# Hight v. Williams

> District Court, W.D. Arkansas · August 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10633249

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** August 27, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10633249

## How later opinions describe it (automated extraction)

- 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”
- 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)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10633249. Public record. Not legal advice.