Harden v. Hillman

• Citation: 993 F.3d 465
• Decision Date: 06 April 2021
• Docket Number: No. 20-5056,20-5056
• Parties: John K. HARDEN, Plaintiff-Appellant, v. Keith HILLMAN, Individually and in his Official Capacity as a Police Officer of Heritage Creek, Kentucky; City of Heritage Creek, Kentucky, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

993 F.3d 465

John K. HARDEN, Plaintiff-Appellant,

v.Keith HILLMAN, Individually and in his Official Capacity as a Police Officer of Heritage Creek, Kentucky; City of Heritage Creek, Kentucky, Defendants-Appellees.

No. 20-5056

United States Court of Appeals, Sixth Circuit.

Argued: January 14, 2021

Decided and Filed: April 6, 2021

CLAY, Circuit Judge.

In this action, Plaintiff John Harden, an African American man, asserted a number of claims under 42 U.S.C. § 1983 against Officer Keith Hillman, the City of Heritage Creek, and Thorntons, Inc., alleging violations of his constitutional rights, as well as claims under Kentucky law. Harden's claims arose out of his arrest and prosecution following an incident at a Thorntons convenience store in Louisville, Kentucky. Besides Harden's excessive force claim against Hillman, all of his claims were dismissed prior to trial. Following a trial, the jury returned a verdict in favor of Hillman on the excessive force claim.

Harden now appeals the district court's grant of summary judgment on his claim that his Fourth Amendment right to be free from arrest without probable cause was violated; the district court's denial of his first Motion for New Trial, which was based on both the district court's refusal to order the U.S. Marshals Service to serve his witnesses with subpoenas and allegedly improper comments made by Hillman's counsel at trial; and the district court's denial of his second Motion for New Trial, which was based on an affidavit from a juror detailing various issues she experienced and discovered during the jury's deliberation.

For the reasons set forth in this opinion, we AFFIRM the district court's grant of summary judgment to Hillman on Harden's claim that he was arrested without probable cause, AFFIRM the district court's order denying Harden's first Motion for New Trial, VACATE the district court's order denying Harden's second Motion for New Trial, and REMAND the case to the district court for further proceedings consistent with this opinion.

BACKGROUND

A. Factual Background

On August 1, 2014, after finishing work, Harden went home, drank a couple of beers, and fell asleep. He awoke at 1:20 a.m. and decided to purchase more beer. Knowing that beer was only sold in Kentucky until 2:00 a.m., Harden rushed to a nearby Thorntons store. When he entered Thorntons, he noticed a uniformed police officer, Hillman, providing security for the store outside of his regular hours as an officer for the City of Heritage Creek.

After choosing a beer, Harden attempted to pay. However, the store clerk told Harden, "I'm not serving you" because "I think you've had too much to drink already anyway." (Harden Dep., R. 95-2 at PageID# 865.) The store clerk also told Harden that she smelled alcohol on his breath. Harden tried explaining that he had only had a couple of beers many hours earlier. The store clerk did not change her mind. Harden then exclaimed, "I don't believe this." (Id. at PageID# 866.) At that point Hillman shouted, "didn't she say she wasn't selling you any beer." (Id. ) When Harden confirmed the store clerk's statement, Hillman said, "[w]ell, get out of the store right now and don't come back." (Id. )

Harden then left Thorntons and decided to go to another store to purchase beer. But when he checked the time, he realized that he would not be able to make it anywhere else before 2:00 a.m. He decided to give up on buying beer and to, instead, purchase a bag of chips from Thorntons. While he was in the store, Hillman said, "I thought I told you not to come back in here." (Id. at PageID# 867.) Hillman then ran over to Harden and pinned him against the counter. While pinning Harden, Hillman told him, "[y]ou get out of the store right now and don't come back, or I'm going to take you to jail." (Id. ) Harden replied, "[w]ell, take me to jail." (Id. ) Hillman then allegedly picked Harden up off the ground, slammed him down onto the floor, and handcuffed him.

Hillman subsequently called for a transport to the police station. However, after Harden told him that "I need to go to the doctor. I'm hurt pretty bad. You've messed up my back," Hillman called for emergency medical services, which transported Harden to the University of Louisville Hospital. (Harden Dep., R. 95-3 at PageID# 946.) At the hospital, Hillman issued Harden a citation for disorderly conduct, resisting arrest, and public intoxication. Harden was released that same night. The charges against Harden were eventually dismissed after Hillman failed to appear for court.

B. Procedural Background

On July 8, 2015, Harden filed suit in the district court against Hillman, in his individual and official capacities; Thorntons, Inc.; and Hillman's employer, the City of Heritage Creek. In Count I, Harden alleged that Hillman deprived him of various constitutional rights. In Count II, Harden asserted a claim against Hillman for assault. In Count III, Harden alleged claims of false arrest and false imprisonment against Hillman. And in Count IV, he alleged that Hillman maliciously prosecuted him. Harden also asserted that Heritage Creek and Thorntons were liable for Hillman's actions on all four counts.

On summary judgment, the claims against Thorntons and Heritage Creek were all dismissed. Summary judgment was also granted to Hillman on Counts III and IV. As for Count I against Hillman, the district court granted summary judgment on the official capacity claim and construed the individual capacity claim as raising both an excessive force claim and an arrest without probable cause claim. The district court denied summary judgment on the excessive force claim but granted it on the arrest without probable cause claim. The assault claim in Count II was also dismissed pretrial. Thus, only Harden's excessive force claim against Hillman in Count I proceeded to trial.

On June 28, 2019, shortly before trial was set to begin, Harden's counsel allegedly "delivered to the United States Marshal[ ] subpoenas to be served on various witnesses whom he intended to call to testify on behalf of Plaintiff." (Mot. for a New Trial, R. 181 at PageID# 2297.) On July 10, 2019, five days before trial, Harden's counsel's assistant was told by the Marshals Service's office "that they did not serve civil subpoenas unless ordered to do so by the judge." (Id .) Harden then called the district court's case manager and requested that the district court order the Marshals Service to serve the subpoenas, but the district court refused. Through a process server, Harden's witnesses were then served with subpoenas but several failed to appear for trial.

After a three day trial, on July 17, 2019, the jury returned a verdict in favor of Hillman on the excessive force claim. On August 15, 2019, Harden filed a Motion for New Trial based on both the district court's refusal to order the Marshals Service to serve his subpoenas and on Hillman's counsel allegedly making improper arguments to the jury. The district court denied the motion and further explained:

[T]he service of subpoenas is, in all due respect, not a matter of the Court's refusal to exercise its "plenary authority" to order the Marshal to serve the subpoenas, but instead, a simple matter of the failure of Plaintiff's counsel to take appropriate steps to ensure his trial subpoenas were properly served. There was no motion made for a continuance nor any showing why the Marshals Service should have been ordered to serve the subpoenas.

(Order, R. 199 at PageID# 2488.) The district court also held that there was "no misconduct on the part of defense counsel." (Id. )

On September 24, 2019, Harden's counsel filed a Motion for Leave of Court to Contact Juror Post Trial explaining that he was contacted by the stepfather of one of the jurors who told him that, during voir dire , a juror had "concealed that his father was either a current or retired commander/sergeant of a local police department" and that the same juror "falsely explain[ed] the law to the jurors." (Mot. for Leave of Court to Contact Juror Post Trial, R. 193 at PageID## 2458–59.) Over Hillman's objection, the district court granted the motion.

Harden's counsel subsequently filed a second Motion for New Trial along with an affidavit from Juror T.H. In her affidavit, T.H., an African American woman, stated that her "service on the jury was a very painful, humiliating and embarrassing experience, so much so that it has caused me not to ever again want to serve on another jury. I feel this way because of the blatant racial stereotyping, bias, and prejudice shown by my fellow jurors toward Mr. Harden and his legal team."¹ (Aff. of T.H. Juror, No. 010145, R. 201-1 at PageID# 2494.) She explained that her "fellow jurors, all of whom were white, spoke freely in [her] presence because they thought [she] was Latin[a] because of [her] complexion and the pronunciation of [her] name." (Id. at PageID## 2494–95.)

Specifically, she averred that her fellow jurors "discounted and totally disregarded Mr. Harden's testimony in particular and his case in general because they believed he was a crack addict, and that his intent was to start trouble with Officer Hillman so he could sue the police department and get some money," and that "[t]hey discredited his testimony and attributed the calmness he showed in describing the events by claiming that he was taking dope or drinking during breaks in the trial." (Id. at PageID# 2495.) T.H. further alleged that the jurors "took verbatim what Mr. Hillman's [white] attorney said but described [Harden's African American lawyer] and his team as the ‘Cosby Show.’ " (Id .) T.H. sought to remind her fellow jurors that their job was to decide whether Hillman had used excessive force; however, the jurors "kept saying he just wants money; he's a crack head; he's an alcoholic; look at his wife, she's nodding off; she looks like she's on heroin." (Id .) When T.H. explained that she was a nurse and that Harden "wouldn't be able to stay in the courtroom...