RENDERED: SEPTEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0839-MR
SETH PAYNE APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
v. HONORABLE KENNETH HAROLD GOFF, II, JUDGE
ACTION NO. 16-CI-00265
DANNY JO SWIFT APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, TAYLOR, AND L. THOMPSON, JUDGES.
TAYLOR, JUDGE: Seth Payne brings this appeal from a June 18, 2020, Order
Granting Partial Summary Judgment, entered by the Grayson Circuit Court, which
denied in part Payne’s motion for summary judgment and assertion of qualified
official immunity as to all claims asserted by Smith. For the reasons stated, we
reverse and remand.
BACKGROUND
The underlying facts of this case have been succinctly set forth by the
circuit court, as follows:
On September 4, 2015, the Grayson County
Sheriff’s Office and the Greater Hardin County Narcotics
Task Force detained Danny Swift (hereinafter “Swift”)
during a drug raid of Swift’s residence. Law
enforcement found drugs on Swift’s person and
numerous weapons in his residence. While law
enforcement was executing a search warrant, Swift was
escorted to the back porch of the house and handcuffed
behind his back. The handcuffs were later moved to the
front of his body because Swift complained about the
pain he was experiencing in his wrists.
Swift claimed he needed to relieve himself. It is
unclear whether he received permission to do so.
According to Swift, he walked 100-200 yards away from
the porch. Instead of returning to the back porch, Swift
instead sat down in a hole and allegedly fell asleep.
Once the officers realized Swift was missing, they
attempted to relocate him. Approximately an hour and a
half passed until Trooper Payne (hereinafter “Payne”)
showed up with his canine, Fero.
Deputy Beasley (hereinafter “Beasley”)
accompanied Payne during the search for Swift. Beasley
claimed that after searching the property with flashlights
and yelling for Swift with no response, Payne and Fero
were called to the scene. Both Beasley and Payne stated
in their affidavits that several canine warnings were
given with no response. Beasley stated that numerous
weapons had been recovered from the main building of
the property and that the buildings located on the rear of
the property had not been searched, which made the
officers fear for the safety and well-being of themselves
and others since Swift may have had access to a weapon
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and have been armed. Swift argued that if they had
called his name, he would have woken up. Instead, he
claimed that they never called his name and instead
released Fero with no warning.
Fero located and apprehended Swift. There is a
dispute between the parties as to whether this was just a
“bite” or a “bite and hold.” The bite resulted in injuries
including lacerations to the bone in Swift’s cheek,
infraorbital space, and nose, as well as a fractured nose,
and damage to his right eye and sinuses. Swift’s injuries
required plastic surgery.
June 18, 2020, Order at 1-2.
On September 6, 2016, Swift filed a complaint in the Grayson Circuit
Court against, inter alios, Payne. Therein, Swift claimed that Payne’s use of the
police canine, Fero, constituted unreasonable force under the Fourth Amendment
to the United States Constitution and sought damages under 42 United States Code
(U.S.C.) § 1983. Swift also asserted the following claims under Kentucky law –
negligence per se, gross negligence per se, negligence, and gross negligence. Swift
sought both compensatory and punitive damages.
Payne filed an answer and asserted the defense of qualified official
immunity. Payne then filed a motion for summary judgment. In the motion for
summary judgment, Payne argued that his use of Fero did not constitute excessive
force under the Fourth Amendment and that he was neither negligent nor grossly
negligent in his use of Fero. In any event, Payne maintained that he was entitled to
the defense of official immunity.
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In response to the motion for summary judgment, Swift argued that
Payne’s use of Fero amounted to excessive force pursuant to the Fourth
Amendment. Swift maintained that he was sleeping and was not actively resisting
when Fero bit and held him. Swift also claimed that Payne’s use of Fero violated
Kentucky State Police Use of Force Policy. Thus, Swift argued that summary
judgment was improper, and Payne was not entitled to qualified official immunity.
By order entered June 18, 2020, the circuit court rendered a partial
summary judgment. The court determined that material issues of fact precluded
summary judgment upon qualified official immunity as to Smith’s claim under 42
U.S.C. § 1983. The court also concluded that material issues of fact precluded
summary judgment upon qualified official immunity as to Swift’s claims of
negligence and gross negligence. However, the circuit court did grant summary
judgment in favor of Payne upon the claims of negligence per se and gross
negligence per se. This appeal follows.
STANDARD OF REVIEW
To begin, summary judgment is proper where there exists no material
issue of fact and movant is entitled to judgment as a matter of law. Steelvest, Inc.
v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991); Kentucky Rules of
Civil Procedure (CR) 56.03. All facts and inferences therefrom are to be viewed in
a light most favorable to the nonmoving party. Id. Effectively, our review of a
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summary judgment is de novo. Peterson v. Foley, 559 S.W.3d 346, 348 (Ky.
2018).
However, as a general rule, our appellate jurisdiction is restricted to
final judgments. CR 54.01. And, “an appeal from the denial of a motion for
summary judgment would not be permitted because it is regarded as interlocutory.”
Steffan v. Smyzer by and through Rankins, 540 S.W.3d 387, 390-91 (Ky. App.
2018). However, in Breathitt County Board of Education v. Prater, 292 S.W.3d
883 (Ky. 2009), the Kentucky Supreme Court carved out an exception to this
general rule. Therein, the Court held “an order denying a substantial claim of
absolute immunity is immediately appealable even in the absence of a final
judgment.” Id. at 887. Our review proceeds accordingly.
ANALYSIS
Payne’s initial argument on appeal is that the circuit court erred by
failing to render summary judgment dismissing Swift’s claim under 42 U.S.C. §
1983 upon qualified immunity grounds. Payne points out that Swift alleged that
the use of Fero constituted excessive force violative of the Fourth Amendment of
the United States Constitution. Payne recounts that Swift fled into a wooded area
at night, and at the time, it was unknown if Swift was armed, as numerous weapons
were seized at the residence. Additionally, Payne stresses that Fero was on a lead
tracking Swift and that he gave multiple verbal canine warnings prior to locating
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Swift. Payne states that when Fero seized Swift by biting him, Payne saw Swift
hiding in a hole and thereupon removed Fero. Payne maintains that his use of Fero
was objectively reasonable under these circumstances and did not amount to
excessive force. Consequently, Payne claims that he is entitled to qualified
immunity and that Smith’s 42 U.S.C. § 1983 claim should be dismissed.
To be entitled to qualified immunity as to a 42 U.S.C. § 1983 claim, a
court must consider “(1) whether an ‘official’s conduct . . . violate[d] a
constitutional right,’ and, if so, (2) whether ‘that right was . . . clearly established at
the time of the conduct.’” LaPlante v. City of Battle Creek, Michigan, 30 F.4th
572, 578-79 (6th Cir. 2022) (quoting Latits v. Phillips, 878 F.3d 541, 544 (6th Cir.
2017)). An officer’s use of excessive force to effectuate an arrest of seizure is
unreasonable and violates the Fourth Amendment of the United States
Constitution. Graham v. Connor, 490 U.S. 386, 394-97 (1989). To determine if
an officer’s use of force was reasonable, we look to three factors:
(1) the severity of the crime at issue; (2) whether the
suspect posed an immediate threat to the safety of the
police officers or others; and [(3)] whether the suspect
actively resisted arrest or attempted to evade arrest by
flight.
LaPlante, 30 F.4th at 579 (citation omitted). And, the court must consider the
reasonableness of the use of force from the officer’s perspective at the scene and
must recognize that an officer is “often forced to make split-second judgments – in
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circumstances that are tense, uncertain, and rapidly evolving[.]” Graham, 490 U.S.
at 397. In our analysis, we shall view the facts and inferences therefrom in a light
most favorable to Swift. See Steelvest, 807 S.W.2d 476.
The first factor is severity of the crime. It is undisputed that Payne
was informed that a methamphetamine lab and several firearms were found at
Swift’s house. Additionally, Payne was informed that Swift had been handcuffed
in the front, had fled the scene on foot at night, and had been missing for about an
hour and a half. Payne also knew that Swift would be charged with several
felonies and could have possibly obtained a weapon from outbuildings on the
property. Based upon these undisputed facts, we believe this factor weighs in
favor of Payne.
The second factor is the potential threat that Swift posed to Payne and
to the public. Again, it is uncontroverted that Payne was handcuffed in the front
and thus could have possibly obtained a weapon from outbuildings on his property.
There were several weapons seized from within his home, and Swift fled into the
woods at night. So, Swift secluded himself in a wooded area at night; a position
that provided Swift with the opportunity to easily ambush Payne. Based upon
these undisputed facts, we think a reasonable police officer under these
circumstances would believe that Swift posed a threat to the officers’ safety.
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The third factor is whether the suspect was actively resisting arrest or
attempting to evade arrest by fleeing. Here, the facts are clear that Swift fled into a
wooded area at night and hid in a hole. The police, including Payne, could not
locate him until Fero seized Swift by biting and holding him. At this time, Payne
entered and withdrew Fero. Swift testified that he fell asleep in the hole and did
not hear the officers searching for him; however, Swift admitted that he was
attempting to escape. Based upon these undisputed facts, it is clear that Swift’s
intent was to flee and escape arrest.
Considering the totality of circumstances in the light most favorable to
Swift, we conclude that Payne’s use of Fero did not constitute excessive force
under the Fourth Amendment and that Payne was entitled to qualified official
immunity. For this reason, the circuit court erred by failing to grant summary
judgment dismissing Swift’s claim under 42 U.S.C. § 1983.
Payne also asserts that the circuit court erred by denying his motion
for summary judgment to dismiss Swift’s negligence and gross-negligence claims
upon the basis of qualified official immunity. Payne argues that his use of Fero
constituted a discretionary act that was performed in good faith. Thus, Payne
believes he is entitled to qualified official immunity.
Qualified official immunity is applicable to a discretionary act
negligently performed by a public official when done so in good faith and within
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the scope of the official’s authority. Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001).
Thus, the public official must be performing a discretionary act as opposed to a
ministerial act. Id. at 521. A public official has no qualified immunity in relation
to the performances of a ministerial act. A ministerial act is generally “one that
requires only obedience to the orders of others, or when the officer’s duty is
absolute, certain, and imperative, involving merely execution of a specific act
arising from fixed and designated facts.” Id. at 522. Conversely, a discretionary
act is one “involving the exercise of discretion and judgment, or personal
deliberation, decision, and judgment[.]” Id. at 522.
In Kentucky, the good faith requirement of qualified official immunity
has two components – objective and subjective. Yanero, 65 S.W.3d 510. The
Kentucky Supreme Court has defined the two components:
Thus, bad faith [or the lack of good faith] ‘can be
predicated on a violation of a constitutional, statutory, or
other clearly established right which a person in the
public employee’s position presumptively would have
known was afforded a person in the plaintiff’s position,
i.e., objective unreasonableness.’ Acting in the face of
such knowledge makes the action objectively
unreasonable. Or, bad faith can be predicated on whether
the public employee ‘willfully or maliciously intended to
harm the plaintiff or acted with a corrupt motive,’ which
requires a subjective analysis.
Bryant v. Pulaski Cnty. Det. Ctr., 330 S.W.3d 461, 466 (Ky. 2011) (citations
omitted). A lack of good faith may be demonstrated in one of two ways: (1) the
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public official violated a clearly established constitutional, statutory, or other right
of plaintiff, or (2) the public official acted willfully, maliciously, or with a corrupt
motive to cause harm to plaintiff. Yanero, 65 S.W.3d at 523; Rowan Cnty. v.
Sloas, 201 S.W.3d 469, 475 (Ky. 2006). If the public officer demonstrates prima
facie that her act was discretionary and performed within the scope of her duty, the
burden then shifts to plaintiff to demonstrate the discretionary act was not
performed in good faith. Sloas, 201 S.W.3d 469.
Relevant herein is the Kentucky State Police Canine Section Standard
Operating Procedures CN-07, which provides, in part:
A. Canine teams shall provide assistance to all Kentucky
State Police personnel for criminal investigations
when tracking suspects is required. Canine teams
shall also provide assistance to Kentucky State Police
personnel in criminal investigations when locating
narcotics is required.
....
G. Tracks for missing persons should be done on lead,
and the handler shall use the utmost care to insure the
safety of persons being tracked and officers assisting
in area.
Citing to the above, Swift believes that Subsection G imposes a ministerial duty
upon Payne “to use the utmost care to insure the safety of persons being tracked.”
Swift’s Brief at 14. While we agree that Subsection G states that an officer shall
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use the utmost care to ensure the safety of others, we disagree that Subsection G
creates a ministerial duty; rather, we think it is a fundamentally discretionary act.
The actual task of handling a canine tracking an individual involves a
multitude of decisions, some of which must be made by the handler on a moment’s
notice in uncertain circumstances. These type of decisions are inherently
discretionary in nature, as opposed to well-defined rules or duties. Therefore, we
conclude that Payne’s use of Fero to apprehend Swift was discretionary.
As to good faith, we do not believe that Swift has set forth facts or
evidence illustrating that Payne violated Swift’s rights or acted with malicious
intent to cause injury or a deprivation of rights. See Haugh v. City of Louisville,
242 S.W.3d 683, 686-87 (Ky. App. 2007).1 Therefore, we hold that Payne is
entitled to qualified official immunity against the claims of negligence and gross
negligence.
In sum, we are of the opinion that the circuit court erroneously denied
summary judgment in favor of Payne, as he sufficiently established he was entitled
to qualified official immunity for all claims asserted by Swift. Accordingly, we
reverse the circuit court’s June 18, 2020, Order as concerns qualified official
1
Danny Jo Swift also cites to Kentucky Revised Statutes (KRS) 503.090 and argues that Seth
Payne may have “deliberately ignored this statute.” Swift’s Brief at 15. However, Swift fails to
cite to specific facts that could give rise to a violation of KRS 503.090.
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immunity and remand for the circuit court to dismiss Swift’s claims for negligence,
for gross negligence, and claims asserted under 42 U.S.C. § 1983.
For the foregoing reasons, the order of the Grayson Circuit Court is
reversed and remanded for proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Stacey A. Blankenship
Kristen N. Worak Timothy L. Stevenson
Paducah, Kentucky Bowling Green, Kentucky
ORAL ARUGMENT FOR
APPELLANT:
Stacey A. Blankenship
Paducah, Kentucky
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