RENDERED: DECEMBER 16, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0226-DG
LINDSEY CHILDERS, AS ADMINISTRATRIX APPELLANTS
OF THE ESTATE OF CAMERON PEARSON;
LINDSEY CHILDERS, AS NEXT FRIEND AND
GUARDIAN OF A.P., C.P., AND E.P.,
MINORS; AND AMANDA WAITS
ON REVIEW FROM COURT OF APPEALS
V. NOS. 2017-CA-0669 & 2017-CA-0670
JEFFERSON CIRCUIT COURT NO. 16-CI-003155
WILLIAM S. ALBRIGHT; BASU PROPERTIES, APPELLEES
LLC; AND HARDSHELL TACTICAL, LLC
OPINION OF THE COURT BY SPECIAL JUSTICE TENNYSON
VACATING AND REMANDING
This case presents a novel issue for consideration by this Court: whether
the Court of Appeals had jurisdiction to review an appeal from an interlocutory
order in a civil action denying immunity under Kentucky Revised Statute (KRS)
503.085, Kentucky’s “Stand Your Ground” law. We hold that it did not because
an order denying KRS 503.085 immunity in a civil case does not satisfy the
required elements for interlocutory review under the collateral order doctrine.
Accordingly, we vacate the opinion of the Court of Appeals for lack of
jurisdiction and remand the case to the Jefferson Circuit Court.
I. BACKGROUND
William Albright co-owned and worked at Hardshell Tactical, LLC—a gun
shop—in Louisville. The store was in a shopping center owned by BASU
Properties, LLC. On July 8, 2015, while Albright was working at Hardshell, he
heard a gunshot outside of the store. Albright, armed with two guns, decided to
investigate. In the parking lot of the shopping center, he encountered Kyle
Pearson wielding a handgun. Other witnesses to the incident observed Kyle
waving the gun around and pointing it at his own head. Kyle’s brother,
Cameron Pearson, unarmed, and also in the parking lot, began wrestling with
Kyle for control of the handgun. As the brothers fought, Albright ordered Kyle
to drop the gun but the fight continued, resulting in several errant shots being
discharged from Kyle’s gun. Albright, ultimately, fired several shots at the
brothers. Kyle was injured. Cameron was killed.
A Jefferson County Grand Jury indicted Albright on charges of murder
and first-degree assault in September 2015. After his indictment, in June
2016, Albright moved the trial court in his criminal case to find him immune
from prosecution citing KRS 503.085, Kentucky’s “Stand Your Ground” law.1
1 KRS 503.085 provides:
(1) A person who uses force as permitted in KRS 503.050,
503.055, 503.070, and 503.080 is justified in using such force and is
immune from criminal prosecution and civil action for the use of such
force, unless the person against whom the force was used is a peace
2
The next month, Lindsey Childers, as administratrix of Cameron’s estate, and
as guardian of Cameron’s three minor children, A.P., C.P., and E.P.; Cameron’s
sister, Amanda Waits (who was also present in the parking lot at the time of
the shooting); and Kyle (collectively “the Pearson family”), filed a civil suit in the
Jefferson Circuit Court against Albright, Hardshell, and BASU Properties
alleging negligence and wrongful death claims. On August 11, 2016, the
Jefferson Circuit Court judge presiding over Albright’s criminal case granted
his motion for immunity and ordered that the indictments against him be
dismissed with prejudice.
Following the grant of KRS 503.085 immunity in the criminal action,
Albright and Hardshell each filed CR212.03 motions for judgment on the
pleadings in the civil case filed by the Pearson family, arguing that collateral
officer, as defined in KRS 446.010, who was acting in the performance of
his or her official duties and the officer identified himself or herself in
accordance with any applicable law, or the person using force knew or
reasonably should have known that the person was a peace officer. As
used in this subsection, the term “criminal prosecution” includes
arresting, detaining in custody, and charging or prosecuting the
defendant.
(2) A law enforcement agency may use standard procedures for
investigating the use of force as described in subsection (1) of this
section, but the agency may not arrest the person for using force unless
it determines that there is probable cause that the force that was used
was unlawful.
(3) The court shall award reasonable attorney's fees, court costs,
compensation for loss of income, and all expenses incurred by the
defendant in defense of any civil action brought by a plaintiff, if the court
finds that the defendant is immune from prosecution as provided in
subsection (1) of this section.
2 Kentucky Rules of Civil Procedure.
3
estoppel and KRS 503.085(1) required that Albright be “immune from . . . civil
action.” The trial court denied the motions. Albright and Hardshell appealed
from the order denying their CR 12.03 motions, asserting that an order denying
a substantial claim of immunity is immediately appealable even in the absence
of a final judgment.
The Court of Appeals, without addressing jurisdiction, reversed the civil
circuit court, finding that collateral estoppel applied and that the grant of self-
defense immunity in Albright’s criminal case barred continued litigation of the
civil action. This Court granted discretionary review, and specifically directed
that the parties’ briefs “address the question of whether the Court of Appeals
had jurisdiction to consider an appeal from an interlocutory order denying self-
defense immunity in a civil action.” Because we hold that the Court of Appeals
lacked jurisdiction to consider the appeal, we need not consider other issues
addressed in its opinion.
III. ANALYSIS
Jurisdiction is a threshold issue; “a court must have [it] before it has
authority to decide a case.” Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005).
It cannot be waived or conferred by agreement of the parties. Id. A “court must
determine for itself whether it has jurisdiction.” Hubbard v. Hubbard, 303 Ky.
411, 412, 197 S.W.2d 923, 923 (1946). This Court is not excepted from that
statement.
Appellate review is generally limited to final orders that “adjudicate[] all
the rights of all the parties in an action or proceeding, or a judgment made
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final under Rule 54.02 [after a determination that no just reason for delay
exists].” CR 54.01; CR 54.02(1). But in certain instances, interlocutory appeals
are expressly permitted by statute, civil rule, or common law. See, e.g.,
Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009)
(identifying circumstances in which interlocutory appeal is permitted); see also
KRS 22A.020; Commonwealth v. Farmer, 423 S.W.3d 690, 693 (Ky. 2014)
(interpreting KRS 22A.020 to mean “the Court of Appeals has appellate
jurisdiction in those civil matters determined by this Court”). In 2009, in
Prater, this Court recognized for the first time, though not explicitly by name, a
new exception to the general rule that appeals may be taken only from final
orders known as the collateral order doctrine. 292 S.W.3d at 886-87.
The collateral order doctrine originates from the U.S. Supreme Court’s
decision in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), which
held that interlocutory appeals, not otherwise permitted under federal
procedural rules or by statute, were permitted “in a small class of cases which
finally determine claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too independent
of the cause itself to require appellate consideration be deferred until the whole
case is adjudicated.” Id. at 545. In Cohen, the Supreme Court reasoned that the
interlocutory order appealed from in that case was “appealable because it was
a final disposition of a claimed right” and “not an ingredient of the cause of
action” requiring “consideration with it.” Id. at 546-47.
5
Applying the doctrine in Prater, this Court held an immediate appeal
from an interlocutory order denying immunity to a school board from tort
claims made outside of the Kentucky Board of Claims was permissible, 292
S.W.3d at 886-87, because the school board’s claim to immunity could not be
vindicated following entry of a final judgment. Id. After Prater, the scope of
permissible interlocutory appeals in Kentucky expanded to include “order[s]
denying a substantial claim of absolute immunity . . . even in the absence of a
final judgment.” Id. at 887.
This Court has honed its application of the collateral order doctrine since
its decision in Prater, beginning with Commonwealth v. Farmer, 423 S.W.3d
690 (Ky. 2014). In that case, Farmer, a criminal defendant, argued he was
immune from prosecution for murder because he had been legally justified to
act in self-defense. Id. at 691-92. After the trial court denied Farmer’s motion
to dismiss the indictment, he pursued an interlocutory appeal. Id. The Court of
Appeals held that it had jurisdiction to consider the appeal, analogizing
Farmer’s claim for immunity to the civil circumstances presented in Prater. Id.
at 692. This Court reversed, finding that the Court of Appeals lacked
jurisdiction because the collateral order doctrine did not apply in the
circumstances presented in that case. Id. at 691.
In its analysis, the Farmer Court, drawing upon the Supreme Court’s
decisions in Mitchell v. Forsyth, 472 U.S. 511 (1985), and Nixon v. Fitzgerald,
457 U.S. 731 (1982), adopted a three-element test to determine when the
collateral order doctrine applies. Farmer, 423 S.W.3d at 696-97. As stated in
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Farmer, the elements of the test were: (1) the order must conclusively
determine the disputed question; (2) the order must “resolve an important
issue completely separate from the merits of the action”; and (3) the order must
be effectively unreviewable on appeal from final judgment. Farmer, 423 S.W.3d
at 696 (citing Nixon, 457 U.S. at 742). As to the final element of the test, this
Court noted “‘it is not mere avoidance of a trial, but avoidance of a trial that
would imperil a substantial public interest, that counts when asking whether
an order is ‘effectively’ unreviewable if review is to be left until later.’” Id. at 697
(quoting Will v. Hallock, 546 U.S. 345, 352-53 (2006)).
Applying the test in Farmer, the Court held that the first element of the
doctrine was satisfied because the order denying the motion to dismiss the
indictment conclusively decided the disputed question—whether Farmer was
legally immune from prosecution. 423 S.W.3d at 697. The second element of
the doctrine, however, was not present because whether a person justifiably
acts in self-defense “is inextricably part of the merits of the case.” Id. at 697.
Finally, the Court held that the third element of the doctrine was “simply
absent” because Farmer’s immunity claim did not present a risk to “a
substantial public interest.” Id. Rather, “Farmer's interest in asserting
immunity and avoiding prosecution . . . is purely personal in nature.” Id.
In the years following Farmer, the Court continued to refine the contours
of Kentucky’s collateral order doctrine, applying it to various interlocutory
appeals. See, e.g., Maggard v. Kinney, 576 S.W.3d 559 (Ky. 2019) (dismissing
appeal regarding application of judicial statements privilege between two
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physicians in litigation); Hampton v. Intech Contracting, LLC, 581 S.W.3d 27
(Ky. 2019) (holding Court of Appeals properly dismissed appeal in workers’
compensation case because it was without jurisdiction to consider
interlocutory order granting motion for partial summary judgment). In Maggard
in 2019, the Court emphasized that interlocutory appeals are “rare” and that
“Kentucky courts have in some instances allowed the collateral order doctrine
to expand beyond ‘its logic and . . . the [Cohen] criteria.’” 576 S.W.3d at 566
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)).
Most recently, in Sheets v. Ford Motor Company, 626 S.W.3d 594 (Ky.
2021), the Court held that Ford Motor Company did not have a right to take an
interlocutory appeal from an order denying up-the-ladder immunity under the
Workers’ Compensation Act. Id. at 596. In its analysis, the Court also took the
opportunity to review “the progression of our jurisprudence” concerning the
collateral order doctrine. Id. at 599. First, it reiterated that all three elements of
the doctrine must be met before an appellate court has jurisdiction to review
an interlocutory order. Id. Second, the Court succinctly recited and clarified the
three elements of the doctrine, stating that the challenged interlocutory order
“must (1) conclusively decide an important issue separate from the merits of
the case; (2) be effectively unreviewable following final judgment; and (3) involve
a substantial public interest that would be imperiled absent an immediate
appeal.” Id. (citing Farmer, 423 S.W.3d at 696-97). Significantly, the Court
noted the increased emphasis on the third element of the test, i.e., that the
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interlocutory order involves a substantial public—not personal—interest that
would be imperiled without an immediate appeal. Id.
This Court’s decision in Sheets recognized that not all denials of
immunity satisfy the third element of the collateral order doctrine. “In fact, in
instances when no governmental entity or official is a party to the case and
there is no concern with ‘preserving the efficiency of government,’ it is unlikely
that a denial of a party's claim of immunity will meet this final element.” Id. at
599 (citing Maggard, 576 S.W.3d at 566; Will, 546 U.S. at 352-53).
Applying the Court’s jurisprudence to the present appeal, we hold that
the trial court’s order denying Albright and Hardshell’s CR 12.03 motions does
not satisfy the collateral order doctrine, and accordingly, does not merit
interlocutory review. While the first element—that the order must conclusively
decide an important issue separate from the merits of the case—arguably may
be met,3 the other two elements are not. The order denying the motions does
not involve a substantial public interest that would be imperiled absent an
immediate appeal. Neither Albright nor Hardshell is a governmental entity or
official, nor do Albright’s immunity claims raise any concern implicating
governmental efficiency. In the circumstances presented, the Appellees’ interest
in asserting immunity is best characterized as being “purely personal in
nature.” Farmer, 423 S.W.3d at 697. Albright and Hardshell’s right to appeal
3 We need not decide whether a claim of self-defense made pursuant to KRS
503.085 in a civil action is “inextricably part of the merits of the case,” Farmer, 423
S.W.3d at 697, because we have determined that the other elements of the collateral
order doctrine are not met.
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the trial court’s rulings following a final judgment is not disturbed by the
Court’s holdings. Because the interlocutory orders at issue do not meet all
elements of the collateral order doctrine, the Court of Appeals and this Court
lack jurisdiction to hear Albright and Hardshell’s interlocutory appeal on the
merits.
III. CONCLUSION
For the foregoing reasons, we vacate the opinion of the Court of Appeals
and remand this matter to the trial court for further proceedings.
Minton, C.J.; Conley, Hughes, Keller, and Vanmeter, JJ.; and Special
Justice Cheryl U. Lewis and Special Justice Julie A. Tennyson sitting. All
concur. Lambert and Nickell, JJ., not sitting.
COUNSEL FOR APPELLANTS:
Kevin C. Burke
Jamie K. Neal
Burke Neal PLLC
Martin Pohl
Rick Hessig
Hessig & Pohl, PLLC
COUNSEL FOR APPELLEE,
WILLIAM S. ALBRIGHT:
Gregg E. Thornton
Maxwell D. Smith
Betsy R. Catron
Ward, Hocker & Thornton, PLLC
10
COUNSEL FOR APPELLEE,
BASU PROPERTIES, LLC:
Charles H. Cassis
Aida Almasalkhi
Goldberg Simpson, LLC
COUNSEL FOR APPELLEE,
HARDSHELL TACTICAL, LLC:
Melissa Thompson Richardson
Ashley L. Daily
Walters Richardson, PLLC
COUNSEL FOR AMICUS CURIAE,
KENTUCKY DEFENSE COUNSEL, INC.:
Jeffrey C. Mando
Olivia F. Amlung
Adams, Stepner, Woltermann & Dusing, PLLC
COUNSEL FOR AMICUS CURIAE,
KENTUCKY LEAGUE OF CITIES:
Derrick T. Wright
Charles D. Cole
Sturgill, Turner, Barker & Moloney, PLLC
11
Lindsey Childers, as Administratrix of the Estate of Cameron Pearson v. William S. Albright
Combined Opinion