The opinion
RENDERED: JULY 18, 2025; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-0226-MR
TREY MCKNIGHT APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE TRACY E. DAVIS, JUDGE
ACTION NO. 21-CI-000339
ADELAIDA OLIVERA, MOTHER
AND NEXT FRIEND OF H.A., A
MINOR CHILD APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CETRULO, JUDGES.
THOMPSON, CHIEF JUDGE: Trey McKnight (Appellant) appeals from an
opinion and order of the Jefferson Circuit Court denying his motion for summary
judgment. He argues that the circuit court erroneously determined that the issue of
qualified official immunity was a question for the jury. He maintains that he is
entitled to qualified official immunity as a matter of law. After careful review, we
reverse the opinion and order of the Jefferson Circuit Court, and remand it for
findings of fact and conclusions of law.
FACTS AND PROCEDURAL HISTORY
Appellant is a sergeant with the Louisville Metro Police Department
(LMPD). On December 26, 2019, he was working off-duty as a security guard at
the Mall St. Matthews (the Mall) in Jefferson County, Kentucky. One of
Appellant’s responsibilities was to enforce the Mall’s parental supervision policy,
which requires all persons under the age of 18 years old to be accompanied by an
adult.
Appellant observed H.A.1 inside the Mall. H.A. who was 13 years old
and not accompanied by an adult. According to Appellant, he approached H.A.,
who told Appellant that he was waiting for his stepfather to park the car.
Appellant would later state that after waiting with H.A. for 5 to 10 minutes, during
which time H.A. refused to call his stepfather or allow Appellant to do so,
Appellant decided to take H.A. to the Mall office to wait for H.A.’s stepfather.
Appellant then turned on his body camera. A few seconds later, as
Appellant was leading H.A. by the arm, H.A. attempted to pull away from
Appellant. Appellant would later state in deposition that H.A. brought his arm
back as if to strike Appellant. Appellant and two other officers then wrestled H.A.
1
We will use H.A.’s initials because he was a minor child.
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to the ground and handcuffed him. During this time, H.A. was struggling and
attempting to fight, while calling the officers “bitch ass” and “n---a.” He continued
to yell slurs at the officers and physically resisted as they took him to the Mall
office.
At some point during these events, H.A. was placed under arrest.
When they arrived at the office, Appellant directed H.A. to sit in a chair. H.A.
again pulled away from Appellant, sending them both against the wall. Appellant
then pinned H.A. against the wall to search him. As H.A. continued to struggle, he
fell to the floor and was then placed back in the chair to wait for his mother to pick
him up.
H.A., through counsel, provided a different version of the events.
H.A. claimed that Appellant initially grabbed his arm while they were on the way
to the office, that this grabbing was unprovoked and triggered H.A.’s fight or flight
response. H.A. acknowledged pulling away from Appellant. H.A. maintains that
when they got to the office, Appellant taunted H.A. and slammed him against the
wall without provocation. H.A. claimed that the much larger Appellant pressed his
body weight against H.A. causing pain and injury; that Appellant placed his hand
on H.A.’s neck and lifted him up; that his head hit a metal box; and, that these
actions by Appellant were unprovoked and unwarranted.
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H.A. was charged with criminal trespass in the third degree, criminal
mischief in the second degree, assault in the third degree, and resisting arrest.2 He
pleaded guilty to the charge of resisting arrest in exchange for the remaining
charges being dismissed. The factual basis for his guilty plea expressly excluded
his conduct after he was handcuffed and taken to the Mall office.
On January 15, 2021, Adelaida Olvera (Appellee), as mother and next
friend of H.A., filed a complaint in Jefferson Circuit Court against the Louisville
Metro Police Department (LMPD) and Appellant setting out claims of civil
battery, assault, outrage, and negligent infliction of emotional distress. The
complaint asserted that as a direct and proximate result of the defendants’ conduct,
H.A. received unwarranted physical and emotional injury. It sought compensatory
and punitive damages.
The matter proceeded in Jefferson Circuit Court for more than two
years. On May 2, 2023, Appellant filed a motion for summary judgment.
Appellant noted that in H.A.’s deposition, H.A. alleged that he was assaulted by an
African American Jefferson County Sheriff’s deputy. Appellant, being neither
African American nor a Sheriff’s deputy, argued that he was improperly named in
the suit and should be dismissed. The focus of the motion for summary judgment,
2
Kentucky Revised Statutes (KRS) 511.080; KRS 512.030; KRS 508.025; and KRS 520.090.
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however, was that Appellant was entitled to qualified immunity for all claims
against him.
Thereafter, the Jefferson Circuit Court rendered an opinion and order
on July 17, 2023, disposing of Appellant’s motion for summary judgment. The
court granted Appellant’s motion as to the outrage claim, and denied the motion as
to Appellee’s remaining claims. The court first determined that Heck v Humphrey,
512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d. 383 (1994), and upon which
Appellant relied, was not applicable to the instant facts. Heck held in relevant part
that a §1983 plaintiff could not prevail on a claim of unlawful arrest or
imprisonment unless the conviction was reversed, expunged, or declared invalid.
The circuit court then considered the question of whether Appellant
was entitled to qualified official immunity in his detention and arrest of H.A. The
court cited caselaw for the rule that a peace officer is entitled to use necessary,
reasonable force to take a suspect into custody, but may not use more force than is
necessary. Pointing to the seminal case of Yanero v. Davis, 65 S.W.3d 510 (Ky.
2001), the court noted that the law gives qualified immunity to police officers’
discretionary acts performed in their official capacity, thereby shielding them from
liability for judgment calls made in good faith in a legally uncertain environment.
In applying the law to the instant facts, the Jefferson Circuit Court
stated,
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Whether [Appellant] McKnight used necessary or
reasonable force against H.A. while in the private Mall
offices, or whether he used more force than was
necessary and acted in bad faith and with a malicious
intention to injure H.A. are genuine issues of material
fact. Although the Defendant has presented the Court
with the body cam footage of the officers involved and
invites the Court to review the video to determine this
issue, as set forth above, in considering a motion for
summary judgment the Court must examine the evidence
not to decide any issue of fact, but rather to discover
if a real issue exists.
(Emphasis in original.) The circuit court went on to find that, “there is no evidence
that McKnight intended to cause H.A. extreme emotional distress.” Based on its
application of Heck, the doctrine of qualified official immunity and its finding of
no evidence of extreme emotional distress, the circuit court granted Appellant’s
motion for summary judgment on the claim of outrage, and denied summary
judgment as to all remaining claims.
Appellant then filed a Kentucky Rules of Civil Procedure (CR) 59.05
motion to vacate the July 17, 2023 opinion and order granting in part and denying
in part his motion for summary judgment. The court denied the motion by way of
an opinion and order rendered on January 30, 2024. In denying the motion to
vacate, the court reaffirmed its belief that per Rowan County v. Sloas, 201 S.W.3d
469 (Ky. 2006), and Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L.
Ed. 2d 396 (1982), the question of whether Appellant used more force than was
necessary and acted in bad faith were questions of fact to be decided by a jury.
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Appellant filed an interlocutory appeal to this Court. Citing a lack of
jurisdiction, a panel of this Court dismissed Appellant’s appeal on May 20, 2024.
Appellant then sought discretionary review of the dismissal, which was granted by
the Kentucky Supreme Court on December 13, 2024. The Supreme Court
remanded the matter to this Court with instructions to consider the appeal on the
merits. Per that order remanding, we will now consider Appellant’s interlocutory
appeal.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. “The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). Summary judgment should be granted only if it appears impossible that the
nonmoving party will be able to produce evidence at trial warranting a judgment in
his favor. Id. “Even though a trial court may believe the party opposing the
motion may not succeed at trial, it should not render a summary judgment if there
is any issue of material fact.” Id. Finally, “[t]he standard of review on appeal of a
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summary judgment is 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).
In Meinhart v. Louisville Metro Government, 627 S.W.3d 824 (Ky.
2021), however, the Kentucky Supreme Court recognized that the standard for
adjudicating a summary judgment motion based on qualified immunity deviates
somewhat from the general standard articulated in Steelvest, supra. The Meinhart
Court held that upon a motion for summary judgment based on qualified official
immunity, the circuit court must make certain factual determinations relevant to
the issue of qualified official immunity, including if the act at issue was
discretionary and performed in good faith. Id. at 829-30. This is required because
qualified immunity is immunity from suit and should therefore be decided before
trial to prevent officers from being subjected to unnecessary litigation. Id. at 830.
The Court in Meinhart stated that,
We recognize trial courts must make certain factual
findings when deciding a party’s entitlement to qualified
official immunity, and a modicum of discovery may be
necessary before the court can reasonably make the
determination. 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
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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. However, the question
of immunity is one of law that involves no disputed facts.
Thus, examining the pertinent rule, policy, or regulation
governing the challenged conduct is all that is necessary
to make the characterization. Compliance with the rule,
policy, or regulation simply is not relevant in that
calculus. Rather, compliance is relevant to negligence
and the issue of whether the act was undertaken in good
faith. Contrary to Appellants’ position, completion of the
litigation process is not required to make any of these
determinations, especially since the question of immunity
is a threshold matter which must be determined in the
first instance.
Id. at 829-30 (emphasis added).
Further,
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. If it is not a jury question, then it
is manifestly one for the trial court . . . . 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.
Sheehy v. Volentine, 706 S.W.3d 229, 241-45 (Ky. 2024) (emphasis in original).
Thus, on review of an order disposing of a motion for summary
judgment based on qualified official immunity, we will examine the circuit court’s
findings of fact on “the very narrow issues required to determine if immunity is
applicable,” Meinhart, 627 S.W.3d at 830; and, because immunity is a question of
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law, id., consider it de novo. Nash v. Campbell County Fiscal Court, 345 S.W.3d
811, 816 (Ky. 2011).
ARGUMENTS AND ANALYSIS
Appellant argues that the Jefferson Circuit Court committed reversible
error in denying his motion for summary judgment based on qualified official
immunity on the claims of civil battery, assault, and negligent infliction of
emotional distress. He asserts that the circuit court erroneously concluded that
qualified immunity is a jury question. He also argues that he is entitled to qualified
immunity as a matter of law, because 1) there can be no genuine issue of material
fact because there is video evidence clearly showing a combative, assaultive, and
abusive arrestee who had to be subdued by police officers more than once; 2) he
was engaged in discretionary acts within the scope of his official authority; and, 3)
Appellee offered no evidence of bad faith. He requests an opinion reversing the
opinion and order on appeal, and remanding the matter with instructions to dismiss
Appellant from this action based on qualified official immunity.
The issue of whether a defendant is entitled to the defense of
sovereign or governmental immunity is a question of law. Sloas, 201 S.W.3d at
475 (citing Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 825 (Ky.
2004)). This means “we owe no deference to the legal conclusions of the courts
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below.” Howard v. Big Sandy Area Development District, Inc., 626 S.W.3d 466,
470 (Ky. 2020) (footnote and citation omitted).
‘[G]overnmental immunity’ is the public policy, derived
from the traditional doctrine of sovereign immunity, that
limits imposition of tort liability on a government
agency. The principle of governmental immunity from
civil liability is partially grounded in the separation of
powers doctrine embodied in Sections 27 and 28 of the
Constitution of Kentucky. The premise is that courts
should not be called upon to pass judgment on policy
decisions made by members of coordinate branches of
government in the context of tort actions, because such
actions furnish an inadequate crucible for testing the
merits of social, political or economic policy. Put
another way, it is not a tort for government to govern.
Thus, a state agency is entitled to immunity from tort
liability to the extent that it is performing a
governmental, as opposed to a proprietary, function.
Yanero, 65 S.W.3d at 519 (internal quotation marks, citations, and footnote
omitted).
If a state agency is deemed to have governmental
immunity, its officers or employees have official
immunity when they are sued in their official or
representative capacity. The immunity that an agency
enjoys is extended to the official acts of its officers and
employees. However, when such officers or employees
are sued for negligent acts in their individual capacities,
they have qualified official immunity.
Autry v. Western Kentucky University, 219 S.W.3d 713, 717 (Ky. 2007).
“Official immunity” is immunity from tort liability
afforded to public officers and employees for acts
performed in the exercise of their discretionary functions.
It rests not on the status or title of the officer or
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employee, but on the function performed. Official
immunity can be absolute, as when an officer or
employee of the state is sued in his/her representative
capacity, in which event his/her actions are included
under the umbrella of sovereign immunity . . . .
Similarly, when an officer or employee of a
governmental agency is sued in his/her representative
capacity, the officer’s or employee’s actions are afforded
the same immunity, if any, to which the agency, itself,
would be entitled . . . . But when sued in their individual
capacities, public officers and employees enjoy only
qualified official immunity, which affords protection
from damages liability for good faith judgment calls
made in a legally uncertain environment. Qualified
official immunity applies to the negligent performance by
a public officer or employee of (1) discretionary acts or
functions, i.e., those involving the exercise of discretion
and judgment, or personal deliberation, decision, and
judgment, (2) in good faith; and (3) within the scope of
the employee’s authority. An act is not necessarily
“discretionary” just because the officer performing it has
some discretion with respect to the means or method to
be employed. Qualified official immunity is an
affirmative defense that must be specifically pled.
Yanero, 65 S.W.3d at 521-22 (citations omitted).
Thus, governmental immunity shields governmental agencies when
performing a governmental function; official immunity protects employees of
governmental agencies when sued in their official capacities for acts performed in
the exercise of their discretionary functions; and, qualified official immunity
shields employees of governmental agencies when sued in their individual
capacities for discretionary acts made in good faith and within the scope of their
employment. Id. at 519-23.
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To determine if Appellant is entitled to qualified official immunity,
we must consider whether 1) his acts of engaging, detaining, and arresting H.A.
were discretionary; 2) those acts were made in good faith; and 3) the acts were
within the scope of his employment. And, as noted above, because immunity is a
question of law, we will examine it de novo. Meinhart, supra; Nash, supra. We
will now consider each element.
1 - DISCRETIONARY ACTS
The first question is whether Appellant’s detention and arrest of H.A.
were discretionary acts.
[D]iscretionary acts or functions are those that
necessarily require the exercise of reason in the
adaptation of means to an end, and discretion in
determining how or whether the act shall be done or the
course pursued. Discretion in the manner of the
performance of an act arises when the act may be
performed in one or two or more ways, either of which
would be lawful, and where it is left to the will or
judgment of the performer to determine in which way it
shall be performed.
Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (citation omitted). “There is
considerable discretion inherent in law enforcement’s response to an infinite array
of situations implicating public safety on a daily basis.” Meinhart, 627 S.W.3d at
835. Further, 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.” Id.
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When Appellant first made contact with H.A., he waited with H.A.
for 5 to 10 minutes based on H.A.’s claim that his stepfather was about to enter the
Mall. When that did not occur, and after H.A. became uncooperative and refused
to call his stepfather or to allow Appellant to do so, Appellant could have properly
undertaken one of several actions. He could have reasonably instructed H.A. to
leave the Mall because he was not supervised by an adult in violation of Mall
policy. Appellant also could have waited longer with H.A. to see if H.A.’s
stepfather would arrive. Instead, Appellant directed H.A. to come with Appellant
to the office to wait for one of H.A.’s parents to pick him up. This decision falls
squarely with the “considerable discretion inherent in law enforcement’s response
to an infinite array of situations implicating public safety on a daily basis.” Id.
Because the material facts are resolved as to this element of Yanero, and upon
reviewing this issue de novo, id., we conclude that Appellant’s detention and arrest
of H.A. were discretionary acts.
2 - GOOD FAITH
The next question is whether Appellant’s actions to physically restrain
H.A. in the office were made in 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
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circumstantial evidence that the discretionary act was not performed in good faith.”
Yanero, 65 S.W.3d at 523 (citation omitted).
“[B]ad faith” can be predicated on a violation of a
constitutional, statutory, or other clearly established right
which a person in the public employee’s position
presumptively would have known was afforded to a
person in the plaintiff’s position, i.e., objective
unreasonableness; or if the officer or employee willfully
or maliciously intended to harm the plaintiff or acted
with a corrupt motive.
Id. (citations omitted).
Appellant has shown prima facie that his detention and arrest of H.A.
fell within the scope of his discretionary authority. Therefore, the burden shifted to
Appellee to establish by direct or circumstantial evidence that Appellant did not act
in good faith. Per Yanero, Appellee has the burden of offering proof of
Appellant’s “objective unreasonableness” resulting in a violation of H.A.’s
constitutional, statutory, or clear established right; or, that Appellant willfully or
maliciously intended to harm H.A. or acted with a corrupt motive.
In her complaint, Appellee alleges that without provocation, Appellant
physically assaulted H.A. by pushing and grabbing him, throwing him against a
wall, grabbing him by the neck to lift him up, and hitting his head against a shelf.3
3
The complaint alleges that H.A. hit his head on a shelf. Appellee’s written argument states that
he hit his head on a metal box. It is not clear from the record whether these are the same or
different objects.
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In response, Appellant implored the circuit court to examine the body camera
evidence, which he claims clearly reveals that H.A. was uncooperative, combative,
physically and verbally abusive, and wholly responsible for the physical
confrontation in the office.4
These conflicting claims create a question of fact, which must be
resolved to determine if Appellee has overcome the presumption that Appellant’s
actions were made in good faith. Contrary to the circuit court’s view, whether
Appellant is entitled to qualified immunity is not a jury question but is a question
of law for determination by the court. This is true even if it requires viewing the
evidence to determine if Appellant acted in bad faith. Therefore, on remand, the
Jefferson Circuit Court should view the body camera evidence, if necessary, to
make findings of fact on the narrow issue of whether Appellee has overcome the
presumption that Appellant’s actions in the office were made in good faith. Such
findings are required by Meinhart, supra.
In an attempt to demonstrate Appellant’s bad faith, Appellee also
contests Appellant’s motivation in detaining and arresting H.A. Appellee cites
what she characterizes as “contempt of cop,” i.e., when an officer arrests a person
because he stands up for himself, talks back, or is not deferential to the officer.
She also claims that Appellant was irritated with H.A. after the arrest, and that this
4
The body camera video is not in the appellate record.
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irritation is evidence of Appellant’s bad faith in the manner in which he restrained
H.A. in the office.
Appellee acknowledges that so-called “contempt of cop” is a slang
phrase, and she does not direct us to any case law or statutory law for the
proposition that contempt of cop, even if present herein, overcomes the
presumption that Appellant acted in good faith. This is especially true in light of
the body camera footage, which Appellant argues demonstrates how and why
Appellant acted. Similarly, Appellee has not cited to nor has our research revealed
any basis for concluding that an officer’s frustration or irritation with an
uncooperative and combative detainee overcomes the presumption that the officer
acted in good faith.
Appellant also cites a United States Department of Justice report, and
references the 2020 events involving Breonna Taylor in Louisville, Kentucky and
the 2014 Ferguson, Missouri riots in an attempt to impeach Appellant’s motivation
with H.A. in the office. The Justice Department report and other events cited by
Appellee have no bearing on whether Appellant acted in good faith in the incident
before us. On remand, the Jefferson Circuit Court should not consider the Justice
Department report nor the cited riots in determining if Appellee has overcome the
presumption that Appellant acted in good faith.
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3 - SCOPE OF EMPLOYMENT
The final element of Yanero is whether the acts were within the scope
of Appellant’s employment. The circuit court found that Appellant is an LMPD
sergeant. Peace officers who “moonlight” or have second jobs retain their
“authority, duties and responsibilities as a peace officer vested with the power to
act under the color of law.” Smith v. Norton Hospitals, Inc., 488 S.W.3d 23, 32
(Ky. App. 2016). The record satisfies the third element of Yanero.
CONCLUSION
The Jefferson Circuit Court erred in concluding that qualified
immunity is a jury question; under Kentucky law, immunity is to be decided as a
matter of law by the court at the outset. Meinhart, 627 S.W.3d at 830. This is
because “immunity entitles its possessor to be free from the burdens of defending
the action, not merely . . . from liability.” Id. (internal quotation marks and citation
omitted).
The record demonstrates that the first and third elements of the
Yanero test have been satisfied, i.e., that Appellant’s acts were discretionary and
within the scope of Appellant’s employment as an LMPD officer. On remand, the
Jefferson Circuit Court is directed to make findings of fact on the narrow issue of
the second element of Yanero, that is, whether Appellee met her burden of
demonstrating that Appellant acted in bad faith. If required, the court may view
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the body camera recordings to make those findings. A finding of bad faith, if any,
must be based on
a violation of a constitutional, statutory, or other clearly
established right which a person in the public employee’s
position presumptively would have known was afforded
to a person in the plaintiff’s position, i.e., objective
unreasonableness; or if the officer or employee willfully
or maliciously intended to harm the plaintiff or acted
with a corrupt motive.
Yanero, 65 S.W.3d at 523 (citation omitted). If the circuit court determines that
Appellant acted in bad faith, it should conclude that he is not entitled to immunity.
If the circuit court finds no bad faith as defined by Yanero, then Appellant is
entitled to qualified official immunity as a matter of law.
For these reasons, we reverse the opinion and order of the Jefferson
Circuit Court, and remand the matter for findings of fact and conclusions of law
consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kathryn Goodwin John K. Spalding
Richard Elder Louisville, Kentucky
Louisville, Kentucky
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