TINA VANCE v. WILLIE ARTIS
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RENDERED: February 23, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000038-MR
TINA VANCE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON,1 JUDGE
ACTION NO. 96-CI-005923
v.
WILLIE ARTIS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE: Tina Vance has appealed from the orders of the
Jefferson Circuit Court that dismissed her complaint for false
arrest or imprisonment against Jefferson County police officer
Willie Artis.
Having concluded that Vance’s claims against
Officer Artis are barred by the doctrine of qualified immunity,
we affirm.
1
Judge William E. McAnulty, Jr. presided over this case
before being elected to the Court of Appeals.
In her complaint filed on October 10, 1996, against
Officer Artis, the Jefferson County Police Department and Frank
L. Paulley, Vance alleged that she sold a motor vehicle to
Paulley on March 27, 1995, “and retained a security interest on
said vehicle.”
Vance claimed that her security interest in the
vehicle was created by a document signed by Paulley and her,
which reads as follows:
To Whom it may concern:
I /s Frank Paulley is [sic] buying a 88
[T]oyota pick up from Tina Vance for 3000.00
dollar [sic] 250.00 down and 150.00 a month.
I will pay the 250.00 down on the ____ day of
Feb[.] 1995 and 150[.]00 dollars ____ 9th day
of each month. _______ bal. is payed [sic]
if payment _________ I will have thirty days
_________ off are return to Tina.
Thank you.
/s Tina Vance
200 Lob__ street
Shepherville [sic], Ky 40165
/s Frank Paulley
South Park
Louisville[,] Ky 40219
Date 2-22-95
N.P.S.A.L. /s Linda S. Harrell
comm[.] expires 8-25-96
Vance made the following allegations in her complaint:
After Paulley “failed and refused to make all payments due
thereunder”, Vance “lawfully repossessed the vehicle, on or about
May 31, 1996.”
Paulley then “contacted the Jefferson County
Police Department, claiming that [Vance] had stolen his vehicle.”
“Artis, in his capacity as a Jefferson County Police Officer,
contacted [Vance] concerning said vehicle.”
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As a part of the
“[n]umerous discussions” among Vance, Paulley and Officer Artis,
Vance informed “Artis [ ] that she did, in fact, have a security
interest on the vehicle, and that she had properly repossessed
same.”
Officer Artis “subsequently sought, and obtained, on June
14, 1996, a warrant for the arrest of [Vance] for the alleged
theft of the vehicle from [ ] Paulley.”
“[A]t no time, did [ ]
Artis [ ] seek to ascertain whether [Vance] actually had a
security interest and lien on the vehicle.”
“On or about June
14, 1996, [Vance] was arrested by [ ] Artis [ ] on the charge of
theft by unlawful taking over $300.00, [a] felony.”
“On July 9,
1996, a probable cause hearing was held in this matter, and at
the conclusion of the Commonwealth’s evidence, the Commonwealth
moved to dismiss the Complaint, which motion was granted by the
Judge.”
“During the probable cause hearing, [ ] Paulley [ ]
falsely testified, stating that there was no written contract or
other agreement regarding the vehicle.”
“Artis [ ] also
testified that he had made no attempt[ ] to verify whether or not
there was a lien against the vehicle in question.”
Vance also claimed: Her “arrest and imprisonment [ ]
was made without reasonable grounds and/or cause and/or was not
in good faith.” “As a result of the above intentional, unlawful,
involuntary restraint, arrest and imprisonment of [Vance] through
the use of force and the threat of force, [she] has suffered
damages [from] lost income and . . . injury to her reputation[;]
incurred legal and other expenses . . . [and] suffered
humiliation, mental and emotional stress.”
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Since Vance claimed
“[t]he institution and continuation of these criminal proceedings
against [her] . . . was without probable cause and motivated by
malice[,]” she also sought punitive damages.
The Jefferson County Police Department and Officer
Artis filed a joint answer to the complaint, wherein they pled as
a defense, inter alia, the following: (1) sovereign immunity; (2)
that Officer Artis “acted in good faith, without malice and
within the lawful scope of and pursuant to his authority as a
public official”; (3) their actions “were reasonable, proper,
legal, with probable cause, and without wrongful intent, malice,
impact or effect”; and (4) Officer Artis is immune under
qualified immunity.2
On January 6, 1998, Jefferson County,3 the Jefferson
County Police Department and Officer Artis filed a joint motion
to dismiss, or for judgment on the pleadings, or for summary
judgment and a memorandum in support.
Among the grounds stated
to support their position were (1) a claim that the complaint
failed to assert the necessary elements of malice and absence of
probable cause; (2) Officer Artis is protected by qualified
immunity; and (3) all three defendants are protected by sovereign
2
Paulley, pro se, filed a handwritten note requesting that
the court set a trial date. After denying Vance’s motion for a
default judgment against Paulley, the trial court granted her
motion for judgment on the pleadings against Paulley and
scheduled a hearing to determine damages.
3
On May 19, 1997, the trial court entered an order granting
Vance leave to file an amended complaint which added Jefferson
County as a defendant.
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immunity.
In support of their motion, the defendants asserted
(1) that the pickup truck that was “repossessed” by Vance
contained tools that Vance had no claim to; (2) that when Officer
Artis contacted Vance to discuss Paulley’s complaint, Vance
“refused to disclose the location of the truck or to return the
tools that Paulley said were in the truck.”
These defendants
disputed Vance’s claim of a security interest in the truck
because “nowhere does the contract provide for the retention of a
security interest or lien” against the vehicle.
The police report prepared by Officer Artis was filed
of record and it stated, in part, as follows:
Victim advises that the accused took his
truck because he still owed her money for the
vehicle. This was done without permission or
a court order. Victim had numerous tools in
the vehicle which are also missing [emphasis
original].
In support of their motion to dismiss, these three
defendants emphasized before the trial court that Vance had
failed to allege in her complaint that during Officer Artis’
investigation that she had “produced any documentation regarding
her supposed security interest” and that she had failed to
mention in her complaint that she had “refused to tell Officer
Artis where the vehicle was” located.
These defendants also
noted that in his investigative report Officer Artis wrote:
Vic[tim] says he would forget about truck if
he got his tools back. Spoke to susp[ect].
She admitted taking truck, but would not tell
where it is. Stated she knew nothing about
tools. Says she placed a lien on truck also.
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States she would talk to vic[tim] to settle
dispute.
Even though they had been sued for false arrest or
imprisonment, in their memorandum these defendants relied upon
Broaddus v. Campbell,4 and Raine v. Drasin,5 which set forth the
following essential elements for malicious prosecution:6
(1) [T]he institution or continuation of
original judicial proceedings, either civil
or criminal, or of administrative or
disciplinary proceedings, (2) by, or at the
instance of the plaintiff, (3) the
termination of such proceedings in
defendant’s favor, (4) malice in the
institution of such proceeding, (5) want or
lack of probable cause for the proceeding,
and (6) the suffering of damage as a result
of the proceeding [emphasis original].
These defendants argued before the trial court that while “malice
is not per se a necessary element of a claim for false arrest,
lack of probable cause, as well as lack of belief that the crime
has been committed, indisputably is.”
These defendants relied
upon Myers v. City of Louisville,7 to support their position that
a “cause of action against [a] police officer [ ] for false
arrest requires that [an] officer [ ] ‘did not then believe, and
have probable cause to believe’ that a crime had been committed,
and [the] officer [ ] ‘as a matter of public policy should not be
4
Ky.App., 911 S.W.2d 281, 283 (1995).
5
Ky., 621 S.W.2d 895, 899 (1981).
6
The parties frequently mixed their discussion of the
elements of false arrest with the elements of malicious
prosecution.
7
Ky.App., 590 S.W.2d 348, 349 (1979).
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required to make fine, legal distinctions on the spur of the
moment’ in making an arrest.”
These defendants argued that
“[p]robable cause is evidence or fact that ‘would induce an
attorney [in this case a police officer] of ‘ordinary prudence’
to believe’ that the action taken (in this case arrest of
Plaintiff) was proper.”8
These defendants continued their argument before the
trial court by observing that “[t]he presence of an arrest
warrant makes the existence of probable cause even more
indisputable.”
In Hale v. Baker,9 “[t]he complaint for the
warrant of arrest of Hale was made on the advice of the attorneys
who had conducted the entire investigation.
This constituted
probable cause to have the warrant of arrest issued.
The advice
of the attorneys, based on a full and fair disclosure of all
material facts, is a complete defense to an action for malicious
prosecution.” In Miller v. Jefferson County Police Department,10
“Johnson presented the information to an official who saw fit to
issue the warrant.
The issuing magistrate made the determination
that there was probable cause for the warrant.
Neither Johnson
or Officer Fisher actually made that decision, and there is no
evidence that Johnson added any false information to support his
complaint for the warrant.”
8
Raine, supra at 901.
9
Ky., 483 S.W.2d 133, 134 (1972).
10
Ky.App., 569 S.W.2d 189, 191 (1978).
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On February 3, 1998, Vance filed a response to these
defendants’ motion with a memorandum in support.
Vance argued
that due to Officer Artis’ failure to disclose certain facts in
his affidavit for the arrest warrant, she had presented
sufficient questions of fact to show an “absence of probable
cause and malice (which may be inferred).”
Vance noted that in
Myers,11 “the Court held that there was [a] ‘question[ ] of fact
for the jury on the issue [of] whether the officers believed, and
had probable cause to believe, that the appellant committed the
offense of disorderly conduct.”
Vance argued that in her case
there “is an issue of fact [of] whether Detective Artis believed,
or had probable cause to believe, that Ms. Vance had committed
the crime of theft by deception.”12
Vance argued that pursuant
to Hale,13 “probable cause” “is only a defense, if and only if,
all relevant facts were clearly disclosed to the issuing
Court.”14
Vance claimed that it was undisputed that Officer
Artis failed to disclose to the court that issued the arrest
warrant “the relevant facts concerning the security interest in
the vehicle” and the fact that Vance claimed “Paulley was behind
on his payments.”
11
Vance also claimed that the lien on the truck
Supra at 349.
12
A critical distinction between Meyers and the case sub
judice is that the police officer in Meyers made the arrest
without an arrest warrant. This will be developed more throughly
infra.
13
Supra at 134.
14
Hale involved a claim for malicious prosecution.
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was recorded at the County Court Clerk’s Office; that Officer
Artis’ affidavit made no mention of missing tools; and that
“Artis informed Ms. Vance that he would return the vehicle to [ ]
Paulley[.]”
As a second defense, Officer Artis argued before the
trial court that he was entitled to qualified immunity and that
our Supreme Court in McCollum v. Garrett,15 had adopted the
federal concept of “qualified immunity”:
[G]overnment officials are not subject to
damages liability for the performance of
their discretionary functions when “their
conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known.”
(Citation omitted.) In most cases, qualified
immunity is sufficient to “protect officials
who are required to exercise their discretion
and the related public interest in
encouraging the vigorous exercise of official
authority.”16
Thus, Officer Artis claimed that the question before
the trial court was whether he “violated any ‘clearly
established’ rights of the Plaintiff, in seeking her arrest-under authority of a duly-issued arrest warrant--on the facts
presented to him, namely the complaint of a citizen that
Plaintiff had stolen the citizen’s truck and tools, and the
Plaintiff’s refusal to cooperate even to the minimal extent of
15
Ky., 880 S.W.2d 530 (1994).
16
Id. at 534 n.6 (quoting Buckley v. Fitzsimmons, 509 U.S.
259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)).
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disclosing where the truck was, based on an asserted security
interest.”
Officer Artis argued that the approach followed by
various federal courts should be followed in Kentucky.
He relied
upon Hunter v. Bryant,17
where the U.S. Supreme Court held that Secret
Service agents were entitled to the
protection of qualified [i]mmunity and
dismissal of a lawsuit involving unlawful
arrest, where the agents had reasonable
although erroneous grounds to believe that
the arrestee had threatened the President;
the Court expressly stated that qualified
immunity is a question to be decided by the
court long before trial, rather than by a
jury, and is based on whether the public
officer acted reasonably under the
circumstances rather than whether there was a
more reasonable approach.”18
Vance’s response to Officer Artis’ claim of qualified
immunity was rather limited and basically asserted that Officer
Artis had “failed to cite any controlling precedent applying
qualified immunity to a police officer.”
It was these defendants’ third and final argument
asserting sovereign immunity that was accepted by the trial
court.
17
The memoranda filed by the parties had been filed near
502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
18
Officer Artis also relied upon Flatford v. City of Monroe,
17 F.3d 162 (6th Cir. 1994), where the Court stated that “the
plaintiff suing a governmental official must establish an alleged
violation which implicates clearly established law”; and
Blackwell v. Barton, 34 F.3d 298 (5th Cir. 1994), where the Court
stated that a false arrest claim should be viewed “under a
‘reasonableness’ test rather than a negligence standard.”
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the time Franklin County, Kentucky v. Malone,19 had become final
and this controversial opinion was not mentioned by either party.
However, these defendants did cite the seminal case of Withers v.
University of Kentucky.20
As to Officer Artis’ claim of sovereign immunity, Vance
argued that in Withers the Supreme Court at note 1 on page 342
clearly stated “we have firmly and repeatedly held that the
immunity of the Commonwealth does not extend to its agents,
servants and employees.
Gould v. O’Bannon, Ky., 770 S.W.2d 220
(1989); Happy v. Erwin, Ky., 330 S.W.2d 412 (1959).”
However, on May 4, 1998, the trial court, through Judge
McAnulty, applied the doctrine of sovereign immunity and
dismissed all of Vance’s claims against Jefferson County, the
Jefferson County Police Department and Officer Artis.
On appeal,
we are only concerned with the claims against Officer Artis,
which the trial court in dismissing referred to as follows:
The Court now turns to the application
of sovereign immunity as to the individual
police officer. Generally, “[a]s long as the
police officer acts within the scope of the
authority of office, the actions are those of
the government and the officer is entitled to
the same immunity.” Franklin County v.
Malone, [supra]. There is no question that
in swearing out a warrant and arresting the
Plaintiff, Officer Artis was acting within
the scope of the authority of his office.
Therefore he, too, is entitled to summary
judgment on the grounds of sovereign
19
Ky., 957 S.W.2d 195 (1998)(reh’g denied January 22,
1998)).
20
Ky., 939 S.W.2d 340 (1997).
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immunity. Having so decided, it is
unnecessary to address the remaining
arguments of the Defendants.
On May 14, 1998, Vance filed a CR21 59 motion to alter,
amend or vacate the judgment, wherein she argued that the trial
court had misapplied the doctrine of sovereign immunity.
Vance
also filed a motion on May 20, 1998, seeking leave under CR 15.01
to amend her complaint.
The proposed amended complaint included
allegations against Officer Artis “in his individual capacity” as
well as restating the allegations against him in “his capacity as
a Jefferson County Police Officer.”
Vance also alleged that
“[a]t all times relevant, [ ] Artis was acting outside the scope
of his powers and/or duties and/or his employment as a police
officer[;]” and “[t]hat the actions of [Artis] resulted in a
violation of the state and federal constitutional rights of [ ]
Vance, in that she was deprived of due process, and the right to
be free from unreasonable search and seizure and/or was
unlawfully deprived of her right to liberty.”
The Jefferson County defendants and Officer Artis filed
a response and memorandum opposing the motion to amend the
complaint.
Judge McAnulty’s successor, Judge Abramson, denied
the motion to amend in an order entered on August 17, 1999.
The
trial court concluded that “[w]hile CR 15.01 clearly does provide
the court with discretion in granting leave to file an amended
complaint, to do so in this matter would be futile and not in the
21
Kentucky Rules of Civil Procedure.
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interest of justice.
First National Bank v. Hartman, Ky.App.,
747 S.W.2d 614, 616 (1988).”
The trial court then proceeded to
address Vance’s CR 59 motion and considered whether the previous
order should be amended.
The trial court denied that motion and
stated:
In ruling that sovereign immunity shielded
the Defendants from liability and relying on
Franklin County, Kentucky v. Malone, [supra],
Plaintiff argues that the Court failed to
properly apply the discretionary-ministerial
distinction. With respect to the application
of sovereign immunity as to an individual
police officer, the general rule espoused in
Malone is that as long as the police officer
acts within the scope of his authority, that
officer is entitled to the immunity. A
determination has already been made that
Officer Artis was in fact acting within the
scope of his authority when he sought,
obtained, and executed the arrest warrant.
This Court having properly found that Officer
Artis was acting within his authority as a
police officer, Plaintiff cannot now allege
otherwise in her amended Complaint.
As to Plaintiff’s allegation that
Officer Artis lacked probable cause in
obtaining the arrest warrant, the record
supports a contrary conclusion. Pursuant to
the Fourth Amendment of the U.S. Constitution
and [S]ection 10 of the Kentucky
Constitution, a valid arrest warrant is
predicated upon a showing of probable cause.
See Sampson v. Commonwealth, Ky., 609 S.W.2d
355 (1980). The standard for determining
whether probable cause exists is whether
given the totality of the circumstances, the
officer has reasonable grounds to believe
that the arrestee has committed an offense.
Illinois v. Gates, 462 U.S. 213 (1983);
Eldred v. Commonwealth, Ky., 906 S.W.2d 694
(1994). The question of probable cause is
viewed from the perspective of the police
officer and takes into account factual and
practical considerations of every-day life on
which reasonable and prudent persons, not
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legal technicians, act. Illinois v. Gates
[,] supra. The facts in this case reveal
that, after a careful and diligent inquiry
spanning several days, Officer Artis had
probable cause to reasonably believe that
Plaintiff had committed the offense of theft
by unlawful taking. As such, Officer Artis’
subsequent actions did not violate
Plaintiff’s constitutional right to due
process, her right against unreasonable
searches and seizures, or her right to
liberty.22
In her prehearing statement and brief before this
Court, Vance identifies her claim as one for “wrongful arrest and
imprisonment.”
While Vance’s initial complaint included an
additional claim that “[t]he institution and continuation of
these criminal proceedings against the Plaintiff . . . was
without probable cause and motivated by malice” any claim for
“malicious prosecution” has been abandoned on appeal.23
Accordingly, our review is limited to determining whether the
trial court erred in dismissing Vance’s claim of “wrongful arrest
and imprisonment” and in not allowing her to amend her complaint.
22
On August 24, 1999, Vance filed another CR 59 motion,
wherein she asked the trial court to amend its order of August
17, 1999, on the grounds that the order should not be deemed
final and appealable until damages payable by Paulley were
determined. In an order entered on December 2, 1999, the trial
court awarded Vance a judgment against Paulley “in the sum of
$6,665[,] . . . consist[ing] of $1,665 in compensatory damages,
$2,000 for humiliation, embarrassment and mental anguish, and
$3,000 for punitive damages. Otherwise, the trial court denied
CR 59 relief.
23
Malicious prosecution has been defined as “maliciously
causing criminal process to issue, without reasonable or probable
cause[.]” Haynes, Kentucky Jurisprudence, Torts, §1-2 (1987).
As we noted previously on page 7 of this Opinion, Broaddus,
supra, and Raine, supra, set forth the essential elements for
malicious prosecution.
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We believe a general discussion of this area of the law
will be of some assistance in understanding our decision.
In
Great Atlantic & Pacific Tea Co. v. Billups,24 the Court stated
that “‘[f]alse arrest’ or ‘false imprisonment’ is any unlawful
physical restraint by one of another’s liberty[.]” In LexingtonFayette Urban County Government v. Middleton,25 the Court stated:
It probably should be pointed out at
this juncture that in instances involving
officers of the law there is simply no
distinction between false arrest and false
imprisonment. False imprisonment is always
the result of a false arrest, since the
individual is placed under restraint by the
false arrest. . . [emphasis added].
In Haynes, Kentucky Jurisprudence, Torts, § 9-3 (1987),
it is stated that “the essential elements of the tort of false
imprisonment may be stated as [ ] [t]he (a) intentional, (b)
unlawful, (c) involuntary, (d) restraint of the plaintiff’s
person or property, (e) by force or threat of force, (f) of which
the plaintiff was aware.”
Of these elements, the only element
that is in dispute in the case sub judice is whether Vance’s
arrest and imprisonment were unlawful.
In Rader v. Parks,26 it
was stated:
This Court, as well as most other
jurisdictions, has always recognized an
important distinction between the actions of
false arrest or imprisonment and malicious
prosecution. The former will lie only when
24
253 Ky. 126, 129, 69 S.W.2d 5 (1934).
25
Ky.App., 555 S.W.2d 613, 619 (1977).
26
Ky., 258 S.W.2d 728, 729 (1953).
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the arrest or imprisonment is without legal
authority. Where the arrest is made under
authority of a valid process, the remedy is
an action for malicious prosecution. The
distinction was recognized in the early case
of Roberts v. Thomas, 135 Ky. 63, 121 S.W.
961, 962, 21 Ann.Cas. 456, where it was said:
“An action for false imprisonment may be
maintained where the imprisonment is
without legal authority. But, where
there is a valid or apparently valid
power to arrest, the remedy is by an
action for malicious prosecution. The
want of lawful authority is an essential
element in an action for false
imprisonment. Malice and want of
probable cause are the essentials in an
action for malicious prosecution”
[emphasis added].
In this case, the appellant was arrested
under valid warrant of arrest. The fact that
the warrant and supporting affidavit had been
amended to include appellant’s name did not
affect its validity. If appellant had been
falsely accused and the false accusation set
in motion the events leading to his ultimate
arrest and imprisonment, his sole remedy was
an action for malicious prosecution.
We have written in a number of cases
that a person who instigates an arrest may be
liable for false arrest, but it should be
noted that none of these cases involved an
arrest made under a valid process.
Thus, this case centers on whether Vance’s arrest and
imprisonment were with legal authority pursuant to a valid
process.
At 32 Am.Jur.2d False Imprisonment §91 (1995), it is
stated:
When the same officer provides the
information to obtain a warrant and then
executes the warrant, the officer is in a
position to control the flow of information
to the magistrate on which the probable cause
determination is made; so an officer who
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knowingly withholds facts in order to obtain
a warrant may not assert the facial validity
of the warrant as an absolute defense; that
officer must prove to the jury’s satisfaction
the existence of probable cause to arrest
under the circumstances [footnote omitted].
From the case law that we have reviewed, the case most
similar to our case is Bender v. City of Seattle,27 where the
Supreme Court of Washington reversed the Court of Appeals and
reinstated “an unsegregated verdict of $80,000 against the City.”
“Bender, a Seattle jeweler, instituted [an] action for damges
alleging he had been subjected to false arrest, false
imprisonment, malicious prosecution, libel and slander by
employees of the [ ] City.”
Two counts of grand larceny by
possession had been dismissed against Bender after the key
prosecution witness refused to testify.
“[T]he Court of Appeals
held that a verdict should have been directed in favor of the
City on the false arrest and false imprisonment claim because
[Bender’s] arrest was pursuant to a facially valid warrant.”
At
trial, “Bender’s primary contention was that a full disclosure of
all known information and a proper investigation by the police
would have persuaded the prosecution not to file criminal charges
because of a lack of probable cause.”
The Supreme Court
observed:
In an action for false arrest the
general rule is that an officer is not liable
if he makes an arrest under a warrant or
process which is valid on its face, even
though there are facts within his knowledge
27
99 Wn.2d 582, 664 P.2d 492 (1983).
-17-
which would render it void as a matter of
law. Pallett v. Thompkins,[10 Wn.2d 697, 118
P.2d 190 (1941)]; Cavitt v. McCrite, 194
Wash. 684, 688, 79 P.2d 637 (1938). This
rule serves to protect officers who execute
warrants, because those officers generally
are not in a position to fully know the
underlying facts giving rise to the issuance
of the warrant. Certainly, we should not
require officers to question the authority of
courts issuing such facially valid warrants.
Thus, when one officer seeks a warrant and
another officer executes it, as in Pallett
and Cavitt, the arresting officer is
insulated from liability for false arrest.
A different situation is presented,
however, when the same officer provides
information to obtain the warrant and then
also executes the warrant. When one officer
serves both functions, he is not merely
directed to fulfill the order of the court;
he is in a position to control the flow of
information to the magistrate upon which
probable cause determinations are made. We
see no distinction between an officer who
makes an invalid, warrantless arrest and one
who knowingly withholds facts in order to
obtain a warrant. No policy is served by
extending the nonliability rule of Pallett
and Cavitt in false arrest cases when an
officer simply interposes a magistrate
between himself and the arrested individual.
When the same officer seeks the warrant and
executes it, he should not be allowed to
“cleanse” the transaction by supplying only
those facts favorable to the issuance of a
warrant. n328. The exception we now announce
28
n3. According to Dean Prosser, one may be liable for
false arrest or false imprisonment even if he or she is not the
person who physically restrains the plaintiff:
One who participates in an unlawful arrest,
or procures or instigates the making of one
without proper authority, will be liable for
the consequences; but the defendant must have
taken some active part in bringing about the
unlawful arrest itself, by some “affirmative
(continued...)
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to the general nonliability rule of Pallett
and Cavitt only prevents an officer from
asserting the facial validity of a warrant as
an absolute defense to a false arrest or
false imprisonment action. The officer can
still establish a defense to such an action
by proving, to the satisfaction of the jury,
the existence of probable cause to arrest
under the circumstances.
While the trial court in its order entered on May 4,
1998, dismissing this action clearly relied upon the doctrine of
sovereign immunity and Malone, supra, we do not believe sovereign
immunity can be applied to Officer Artis.
Instead, we have
concluded that the trial court’s dismissal of Vance’s complaint
was proper because Officer Artis is protected by the doctrine of
qualified immunity.
Accordingly, we affirm even though we do so
for a different reason.29
Attempts at establishing liability in the face of
immunity seem to perpetrate continuing confusion.30
While there
are many immunities known to the law, in matters of government it
28
(...continued)
direction, persuasion, request or voluntary
participation.”
(Footnotes omitted.) W. Prosser, Torts § 11, at 47 (4th ed.
1971). Thus, since an officer can be liable for false arrest for
merely procuring the arrest of another falsely, there is even
less reason for extending the defense of the facial validity of a
warrant to an officer who obtains and executes a warrant.
29
Kentucky Farm Bureau Mutual Insurance Co. v. Gray,
Ky.App., 814 S.W.2d 928, 930 (1991).
30
Much of the following discussion was adapted from Judge
Miller’s unpublished opinion in General Motors Acceptance Corp.
v. Hullette, 1993-CA-000499-MR.
-19-
may be helpful to distinguish three: sovereign immunity relating
to the state and its subdivisions (e.g. counties); governmental
immunity relating to municipal corporations (e.g. local
government entities); and official immunity relating to certain
persons employed by either.
These broad classifications are
often used interchangeably, but a judicious differentiation may
be of some help in determining tort liability in the face of an
immunity defense.
All of these immunities are part of our
English heritage; none is without limitation.31
Sovereign immunity, which is constitutionally
founded,32 has been applied frequently in this jurisdiction.33
This immunity applies to both intentional and unintentional
torts,34
and can only be expressly waived by the Legislature.35
Governmental immunity relating to municipalities is a
product of the common law.
Municipal corporations enjoy no
constitutional protection from tort liability.36
The common law
immunity afforded cities was judicially abolished in this
31
57 Am.Jur.2d Municipal, Etc., Tort Liability §1 et seq.
(1988); 63 Am.Jur.2d Public Officers & Employees §§358-406
(1984).
32
Ky. Const. §§ 230-231.
33
See Malone, supra; Withers, supra; and Cullinan v.
Jefferson County, Ky., 418 S.W.2d 407 (1967).
34
See Calvert Investments v. Sewer District, Ky., 805 S.W.2d
133 (1991).
35
Withers, supra.
36
See Bolden v. City of Covington, Ky., 803 S.W.2d 577
(1991).
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Commonwealth in the case of Haney v. City of Lexington.37
However, there remain certain functions of a city for which a
city is not accountable in tort, not because of immunity, but
because, under the law, the acts are not considered actionable in
tort--these acts are quasi-legislative or quasi-judicial in
nature.
The rationale underlying this exception needs no
explanation.38
Finally, turning to official immunity, the policy of
early common law accorded public servants no immunity.
While
they were once accountable for their own torts, the policy has
shifted.
Now, the prevailing view is that a public official may
enjoy qualified immunity.
A distinction is drawn as to whether
the duty performed by the official is ministerial as opposed to
discretionary.39
For the former, liability may be imposed; for
the latter, it may not.
The obvious basis for the distinction is
that to not afford immunity for discretionary acts would have a
chilling and detrimental effect on the free operation of
government, while, on the other hand, to grant immunity for
ministerial duties would deny recompense to a private citizen who
suffers loss when an official acts negligently.
37
Ky., 386 S.W.2d 738 (1964).
38
See Bolden, supra.
39
See Thompson v. Huecker, Ky.App., 559 S.W.2d 488 (1977);
Restatement (Second) of Torts §895D (1977); 63 Am.Jur.2d Public
Officers & Employees §358 et seq. (1984). Cf. Moore v. Babb,
Ky., 343 S.W.2d 373 (1960)(citing CR 9.01).
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The case at hand involves neither sovereign immunity
nor governmental immunity, but rather official immunity.
A
public official is not necessarily cloaked with any immunity that
his governmental employer may enjoy.
His immunity, if any, stems
not from his employer’s status, but rather from the nature of the
duty he performs.
Whether a defendant acts in his personal or
individual capacity, as opposed to his official capacity, is a
matter of defense and, or course, relevant in determining
liability.
Apparently, confusion has arisen in this area because
of the holdings in federal civil rights actions.40
In cases
arising under §1983, judgment against a public servant “in his
official capacity” may result in liability of the governmental
entity he represents, provided that entity has notice and
opportunity to defend the action.41
We think the rule in these
civil rights cases unique to such cases and not necessarily
dispositive of ordinary tort claims against public servants.
Returning to the case sub judice, since Officer Artis
was properly sued for alleged acts and omissions growing out of
his official duty, the question becomes whether said acts and
omissions occurred in the performance of a ministerial or
40
Federal Civil Rights Act 1871; 42 U.S.C. §1983.
41
See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87
L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873,
83 L.Ed.2d 878 (1985); Monell v. Department of Social Services of
City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978).
-22-
discretionary duty.
In her first CR 59 motion, Vance argued that
the trial court had failed to properly apply the test for
discretionary duties versus ministerial duties.
We believe Judge
Park was correct in Thompson, when he so elegantly wrote “[t]here
can be no single test for determining whether a public officer is
immune from tort liability because he is engaged in the exercise
of a discretionary function.”
Consideration must also be given
to “the degree of immunity or privilege afforded the officer.
If
the officer is entitled to absolute immunity, he is not liable so
long as he acts within the general scope of his authority.
If
the officer is entitled to only a limited or qualified immunity,
the officer is not liable if he acts in good faith.”42
As Judge
Park did, we also find guidance from comment e. to §895D of the
Restatement (Second) of Torts, wherein it is stated that “[t]he
cases have usually gone on the assumption that if the function in
which the officer is engaged is characterized as discretionary,
an immunity for tort liability applies and he is not liable.
problem is not so simple. . . . ‘[I]mmunity]’
The
may be treated as
meaning that the officer is not liable if he made his
determination and took the action that harmed the other party in
good faith, in an honest effort to do what he thought the
exigencies before him required. . . . ‘[I]mmunity’ may mean that
the officer is not liable if his determination to take or not to
take the action was reasonable.
42
In a tort action against him,
Thompson, supra at 496.
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there is thus another issue of fact--the reasonableness of his
decision, if he is acting in good faith.”
Thus, from the above discussion, it is this Court’s
belief that sovereign immunity does not extend to Officer Artis
and that the question of qualified immunity must be addressed.
Unfortunately, we find little guidance from Kentucky case law on
this question.
The most recent case of significance on this
issue is McCollum.43
Vance attempts to explain why McCollum is
not applicable herein, but we believe she is incorrect in her
argument that “qualified immunity does not extend to protect
[Officer] Artis [because] [ ] qualified immunity for prosecutors
is based on their position as [a] quasi-judicial officer.”
guidance McCollum
The
provides in applying the doctrine of qualified
immunity is helpful in deciding the case sub judice.
Since
McCollum holds that prosecutorial immunity for a prosecutor
functioning as an “investigator” “is limited to qualified
immunity[,]” it follows that a police officer functioning as an
investigator would also be subject to qualified immunity.
In
McCollum our Supreme Court stated, “[t]he point is a prosecutor
possessing qualified immunity may not be held liable for a
mistake or negligence.
There must be a showing of knowing
misconduct or reckless disregard.”
In the case sub judice, we fail to see where Vance has
alleged a factual basis to support a finding by a jury that
43
Supra at n.15.
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Officer Artis’ acts or omissions constituted “knowing misconduct
or reckless disregard.”
At worst, Officer Artis’ failure to
disclose Vance’s claimed security interest in the vehicle or to
investigate that claim further constituted a “mistake or
negligence.”
Other than to claim that Officer Artis “apparently
[became] upset with [ ] Vance’s refusal to disclose the
whereabouts of the vehicle [whereby he] resorted to obtaining a
warrant [ ] despite the facts revealed in his investigation[,]”
Vance has not alleged any facts that would support this mere
speculation.
Accordingly, under the doctrine of qualified
immunity Officer Artis is immune from Vance’s claims since she
has failed to allege a material fact to support her claim that
Officer Artis’ acts or omissions constituted knowing misconduct
or reckless disregard for her rights.
The orders of the Jefferson Circuit Court dismissing
Vance’s claims are affirmed.
HUDDLESTON, JUDGE, CONCURS.
SCHRODER, JUDGE, CONCURS IN RESULT ONLY.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Bruce Garrett Anderson
Louisville, KY
David Leightty
Louisville, KY
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