, 202 (Ky. Ct. App. 1988).

         In a federal § 1983 suit, a state-adjudicated issue is entitled to preclusive effect when it would have such effect in the courts of the state that rendered judgment. Migra, 104 S.Ct. at 897. Kentucky courts recognize that “a criminal conviction can be used for purposes of collateral estoppel in a later civil action.” Roberts v. Wilcox, 805 S.W.2d 152, 153 (Ky. Ct. App. 1991); see also England v. Laird, No. 2007-CA-772-MR, 2008 WL 399758, at *6 (Ky. Ct. App. Feb. 15, 2008) (precluding civil defendant from re-litigating responsibility for individual's death in light of defendant's criminal conviction for murder). Use of the conviction in the civil case requires that the criminal judgment “finally dispose of the matters in controversy.” Gossage v. Roberts, 904 S.W.2d 246, 248 (Ky. Ct. App. 1995).

         Under Kentucky law, there are four essential elements of collateral estoppel: “(1) identity of issues; (2) a final decision or judgment on the merits; (3) a necessary issue with the estopped party given a full and fair opportunity to litigate; [and] (4) a prior losing litigant.” Moore v. Cabinet for Human Res., 954 S.W.2d 317, 319 (Ky. 1997). The Court of Appeals of Kentucky has logically observed that the higher standard of proof and procedural safeguards of criminal proceedings provide additional support for giving preclusive effect to criminal convictions. Koenigstein v. McKee, No. 2002-CA-2212-MR, 2004 Ky. App. Unpub. LEXIS 1028, at *7-9 (Ky. Ct. App. Jan. 9, 2004). Moreover, preclusion is appropriate “when . . . the prior criminal proceeding ‘involved a “serious offense” so that the defendant was motivated to fully litigate the charges.'” Id. at *9.

         Here, the record is thorough as to the state criminal conviction. The record includes the trial itself, which features Smith's own trial testimony. It includes video surveillance of the shooting and witnesses' testimony. It includes the jury instructions and the jury verdict form, which required the jury to reach conclusions based on the same disputed facts now before the Court. Smith's arguments-that he did not violate an established right, or alternatively, that he acted reasonably and in good faith-imply the invalidity of his conviction, a position disallowed by collateral estoppel. See Gossage, 904 S.W.2d at 247-49. To the extent that a Kentucky jury has already decided the issues central to the claims against Smith now before the Court, collateral estoppel requires that the verdict be given preclusive effect. Only the first and third elements of collateral estoppel require discussion.[4]

         b. Identity of Issues

         An “identity of issues” exists between the inquiry underlying Smith's unsuccessful self-defense theory in the criminal case and the Fourth Amendment analysis that undergirds Stanley's excessive-form claim. For purposes of collateral estoppel, “[t]he key inquiry in deciding whether the lawsuits concern the same controversy is whether they both arise from the same transactional nucleus of facts.” Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 465 (Ky. 1998).

         Smith was originally indicted on a charge of Second-Degree Manslaughter. After a two-day trial, a Kentucky jury returned a guilty verdict, and the Laurel Circuit Court convicted Smith of Reckless Homicide. DE 91-1 at 2.

         Stanley states:

[D]etermination of whether Smith's actions were in self defense and whether they were reasonable given the situation that was faced by Smith was necessary to the outcome of the criminal trial. The criminal jury was faced with whether Smith was acting in self-defense. If so, then a not guilty verdict would have been rendered by the jury. Obviously, the jury rejected Smith's self-defense arguments and went on to consider whether he was guilty of Manslaughter in the Second Degree or Reckless Homicide. The jury found him guilty of Reckless Homicide as defined by the Jury Instructions. To do so, the Jury had to conclude that Smith's actions were a gross deviation from the standard of care that a reasonable person would observe in the situation.

DE 91 at 5. This is not entirely correct. Though the Court agrees that the jury determined Smith's mistaken belief as to the necessity of self-defense was a gross deviation from the standard of care that a reasonable person would observe in the situation, it is not correct to say that the jury did not consider self-defense after rejecting it as an absolute defense. Rather, the jury accepted that Smith believed he was privileged to act in self-defense, but found that such belief was woefully mistaken. See DE 91-1 at 11 (Instruction No. 3A(C)(2): “Though otherwise privileged to act in self-protection the Defendant was mistaken in his belief that it was necessary to use physical force against Brandon Stanley in self-protection, or in his belief in the degree of force necessary to protect himself . . . .”). This granular distinction does not change the preclusive effect of the verdict and conviction, but the application of collateral estoppel requires precision. The Court clarifies.

         Kentucky, by statute, defines the crime of reckless homicide:

(1) A person is guilty of reckless homicide when, with recklessness he causes the death of another person.

KRS 507.050. In the Commonwealth:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

KRS 501.020(4). In Commonwealth v. Hasch, 421 S.W.3d 349 (Ky. 2013), the Kentucky Supreme Court explained the two theories under which a defendant may be convicted of reckless homicide:

1) The so-called “straight” reckless homicide theory, where the defendant acts without the specific intent to kill and in doing so, fails to perceive a substantial and unjustifiable risk that his actions could cause the victim's death, see KRS 507.050(1) and KRS 501.020(4); and 2) The “imperfect self-defense” theory, where the defendant, with or without the specific intent to kill, acts under an actual but mistaken belief that he must use physical force or deadly physical force against another person in order to protect himself from imminent death or injury about to be inflicted by that person, and in so acting he failed to perceive a substantial and unjustifiable risk that he was mistaken in his belief that force is necessary. See KRS 501.020(4) and KRS 503.120(1).

Id. at 355-56. The Hasch Court expanded on the specific recklessness and reasonableness elements:

Under both theories of reckless homicide, the element of recklessness requires the failure to perceive a substantial and unjustifiable risk, and the failure to perceive that risk must be “a gross deviation from the standard of care that a reasonable person would observe in the situation.” KRS 501.020(4). Under the straight theory of reckless homicide, KRS 507.050(1), a reckless failure to perceive the risk that the defendant's actions would result in the victim's death supplies the element of recklessness necessary to sustain a reckless homicide conviction.
Under the imperfect self-defense theory of reckless homicide, the defendant knows that his conduct could cause another person's death and he actually believes that the use of force is necessary to protect himself from another person. The element of recklessness is supplied by his failure to perceive a substantial and unjustifiable risk that his belief in the need to use force is mistaken. Again, the element of recklessness requires that the failure to perceive that risk was a gross deviation from the standard of care that a reasonable person would observe in the situation.

Id. at 356. In imperfect self-defense, the imperfection is in the fact and degree of mistaken belief. The actor using force is wrong in his belief about the need for force, but not just wrong. The actor must be wrong to a degree that demonstrates, objectively, the gross failure to perceive a substantial and unjustifiable risk of mistake. In other words, not just wrong, dead wrong.

         Here, as indicated by the signature of the jury foreperson on the verdict form, the jury found Smith guilty under the imperfect self-defense theory of reckless homicide. DE 91-1 at 9- 13 (Jury Instructions and Verdict Form). Thus, contrary to Stanley's assertion that the jury rejected the self-defense theory outright, the jury instead found that Smith was mistaken as to either the necessity of physical force or the degree of physical force required to defend himself from Brandon. The Kentucky Supreme Court has further explained the two varieties of mistaken belief in this context:

The reckless homicide conviction can be sustained under the imperfect self-defense theory only if the evidence adduced at trial could lead reasonable jurors to believe beyond a reasonable doubt that Appellee failed to perceive the risk that she was mistaken in her belief that she needed to act in self-protection or in the degree of force necessary.
Under KRS 503.120(1), the mistaken belief can take either of two forms. There may be a mistaken belief that force of any kind was needed. For example, one might mistake an innocent, friendly visitor for a dangerous intruder. Or, there may be a mistaken belief that deadly force rather than non-deadly force was needed for self-protection. For example, one might mistakenly believe that an unarmed aggressor was about to strike with a deadly weapon or dangerous instrument.

Hasch, 421 S.W.3d at 358 (internal citation omitted). The verdict form shows that the jury convicted Smith on the imperfect self-defense theory; it does not establish whether the jury found Smith was mistaken as to the need for force as opposed to the degree of force necessary. That uncertainty does not prevent the Court's application of ...

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