Browning ex rel. C.S. v. Edmonson Cnty.

• Decision Date: 17 November 2021
• Docket Number: No. 20-6078,20-6078
• Citation: 18 F.4th 516
• Parties: Wendy BROWNING, Mother and Next Friend of C.S., a minor; Darrell Smith, as Guardian of M.S., a minor, Plaintiffs-Appellees, v. EDMONSON COUNTY, KENTUCKY, et al., Defendants, Shane Doyle; Jordan Jones, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

18 F.4th 516

Wendy BROWNING, Mother and Next Friend of C.S., a minor; Darrell Smith, as Guardian of M.S., a minor, Plaintiffs-Appellees,

v. EDMONSON COUNTY, KENTUCKY, et al., Defendants,Shane Doyle; Jordan Jones, Defendants-Appellants.

No. 20-6078

United States Court of Appeals, Sixth Circuit.

Argued: July 28, 2021

Decided and Filed: November 17, 2021

Rehearing En Banc Denied December 20, 2021

ARGUED: Aaron D. Smith, ENGLISH, LUCAS, PRIEST & OWSLEY, LLP, Bowling Green, Kentucky, for Appellants. Gregory A. Belzley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, for Appellees. ON BRIEF: Aaron D. Smith, Jessica R. Shoulders, ENGLISH, LUCAS, PRIEST & OWSLEY, LLP, Bowling Green, Kentucky, for Appellants. Gregory A. Belzley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, for Appellees.

Before: COLE, ROGERS, and MURPHY, Circuit Judges.

ROGERS, J., delivered the opinion of the court in which COLE, J., joined, and MURPHY, J., joined in part. MURPHY, J. (pp. 536–42), delivered a separate opinion concurring in part and dissenting in part.

ROGERS, Circuit Judge.

This case arises from a high-speed police pursuit by Edmonson County, Kentucky, sheriffs that ended in a collision between the fleeing car and another vehicle. Two minor passengers in the fleeing vehicle, C.S. and M.S., were injured, and one of them, C.S., although unconscious in the backseat, was subsequently tased by defendant Deputy Sheriff Jordan Jones when C.S. did not respond to instructions from Jones. The two minors brought this suit against Edmonson County and several police officers for the injuries they sustained, asserting a variety of constitutional and state law claims. The district court dismissed most of the claims, but denied summary judgment on an excessive force claim against defendant Jones pursuant to 42 U.S.C. § 1983, and on several state-law claims asserted against defendants Jones and Sheriff Shane Doyle. In this interlocutory appeal, Jones and Doyle argue that the district court erred in ruling that they were not entitled to qualified immunity on these remaining claims. Defendants also contend that summary judgment should have issued on the pendent state claims because there was no genuine dispute of material fact as to those claims. On the facts as we must take them on this interlocutory appeal, the district court properly ruled that Jones is not entitled to qualified immunity on the § 1983 and state-law battery claims. However, the defendants are entitled to qualified immunity under Kentucky law on the state-law negligence and gross negligence claims. Finally, on this interlocutory appeal we lack jurisdiction to address the defendant's arguments for dismissal of the remaining state-law claims.

I.

At approximately 9:30 p.m. on February 27, 2018, special deputy Austin Meredith of the Edmonson County Sheriff's Office ("ECSO") attempted to initiate a traffic stop on an automobile for an unilluminated license plate and the failure of a passenger to wear a seatbelt. The automobile was being driven by Brandon Embry, with plaintiffs M.S. and C.S., who were minors, sitting as passengers in Embry's vehicle. After following a short distance, Meredith activated his police cruiser lights and attempted to stop Embry's vehicle, but Embry immediately accelerated and attempted to flee. Meredith accelerated to follow and was soon joined in the pursuit by defendant Jones, an ECSO Deputy Sheriff, whose police cruiser was capable of going much faster than Meredith's vehicle. Jones took over the pursuit, which lasted approximately 12 minutes over an 18-mile stretch of highway, with the vehicles reaching speeds of almost 130 miles-per-hour.

During the pursuit, Jones learned that the initiating offense was an unilluminated license plate, that there were multiple passengers in the vehicle, and that at least one passenger was believed to be unbelted. Jones observed Embry's vehicle fishtail on S-curves in the road, and at another time, he saw the vehicle almost lose control and crash after doing a 360-degree rotation before it steadied and continued south on the highway toward Bowling Green, Kentucky. Jones and Meredith observed objects being thrown out of the car but could not identify what they were aside from a single "grocery bag sack." Approximately two minutes before the pursuit ended, another officer radioed that he had found ammunition in the area where objects had been thrown from the vehicle. Jones testified that if the vehicle had reached Bowling Green, he would have stopped the pursuit. Before that could happen, Embry's vehicle made an abrupt turn at an intersection and severely crashed into a third party's vehicle in a T-bone impact.

The immediately following events are set forth in greater detail below. In short, Jones tased passenger C.S. after C.S. failed to respond to Jones's order to show his hands.

M.S. had to be mechanically extracted from the front passenger seat of the vehicle, and M.S. and C.S. were both flown by helicopter to a hospital to receive treatment for their injuries.

Doyle, the Sheriff of Edmonson County, was not involved in the pursuit. Doyle first learned of the events after receiving a call from the ECSO dispatch center, which informed him that Meredith and Jones were in pursuit of a vehicle and that they both wanted Doyle to be notified. Doyle struggled to monitor the pursuit by radio before receiving an update by phone from another volunteer deputy riding alongside Meredith. Once Doyle heard that there had been a collision in Bowling Green, he left to go to the scene of the accident. He arrived at the scene a few minutes after the collision occurred. Doyle did not seek to find out what the initiating offense was, did not attempt to communicate directly with Jones or Meredith during the pursuit, and did not direct that the pursuit be altered or terminated in any way while it was ongoing.

The ECSO maintains a Policy and Procedure ("P&P") Manual, written by Doyle, which contains a chapter discussing pursuits. The Manual contains factors and policies officers should consider in deciding whether to initiate or end a pursuit. Doyle testified that when someone new joins the ECSO, Doyle sits down with the new person and reviews each page of the Manual, including the section on pursuit and emergency driving. According to Doyle, he had gone over the pursuit policy with both Meredith and Jones at separate times.

Plaintiffs filed this action against defendants Edmonson County, Jones, Meredith, and Doyle, alleging liability for injuries sustained by M.S. and C.S. due to the pursuit. Plaintiffs asserted 42 U.S.C. § 1983 claims for violations of the Fourth and Fourteenth Amendments against all defendants, state-law negligence and gross negligence claims against all defendants, and state-law assault and battery claims against Meredith and Jones. All defendants moved for summary judgment. The district court granted the motions in part and denied them in part. In relevant part, the district court denied Jones's motion for summary judgment on C.S.'s § 1983 and state-law battery claims, and denied both Jones's and Doyle's motions for summary judgment on plaintiffs' state-law negligence and gross negligence claims, ruling that they were not entitled to qualified immunity with respect to any of the aforementioned claims. Jones and Doyle timely filed this interlocutory appeal challenging the district court's determinations.

II.

First, Jones appeals from the district court's denial of his motion for summary judgment on C.S.'s § 1983 claim against Jones, which alleges that Jones violated C.S.'s constitutional rights under the Fourth Amendment by using excessive force to restrain C.S. while he was unconscious in the backseat of Embry's vehicle. We have jurisdiction to review this interlocutory appeal on the issue of qualified immunity, but our review is limited to the facts that a jury could find in the plaintiffs' favor, as determined expressly or implicitly by the district court. Based on these factual determinations, the district court properly ruled that Jones was not entitled to qualified immunity on the excessive-force claim.

A.

Although a denial of summary judgment is ordinarily not reviewable because it is not a final judgment, the "denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). "This is so because qualified immunity—which shields Government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights—is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation." Ashcroft v. Iqbal , 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citations omitted). A denial of this entitlement would "prove ‘effectively unreviewable on appeal from a final judgment’ " after trial. Id. (quoting Mitchell , 472 U.S. at 527–28, 105 S.Ct. 2806 ). At this interlocutory stage, our review of the denial of qualified immunity is limited to the appeal "challenging the district court's legal determination that the defendant's actions violated a constitutional right or that the right was clearly established." DiLuzio v. Vill. of Yorkville , 796 F.3d 604, 609 (6th Cir. 2015).

Under Johnson v. Jones , 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), "a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial." Id. at 319–20, 115 S.Ct. 2151. Thus, any arguments on appeal challenging the district court's determination as to "which facts a party may, or may not, be able to prove at trial," are not...