DAVID LYONS; DAVID LYONS JR.; and PAUL COOPER v. CITY OF LOUISVILLE; ROBERT O'NEIL; CITY OF ST. MATTHEWS; DAN MAHAFFEY; STEVE MOBLEY; and BRAD JEFFREY
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RENDERED:
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-003237-MR
DAVID LYONS; DAVID LYONS JR.; and
PAUL COOPER
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN RYAN, JUDGE
ACTION NO. 94-CI-02465
v.
CITY OF LOUISVILLE; ROBERT O’NEIL;
CITY OF ST. MATTHEWS; DAN MAHAFFEY;
STEVE MOBLEY; and BRAD JEFFREY
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON and KNOPF, Judges.
HUDDLESTON, Judge.
David Lyons, David Lyons Jr. and Paul Cooper
appeal from the summary dismissal of their complaint seeking
damages against the City of Louisville, the City of St. Matthews,
Robert O’Neil, a Louisville police officer, Brad Jeffrey, a St.
Matthews police officer, and Dan Mahaffey and Steve Mobley, both
Jefferson County police officers, based on false imprisonment and
assault claims.
I.
BACKGROUND FACTS AND PROCEEDINGS IN THE CASE
Officers O’Neil, Mahaffey, Mobley and Jeffrey perform
undercover investigations in a joint police agency known as the
Metro Narcotic Unit.1
On March 17, 1994, Officer O’Neil went to
Cotter Home Public Housing Project (Cotter Homes) to investigate a
tip regarding the trafficking of cocaine.
He was approached by
Clarence Ware who attempted to sell him narcotics.
Officer O’Neil
contacted Officer Mobley in order to make a controlled buy from
Ware.2
Officers
Mobley,
Mahaffey
and
Jeffrey
were
given
a
description of Ware and monitored Officer O’Neil’s purchase of
cocaine from Ware.
As soon as Officer O’Neil purchased the cocaine from
Ware, he left the area and secured the evidence in his vehicle.
Officers Mahaffey and Jeffrey spotted Ware going into Cotter Homes.
Approximately 15 minutes later, Officers Mahaffey and Jeffrey
spotted Cooper, who they believed to be Ware, coming out of Cotter
Homes.
They radioed Officer O’Neil and requested that he identify
the suspect.
Officers Mahaffey and Jeffrey observed Cooper on the
street acting suspiciously.
Cooper noticed that he was being
watched by the officers and entered his apartment.
Soon after,
Lyons arrived at Cooper’s apartment in a maroon Ford which he
parked two parking spaces away from the officers.
Cooper quickly
ran out of his apartment and entered Lyons’ vehicle.
Lyons and
1
The Metro Narcotics Unit is made up of officers from the
Louisville Division of Police, the Jefferson County Police
Department and several small-city police departments in Jefferson
County.
2
A “controlled buy” is a method of making a drug purchase
which prevents a suspect from destroying evidence. An undercover
detective purchases narcotics from a suspect and withdraws from the
area to secure the evidence. Once the evidence is secured, the
suspect is arrested by other officers.
-2-
Cooper drove to Lyons’ house located at 2359 Alston Avenue with
Officers Mahaffey and Jeffrey in pursuit.
The officers could not see into Lyons’ vehicle because of
dark tint on the windows.
Based on the belief that an illegal
narcotics transaction was occurring and concerned that evidence
would be destroyed, the officers surrounded Lyons’ vehicle with
their weapons drawn.
It is undisputed that the officers’ weapons
were pointed at Lyons and Coopers but a few seconds.
Lyons Jr.,
who was in the house, heard the vehicle hit a garage wall.
He went
outside and saw his father and Cooper being detained by the
officers.
Officers briefly pointed their weapons at Lyons Jr. in
order to safeguard the area of the investigation.
The officers
holstered their weapons when Officer O’Neil recognized Lyons and
told them that Cooper was not the suspect (Ware).
On
May
12,
1994,
the
appellants
brought
false
imprisonment, outrageous conduct and assault claims against City of
Louisville, the City of Shively, the City of St. Matthews and
Officers O’Neil, Mahaffey, Jeffrey, Mobley and Cook.
On December
12, 1995, the circuit court dismissed the outrageous conduct claim.
On August 1, 1996, the court dismissed claims against Officer Cook
and the City of Shively.
On May 30, 1997, the court dismissed
claims against Officer O’Neil and the City of Louisville.
On
November 5, 1997, the court dismissed the claims against the City
of St. Matthews and Officers Mahaffey and Mobley.
from the
This appeal is
May 30, 1997, and November 5, 1997, orders.
II.
FALSE IMPRISONMENT AND ASSAULT
-3-
Appellants
argue
that
there
are
genuine
issues
of
material facts as to whether reasonable suspicion existed that
justified the stopping of Lyons’ vehicle and whether the Officers
acted in good faith.
Appellants contend that because Cooper did
not wear stone washed jeans, had a disabled arm and walked with a
limp, it was unreasonable for the officers to stop Lyons’ vehicle.3
In an action for false imprisonment, the plaintiff must
establish that his imprisonment occurred without legal authority or
basis.4
Lexington-Fayette Urban County Government v. Middleton,
Ky. App., 555 S.W.2d 613, 617 (1977).
See also City of Lexington
v. Gray, Ky., 499 S.W.2d 72 (1973).
reasonable,
articulable
suspicion
Where an officer has a
that
a
particular
person
encountered was involved in or is wanted in connection with a
completed felony, an investigatory stop is permissible. Collier v.
Commonwealth, Ky. App., 713 S.W.2d 827 (1986).
See Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
An investigatory
stop is permissible on less than full probable cause. Collier, 713
S.W.2d at 828.
On the other hand, officers may arrest any person
whom they believe, upon reasonable grounds, to have committed a
felony, although no felony was actually committed.
Tucker v.
Vornbrock, 270 Ky. 712, 110 S.W.2d 659, 661 (1937).
The trial
3
Clarence Ware wore stonewashed jeans and a stonewashed
jacket and Cooper wore blue jeans and a blue jacket.
Cooper
testified in his deposition that there is no restriction in the
movement of his arm or in its range of motion.
Cooper also
testified that he walked perfectly.
4
Appellants brought both false imprisonment and false arrest
claims against the Appellees. However, in cases involving police
officers, there is no distinction between false arrest and false
imprisonment because the latter is always the result of the former.
Middleton, text supra, 555 S.W.2d at 619.
-4-
court
determined
that
the
Appellees
were
investigatory stop rather than an arrest.
dispute
this
determination,
reasonableness
of
the
stop
but
of
in
an
The Appellants do not
rather
Lyon’s
engaged
contend
vehicle,
that
under
the
these
circumstances, is an issue for the jury.
The trial court must determine what facts constitute
reasonable suspicion to stop and probable or reasonable cause for
an arrest.
Ornelas v. United States, 517 U.S. 690, 134 L.Ed.2d
922, 116 S.Ct. 1657 (1996); and see Jeffers v. Heavrin, 10 F.3d 380
(6th Cir. 1993); Tucker v. Vornbrock, supra.
Reasonable suspicion
and probable cause involve questions of both law and fact and are
reviewed de novo.
Ornelas, 134 L.Ed.2d at 920.
“[A] reviewing
court should take care both to review findings of historical fact
only for clear error and to give due weight to inferences drawn
from those facts by resident judges and local law enforcement
5
officers.”
Id.
In the present case, the circuit court concluded that:
The undisputed facts show that Officer O’Neil had
purchased suspected cocaine from a black male at Cotter
Homes; Mr. Cooper was spotted in the housing project
approximately one block away from where the suspect was
last seen; Mr. Cooper fit the detailed description of the
suspect; and he left in the maroon vehicle.
5
Based
The trial court determined that Cooper’s attire and
physical appearance matched that of Ware to such a degree that the
mistake in his identity for that of Ware was not unreasonable or in
bad faith. Ware is a black male, 25 years old, 5 feet 10 inches
tall, 162 pounds, black hair and brown eyes, and Cooper is a black
male, 29 years old, 5 feet 9 inches tall, 160 pounds, black hair
and brown eyes.
-5-
thereon,
the
Officers
had
a
reasonable;
articulable
suspicion that the suspected drug dealer from Officer
O’Neil’s earlier felony drug buy was in Capt. Lyons’
vehicle.
We agree that based on the similarities in the appearance and
clothing of Ware and Cooper, and the proximity of the action each
took, the officers had reasonable suspicion to investigate the
Appellants.6
Appellants’ assault claims must also be dismissed.
An
assault is defined as “an unlawful offer of corporeal injury to
another by force, or force unlawfully directed toward the person of
another,
under
such
immediate peril.”
circumstances
for
unlawfully.
the
a
well-founded
fear
of
Brown v. Crawford, 296 Ky. 249, 177 S.W.2d. 1,
2-3 (1943) (Emphasis supplied).
existed
as
Appellees’
As noted, reasonable grounds
actions;
hence,
they
did
not
act
See Middleton, supra.
III.
QUALIFIED IMMUNITY
In Ashby v. City of Louisville, Ky. App., 841 S.W.2d 184,
188 (1992), this Court said that “[i]n Kentucky, personal liability
for a public officer’s or public employee’s negligent performance
of duties depends on whether the powers or duties in question were
ministerial or discretionary in nature.”
The key distinction
between a ministerial and a discretionary duty is whether the duty
6
Although the proper review is de novo, Ornelas, text supra,
even when viewed in a light most favorable to the Appellants, the
facts require judgment for the Appellees.
-6-
is mandatory or whether the act complained of involved policymaking
or judgment.
A
discretionary
policy decisions.
§ 234 (1997).
fail
to
chilling
government,
involves
63C Am. Jur. 2d.
judgment,
planning
or
Public Officers and Employees
The obvious basis for the distinction is that to
afford
and
duty
immunity
for
detrimental
while,
on
the
discretionary
effect
on
the
other
hand,
to
acts
would
have
a
free
operation
of
grant
immunity
for
ministerial duties would deny recompense to private citizens who
are bound to rely upon public servants and suffer loss when they
fail to dutifully perform their office.
Id.; Restatement (Second)
of Torts § 895D (1979).
The trial court determined that the officers were engaged
in a discretionary activity during the investigative stop and,
therefore, had qualified immunity.
Because the officers had a
reasonable basis for investigating the Appellants, we are unable to
conclude that they acted in bad faith and unreasonably in the
circumstances.
Ashby v. City of Louisville, supra.
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES
ROBERT O’NEIL and
CITY OF LOUISVILLE:
John W. Stewart
Louisville, Kentucky
William C. Stone
Director of Law
Mitchell L. Perry
Assistant Director of Law
Louisville, Kentucky
BRIEF FOR APPELLEES
CITY OF ST. MATTHEWS
-7-
and BRAD JEFFREY:
Dave Whalin
LANDRUM & SHOUSE
Louisville, Kentucky
BRIEF FOR APPELLEES
DAN MAHAFFEY and STEVE MOBLEY:
David Leightty
Louisville, Kentucky
-8-
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