Repking v. Lokey

• Decision Date: 30 September 2010
• Docket Number: No. 09–1024.,09–1024.
• Citation: 2010 Ark. 356,377 S.W.3d 211
• Parties: George E. REPKING, Kelly Repking, Estate of Christina Springs, Appellants, v. Brad LOKEY and Randy Reed, Appellees.
• Court: Arkansas Supreme Court

2010 Ark. 356

377 S.W.3d 211

George E. REPKING, Kelly Repking, Estate of Christina Springs, Appellants,

v.Brad LOKEY and Randy Reed, Appellees.

No. 09–1024.

Supreme Court of Arkansas.

Sept. 30, 2010.

Norman Douglas, Norwood, Alison Lee, Rogers, for appellant.

Wyman R. Wade Jr., Lee Matthew Davis, Fort Smith, for appellee.

ROBERT L. BROWN, Justice.

The appellants in this case are George Repking, administrator of Christina Springs's estate and Kelly Repking on behalf of herself and her minor daughter, Paige Garner. The appellees are Brad Lokey, a patrolman with the Fort Smith Police Department, and Randy Reed, then Fort Smith Police Chief. The issues raised involve whether a summary judgmententered by the circuit judge correctly determined that the appellees are not liable under federal or state statutory or constitutional law. We hold that the judgment was correct, and we affirm.

On January 21, 2005, Christina Springs; her sister, Kelly Repking; and Ms. Repking's daughter drove to Sutton Elementary School in Fort Smith because Thomas Springs, Christina Springs's husband, was attempting to remove one of the couple's six children from the school. Chantelle Norwood, the oldest daughter of Christina and Thomas, called Christina to the school after dropping off three of her brothers. At the time, Christina lived at the Battered Women's Shelter in Fort Smith. Christina also had several orders of protection against Thomas because of prior instances of violence.

That morning, Officer Brad Lokey was dispatched to the school. When Officer Lokey arrived, Thomas advised him that there was an order of protection outstanding. Officer Lokey was given three orders, dated January 5, 18, and 19, 2005, respectively. Unable to determine which order was in effect, Officer Lokey advised Thomas not to remove the child from the school. The child was later returned to the school.

After Thomas was told to leave the school property, Christina arrived with her sister and niece. Appellants assert that Officer Lokey then agreed to follow Christina and Ms. Repking back to the Battered Women's Shelter. Officer Lokey, however, testified by deposition that he only agreed to follow them for a short distance and not all the way back to the shelter. All parties agree that the Springs party left the school with Officer Lokey following. After determining that the vehicle was not being followed, Officer Lokey went to Kimmons Junior High School in Fort Smith to determine if Thomas had visited his children Officer Lokey believed to be enrolled at that school.

Christina and Ms. Repking continued driving toward the shelter. They traveled approximately four miles further to the intersection of Greenwood Street and Rogers Avenue in Fort Smith. At that intersection, Thomas saw Christina's vehicle and crossed opposing lanes of traffic in order to ram her vehicle. After ramming her car, he got out of his car, walked over to Christina's car, and began beating Christina. He then returned to his car and got a knife, which he used to stab Christina to death while she was still in the car. Ms. Repking and her daughter suffered injuries from the car accident but were not beaten or stabbed by Thomas.¹

The appellants brought suit against Officer Lokey and Police Chief Reed under both federal and state constitutions, § 1983 of the United States Code, and the Arkansas Civil Rights Act. Specifically, they allege that Officer Lokey deliberately put Christina in harm's way. They further raise violations of the wrongful death and survival statutes. The circuit judge granted the appellees' motion for summary judgment after determining that there was no special relationship which created an affirmative duty to protect Christina from Thomas, that the police department had not created the danger, that there was no Ninth Amendment unenumerated right violated, and that the appellants, as individuals, were entitled to qualified immunity under state law as employees of a governmental entity.

The pertinent findings and conclusions in the letter opinion supporting the judgment follow:

Plaintiff contends that Officer Lokey put Christina Springs in significant immediate harm by failing to arrest Thomas Springs and by failing to follow the Repking vehicle. Even if Officer Lokey should have arrested Thomas Springs and should have followed the vehicle to the Women's Shelter, his acts can only be described as negligent. The 8th Circuit Court of Appeals has held that “mere negligence can never be conscience-shocking and cannot support a claim alleging a violation of substantive due process rights.”

Furthermore, a plaintiff must usually show that the state actor intended to harm him, but in some cases, proof of deliberate indifference will satisfy the substantive due process threshold. In this situation, no pleading or affidavit on behalf of plaintiff alleges that either defendant intended to harm Christina Springs, nor does Officer Lokey's deposition reflect his observance of any behavior that would have required him to arrest Thomas Springs. While Officer Lokey could have followed the Repking vehicle to the Women's Shelter out of caution, his decision not to follow the car the entire four miles does not amount to a deliberate attempt to cause harm or act indifferently to Christina Springs' situation. Accepting all facts alleged in plaintiff's complaint and affidavits are true, the defendants' conduct does not rise to the level of malicious, willful or wanton behavior; therefore, there is no valid claim under 42 U.S.C. § 1983.

Appellants now assert on appeal that Officer Lokey and the City of Fort Smith, through then Police Chief Reed, are civilly liable for the death of Christina Springs.

I. Summary Judgment

The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. A trial court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179, 185. The burden of proof shifts to the opposing party once the moving party establishes a prima facie entitlement to summary judgment, and the opposing party must demonstrate the existence of a material issue of fact. Id. After reviewing the undisputed facts, the trial court should deny summary judgment if, under the evidence, reasonable minds might reach different conclusions from the same undisputed facts. Id. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party leave a material question of fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. This review is not limited to the pleadings but also includes the affidavits and other documents filed by the parties. Id.; see alsoArk. R. Civ. P. 56(c).

The issue of whether a party is immune from suit in a summary-judgment procedure is purely a question of law, and this court reviews that issue on appeal de novo. City of Fayetteville v. Romine, 373 Ark. 318, 321, 284 S.W.3d 10, 13 (2008); Baldridge v. Cordes, 350 Ark. 114, 85 S.W.3d 511 (2002).

II. Section 1983 Liability

Appellants contend that Officer Lokey is liable in his official capacity for what happened to Christina under federal statutory law. See42 U.S.C. § 1983. To establish a violation of § 1983, the plaintiff must show that the deprivation (1) was a right secured by the United States Constitution and laws of the United States, and (2) was caused by a person or persons acting under the color of state law. Tipler v. Douglas County, Nebraska, 482 F.3d 1023 (8th Cir.2007).

Local governing bodies can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Monell v. Dep't of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the United States Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body's official decision-making channels. Id. at 690–91, 98 S.Ct. 2018. Generally, an isolated incident of police misconduct by subordinate officers is insufficient to establish municipal policy or custom. Wedemeier v. City of Ballwin, 931 F.2d 24, 26 (8th Cir.1991). A custom or usage is demonstrated by:

(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity's policy-making officials after notice to the officials of that misconduct; (3) the plaintiff's injury by acts pursuant to the governmental entity's custom, i.e., proof that the custom was the moving force behind the constitutional violation.

Ware v. Jackson County, Mo., 150 F.3d 873 (8th Cir.1998).

On January 21, 2005, Officer Lokey was a patrolman for the Fort Smith Police Department and had no policy-making authority at that time. The internal investigation “by the department” determined that he had not violated department policy or procedure and that the department specifically did not have a policy authorizing police officers to provide private individual protection. The investigation further determined that had Officer Lokey engaged in misconduct or violated a...