165 F. Supp. 3d 563
W.D. Ky.2016Background
- At ~2:00 AM on Aug. 12, 2012 BGPD officers (including Sgt. Donitka Kay and Officer Keith Casada) encountered Gregory Harrison after two distressing calls in which Harrison threatened family and said he had a gun.
- Kay located Harrison on railroad tracks ~30–150 feet away, illuminated him with a spotlight, and repeatedly ordered him to show his hands; Harrison was intoxicated, noncompliant, kept his left hand concealed in his waistband, moved slowly along the tracks, and intermittently responded to commands.
- Officers had ~12 minutes to observe and address the situation; Harrison never brandished a weapon nor threatened the officers on scene; at the moment shot he was ~71.9 feet from Casada, not facing officers.
- Casada fired one shot, killing Harrison; KSP investigated and the Commonwealth declined criminal prosecution; Harrison’s estate sued under § 1983 and state tort law.
- The court considered cross-motions for summary judgment: Plaintiff sought partial summary judgment on liability of Kay and Casada; Defendants sought summary judgment and qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Casada's use of deadly force was excessive under the Fourth Amendment | Harrison was at most committing misdemeanors, not fleeing or attacking; he was largely passive and not an imminent threat; deadly force was unreasonable as a matter of law | A reasonable officer could perceive an imminent threat because Harrison said he had a gun and kept one hand concealed, repeatedly refused commands | Court: Use of deadly force was objectively unreasonable; Casada violated the Fourth Amendment (summary judgment for plaintiff as to Casada’s § 1983 liability) |
| Qualified immunity for Casada (federal) | Right not to be shot absent probable cause of imminent serious harm was clearly established; no probable cause existed here | Casada reasonably perceived a threat from Harrison’s statements and concealment and so is entitled to immunity | Court: Right was clearly established and, under undisputed facts, Casada is not entitled to qualified immunity |
| Kay’s individual liability (failure to intervene / supervise / conspiracy) | Kay agreed with Casada that Harrison would be shot if he crossed a point; she had time to prevent the shooting and supervised Casada | Kay did not fire the shot, did not order the shooting, and lacked evidence of active participation or outright instruction to shoot | Court: Genuine disputes of material fact exist as to Kay’s failure-to-intervene/supervise and alleged agreement; summary judgment denied for both parties on Kay’s § 1983 liability; conspiracy claim survives summary judgment against Kay and Casada |
| Monell/municipal liability (City, Chief Hawkins) — failure to train/ratify | City failed to train/supervise for encounters with mentally impaired/intoxicated persons and lacked less-lethal options; post‑shooting investigation amounted to ratification | City had written use-of-force policies and provided training; KSP investigated; no evidence of deliberate indifference or inadequate ratifying investigation | Court: Grant summary judgment for City and Hawkins on § 1983 municipal liability (failure-to-train and ratification theories dismissed) |
| State-law torts (battery, negligence, IIED, wrongful death, vicarious liability) | Casada committed battery and was negligent/grossly negligent; IIED and wrongful-death claims also pleaded | Defendants claim qualified official immunity under Kentucky law; battery privileged if officer reasonably believed deadly force necessary; IIED redundant where battery exists | Court: Battery claim against Casada survives summary judgment (state battery); negligence/gross negligence claims against Casada barred (no negligent battery); IIED against Casada and other defendants dismissed; wrongful-death and vicarious-liability claims survive to the extent they depend on surviving torts |
Key Cases Cited
- Scott v. Harris, 550 U.S. 372 (2007) (when material facts are undisputed, objective-reasonableness is a pure question of law)
- Graham v. Connor, 490 U.S. 386 (1989) (excessive force claims judged by Fourth Amendment objective-reasonableness factors)
- Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force to prevent escape permissible only if officer has probable cause to believe suspect poses threat of serious physical harm)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity framework; courts may address prongs in either order)
- City of Canton v. Harris, 489 U.S. 378 (1989) (municipal liability for failure to train requires deliberate indifference and a causal link)
- Connick v. Thompson, 563 U.S. 51 (2011) (heightened showing required for municipal failure-to-train claims; pattern or obvious consequence required)
- Brosseau v. Haugen, 543 U.S. 194 (2004) (qualified immunity and excessive force principles in individual-capacity suits)
- Pollard v. City of Columbus, 780 F.3d 395 (6th Cir. 2015) (distinguishable factual scenario analyzing reasonableness in a rapidly escalating threat)
- Mullins v. Cyranek, 805 F.3d 760 (6th Cir. 2015) (deadly-force standard requires probable cause to believe suspect posed imminent threat of serious harm)