Tollison v. City of Independence
| Decision Date | 25 September 2015 |
| Docket Number | CIVIL ACTION NO. 13-55-DLB-CJS |
| Parties | CARL DAVID TOLLISON PLAINTIFF v. THE CITY OF INDEPENDENCE, et al. DEFENDANTS |
| Court | U.S. District Court — Eastern District of Kentucky |
Officer Greg Hallau and Captain Anthony Lucas, both of the Independence Police Department, move for summary judgment on Carl Tollison's § 1983 false arrest and excessive force claims, arguing that: (1) Tollison's threatening behavior gave them probable cause to arrest him for second-degree disorderly conduct, third-degree terroristic threatening, menacing and resisting arrest; and (2) they appropriately used minor force to subdue a resistant Tollison. Officer Hallau and Captain Lucas contend that summary judgment is appropriate on Tollison's state tort claims for the same reasons. In the alternative, Officer Hallau and Captain Lucas maintain that they are entitled to qualified immunity under § 1983 and Kentucky law.
The City of Independence and the Independence Police Department seek summary judgment on Tollison's § 1983 municipal liability claim, arguing that no official policy of custom caused the constitutional deprivation. Mayor Moriconi and Chief Shawn Butler also contend that they are entitled to summary judgment on Tollison's § 1983 supervisoryliability claim because they did not know of a risk created by employing Officer Hallau and Captain Lucas. They insist that summary judgment is appropriate on Tollison's state negligent supervision, hiring and training claim for the same reason. Alternatively, Mayor Moriconi and Chief Butler claim that they are entitled to qualified immunity under § 1983 and Kentucky law. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1367.
On April 7, 2012, Carl Tollison was riding his motorcycle in a funeral procession when he was involved in a minor traffic accident at the intersection of Madison Pike and Centennial Boulevard in Independence, Kentucky. (Doc. # 38-1 at 1-5). Officer Greg Hallau of the Independence Police Department responded to the scene. (Id.). After speaking with both motorists and an eyewitness, Officer Hallau completed a Kentucky Uniform Police Traffic Collision Report. (Id.). In the Report, he identified Tollison as "Unit 1" and reported that he "misjudged clearance." (Id.). He also indicated that neither party was injured in the accident. (Id.).
Tollison returned home and soon discovered a fresh bruise on his elbow. (Doc. # 38-2 at 2-3). He immediately contacted Officer Hallau, hoping that he would include this injury in the Report. (Id.). Officer Hallau did not answer his phone, so Tollison left a voicemail. (Id.). Later that day, Officer Hallau used a different phone number to return the call, but Tollison decided not to pick up because he did not recognize the number. (Id. at 1). Tollison later tried to redial that number, but it was restricted. (Id. at 2).
On April 12, 2012, Tollison went to the Independence Police Department ("IPD") and asked receptionists Nancy Slusher and Catherine Weger for a copy of the Report. (Doc.# 47-3 at 1). As Slusher and Weger searched for the appropriate document, with help from IPD volunteer Phyllis Vetter, Tollison described the traffic accident and repeatedly referred to Officer Hallau as a "prick." (Doc. # 55 at 4). Once the receptionists located the Report, they made Tollison a copy to review. (Id.). He stood in the lobby while he read over it, then returned to the reception desk and began expressing his dissatisfaction with it. (Id.).
Slusher escorted Tollison to the Soft Interview Room, then went into the secure IPD office space. (Id.). She informed Officer Hallau that Tollison had some concerns about the Report and wanted to speak with him. (Id.). She also warned Officer Hallau that Tollison seemed angry. (Id. at 5). As Officer Hallau headed towards the door connecting the office space to the Soft Interview Room, he passed Captain Lucas and told him "this isn't going to be good." (Doc. # 53 at 19 and 57 at 5).
Upon entering the Soft Interview Room, Officer Hallau asked Tollison how he could help him. (Doc. # 38-2 at 1). Tollison explained that he wanted Officer Hallau to document his elbow injury in the Report for his insurer's benefit. (Id. at 1-2). Officer Hallau refused to do so because several days had passed since the accident. (Id.). Tollison pointed out that he had tried to contact Officer Hallau a few hours afterwards, but Officer Hallau cut him off, saying that he would not argue with Tollison. (Id. at 3). The conversation then became heated. The Soft Interview Room video captured the following exchange:
(Id. at 3-4).
At this point, Tollison began backing out of the Soft Interview Room and into the lobby.1 (Doc. # 39). Officer Hallau followed him and the two men continued to shout at each other:
(Doc. # 38-2 at 4). During this part of the exchange, Tollison was moving towards the front door, as if to leave. (Doc. # 39). He then strode back towards Officer Hallau, getting relatively close to him. (Id.). This prompted Officer Hallau to place him under arrest. (Id.).
Vetter could see the dispute developing from her post at the reception desk. (Doc. # 56 at 8). She called back to Slusher and Weger, who remained in the secure IPD office space, and told them to get help. (Docs. # 57 at 6 and 56 at 8). They immediately ran through the office and alerted Chief Butler to the incident. (Doc. # 57 at 6). Meanwhile, Captain Lucas overheard the raised voices and ran into the lobby to assist Officer Hallau. (Doc. # 54 at 15-16).
As Officer Hallau grabbed Tollison's arm and attempted to place him in handcuffs, Captain Lucas came forward to assist in the arrest. (Doc. # 39). All three men lost their balance and fell to the floor. (Id.). Tollison fell partially on top of Officer Hallau, while Captain Lucas was dragged to his knees. (Id.). Officer Hallau testified that Tollison resisted arrest, while Tollison insisted that he was tripped. (Docs. # 51 at 26; 53 at 22-23). Once they had subdued Tollison, Officer Hallau and Captain Lucas stood up, handcuffed him and helped him to his feet. (Docs. # 39; 53 at 23).
Chief Butler arrived on scene just as Officer Hallau and Captain Lucas completed the arrest. (Doc. # 52 at 12). He made sure that everyone was alright, then pulled a cruiser to the front door so that Officer Hallau could escort Tollison to jail. (Doc. # 54 at 16). Officer Hallau also breathalyzed Tollison, even though Tollison repeatedly assured him that he did not drink. (Doc. # 53 at 24). Captain Lucas testified that he instructed Officer Hallau to breathalyze Tollison because he thought he could smell alcohol on hisperson; however, Tollison insists that Chief Butler ordered the breathalyzer test. (Docs. # 54 at 13 and 51 at 29). Officer Hallau then transported Tollison to the Kenton County Detention Center. (Doc. # 53 at 24-25).
Tollison was ultimately charged with second degree disorderly conduct, third-degree terroristic threatening, menacing and resisting arrest. (Doc. # 38-3). On September 27, 2012, Assistant Kenton County Attorney Jonathan Hart moved to dismiss these charges during a hearing in Kenton County District Court. (Doc. # 40). He explained that he was not conceding a lack of probable cause to prosecute Tollison; rather, he believed that it was appropriate to dismiss the charges, given Tollison's past military service and clean criminal record. (Id.).
Tollison sued the City, IPD, Mayor Chris Moriconi, Chief Butler, Captain Lucas and Officer Hallau (collectively, "the Independence Defendants") for false arrest, unlawful confinement, excessive force, conspiracy and failure to prevent harm in violation of 42 U.S.C. § 1983. (Doc. # 23). He also asserted pendent state claims for assault, battery, false imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, gross negligence and negligent supervision. (Id.). Discovery is now closed (Docs. # 32 and 33), and the Independence Defendants' Motion for Summary Judgment is ripe for review (Docs. # 38, 46 and 50).
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.56(a). If there is a dispute over facts that might affect the outcome of the case under governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading the court that there are no disputed material facts and that he is entitled to judgment as a matter of law. Id. Once a party files a properly supported motion for summary judgment by either affirmatively negating an essential element of the non-moving party's claim or establishing an affirmative defense, "the adverse party must set forth specific facts showing that there is a genuine issue for trial." Id. at 250. "The mere...
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