Hight v. Williams

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

TINA HIGHT PLAINTIFF

v. Case No. 1:23-cv-1063

DEPUTY BRIAN WILLIAMS;

COLUMBIA COUNTY SHERIFF’S DEPARTMENT;

and MIKE LOE, SHERIFF OF COLUMBIA COUNTY DEFENDANTS

MEMORANDUM OPINION

Before the Court is Defendants’ Motion for Summary Judgment. ECF No. 25. Plaintiff

has responded to the motion. ECF No. 29. Defendants have filed a reply. ECF No. 32. The Court

finds this matter ripe for consideration.

I. BACKGROUND

On August 30, 2022, Columbia County deputies Brian Williams and Kevin Glass were

dispatched to Plaintiff’s residence in response to her call reporting domestic violence. There is a

video recording of the encounter, which has been entered into evidence. ECF No. 28. Most of the

facts that follow are based on the Court’s observation of that video recording. When the deputies

arrived at the scene at approximately 4:00 a.m., a few dogs could be seen on the inside of the glass

door. Deputy Glass knocked on the door while Deputy Williams, facing the house with a

flashlight, was positioned in the front yard some distance away from the front door.

Plaintiff came to the door, and either Plaintiff or Deputy Glass opened the door. As the door

opened, two dogs escaped from the house into the yard in front of Deputy Williams. Plaintiff and

Deputy Glass were directly in front of the door on the front porch, and Plaintiff attempted to herd

the dogs back into the house. Deputy Williams, yelling profanities and warning Plaintiff to control

her dogs, fired his gun in the air as a warning to the dogs. ECF No. 27-1, at ¶ 4. Some of the dogs

retreated into the house, but at least one of the dogs began to run toward Deputy Williams on what

appears to be a stone or concrete walkway. He then fired another shot at the dog while Deputy

Glass and Plaintiff were still standing on the front porch near the front door and behind the dog.

Immediately after this gun shot, Plaintiff began to scream that she had been shot. Plaintiff grabbed

one or both of her legs and fell onto the ground. The medical records show that a bullet fragment

was found in her right lower leg and there was a soft tissue wound on her left thigh. ECF No. 30-

1, at 6.

On June 20, 2023, Plaintiff filed her complaint in this matter, generally alleging that her

constitutional rights were violated when Plaintiff Deputy Williams shot her. In her amended

complaint, Plaintiff alleges the following specific claims related to the shooting: (1) a state law

negligence claim against Sheriff Mike Loe; (2) a state law negligence claim against Deputy Brian

Williams; (3) an excessive force claim against Deputy Williams; (4) a 42 U.S.C. § 1983 claim

“related to the force of [Deputy] Williams”;1 and (5) a § 1983 claim against Columbia County

Sheriff’s Department. ECF No. 16. Defendants argue that they are entitled to summary judgment

on all claims. Plaintiff disagrees.

II. LEGAL STANDARD

“Summary judgment is proper if, after viewing the evidence and drawing all reasonable

inferences in the light most favorable to the nonmovant, no genuine issue of material fact exists

and the movant is entitled to judgment as a matter of law.” Ryno v. City of Waynesville, 58 F.4th

1 The complaint in this case is not a model of clarity, and the Court struggles to distinguish claim three from claim

four. The language in claim three suggests that perhaps the claim should be interpreted as a state law tort claim against

Defendant Williams, given that Plaintiff states she seeks “compensation” for this claim “in excess of the amount

required for federal diversity jurisdiction.” ECF No. 16, at pp. 3-4.

995, 1004 (8th Cir. 2022) (quoting Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1033

(8th Cir. 2007)). A fact is material only when its resolution affects the outcome of the case.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence

is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.

“The party moving for summary judgment generally has the burden of demonstrating the

absence of any genuine issues of material fact.” Zimmerli v. City of Kansas City, Mo., 996 F.3d

857, 863 (8th Cir. 2021). A party opposing a properly supported motion for summary judgment

may not rest upon mere allegations or denials but must set forth specific facts showing that there

is a genuine issue for trial. Anderson, 477 U.S. at 256.

III. DISCUSSION

At the core of this case is Plaintiff’s § 1983 claim of excessive force against Defendant

Deputy Brian Williams in his individual capacity2 and Defendant Williams’s assertion that he is

entitled to qualified immunity on this claim. First, the Court will analyze the excessive force claim

and then move to Plaintiff’s remaining claims.

A. Qualified Immunity

In his summary judgment motion, Defendant Williams argues that he is entitled to

summary judgment based on the application of qualified immunity for two separate reasons. First,

Defendant Williams argues that the complained-of force—the shooting of Plaintiff by Defendant

Williams—was accidental and thus does not violate the Fourth Amendment. Second, Defendant

2 Plaintiff states that she is also suing Sheriff Mike Loe in his individual capacity. However, the only claim in the amended

complaint against Sheriff Mike Loe is titled “Count 1 – Direct and Vicarious Liability for Defendant Mike Loe as Sheriff of

the Columbia County Sheriff’s Department.” ECF No. 16, at p. 3. The claims that reference § 1983 are made against Deputy

Brian Williams and do not mention Sheriff Mike Loe. Further, Sheriff Mike Loe was not present at Plaintiff’s residence on

August 30, 2022. Thus, it does not appear that Plaintiff alleges a § 1983 claim against Sheriff Mike Loe in his individual

capacity.

Williams argues that, should the Court find that his conduct violated Plaintiff’s constitutional right,

this right—to be free from Defendant Williams’s particular use of force—was not clearly

established.

Title 42 U.S.C. § 1983 directs that persons acting under color of law who deprive

individuals of their constitutional rights shall be liable to the injured party. However, “[q]ualified

immunity provides government officials some protection against suit for civil damages.” Dundon

v. Kirchmeier, 85 4th 1250, 1255 (8th Cir. 2023) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “In a § 1983 action, an officer is entitled to qualified immunity unless: (1) the officer’s

conduct violated a constitutional right, and (2) that right was clearly established.” Ching ex rel.

Jordan v. City of Minneapolis, 73 F.4th 617, 620 (8th Cir. 2023). “Put simply, qualified immunity

protects all but the plainly incompetent or those who knowingly violate the law.” Mullenix v.

Luna, 577 U.S. 7, 12 (2015). The Court has “discretion to decide which of the two prongs of

qualified-immunity analysis to tackle first.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The

Supreme Court cautions that lower “courts should think hard, and then think hard again, before

deciding a constitutional question that need not be resolved.” Camreta v. Greene, 563 U.S. 692,

707 (2011).

“For a right to be clearly established, ‘contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates that right.’” Irish v.

McNamara, 108 F.4th 715, 718 (8th Cir. 2024) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). “Specificity is especially important in the Fourth Amendment context.” City of

Escondido v. Emmons, 586 U.S. 38, 42 (2019). In the instant case, the Court must grant Defendant

Williams qualified immunity unless Plaintiff identifies “controlling authority or a robust consensus

of persuasive authority [that] put[s] the constitutional question ‘beyond debate.’” Dundon v.

Kirchmeier, 85 F.4th 1250, 1255 (8th Cir. 2023) (quoting Ashcroft, 563 U.S. at 741-42).

The Fourth Amendment prohibits unreasonable searches and seizures by government

actors. The threshold question in the instant case is whether Plaintiff was seized within the

meaning of the Fourth Amendment. Plaintiff argues that Defendant Williams’s shooting of her

was “unquestionably a seizure” because Defendant Williams willfully shot at the dog and hit

Plaintiff. ECF No. 30, p. 10. Defendant Williams argues that he did not subjectively intend to

shoot or restrain Plaintiff, and thus no seizure occurred under the Fourth Amendment. The Court

is not convinced that, under the circumstances of this case, the law is as clear as either side so

succinctly states. In fact, the Eighth Circuit has recently held that the law is unclear as to whether

subjective or objective intent of officers should be considered in Fourth Amendment unintended-

target cases, such as the instant case. Irish, 108 F.4th at 721.

In Brower v. County of Inyo, the Supreme Court held that a Fourth Amendment seizure

“requires an intentional acquisition of physical control.” 489 U.S. 593, 596 (1989). The Court

explained that a seizure must involve a “willful” detention or taking, a conclusion that “is implicit

in the word seizure,” which can hardly be applied to an unknowing act.” Id. So long as the

officer’s conduct is “willful,” a “seizure occurs even when an unintended person or thing is the

object of the detention.” Id. at 599 (emphasis added). The Supreme Court noted that the Fourth

Amendment targets the “misuse of power, not the accidental effects of otherwise lawful

government conduct.” Id. at 596. The Supreme Court determined that the complaint in Brower

alleged facts sufficient to constitute a seizure—the facts being that the police officers meant for

the suspect to be stopped by a roadblock, and he was so stopped when he collided with it. Id. at

598-99. “While the Court’s language in Brower alludes to an officer’s subjective state of mind by

focusing on whether the seizure was ‘willful ‘ and ‘knowing,’ the Court also rejected the officers’

argument that there was no seizure because they specifically intended only to induce the suspect

to stop voluntarily when he saw the roadblock.” Gardner v. Bd. of Police Comm’rs, 641 F.3d 947,

951-52 (8th Ci. 2011) (citing Brower, 489 U.S. at 598).

In 2007, the Supreme Court decided Brendlin v. California, 551 U.S. 249, 254 (2007), in

which it held that a Fourth Amendment seizure occurs when an officer, “by means of physical

force or show of authority, terminates or restrains [an individual’s] freedom of movement, through

means intentionally applied.” (internal quotations and citations omitted). The Supreme Court

explained that the “intent that counts under the Fourth Amendment is the ‘intent [that] has been

conveyed to the person confronted.” Brendlin, 551 U.S. at 260-61 (quoting Michigan v.

Chesternut, 486 U.S. 567, 575 n. 7 (1988)).

Several courts of appeals, at least pre-Brendlin, have held that “police do not effect a

seizure when they accidentally shoot a bystander who is not the intended target of a police action.”

Gardner, 641 F.3d at 952 (collecting cases). Language in these cases “impl[y] that an officer’s

subjective state of mind [is] relevant . . . in determining whether a seizure occurred.” Id.; see also

Moore v. Indehar, 514 F.3d 756, 760 (8th Cir. 2008) (explaining that in an unintended-target case,

“the question . . . [is] one of intent,” meaning the plaintiff “must show that [the officer] intended

to seize [him] through the means of firing his weapon at [him]” (emphasis added)).

In 2011, in Gardner, and again in 2024, in Irish, the Eighth Circuit Court of Appeals noted

that “Brendlin focused on ‘objective intent’ but . . . [did not] ‘disavow statements in Brower that

led lower courts and commentators to focus at some level on the subjective intent of the officers.’”

Irish, 108 F.4th at 719 (quoting Gardner v. Bd. of Police Comm’rs, 641 F.3d 947, 952-53 (8th Cir.

2011)). Also, in Gardner, which is a post-Brendlin opinion, the Eighth Circuit observed that “the

occurrence of a seizure depend[ed] on an officer’s subjective state of mind.” Gardner, 641 F.3d

at 953 (citing Moore v. Indehar, 514 F.3d at 760-61). The case was remanded to the district court

to decide whether a jury could find that the officer “subjectively intended to effect a seizure . . . by

firing his weapon.” Id.

After Gardner was decided by the Eighth Circuit Court of Appeals, the Supreme Court

decided Torres, which held that police had seized a suspect “for the instant that the bullets struck

her” even though she temporarily eluded arrest afterward. Torres v. Madrid, 592 U.S. 306, 318

(2021). In Torres, which did not deal with the issue of accidental force, the Supreme Court noted

that “the appropriate inquiry is whether the challenged conduct objectively manifests an intent to

restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment

context.” 592 U.S. at 317. (citing Nieves v. Bartlett, 587 U.S. 391, 403 (2019)). The Supreme

Court, by using the term “rarely,” left open the possibility that an officer’s subjective intent could

be relevant in Fourth Amendment excessive force cases under specific circumstances. This

“qualified language is consistent with the [Supreme] Court’s repeated observation that officers’

subjective intent ‘is relevant to an assessment of the Fourth Amendment implications of police

conduct’ insofar as ‘that intent has been conveyed to the person confronted.’” Irish, 108 F.4th at

719 (quoting Chesternut, 486 U.S. at 575 n. 7); cf. Whren v. United States, 517 U.S. 806, 813

(1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment

analysis.” (emphasis added)). Although Torres, like Brendlin, focused on “objective intent,”

Torres did not “disavow the Supreme Court’s prior statements or end any ‘debate’ on subjective

intent’s role in whether a seizure occurred.” Irish, 108 F.4th at 720 (citing Gardner, 641 F.3d at

952-53.

Back to the instant case, it is undisputed that Defendant Williams was firing his weapon at

the dog, and the bullet ended up striking Plaintiff. Given the uncertainty as to whether subjective

or objective intent should be considered here, the Court “cannot say that it was ‘sufficiently clear

that every reasonable official [in Defendant Williams’s shoes] would understand’ that he acted

unlawfully—or even within the scope of the Fourth Amendment.’” Id. (quoting District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018)). Stated differently, Eighth Circuit precedent3 requires

the court to find that it was not clearly established as of August 30, 2022, that an officer in Arkansas

could seize Plaintiff by shooting her without subjectively intending to do so. See id. Because

Plaintiff has not produced evidence, or even alleged, that Defendant Williams subjectively

intended to seize her, the Court concludes that Defendant Williams is entitled to qualified

immunity.

B. Columbia County Sheriff’s Department

Defendants argue that Columbia County Sheriff’s Department is not a proper defendant in

this case and should be dismissed. Plaintiff does not respond to this argument in her brief. As a

department of local government, the Columbia County Sheriff’s Department is not a distinct

juridical entity that can be sued. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th

Cir. 1992) (noting that city police department and paramedic services “are not juridical entities

suable as such . . . [but] are simply departments or subdivisions of the City government”). Thus,

the Court finds that the Columbia County Sheriff’s Department should be dismissed without

prejudice.

C. Official Capacity Claims

Plaintiff sues both Defendants Sheriff Mike Loe and Brian Williams in their official

capacities. “A suit against a public employee in his or her official capacity is merely a suit against

3 In Irish, the Eighth Circuit Court of Appeals held “that it was not clearly established as of March 2022 that an officer

in Minnesota could seize a fellow officer with a K9 without subjectively intending to do so.” 108 F.4th at 721.

the public employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).

Here, the suit is against Columbia County.

“A political subdivision may not generally be held vicariously liable under section 1983

for the unconstitutional acts of its employes.” Id. (citing Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 694 (8th Cir. 1978)). “A political subdivision may be held liable for the unconstitutional acts

of its official or employees when those acts implement or execute an unconstitutional policy or

custom of the subdivision.” Id.

Defendants argue that Plaintiff has not presented any evidence showing that she was

injured as a result of an unconstitutional Columbia County policy or custom. In her amended

complaint, Plaintiff alleges that the “Columbia County Sheriff’s Department had a duty to properly

train, supervise, and discipline their employees and agents” and that the “Columbia County

Sheriff’s Department breached that duty.” ECF No. 16, at ¶ ¶ 49-50. However, Plaintiff has

presented no proof in support of this claim and, in her brief, ignores Defendants’ argument that the

official capacity claims should be dismissed.

Accordingly, the Court agrees with Defendants’ assertion that Plaintiff has presented no

evidence that would indicate liability on the part of Columbia County. Thus, the Court finds that

summary judgment on all official capacity claims is proper.

D. State law Claims

Plaintiff brings state law negligence claims against Defendants Loe and Williams. Under

28 U.S.C. § 1367(c), a district court may decline to exercise supplemental jurisdiction over state

law claims if the district court has dismissed all claims over which it had original jurisdiction.

Mountain Home Flight Serv., Inc. v. Baxter Cnty., Ark., 758 F.3d 1038, 1045 (8th Cir. 2014). Here,

the Court finds that the claims over which it had original jurisdiction, the § 1983 claims, should be

dismissed. Thus, the Court declines to exercise its supplemental jurisdiction over the remaining

state law claims.

IV. CONCLUSION

For the reasons stated above, the Court finds that Defendants’ Motion for Summary

Judgment (ECF No. 25) should be and hereby is GRANTED. Plaintiff’s § 1983 individual

capacity claim against Defendant Williams is DISMISSED WITH PREJUDICE. Plaintiff’s

§ 1983 official capacity claims against Defendants Brian Williams and Mike Loe are DISMISSED

WITH PREJUDICE. Plaintiff’s § 1983 claim against Columbia County Sheriff’s Department is

DISMISSED WITHOUT PREJUDICE. Further, the Court declines to exercise its supplemental

jurisdiction over the remaining state law claims, and these claims are also DISMISSED

WITHOUT PREJUDICE. A judgment of even date shall issue.

IT IS SO ORDERED, this 27th day of August, 2024.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge