RENDERED: FEBRUARY 17, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0336-MR
HENRY VOLENTINE,
INDIVIDUALLY; HARDIN COUNTY
OFFICE OF SHERIFF; AND HENRY
VOLENTINE, IN HIS OFFICIAL
CAPACITY AS HARDIN COUNTY
DEPUTY SHERIFF APPELLANTS
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE JOHN D. SIMCOE, JUDGE
ACTION NO. 16-CI-01433
SUSAN SHEEHY AND MAURICE
GREEN APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES.
DIXON, JUDGE: Henry Volentine, individually and in his official capacity as a
Hardin County Deputy Sheriff, and the Hardin County Office of Sheriff (HCOS)
appeal from the order denying them immunity entered by the Hardin Circuit Court
on February 28, 2022. Following a careful review of the briefs, the record, and the
law, we reverse.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On October 14, 2014, Hardin County Deputy Sheriff Henry Volentine
ran the license plate number of a vehicle being operated by Maurice C. Green and
discovered it was registered to a different vehicle. Consequently, Volentine
initiated a traffic stop.
Green pulled into a Speedway parking lot, but as Volentine
approached Green’s vehicle, Green “took off.” Volentine perceived that Green, as
he fled, struck a female pedestrian near her vehicle at a gas pump and nearly struck
a man walking toward the entrance of the gas station, causing the man to jump out
of the way to avoid being hit.
Given these events, Volentine decided to pursue Green and kept in
contact with the HCOS dispatcher via radio. Near the end of the pursuit, Green
threw a black duffle bag from his vehicle. Shortly after, Green’s vehicle crossed
the centerline and hit a vehicle operated by Susan Sheehy head-on.
Sheehy was injured in the collision and had to be extricated from her
vehicle and transported to a local hospital. She underwent multiple surgeries, but
still has lasting pain and injuries. Accordingly, she filed the underlying lawsuit in
2016.
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Volentine and the HCOS answered Sheehy’s complaint and amended
their answer to include their immunity defenses. Trial was set multiple times but
was continued and reset for various reasons. In 2021, after substantial discovery
was conducted, Volentine and the HCOS moved the trial court for summary
judgment on immunity grounds. After the matter was fully briefed and a hearing
held, the trial court denied summary judgment, finding no immunity. This appeal
followed.
STANDARD OF REVIEW
This appeal is properly before us because an order denying a claim of
immunity is immediately appealable. Harrod v. Caney, 547 S.W.3d 536, 540 (Ky.
App. 2018); Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky.
2009); Mattingly v. Mitchell, 425 S.W.3d 85, 89 (Ky. App. 2013). Entitlement to
immunity is a question of law. See Univ. of Louisville v. Rothstein, 532 S.W.3d
644, 647 (Ky. 2017); Rowan Cnty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006)
(citing Jefferson Cnty. Fiscal Ct. v. Peerce, 132 S.W.3d 824, 825 (Ky. 2004)).
Questions of law are reviewed de novo. Rothstein, 532 S.W.3d at 647 (citing
Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644,
647 (Ky. 2007)).
Additionally, summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
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together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR1 56.03. An appellate court’s role in reviewing a summary judgment is to
determine whether the trial court erred in finding no genuine issue of material fact
exists and the moving party was entitled to judgment as a matter of law. Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is
reviewed de novo because factual findings are not at issue. Pinkston v. Audubon
Area Cmty. Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v.
Moran, 12 S.W.3d 698 (Ky. App. 2000)).
LEGAL ANALYSIS
On appeal, Volentine and the HCOS contend the trial court erred in
finding they were not entitled to sovereign and/or qualified immunity. Sovereign
immunity is broad, protecting the state not only from the imposition of money
damages but also from the burden of defending a lawsuit. Meinhart v. Louisville
Metro Gov’t, 627 S.W.3d 824, 830 (Ky. 2021); Lexington-Fayette Urban Cnty.
Gov’t v. Smolcic, 142 S.W.3d 128, 135 (Ky. 2004) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 409-10 (1982)
(“Immunity from suit includes protection against the ‘cost[s] of trial’ and the
‘burdens of broad-reaching discovery’ that ‘are peculiarly disruptive of effective
1
Kentucky Rules of Civil Procedure.
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government.’”)). The doctrine of sovereign immunity also covers departments,
boards, and agencies that are integral parts of state government, such as law
enforcement agencies and their employees. See Bryant v. Louisville Metro Hous.
Auth., 568 S.W.3d 839, 846 (Ky. 2019). The immunity of governmental and
quasi-governmental agencies is referred to as “governmental” as opposed to
“sovereign” immunity, although this delineation in terminology is a distinction
without a difference. Id. The immunity that extends to governmental employees
in their individual capacities is commonly referred to as “qualified” immunity.
Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).
Whether qualified immunity extends to an individual turns on whether
their actions – or inactions – were discretionary or ministerial. Id. “Generally, a
governmental employee can be held personally liable for negligently failing to
perform or negligently performing a ministerial act.” Marson v. Thomason, 438
S.W.3d 292, 296 (Ky. 2014). By contrast, such employees are immune when
performing discretionary acts, so long as they act in good faith. Thus, qualified
immunity “rests not on the status or title of the officer or employee, but on the
function performed.” Yanero, 65 S.W.3d at 521.
While this case is certainly not identical to Meinhart, it is similar
enough factually that we are obligated to follow the Supreme Court’s application
of the law in that case. By contrast, the case herein is factually distinguishable
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from Mattingly, 425 S.W.3d 85, in which an officer initiated an unauthorized
pursuit based solely on speeding.
In Meinhart, a police officer initiated a pursuit against an assault
suspect which led to an automobile accident and lawsuit. The “dominant nature of
the act” was a pursuit of a suspected violent felon fleeing the scene of the alleged
felony. There, the officer was able to reasonably articulate why he believed the
suspect was a felon as required by his law enforcement agency’s Standard
Operating Procedures (SOPs). Meinhart, 627 S.W.3d at 832. The relevant SOP in
that case provides, “The officer must have a reason to believe that the violator
being pursued is a felon or suspected felon.” Id. at 833.
In the case herein, the dominate nature of the act at issue was also the
pursuit of a suspected felon fleeing the scene of the alleged felony. Here,
Volentine was able to articulate why he believed Green was a felon as required by
the SOPs of the HCOS. The relevant SOP provides, “The deputy must have
reasonable suspicion to believe that the violator being pursued is a felon or a
suspected felon.” At the Speedway, Volentine believed that he witnessed Green
commit either assault in the first or second degree, both of which are felony
offenses, upon two persons in the parking lot. See Kentucky Revised Statutes
(KRS) 508.010 and 508.020.
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In both Meinhart and the case herein “the SOPs required officers to
consider various factors in reaching a decision on how to balance those factors and
when to begin or end a pursuit.” 627 S.W.3d at 832. With regard to pursuits by
law enforcement, “Officers are required to make split-second decisions under
challenging circumstances with imperfect, incomplete, or uncertain information. It
is difficult to imagine a situation in which the exercise of significant, independent
professional judgment would be more necessary.” Id. at 834. Accordingly, “the
decision of whether to begin, continue, or end a pursuit constituted a discretionary
act.” Id. at 832. See also City of Brooksville v. Warner, 533 S.W.3d 688, 694 (Ky.
App. 2017).
Ultimately, the trial court erroneously disregarded Volentine’s real
time perception of the events leading up to the pursuit and, instead, impermissibly
relied on its review of Speedway’s video footage in hindsight. Volentine exercised
his discretion in determining whether to initiate the pursuit, entitling him to
qualified immunity.
The trial court also erred in finding that Volentine violated the HCOS
SOP that “Deputies Will Terminate A Pursuit When: . . . No Field Supervisor or
higher authority can be contacted to approve the pursuit’s continuation.” At the
time, Volentine was the most senior officer on duty. At his deposition, he testified
that he could not personally contact a higher authority without stopping and
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making a phone call and, because everything was happening so quickly, he was
unsure whether dispatch was trying to call a higher authority on his behalf to
approve continuation of the pursuit.
Although it does not appear that this exact issue has been addressed
by our Kentucky courts, it is well-established that “[q]ualified immunity gives
government officials breathing room to make reasonable but mistaken judgments
about open legal questions. When properly applied, it protects all but the plainly
incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563
U.S. 731, 743, 131 S. Ct. 2074, 2085, 179 L. Ed. 2d 1149 (2011) (internal
quotation marks omitted). Additionally,
we must avoid substituting our personal notions of proper
police procedure for the instantaneous decision of the
officer at the scene. We must never allow the theoretical,
sanitized world of our imagination to replace the
dangerous and complex world that policemen face every
day. What constitutes “reasonable” action may seem
quite different to someone facing a possible assailant
than to someone analyzing the question at leisure.
Boyd v. Baeppler, 215 F.3d 594, 602 (6th Cir. 2000). Therefore, Volentine’s belief
that he complied with this SOP entitles him to qualified immunity, even if his
belief was mistaken.
The trial court also erred in finding Volentine violated the HCOS SOP
that “Deputies Will Terminate A Pursuit When: . . . The circumstances of the
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pursuit present an extreme safety hazard to the public, the deputy, or the suspect.”
The trial court failed to note that the HCOS’s policy also provides:
Despite the risks, experts recognize that well-regulated
deputy pursuits are occasionally necessary. Otherwise, if
law enforcement agencies were to adopt an absolute no-
pursuit policy, more criminals would have incentive to
flee, and possibly to go on to commit more crimes.
...
It is difficult if not impossible to describe exactly how a
fleeing motorist can or should be apprehended or the
manner in which the deputies should respond to calls or
emergency assistance, except to say that it must be done
legally and safely. It is also difficult to list the specific
traffic regulations that officers may or may not disregard.
Likewise one cannot set a safe maximum speed or in all
cases specify the maximum number of deputies and
vehicles that should be involved. The pursuing/
responding deputy and/or supervisor shall, in a short
period of time, use their own best judgment including
their training and experience, bearing in mind, the
policies and procedures and directions outlined in these
guidelines and apply them collectively to the existing
circumstances.
Similarly, the Supreme Court of the United States has held:
we are loath to lay down a rule requiring the police to
allow fleeing suspects to get away whenever they drive
so recklessly that they put other people’s lives in danger.
It is obvious the perverse incentives such a rule would
create: Every fleeing motorist would know that escape is
within his grasp, if only he accelerates to 90 miles per
hour, crosses the double-yellow line a few times, and
runs a few red lights. The Constitution assuredly does
not impose this invitation to impunity-earned-by-
recklessness.
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Scott v. Harris, 550 U.S. 372, 385-86, 127 S. Ct. 1769, 1779, 167 L. Ed. 2d 686
(2007).
Here, Sheehy twists Volentine’s words so that it appears he violated
this SOP because he acknowledged that pursuit driving – including this pursuit – is
dangerous and that Green was driving very dangerously. Although the wording of
the HCOS SOP appears mandatory or ministerial, it requires an officer’s discretion
to determine when the “circumstances of the pursuit present an extreme safety
hazard to the public, the deputy, or the suspect.” Given the facts and
circumstances of this case, the trial court erroneously found Volentine violated this
SOP and was, therefore, not entitled to immunity.
For the reasons discussed herein, Volentine’s decisions to initiate and
continue this pursuit were discretionary in nature. Sheehy does not allege that
Volentine acted in bad faith or outside the scope of his authority. Thus, the trial
court erred in finding Volentine and the HCOS unimmune to Sheehy’s claim.2
We also further echo the sentiments of the Supreme Court of
Kentucky:
it is not in the public’s interest to allow a jury of laymen
with the benefit of 20/20 hindsight to second-guess the
2
“[T]he plain language of KRS 70.040 leaves no room for any other reasonable construction
than a waiver of the sheriff’s official immunity (the office of sheriff) for the tortious acts or
omissions of his deputies.” Jones v. Cross, 260 S.W.3d 343, 346 (Ky. 2008) (emphasis added).
Therefore, it stands to reason that since Volentine did not commit a tortious act or omission, the
HCOS is not liable to Sheehy, and its immunity from suit remains intact.
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exercise of a police officer’s discretionary professional
duty. Such discretion is no discretion at all. There is
considerable discretion inherent in law enforcement’s
response to an infinite array of situations implicating
public safety on a daily basis. . . .
Finally, we pause to note immunity is intended to
act as a shield, not just from liability, but also the burdens
of a suit.
Meinhart, 627 S.W.3d at 835-36.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Hardin
Circuit Court is REVERSED.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE SUSAN
SHEEHY:
R. Keith Bond
Elizabethtown, Kentucky Adrian Mendiondo
Lexington, Kentucky
NO BRIEF FILED FOR APPELLEE
MAURICE C. GREEN.
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