Cortezz Dickerson v. William Bower

RENDERED: FEBRUARY 21, 2025; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2024-CA-0132-MR

CORTEZZ DICKERSON AND

MACKENZIE KRAPS APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE MITCH PERRY, JUDGE

ACTION NO. 20-CI-004862

WILLIAM BOWER; BEAU

GADEGAARD; COLE GIBSON; JOEL

CASSE; AND JOSEPH DOUGHERTY APPELLEES

OPINION

AFFIRMING

** ** ** ** **

BEFORE: ACREE, L. JONES, AND MCNEILL, JUDGES.

ACREE, JUDGE: Appellants Cortezz Dickerson and Mackenzie Kraps appeal the

Jefferson Circuit Court’s January 18, 2024, Opinion and Order finding Appellees

entitled to qualified official immunity relative to certain of Appellants’ tort claims

and granting summary judgment to Appellees on Appellants’ claim of malicious

prosecution. We affirm as to all claims.

BACKGROUND

As the trial court alluded in its Opinion and Order, this matter stems

from a period of civil unrest in downtown Louisville in the summer of 2020. On

the night in question, Appellants participated in a non-permitted, informal “caravan

protest.” They were driving separate vehicles. Dickerson was driving a black

Jeep. Kraps was driving a silver Toyota Highlander.

As police set up roadblocks and began to clear the area, Dickerson

and Kraps were among a procession of vehicles attempting to cut through a bank

parking lot to exit onto Liberty Street. Kraps was positioned ahead of Dickerson in

a line of vehicles attempting to exit.

Appellees Beau Gadegaard and Joel Casse, officers with Louisville

Metro Police Department (LMPD), were operating an LMPD BearCat tactical

armored vehicle. Officer Gadegaard was driving. The officers received a radio

command to intercept a black Jeep seen in a bank parking lot. LMPD had

circulated a report of men hanging out of a black Jeep brandishing assault

weapons. It would turn out that Dickerson’s black Jeep was not the black Jeep in

question.

Officers Gadegaard and Casse approached the parking lot on Liberty

Street with emergency lights activated and stopped in front of the lot’s exit to

block it. Dickerson’s black Jeep was second in line behind Kraps’ vehicle. He

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broke from the line of cars to exit by way of the entrance lane. Officer Casse

urged Officer Gadegaard, “Don’t let that Jeep get past you,” and repeatedly told

him to “pull up” to cut off Dickerson. Dickerson jumped a curb and drove through

bushes trying to exit as the BearCat pulled forward; Officer Casse then said, “Hit

it.” The BearCat and the Jeep then collided at a relatively low speed.

Despite the collision, Dickerson did not stop. His vehicle continued

through bushes and struck the side of a building. Dickerson accelerated, drove

around two cars, and proceeded down Liberty Street. When he encountered a

police roadblock, Dickerson drove onto the sidewalk, nearly striking a fleeing

pedestrian. But the sidewalk was blocked by a stone fireplace in front of a

restaurant, and Dickerson finally brought the Jeep to a stop there.

This all took place quickly amid chaos late at night. Approximately

seven seconds elapsed from the moment the BearCat came to a complete stop in

front of the exit lane and the moment the BearCat collided with the Jeep.

Approximately thirteen seconds elapsed from the moment of that collision and the

moment the Jeep came to a stop on the sidewalk. After the Jeep stopped, the

BearCat blocked it in, and Dickerson was arrested without incident.

When this sequence of events began, Kraps occupied the first car in

the exit lane. Appellees Joseph Dougherty, William Bower, and Cole Gibson, also

officers with the LMPD, were already on the scene in an unmarked police car, a

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silver Chevy Impala. The Impala had come to a stop on Liberty Street several

seconds earlier some distance short of the exit lane. The officers were exiting the

Impala and approaching the exit lane on foot when the BearCat arrived. After the

BearCat collided with Dickerson’s Jeep, both the Jeep and the BearCat proceeded

down the street, and Officers Dougherty, Bower, and Gibson pursued them on foot.

At first, Kraps remained stationary with her vehicle, but not for long.

Although video evidence provides a relatively clear account of these

events, Kraps’ precise movement becomes more difficult to track. As Officers

Dougherty, Bower, and Gibson proceeded after the Jeep and BearCat, several cars

sped down the street past the parked Impala, which had an open passenger door.

Video evidence fails to capture the movement of Kraps’ vehicle because it focused

on unrelated fleeing cars for several seconds. When the camera operator brought

the exit lane back into view approximately fifteen seconds later, Kraps’ vehicle

was no longer in the exit lane. Despite some obscuring by a tree, the vehicle can

be seen driving toward the scene of Dickerson’s arrest.

Officer Dougherty, who had initially proceeded after the Jeep and

BearCat on foot, can be seen returning to the Impala, closing the passenger door,

getting behind the wheel, and driving closer to the arrest scene. His body cam

footage begins as he is returning to the Impala but does not capture what

immediately preceded his return. However, as he gets in the car, Kraps’ silver

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Toyota Highlander is visible, already stopped near the arrest scene. Officer

Gadegaard’s body cam footage also shows Kraps’ vehicle already at the scene.

Precisely what transpired between Kraps and the officers is a matter

of considerable dispute. What is uncontroverted is Kraps’ decision to drive closer

to the scene of the officers’ guns-drawn arrest of Dickerson and stop there. Twice

in the span of approximately a minute, Kraps can be heard on video exclaiming,

“What the fuck?” It is unclear from the video what prompted Kraps’ first

exclamation, but body cam footage captured Kraps’ second exclamation as a

response to a police officer’s instruction to “Go on, back up!” The officer then

directed her to “Go the other way!” Kraps did not obey the officer’s instructions.

As Kraps was refusing to go the other way in her vehicle, an officer is

heard directing them as follows: “Get out of the car. You want to play games?

Get out of the car. Get out of the car!” Kraps’ passenger got out of the car and

was detained without incident. Officer Bower can be seen struggling to remove

Kraps from the car, before pulling her out and pinning her to the ground to

effectuate her arrest. Appellees concede Officer Bower struck Kraps with his

baton in the effort to remove her. However, they testified that Kraps nearly struck

Officer Gibson with her vehicle as she drove toward the scene of Dickerson’s

arrest, that she refused to move back when ordered, and that she kicked Officer

Bower “below the belt” as he attempted to remove her from her vehicle.

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Dickerson’s arrest citation indicates he was arrested for violations of

KRS1 508.060 (first degree wanton endangerment), KRS 520.095 (first degree

fleeing or evading police), KRS 512.020 (first degree criminal mischief), and KRS

189.290 (reckless driving). Kraps’ arrest citation indicates she was arrested for

violations of KRS 508.060 (first degree wanton endangerment), KRS 508.025

(third degree assault), KRS 520.090 (resisting arrest), and KRS 304.39-117 (failure

to produce insurance card).2 Eventually, these charges were dropped, and

Appellants elected to bring civil suits against the police officers involved and

Louisville Metro Government for various physical torts and malicious prosecution.

Appellants’ original complaint included defendants other than those

named here as Appellees. Those former defendants and the claims against them,

and claims against Appellees in their official capacity, were addressed in a final

order from which no appeal was taken. What remained were the various physical

tort claims and the claims for malicious prosecution. Appellees sought to dispense

1

Kentucky Revised Statutes.

2

In briefing this Court, both parties contend Kraps was arrested for violating KRS 519.020,

obstructing governmental operations. Appellants argue the officers lacked probable cause to arrest

Kraps on that charge. However, Kraps’ arrest citation does not reflect that she was arrested for

obstructing governmental operations. We cannot glean why they believe this to be an issue based

on those parts of the record the parties cite. Therefore, we do not address it further.

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with all remaining claims by filing a motion for summary judgment pursuant to

CR3 56.

As to the various physical tort claims, the trial court took proof and

entered its Opinion and Order memorializing the trial court’s application of the law

to the facts and concluded Appellees were entitled to qualified official immunity;

those claims were dismissed on that basis.

The Opinion and Order also granted summary judgment in favor of

Appellees on Appellants’ malicious prosecution claims because they could not

establish a lack of probable cause.

We review the disposition of those claims under the proper standards.

DISPOSITIVE ORDER FINDING QUALIFIED OFFICIAL IMMUNITY

AND THE PROPER STANDARD OF REVIEW

Appellees asserted in their answer to the complaint the affirmative

defense of qualified official immunity. As is quite common, Appellees presented

the defense to the trial court for resolution by filing a motion for summary

judgment. That vehicle is perfectly appropriate when, very early in the case, it is

established that there is no genuine dispute about any fact that is material to

deciding the immunity issue. But that is a rare case indeed.

3

Kentucky Rules of Civil Procedure.

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The instant case is typical of those involving the qualified official

immunity issue. The lawsuit was filed in August 2020 and did not conclude in the

trial court until January 2024. Appellees’ right to immunity was eventually

recognized, but it did not save them from the burdens of defending the action for

those forty-one months of “voluminous discovery[.]” (Opinion and Order, Record

(R.) 284.) A contributing factor in such a delay as this appears to be a

misunderstanding by some members of the bar that CR 56 is the preferred, perhaps

sole, vehicle for determining qualified official immunity. As explained below, our

Supreme Court has corrected that fallacy.

The fundamental purpose of the immunity defense is to dispense with

the case by motion at the “earliest opportunity.” Rodgers v. Commonwealth, 285

S.W.3d 740, 755 (Ky. 2009) (“While the trial courts need not address the issue sua

sponte, once the defendant raises the immunity bar by motion, the court must

proceed expeditiously.”). The Supreme Court expressly rejected the idea that

“discovery must be completed and all disputed facts must be resolved by a jury

before a trial court can rule on the issue of qualified official immunity.” Meinhart

v. Louisville Metro Gov’t, 627 S.W.3d 824, 829 (Ky. 2021). The problem is

obvious. If a defendant intends to assert the immunity defense by motion for

summary judgment, a plaintiff’s identification of a genuine issue regarding any

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material fact will defeat the immunity claim at that stage and force a trial. It will

also “eviscerate the fundamental purposes of immunity.” Id.

The fundamental purpose of the defense is “immunity from suit, that

is, from the burdens of defending the action, not merely just an immunity from

liability.” Rowan Cnty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (citing Mitchell

v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)). But the

Supreme Court only recently acknowledged that “trial courts must make certain

factual findings when deciding a party’s entitlement to qualified official

immunity[.]” Meinhart, 627 S.W.3d at 829. Meinhart thus implies that, when

reviewing a claim of immunity, a trial court is not bound by CR 56 strictures.

Perhaps that was not clear enough, for Appellees still relied on CR 56

to present their immunity claim two years after Meinhart was rendered. If lack of

clarity was a concern, a more recent Supreme Court opinion eliminates the doubt.

In Sheehy v. Volentine, the Supreme Court said:

The very fact that our law requires a good faith element to

discretionary acts prior to granting qualified immunity

implies that someone will review those actions if they are

the subject of a lawsuit. . . . [I]t is not a jury question . . . .

[I]t is manifestly one for the trial court.

___ S.W.3d ____, No. 2023-SC-0129-DG, 2024 WL 5180785, *7 (Ky. Dec. 19,

2024) (finality Jan. 9, 2025). And if any doubt still remains about the scope of the

trial court’s review as including factfinding, the Supreme Court further said:

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In this capacity as a factfinder, the trial court must have

the concomitant authority to judge credibility and give

weight to the evidence. Unless a factual conclusion is

clearly erroneous, neither the Court of Appeals nor this

Court has authority to set those conclusions aside.

Id. at *10.

Consequently, when a defendant moves to dispense with a claim

based on qualified official immunity, the court should not restrict its analysis to the

summary judgment standard of CR 56. Because factfinding is often necessary in

deciding the immunity question, a different rule applies, both for the trial court and

the reviewing court on appeal. “[A]n issue of weight and credibility is presented

for the factfinder, subject only to the clear error review of appellate courts under

CR 52.01.” Sheehy, ___S.W.3d ____, 2024 WL 5180785, at *6 (footnote

omitted). This rule, not CR 56, applies under such circumstances.

The propriety of applying CR 52.01 principles to the question of

qualified official immunity does not mean a full-blown bench trial is required. The

trial court must exercise its considerable discretion to circumscribe the proceeding

and focus solely on the facts in dispute that bear directly on the immunity question

so as to allow an immediate appeal if denied. Breathitt Cnty. Bd. of Educ. v.

Prater, 292 S.W.3d 883, 887 (Ky. 2009).

The party seeking immunity has the important role of honing the

issue, of specifically identifying the limited and narrow factual disputes in its

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motion. Although “a modicum of discovery may be necessary before the court can

reasonably make the determination[,]” Meinhart, 627 S.W.3d at 829-30, discovery

too should be finely limited until the immunity question is decided.

The distinction between applying CR 52.01 rather than CR 56 also has

significance for the trial court after the hearing. A trial court has never been

required to make findings of fact and conclusions of law when ruling on a motion

for summary judgment pursuant to CR 56. Toyota Motor Mfg., U.S.A., Inc. v.

Epperson, 945 S.W.2d 413, 414 n.1 (Ky. 1996) (citing Rhorer v. Rhorer’s Ex’r,

272 S.W.2d 801, 802 (Ky. 1954)). However, whenever a Kentucky trial court

determines an immunity question, it traditionally does provide more than CR 56

requires, often phrasing the order carefully to avoid the appearance of factfinding.

Meinhart and Sheehy change that. That case law now clearly does require

factfinding and explains very precisely how the trial court can better facilitate

appellate review when making those findings of fact.

Those findings should be complete enough to enable

adequate appellate review but must necessarily be limited

to the very narrow issues required to determine if

immunity is applicable, including the actor’s status as a

government official; the ministerial/discretionary

distinction; if the act was ministerial, was the actor

negligent; and, if the act was discretionary, was it done in

good faith and within the scope of the officer’s authority.

Meinhart, 627 S.W.3d at 830. And that leads this Court to the standard of review

for orders and judgments reached by application of CR 52.01.

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Although the trial court’s review of the claim of qualified immunity under CR 56

was not improper, any factfinding Appellants assert the trial court undertook was

permissible and reviewable on appeal under CR 52.

This Court will review a trial court’s factual findings regarding claims

of qualified official immunity for clear error. CR 52.01. A trial court’s factual

findings are not clearly erroneous if they are “supported by substantial evidence.

Substantial evidence is evidence that a reasonable mind would accept as adequate

to support a conclusion, or evidence that has sufficient probative value to induce

conviction in the minds of reasonable men.” Graham v. Secretary of State Michael

Adams, 684 S.W.3d 663, 675 (Ky. 2023) (cleaned up). Then, “once the material

facts are resolved, whether a particular defendant is protected by official immunity

is a question of law, which we review de novo.” Sloas, 201 S.W.3d at 475 (citation

omitted).

We apply that standard, not the summary judgment standard, to the

trial court’s Opinion and Order relative to the immunity claim to account for any

permissible factfinding that Appellants may perceive the trial court conducted.

Appellees were entitled to qualified immunity from the torts Appellants alleged

against them.

Notwithstanding the foregoing, Appellants argue the trial court “erred

in finding that no material question of fact existed,” thereby precluding summary

judgment. But Appellants’ arguments, perhaps instinctually, also address the trial

court’s allowance of more weight and credibility to certain evidence than others.

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That is, Appellants’ argument is primarily that the trial court relied too heavily on

“the officers’ version of events” as the basis of its factual findings, suggesting the

“camera footage” contradicted their testimony. Therefore, we can apply the

appropriate rule, CR 52.01, to determine the merit of Appellants’ arguments.

Appellees’ conduct was discretionary.

Appellants argue the officers were not pursuing an “investigation,

seizure, and arrest” involving discretionary acts but, in fact, “were responding to

the order of a senior officer to complete a task[,]” a ministerial function.

(Appellants’ Brief (Br.) at 12.) Presuming there was conflicting proof of the

discretionary-versus-ministerial-acts issue here, Meinhart and Sheehy allow the

trial court to choose which evidence to believe.

If, as Appellants argue, the videotape is the more weighty and

believable evidence, the Supreme Court provides specific guidance. “[W]hen a

discrepancy exists between the video and the in[-]person testimony, an issue of

weight and credibility is presented for the factfinder, subject only to the clear error

review of appellate courts under CR 52.01. This case is such a scenario.” Sheehy,

___ S.W.3d ____, 2024 WL 5180785, at *6 (footnote omitted). The Opinion and

Order reveals proper consideration was given all the evidence presented regardless

of its form.

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The Opinion and Order satisfies Meinhart’s factfinding requirements

of (1) completeness sufficient to enable appellate review and (2) confinement to

“the very narrow issues” of immunity. That first narrow issue was whether the

Appellees’ acts were discretionary or ministerial. We thoroughly examined the

record before applying the standard of CR 52.01 and found no clear error in the

trial court’s factfinding and no abuse of discretion in its application of the law to

conclude Appellees’ acts on the day in question were discretionary.

The Opinion and Order reveals the trial court’s awareness that “few

acts are ever purely discretionary or purely ministerial.” Haney v. Monsky, 311

S.W.3d 235, 240 (Ky. 2010). Clearly, the trial court’s “analysis look[ed] for the

dominant nature of the act.” Id. (emphasis omitted). We are also certain the trial

court knew the law applicable to the facts in this case. Whether the command to

intercept a particular vehicle was ministerial became irrelevant when Appellants

created intervening circumstances that superseded any prior characterization of the

nature of the officers’ duty.

“[T]he right to make an arrest or investigatory stop necessarily carries

with it the right to use some degree of physical coercion or threat thereof to affect

[sic] it.” Williams v. Commonwealth, 147 S.W.3d 1, 6 (Ky. 2004) (citing Graham

v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989)

(“right to make an arrest or investigatory stop necessarily carries with it the right to

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use some degree of physical coercion or threat thereof to effect it”)). An officer’s

“determination of the amount of force required to effect the investigatory stop or

arrest is likewise a discretionary act within the scope of a peace officer’s

authority.” Smith v. Norton Hosps., Inc., 488 S.W.3d 23, 31 (Ky. App. 2016). See

also Graham, 490 U.S. at 397, 109 S. Ct. at 1872 (“[P]olice officers are often

forced to make split-second judgments – in circumstances that are tense, uncertain,

and rapidly evolving – about the amount of force that is necessary in a particular

situation.”).

We examined the parts of the record Appellants identify as

contradicting those findings but failed to find proof enough to nullify the

substantial evidence upon which the decision is based. Even if some evidence

might weigh in favor of Appellants’ argument, the question always returns to

whether the trial court’s “[f]indings . . . ‘are supported by substantial evidence.’”

Strong v. Gary, 673 S.W.3d 77, 79-80 (Ky. App. 2023) (quoting Moore v. Asente,

110 S.W.3d 336, 354 (Ky. 2003)). In this case, they are, and they support the legal

conclusion that Appellees’ actions upon which Appellants base tort claims were

discretionary in nature for purposes of the immunity analysis.

Appellees conducted their duty in good faith.

Even when a police officer’s acts are found to be discretionary, he

may still be liable for his actions if his conduct is not in good faith. Yanero v.

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Davis, 65 S.W.3d 510, 522 (Ky. 2001) (Qualified official immunity “affords

protection from damages liability for good faith judgment calls made in a legally

uncertain environment.”). However, it is not the officer’s burden to show good

faith. “Once the officer or employee has shown prima facie that the act was

performed within the scope of his/her discretionary authority, the burden shifts to

the plaintiff to establish by direct or circumstantial evidence that the discretionary

act was not performed in good faith.” Yanero, 65 S.W.3d at 523. Appellants

failed to meet that burden.

Appellants particularize their assertions of bad faith relative to their

specific circumstances. Therefore, we distinguish their separate arguments,

starting with Dickerson’s claims of bad faith.

He attempts to show bad faith by arguing there were better ways of

conducting the stop of his vehicle than ramming him and it should be “left to a jury

to determine whether the evidence demonstrates a malicious intent to harm Mr.

Dickerson.” This argument is not well-taken and is expressly rejected by our

Supreme Court. Allowing a jury with “20/20 hindsight to second-guess the

exercise of a police officer’s discretionary professional duty . . . is no discretion at

all. There is considerable discretion inherent in law enforcement’s response to an

infinite array of situations implicating public safety on a daily basis. Appellants’

contention to the contrary is without merit.” Meinhart, 627 S.W.3d at 835.

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Furthermore, Dickerson’s own conduct proves the ramming was

necessary. The BearCat’s lights and siren did not stop Dickerson. The BearCat

was placed in front of Dickerson’s vehicle to block his exit, albeit with Kraps’

vehicle between them, and Dickerson did not stop. Dickerson drove over a curb

and through bushes and the BearCat specifically approached him, and yet he did

not stop. And even after the BearCat rammed his vehicle, Dickerson did not stop.

Nothing Appellants identify in this record provides the evidence

sufficient to carry their burden of showing Appellees’ conduct regarding Dickerson

was not in good faith. Appellees furnish no substantive argument as to why any of

his proposed alternatives should have been “expected” in the circumstances at

issue. Consistent with Meinhart’s 20/20 hindsight analysis, the Sixth Circuit Court

of Appeals put Appellants’ suggestions in perspective:

[W]e must avoid substituting our personal notions of

proper police procedure for the instantaneous decision of

the officer at the scene. We must never allow the

theoretical, sanitized world of our imagination to replace

the dangerous and complex world that policemen face

every day. What constitutes “reasonable” action may

seem quite different to someone facing a possible assailant

than to someone analyzing the question at leisure.

Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992).

We find no error or abuse of discretion in the trial court’s conclusion

that Appellees acted in good faith in their conduct with Appellant Dickerson. We

now turn to Appellant Kraps.

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Kraps claims the officers approached her because she was filming

Dickerson’s arrest. She claims the officers’ “plan to arrest [her] was done in bad

faith as retaliation for attempting to document their assault of [Dickerson].”

(Appellants’ Br. at 19.) She ties this argument to her malicious prosecution claim

(addressed below) and a lack of probable cause to arrest her. In that vein, Kraps

cites a malicious prosecution opinion, Massey v. McKinley, for the proposition that

bad faith, like “malice[,] may be inferred from a lack of probable cause.” 690

S.W.2d 131, 133 (Ky. App. 1985). We decline to find an equivalency here

because the separate analyses arise in completely different contexts. Additionally,

even “in a malicious prosecution . . . action, lack of probable cause alone cannot

support a legally sufficient inference [of] . . . an improper purpose. Independent

evidence of malice is required.” Seiller Waterman, LLC v. RLB Properties, Ltd.,

610 S.W.3d 188, 200 (Ky. 2020).

But this argument also fails because there is no evidence to support it.

If Kraps was video recording anything, such video is not in the record. Even

though Appellees have no proof to dispute Kraps’ unsubstantiated assertion she

was filming, she points to nothing supporting an inference that any officers were

aware she was filming at the time, much less the officers who arrested her.

That Kraps inserted herself in Dickerson’s arrest scene cannot be

disputed. Her struggle with the police and resistance to lawful instructions is

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followed by her forceful removal from her vehicle. No such struggle followed her

passenger’s obedience to instruction. And once the vehicle pursuit of Dickerson

ended, his obedience to instruction was not followed by any incident.

We find no error or abuse of discretion in the trial court’s conclusion

that Appellees acted in good faith in their conduct with Appellant Kraps. We now

turn to the summary judgment as to Appellants’ claims of malicious prosecution.

SUMMARY JUDGMENT FOR APPELLEES ON

MALICIOUS PROSECUTION CLAIM

Although the trial court has been afforded the latitude to address

claims of qualified official immunity pursuant to CR 52.01, and although such

proceedings are best conducted very soon after the plaintiff initiates suit with a

narrow focus on that alone, those are not the circumstances these Appellees

presented to this trial court. Enough time passed and discovery conducted for

Appellees to assert there were no genuine issues of fact and that they were entitled

to judgment as a matter of law as to the malicious prosecution claims. Under such

circumstances, it was appropriate to address all issues in one Opinion and Order.

Regarding Appellants’ claims of malicious prosecution, the trial court

applied the correct rule for testing the viability of Appellants’ malicious

prosecution claims – CR 56 – and we apply it on review.

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Review of malicious prosecution claim under CR 56.

On appellate review, this Court assesses “whether the trial court

correctly found that there were no genuine issues as to any material fact and that

the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft,

916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. Summary judgment “is only

proper where the movant shows that the adverse party could not prevail under any

circumstances.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480

(Ky. 1991). “Because summary judgments involve no fact finding, this Court

reviews them de novo, in the sense that we owe no deference to the conclusions of

the trial court.” Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).

Summary judgment as to the malicious prosecution claims is affirmed because

Appellants cannot establish a lack of probable cause to arrest them.

A cause of action against a police officer for malicious prosecution

requires proof the officer arrested the plaintiff despite a lack of probable cause – a

material fact of the claim. Seiller Waterman, 610 S.W.3d at 196. Appellees

moved for summary judgment pursuant to CR 56.02 and supported that motion

with citation to “voluminous discovery . . . replete with evidence establishing

probable cause for the arrest of both [Appellants].” (Opinion and Order, R. 284.)

Appellants could not present countervailing evidence pursuant to CR

56.03 sufficient to establish a genuine issue regarding that material fact. Instead,

they cited Craycroft v. Pippin for the proposition that “where the evidence is

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conflicting, [there] is a question of fact, to be determined by the jury.” 245 S.W.3d

804, 806 (Ky. App. 2008) (quoting F.S. Marshall Co. v. Brashear, 238 Ky. 157, 37

S.W.2d 15, 17 (1931) (quoting Emler v. Fox, 172 Ky. 290, 189 S.W. 469, 471

(1916))). This principle presumes “the evidence is conflicting”; in this case, it is

not conflicting. That fact brings into play the second part of the principle cited in

Craycroft that “where there is no conflict in the evidence, whether the facts shown

amount to probable cause, is ordinarily a question of law for the court.” Id. Our

de novo review shows the trial court properly applied the law to the facts here.

Regarding Dickerson, Appellants effectively create a straw-man

argument that while the actions of unknown persons in a similar vehicle who

brandished weapons gave the police probable cause as to them, the officers had to

“generate[] their probable cause” to arrest Dickerson after they realized he was the

wrong suspect. This fails to incorporate the fact that Dickerson committed crimes

in the officers’ presence that provided independent probable cause for his arrest.

The same can be said of Kraps. Appellants again argue the police

“generated probable cause for her arrest by intentionally approaching her vehicle

with a pre-formed intent to arrest her.” (Appellants’ Br. at 20.) But the record

shows Kraps injected herself into Dickerson’s arrest scene, refused to follow

lawful police instructions, and kicked the arresting officer. We agree with the trial

court that “[a]mple probable cause exists for the arrests of both [Appellants] here.”

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Because it was not possible for Appellants to establish a lack of

probable cause, and because doing so is an essential element of a claim for

malicious prosecution, the trial court properly concluded that summary judgment

in favor of Appellees was proper.

CONCLUSION

The Jefferson Circuit Court’s January 18, 2024, Opinion and Order is

affirmed.

ALL CONCUR.

BRIEF AND ORAL ARGUMENT BRIEF AND ORAL ARGUMENT

FOR APPELLANT: FOR APPELLEE:

Ashlea N. Hellmann Ed Monarch

Louisville, Kentucky Bruce Paul

Katy Harvey

Louisville, Kentucky

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