Dahl v. Kilgore, 20-6392
| Decision Date | 02 September 2021 |
| Docket Number | 20-6392 |
| Parties | VERNON DAHL III, Plaintiff-Appellee, v. JERMAINE KILGORE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY
Before: GIBBONS, STRANCH, and BUSH, Circuit Judges.
On February 13, 2017, off-duty Kentucky State Police officer Jermaine Kilgore saw Vernon Dahl III walking around Kilgore's apartment complex in a manner he found suspicious. Kilgore stopped Dahl and, after some conversation, became concerned with Dahl's explanation that he was there to visit his girlfriend, Cher Fillmore, who also lived in the complex. Kilgore took Dahl's phone and called Fillmore, despite seeing no substantial evidence that she was in urgent need of assistance. After knocking on Fillmore's door without response, Kilgore returned Dahl's phone. Dahl alleges that, in the process of taking his phone, Kilgore "jam[med] [his] thumb" and thus injured him. DE43-2, Dahl Interview, Page ID 228. Dahl sued Kilgore, Fillmore, and another state police officer who was on the scene, Nicholas Lietz, for defamation, assault battery, and violation of his Fourth Amendment rights. The district court granted Lietz's and Fillmore's motions for summary judgment, and Kilgore's motion for summary judgment as to the assault and defamation claims. The district court denied Kilgore's motion as to the battery and Fourth Amendment claims, holding that he was not entitled to qualified immunity on either claim. Kilgore brings this interlocutory appeal of the denial of qualified immunity, and we affirm.
At around midnight on February 13, 2017, Vernon Dahl III went to the apartment of Cher Fillmore, whom he was dating, to "see if she was awake." Id. at Page ID 224. He arrived at her apartment complex, "got out of [his] vehicle, [and] walked to the back side of her apartment to see if her lights were on." Id. When he saw that her lights were off, he headed back to his car to return home when Jermaine Kilgore, a Kentucky State Police officer walked up and introduced himself to Dahl. Kilgore was off duty at the time but was wearing "khaki pants, . . . a gun belt, [a badge, ] and . . . a state police polo shirt." DE46-1, Kilgore Dep., Page ID 515-16. Kilgore had an "informal" arrangement with the police department in which he would conduct security surveillance at the apartment complex, where he also lived, because of recent break-ins.[1] Id. at Page ID 505-06. He was conducting this surveillance from inside his car when he saw Dahl walk across the parking lot toward a "maintenance shop" on the property. Id. at Page ID 514. When Dahl walked out of sight, Kilgore got out of his car and walked around the building where he encountered Dahl.
Kilgore asked Dahl what he was doing and whether he lived at the property, to which Dahl responded, "No, my girlfriend does," referring to Fillmore. DE43-2, Dahl Interview Page ID 224. Dahl showed Kilgore his identification, and Kilgore continued to question him and searched him for weapons.[2] He asked Dahl why he did not text or call Fillmore, and Dahl responded that he "didn't wanna wake her up." Id. at Page ID 225.
At this point, an on-duty Kentucky State Police officer, Nicholas Lietz, arrived. Lietz was driving through the complex checking for car break-ins when he saw Kilgore, with whom he was familiar, and Dahl. Lietz approached the two men, and Kilgore handed him Dahl's ID card, which Lietz took back to his car to run through the state database. While Lietz was running Dahl's license, Kilgore continued questioning Dahl about his relationship, asking whether he and Fillmore were "having issues." DE43-2, Dahl Interview, Page ID 226. When Dahl responded that he and Fillmore had recently broken up and gotten back together, Kilgore asked Dahl if he was "sure [he wasn't] over [t]here to see if she was with somebody else." Id. at Page ID 227. Dahl said no, he was only there to "discuss some stuff." Id. Kilgore responded that Dahl looked "suspicious" because his clothes were dark. Id.
Shortly after, Dahl attempted to terminate the conversation. He took his phone out of his pocket to contact an attorney, holding it "in [his] right hand with just two fingers." Id. at Page ID 228. The parties dispute what happened next. Dahl says that Kilgore tugged the phone out of his hand and when he tried to resist, "lunge[d] towards [him] with his other arm and pushe[d] [his] phone back into [Dahl's] thumb, which jam[med] [Dahl's] thumb back." Id. Kilgore, on the other hand, says that Dahl voluntarily showed him "text messages [with Fillmore] on his phone" from "about half an hour before." DE46-1, Kilgore Dep., Page ID 521. Kilgore says Dahl then handed him his cell phone to show him a video game that Dahl had been playing and text messages. He says Dahl then "became aggravated and attempted to take the phone away," and that Kilgore "gently placed [his] hand on [Dahl's] chest and pushed him back," telling Dahl to back up and give him space. Id. at 525-26. Both parties agree that Kilgore then used Dahl's phone to call Fillmore, [3] but she did not answer. Kilgore went to Fillmore's door and banged on it, but again she did not answer. Eventually, Fillmore texted Dahl, which Kilgore took as confirmation that she was safe, and he released Dahl.
Kilgore followed up with Fillmore the next day. He told her how to obtain an interpersonal order of protection ("IPO"), and she subsequently obtained one against Dahl. Kilgore independently spoke to the management at his and Fillmore's building, and they issued Dahl a notice that he was no longer allowed on the building's property.
Dahl then sued Kilgore, Lietz, and Fillmore in Kentucky state court over the incident. He sued Kilgore and Lietz for violating his Fourth Amendment rights, assault, and battery. He sued Kilgore and Fillmore for defamation. The defendants removed the suit to the United States District Court for the Western District of Kentucky. All defendants moved for summary judgment, and the district court granted Lietz and Fillmore summary judgment on all claims and Kilgore summary judgment on Dahl's defamation and assault claims. The district court denied Kilgore's motion for summary judgment on Dahl's Fourth Amendment and battery claims.
As to the Fourth Amendment claim, the district court held that Kilgore's search through Dahl's cell phone was unconstitutional. In doing so, the district court rejected Kilgore's argument that the search fell into a community caretaking exception to the Fourth Amendment's warrant requirement because Kilgore did not reasonably believe that the cell phone search was necessary to prevent imminent injury. The court further held that, because Dahl's right was clearly established at the time of the encounter, Kilgore was not entitled to qualified immunity. Dahl's battery claim was based on Kilgore jamming Dahl's thumb while seizing his phone. The district court denied Kilgore qualified immunity under Kentucky law on this claim because there is a factual dispute over the degree of contact between the men when Kilgore took possession of Dahl's phone.
We have jurisdiction to hear an interlocutory appeal of a denial of qualified immunity where it concerns only "a question of law." [4] Mitchellv. Forsyth, 472 U.S. 511, 528 (1985). The relevant question of law in a qualified immunity case is "whether the law clearly proscribed the actions [of] the defendant" and "whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged action[]." Id. Where, however, qualified immunity is denied because of a factual dispute between the parties, the resolution of which is necessary for us to reach a legal conclusion, we lack jurisdiction to review the denial before the district court has issued a final judgment in the case. Id. at 527-28; see also DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 611-12 (6th Cir. 2015). Where the legal and factual questions are intertwined, we must separate the factual (unreviewable question) from the legal (reviewable question). DiLuzio, 796 F.3d at 610.
Kilgore first appeals the denial of qualified immunity for Dahl's Fourth Amendment claim-the search of his cell phone. Because the parties agree on the relevant facts and the question before us is purely legal, we have jurisdiction. Forsyth, 472 U.S. at 527.
The district court's denial of qualified immunity on Dahl's battery claim rested on the fact that the parties dispute the level of relevant physical contact between Kilgore and Dahl. Kilgore's argument, however, is not that he did not jam Dahl's thumb but rather that he is entitled to qualified immunity under Kentucky law for the battery claim regardless because Kentucky law enables officers to "use force to execute their public duties." CA6 R.15, Appellant's Br., at 21-22; see also DE46, Mot. for Summ. J., Page ID 491-92. This includes the use of "reasonable force necessary to seize an item." CA6 R.15, Appellant's Br., at 22.
Whether a use of force was reasonable is "a pure question of law." Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). Kilgore's argument on appeal is that even if the court accepts Dahl's articulation of the facts, he is entitled to qualified immunity under Kentucky law for any force because his search of the phone was a reasonable, discretionary action.
We review a denial of summary judgment de novo. Hunt v Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008). "Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to...
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