MEMORANDUM OPINION AND ORDER
Plaintiffs, Bert Williams, Jr. and Bert Williams, Sr., sued a number of defendants, including Louisville Jefferson County Metro Government (“Louisville Metro”) and more than twenty Louisville Metro police officers (collectively, “Defendants”) over a series of raids and arrests occurring at or near their business, Plaintiff Phat’s Bar & Grill (“Phat’s”). A number of dis-positive motions are currently pending.
One of the more significant motions is that of Officer Kevin Smith for summary-judgment. Prior to filing this motion, this Court dismissed all claims against Officer Smith with the exception of malicious prosecution under both state and federal law. In his instant motion, Officer Smith seeks dismissal of the malicious prosecution claims on qualified immunity grounds or for Plaintiffs’ failure to prove the elements of the tort of malicious prosecution under both federal and state law. Both of these issues involve many interrelated disputed facts as well as serious questions of law. For the reasons that follow, the Court will deny Officer Smith’s Motion for Summary Judgment.
I.
Although Plaintiffs allege that all Defendants committed a number of unlawful acts over a period of time, the factual scope of the present motion is limited to the arrest and subsequent prosecution of Williams, Jr., because Officer Smith was only involved in this portion of the alleged illicit activity.
On April 19, 2007, Officer Smith arrested Williams, Jr. at Phat’s. Officer Smith and Williams, Jr. offer significantly different accounts of events the night of the arrest. The following, however, is undisputed: Louisville Metro Police received a 911 phone call early in the morning on April 19, 2007 from a woman claiming an assault and robbery inside Phat’s. Responding to the call, Officer Smith and his partner arrived at Phat’s around 4:30 am, knocked on its door and eventually entered. Once inside, he asked patrons twice whether anyone inside needed police assistance. No one answered “yes.” He then went back to the entrance where he requested that Williams, Jr. hand over his identification. Moments later, Officer Smith arrested Williams, Jr. on four charges: (1) Obstructing Governmental Operations, (2) Terroristic Threatening, (3) Alcohol Intoxication, and (4) Disorderly Conduct. He then placed Williams, Jr. in the backseat of his police car and drove off towards the police station.
The other details of the event are disputed. Officer Smith says that Williams, Jr. specifically denied him access to Phat’s, both in orally refusing and in physically blocking the entrance way. He says that these actions prevented his ability to investigate the 911 call. Officer Smith then says that in his initial discussions at Phat’s doorway, Williams, Jr. was uncooperative, hostile and verbally threatening. Officer Smith says that he remained hostile throughout their interaction. Officer Smith, in his testimony provided at Williams, Jr.’s subsequent trial, stated that he was concerned about the woman who made the 911 phone call and sought entry to ensure her safety.
In his motion, Officer Smith claims that both a denial of access to Phat’s and Williams, Jr.’s otherwise uncooperative behavior led to his arrest. The otherwise uncooperative behavior in part refers to Officer Smith’s request for Williams, Jr.’s identification, which Officer Smith claims Williams, Jr. refused to provide absent significant pressure from him and his partner.
Williams, Jr.’s account of this night is different in a number of important ways. He says that when Officer Smith first arrived at Phat’s, the door was properly locked because business operations were closed. When Williams, Jr. came to the door, Officer Smith immediately began questioning him about his failure to change the deadbolt lock. According to Williams, Jr., Officer Smith had visited Phat’s in the recent past over other concerns, and had
Williams, Jr. asserts that he had recently consulted with his attorney at the time, Douglas Weaver, about his rights when the police came to Phat’s. According to Williams, Jr., his attorney informed him that he did not have to allow the police entrance unless the police had probable cause. Because the alleged victim was no longer present, when Officer Smith asked to look around, Williams, Jr. objected. Nevertheless, Williams, Jr. contends that Officer Smith shoved him aside, and made a perfunctory investigation regarding the phone call. Although Phat’s is a multiple-storied establishment and several people remained in the building at the time, Officer Smith conducted an investigation in around twenty seconds. Accordingly, Williams, Jr. claims the 911 call was pretext for gaining entry to Phat’s.
Williams, Jr. then claims that when he and Officer Smith met again in the entranceway, Officer Smith requested his identification. When Williams, Jr. inquired into the purpose, Officer Smith became hostile. Williams, Jr. did hand over his identification to Officer Smith’s partner. However, Officer Smith forced Williams, Jr. to turn around in the doorway and put his hands behind his back, and then arrested him.
Officer Smith’s uniform citation says that he drove Williams, Jr. to the police station. However, it is unclear from the record exactly what happened immediately thereafter. On the citation, Officer Smith alleged the four charges listed above and provided several statements explaining the circumstances behind the arrest. At some later time, three of the four charges were dropped. Williams, Jr. claims that the prosecutors would not drop the final charge at the insistence of Officer Smith, who was present at most of the meetings between him and prosecutors, unless Williams, Jr. stipulated to probable cause. Nevertheless, Williams, Jr. refused to stipulate to probable cause. The Jefferson County Attorney’s Office prosecuted Williams, Jr. on the remaining charge for Obstructing Governmental Functions. Nearly two years later, a jury acquitted Williams, Jr. of the charge.
In the briefs on this motion, all parties refer to the following three sets of videos in the record to support their accounts of the events that transpired on April 19, 2007: (1) videos taken from Phat’s security system, (2) a video of the arrest taken by one of Williams, Jr.’s employees, and (3) videos of the underlying state court criminal prosecution at which both Williams, Jr. and Officer Smith testified. The security videos do not contain audio of the conversations that took place between Officer Smith and Williams, Jr., so it is unclear from those videos the true nature and content of the encounter.
The only claims remaining against Officer Smith are for malicious prosecution under both state and federal law. He moves for summary judgment on grounds that he is entitled to qualified immunity and that Plaintiffs have failed to show that genuine issues of material fact exist for both the state and federal law malicious prosecution claims. Kentucky and federal law as to both qualified immunity and malicious prosecution are distinct in important ways, so the Court will analyze the federal and state law claims separately. Under this framework, the Court will resolve both the qualified immunity and summary judgment issues.
II.
Summary judgment is proper “if the pleadings, depositions, answers to inter
III.
Under federal law, “qualified immunity is an affirmative defense that shields government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Causey v. City of Bay City,
The Sixth Circuit recognizes that a malicious prosecution claim under the Fourth Amendment provides a cause of action for damages caused by “wrongful investigation, prosecution, conviction, and incarceration.” Barnes v. Wright,
First, the plaintiff must show that a criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute. Second, because a § 1983 claim is premised on the violation of a constitutional right, the plaintiff must show that there was a lack of probable cause for the criminal prosecution. Third, the plaintiff must show that, as a consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty, as understood in our Fourth Amendment jurisprudence, apart from the initial seizure. Fourth, the criminal proceeding must have been resolved in the plaintiffs favor.
Sykes v. Anderson,
Both parties seem to concede that the criminal charges were initiated against Williams, Jr. and were resolved in his favor by dismissal or acquittal. Thus, the remaining questions are (1) whether Defendant made, influenced or participated in the decision to prosecute; (2) whether Of
A.
The seminal Sixth Circuit case discussing the elements of a federal malicious prosecution claim also explained that “very little case law [exists] discussing precisely what role an investigating officer must play in initiating a prosecution such that liability for malicious prosecution is warranted, but ... the fact that they did not make the decision to prosecute does not per se absolve them from liability.” Sykes,
Officer Smith argues that the Jefferson County Attorney made the decision to prosecute Williams, Jr. and that he did not influence this decision. However, “[i]f police officers have been instrumental in the plaintiffs continued confinement or prosecution, they cannot escape liability by pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute him. They cannot hide behind the officials whom they have defrauded.” Sykes,
Here, it is actually unclear from the record if and to what extent Officer Smith pressured the County Attorney’s Office to prosecute Williams, Jr. However, Plaintiffs assert that Williams, Jr. refused to stipulate to probable cause, and at Officer Smith’s insistence, the County Attorney’s Office decided to pursue prosecution due to this refusal. Plaintiffs support this assertion with evidence that Officer Smith was present at some of the meetings between the prosecutors and Williams, Jr. and his counsel, and contend that Officer Smith’s presence at the meetings suggest that he aided in the prosecution’s decisions. Moreover, Officer Smith testified on behalf of the prosecution in Williams, Jr.’s criminal trial, the only testifying witness the prosecution put forth. From these facts, the Court concludes that a reasonable juror could conclude that Officer Smith participated in the decision to prosecute.
Importantly, Plaintiffs could also satisfy this element by showing that the officer presented false information to the prosecuting authorities. Id. at 312. In such a circumstance, the plaintiff must provide evidence that the officer “(1) stated a deliberate falsehood or showed reckless disregard for the truth and (2) that the alleged false or omitted information was material to the finding of probable cause.” Gregory v. City of Louisville,
B.
For the next element, Williams, Jr. must show that Officer Smith lacked probable cause to both arrest Williams, Jr. and to initiate the criminal proceedings against him. Sykes,
Whether probable cause exists here depends on whose version of events the factfinder adopts. The substance of the conversations between these two individuals, and the nature of their tones and body language, have a real and significant impact on whether Officer Smith indeed had a reasonable belief that Williams, Jr. was committing the offense of Obstructing Governmental Functions as defined in Kentucky law.
The video evidence submitted to the Court does not resolve this dispute. Both sides have presented reasonable accounts of the events that are factually at odds. A reasonable jury could believe Williams, Jr.’s version. Consequently, the Court is inclined to let a jury determine the appropriate facts that serve as the foundation for the existence of probable cause.
C.
Next Williams, Jr. must prove that he suffered a deprivation of liberty as understood under the Fourth Amendment, apart from the initial seizure. Officer Smith does not contest that a deprivation of liberty occurred, but the Court finds that this element warrants some discussion.
The damages suffered as a result of the acts underlying a malicious prosecution must have subjected “the aggrieved individual to a deprivation of constitutional dimension.” Dean v. Earle,
However, district courts have found a deprivation sufficient to satisfy this malicious prosecution element where the plaintiff was arrested, taken to jail, and arraigned, see Guerra v. Rodriguez,
It is unclear from the record exactly what transpired between the time when Officer Smith transported Williams, Jr. to the police station and when the prosecution began. However, based on the information the Court presently possesses, the situation sub judice is more similar to the Guerra and Amine line of cases. First, the initial seizure probably occurred when Officer Smith ordered Williams, Jr. to face the wall, handcuffed him, and placed him under arrest outside Phat’s. Certainly, seizure occurred when Officer Smith led Williams, Jr. to his police car and forced him in the backseat. Next, Officer Smith removed Williams, Jr. from the location of his business and transported him to the police station. Finally, prosecutors did not proceed on the remaining obstruction charge for two years, making Williams, Jr. endure a relatively long period of time to obtain a resolution of the charge and suffer the deprivation of liberty inherent in defending oneself on criminal charges. The Court finds that these undisputed facts present enough evidence to show a deprivation of liberty as understood under the Fourth Amendment apart from the initial seizure.
In sum, genuine issues of material fact remain as to two of the elements of the malicious prosecution claim. The other three elements are resolved in Plaintiffs’ favor. Because Officer Smith fails to show that a constitutional violation did not occur, he is not entitled to federal qualified immunity at this time.
IV.
Under Kentucky law, official immunity “is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. It rests not on the status or title of the officer or employee, but on the function performed.” Yanero v. Davis,
A.
Kentucky courts have analyzed the good faith requirement inversely, as proof of the absence of bad faith. Rowan Cnty. v. Sloas,
Williams, Jr. argues that Officer Smith acted in bad faith both objectively and subjectively. Objectively, he argues that Officer Smith violated his clearly-established right to be free from prosecution without probable cause; subjectively, he contends that Officer Smith acted with a corrupt motive. The Court first examines whether Officer Smith acted in bad faith objectively by analyzing the elements of the tort of malicious prosecution under Kentucky law.
“In spite of the general disfavor, [Kentucky] case law recognizes that malicious prosecution claims are necessary to deter persons from procuring the arrest of another maliciously and without probable cause.” Hunt v. Lawson,
They are: (1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative disciplinary proceedings, (2) by, or at the instance, of the [officer], (3) the termination of such proceedings in [plaintiffs] favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceedings, and (6) the suffering of damage as a result of the proceeding.
Raine v. Drasin,
B.
The test for determining that the proceedings against plaintiff were “by, or at the instance, of the officer”, is whether the defendant “sets the machinery of the law in motion.” McMaster v. Cabinet for Human Res.,
Construing Kentucky law, the Sixth Circuit determined that the plaintiff could prevail on her malicious prosecution claim where the officer decided to make the arrest and to charge the plaintiff with felonies instead of misdemeanors. Arnold v. Wilder,
The facts surrounding Williams, Jr.’s arrest and prosecution are more closely related to the cases finding that the officer “initiated” the criminal proceedings. The case law outlined above seems to indicate that “initiation” occurs where the officer made the arrest and detailed potential offenses against the plaintiff. Here, Officer Smith was more involved than just the arrest and citation, because he participated in meetings between the prosecutor and Williams, Jr. and was the government’s sole witness at Williams, Jr.’s trial. It is clear, therefore, that Officer Smith’s action could amount to “initiation” of the proceedings against Williams, Jr. under Kentucky law.
C.
The Court will consider the malice and lack of probable cause elements together, because under Kentucky law, “malice can be inferred from a lack of probable cause.” Massey v. McKinley,
“Probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Commonwealth v. Jones,
As discussed above in the federal law context, based on a careful review of the record, the Court finds that the determination as to whether probable cause exists depends on what set of facts the jury would believe. Therefore, the Defendant has not shown an absence of a genuine issue of material fact as to the probable cause element. Likewise, the question of malice remains undecided.
D.
Williams, Jr. must finally show that he suffered damages as a result of the prosecution for his malicious prosecution claim to survive. Courts seem to allow a wide range of damages to satisfy this element. In Raine v. Drasin, the seminal Kentucky malicious prosecution case, the Court recognized recovery for the following types of damages: “mortification, humiliation, injury to the reputation, character and health, mental suffering, and general impairment of social and mercantile standing.” Raine,
Because Officer Smith cannot prove that he did not violate Williams, Jr.’s clearly-established rights, Officer Smith’s claim to qualified official immunity on the Kentucky malicious prosecution claim must be denied. Moreover, because the Court has determined that some of the elements of a malicious prosecution claim fall in Williams, Jr.’s favor, and the remaining elements are subject to extant genuine issues of material fact, Officer Smith is not entitled to summary judgment.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED, that Defendant, Kevin Smith’s Motion for Summary Judgment on the state and federal claims of malicious prosecution is DENIED.
Notes
. Pursuant to Kentucky statute, "A person is guilty of obstructing governmental operations when he intentionally obstructs, impairs or hinders the performance of a governmental function by using or threatening to use violence, force or physical interference.” KRS § 519.020.