Reed v. Campbell Cnty.

• Docket Number: 22-5751
• Decision Date: 30 August 2023
• Parties: Robert Sean Reed, Plaintiff-Appellee, v. Campbell County, Kentucky, Defendant, Michael Ray Curtis; Kyle G. Gray, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

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Robert Sean Reed, Plaintiff-Appellee,
v.
Campbell County, Kentucky, Defendant, Michael Ray Curtis; Kyle G. Gray, Defendants-Appellants.

No. 22-5751

United States Court of Appeals, Sixth Circuit

August 30, 2023

Argued: July 27, 2023

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:20-cv-00158-William O. Bertelsman, District Judge.

ARGUED:

Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants.

Michael Jay O'Hara, O'HARA, TAYLOR, SLOAN, CASSIDY, BECK PLLC, Covington, Kentucky, for Appellee.

ON BRIEF:

Jeffrey C. Mando, Jennifer L. Langen, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants. Michael Jay O'Hara, Colby B. Cowherd, O'HARA, TAYLOR, SLOAN, CASSIDY, BECK PLLC, Covington, Kentucky, for Appellee.

Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.

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OPINION

KAREN NELSON MOORE, Circuit Judge.

Police officers Michael Curtis and Kyle Gray responded to a 911 call reporting a domestic dispute. When they arrived at the reported location, all was quiet, and they could not detect any signs of an altercation. The officers knocked on Robert Reed's front door. After a brief verbal exchange, Reed refused to engage further with the officers because they did not have a warrant. The officers then broke down Reed's front door, pointed a gun at his head, and removed him from his home. Reed filed a suit against the officers in their official and individual capacities under 42 U.S.C. § 1983. Upon motions for summary judgment, the district court denied the officers qualified immunity for Reed's Fourth Amendment claims of unlawful entry, false arrest, and excessive force. We AFFIRM the district court's denial of qualified immunity.

I. BACKGROUND

Shortly before 9:00 p.m. on April 11, 2020, the Campbell County dispatch center received a 911 call. R. 1 (Compl. ¶ 10) (Page ID #3); R. 60-1 (911 Call Tr. at 2-5) (Page ID #1000-03). The caller reported that "the people that live behind me, I don't know if they're having a domestic dispute or what" and that while in her backyard she "just heard him yelling and what sounds like him hitting something.... I don't know if he's hitting dogs or if he's hitting humans." Id. at 2:3-5, 3:9-12 (Page ID #1000, 1001). She gave the dispatcher the address as 7 South Cottonwood. Id. at 2:8-9 (Page ID #1000). She identified herself by her first name. Id. at 3:4 (Page ID #1001). The dispatcher then communicated to police: "7 South Cottonwood for a domestic. Caller's advising it sounds like they're outside (inaudible) verbal and physical." Id. at 3:20-23 (Page ID #1001). Officers Michael Curtis and Kyle Gray responded to the call at 7 South Cottonwood. See R. 31 (Curtis Dep. Tr. at 68:9-12) (Page ID #166). They wore body cameras, which were engaged and recording throughout the incident. R. 39-3 (Gray Cam. at 0:30-0:50); R. 39-4 (Curtis Cam. at 0:42-0:57).

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When Officers Curtis and Gray arrived at 7 South Cottonwood, they did not see or hear anything amiss. R. 39-3 (Gray Cam. at 0:30-0:50); R. 39-4 (Curtis Cam. at 0:42-0:57); R. 31 (Curtis Dep. Tr. at 68:4-8, 69:3-24; 70:19-71:17) (Page ID #166, 167-69); R. 32 (Gray Dep. Tr. at 89:8-13, 92:10-11) (Page ID #307, 310). Officer Curtis walked around the right side of the house and told Officer Gray "I don't see anything or hear anything," before returning to the front of the house. R. 39-3 (Gray Cam. at 0:57-1:21); R. 31 (Curtis Dep. Tr. at 70:6-9) (Page ID #168). Officer Gray went onto the front porch and looked through a window, through which he could see that there was a light on in the house, though he could not see anyone from his vantage point. R. 39-4 (Curtis Cam. at 1:07). He said to Curtis "I can't tell if somebody is on the back porch or not." Id. at 1:15-17; R. 32 (Gray Dep. Tr. at 98:15-22) (Page ID #316). The officers then walked around the left side of the house. R. 39-3 (Gray Cam. at 1:18-28); R. 39-4 (Curtis Cam. at 1:28-38). Gray asked, "I thought they said they were outside, no?" and Curtis responded, "That's what they said." R. 39-3 (Gray Cam. at 1:20-21); R. 39-4 (Curtis Cam. at 1:33). The officers saw nothing out of the ordinary in the left side of the yard. R. 39-3 (Gray Cam. at 1:31-58); R. 39-4 (Curtis Cam. at 1:44-2:14).

The officers then returned to the front door. Gray opened the screen door and knocked. Curtis was positioned to the right of the front door and could see through the front window. R. 39-4 (Curtis Cam. at 2:30-2:45). Curtis told Gray that he saw "a guy coming to the door" and "a female in the back bedroom." R. 39-4 (Curtis Cam. at 2:37-2:52). Curtis later testified at his deposition that the woman "seemed kind of standoffish, kind of timid," which he had seen before in domestic violence victims, but he did not express that to Gray at the time. R. 31 (Curtis Dep. Tr. at 83:12-21) (Page ID #181); R. 39-4 (Curtis Cam. at 2:29-2:55). Curtis also conceded in his deposition that the woman was "kind of just standing there in the background," she was not crying, and he could not observe any injuries on her. R. 31 (Curtis Dep. Tr. at 84:8-23) (Page ID #182).

Robert Reed then answered the door. R. 39-3 (Gray Cam. at 2:40-2:45). Gray asked Reed, "Do you mind stepping out here and talking to me for a second, sir?" Id. Reed asked "Uh, you got a warrant?" Id. at 2:45-2:47. Gray replied, "nope." Id. Reed then asked, "What is this about?" Id. at 2:47-2:50. Gray then explained that "somebody called and said that somebody

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was fighting and arguing over here." Id. at 2:50-2:53. Reed said, "Wasn't here. Sorry, Officer." Id. at 2:54-2:56. Gray then asked if anyone else was inside the house. Id. at 2:562:58. Reed said, "Yes, but do you got a warrant?" and added that the officers "don't have probable cause." Id. at 2:58-3:04. Gray responded that they did have probable cause and that the officers had been "nothing but nice and respectful." Id. at 3:05-3:09. Reed replied, "I know, but I just don't want to deal with any officers in my house. I don't know who called; I don't really care." Id. at 3:07-3:14. Gray then said, "if there's any other adults in the house, I need to talk to them," and warned that "if not, then we can come in, because it's called exigent circumstances." Id. at 3:25-3:30. Reed then responded, "if you don't have a warrant, goodbye," and closed his front door. Id. at 3:33-3:37. Throughout the entire conversation, Reed had remained in the confines of his home. Id. at 2:40-3:40.

As Reed closed the door, Gray warned him, "don't do that." Id. at 3:33-3:37. Officer Curtis immediately joined Gray at the front door and kicked the door down. R. 39-4 (Curtis Cam. at 3:50-3:54). Curtis shouted "open the goddamn door!" and stepped into the home, drew his firearm, and pointed it at Reed's head. Id. at 3:53-3:58. Curtis then put the gun away, grabbed Reed by the arm, and pulled Reed onto the porch. Id. at 3:58-4:01; R. 39-3 (Gray Cam. at 3:43-47). Gray then grabbed Reed's arm, led him to the driveway, and pushed him on the chest to back him up against the car. R. 39-3 (Gray Cam. at 3:48-3:55). Gray instructed Reed to turn around, and Reed repeatedly refused and asked if the officers had a warrant. Id. at 3:574:20. Gray then grabbed Reed's right shoulder, physically turned him around, and patted him down. Id. at 4:17-5:19. Other officers arrived and spoke with members of Reed's family, who had emerged from the home. Id. at 5:19-16:00. Once the officers were satisfied that everyone in Reed's house was safe, they documented the damage to Reed's door and left the scene. R. 39-3 (Gray Cam. at 12:30-13:02, 16:03-16:49). There were no arrests made or citations issued in connection with the incident. R. 34 (Reed Dep. Tr. at 101:2-5) (Page ID #694).

Reed filed a complaint against Officers Gray and Curtis in their individual and official capacities and against Campbell County. R. 1 (Compl. at 1, ¶¶ 6-8) (Page ID #1, 2). He raised nine claims: excessive force, unlawful entry, false arrest, unlawful Terry stop, a Monell claim for failure to train, assault and battery, common law false arrest/imprisonment, intentional

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infliction of emotional distress, and punitive damages. Id. ¶¶ 35-84 (Page ID #6-11). The defendants moved for summary judgment, and Reed moved for summary judgment for all of his claims except for his Monell claim and his claims for intentional infliction of emotional distress and punitive damages. R. 39 (Defs.' Mot. for Summ. J. at 1-21) (Page ID #803-823); R. 41 (Pl.'s Mot. for Summ. J. at 1) (Page ID #834).

The district court dismissed the claims against Campbell County, R. 61 (Mem. Op. &Order at 25-28) (Page ID #1029-1032), and against the officers in their official capacities, id. at 8 n.2., 29 n.9, 32 n.12 (Page ID #1012, 1033, 1036). It dismissed the Terry claim as "duplicative" of the false arrest claim. Id. at 21 (Page ID #1025). It dismissed Reed's claims for intentional infliction of emotional distress and punitive damages. Id. at 30, 32 (Page ID #1034, 1036). And as is relevant to this appeal, it declined to award qualified immunity to Officers Gray and Curtis on the individual capacity unlawful-entry, excessive-force, and false-arrest claims as well as the state-law assault and battery and false-arrest claims. Id. at 18, 21, 25, 2931 (Page ID #1022, 1025, 1029, 1034-35). The officers timely filed a notice of appeal. R. 62 (Notice of Appeal at 1) (Page ID #1037).

II. JURISDICTION AND STANDARD OF REVIEW

Though a denial of summary judgment is not ordinarily a reviewable order 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.'" Browning v. Edmonson County, 18 F.4th 516, 523 (6th Cir. 2021) (quoting Mitchell v. Forsyth, 472...