Cleveland Askew, Jr. v. Trooper Edward Whitworth

RENDERED: JANUARY 13, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0126-MR

CLEVELAND ASKEW, JR. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE

ACTION NO. 16-CI-000661

TROOPER EDWARD WHITWORTH APPELLEE

OPINION

AFFIRMING

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BEFORE: CALDWELL, CETRULO, AND DIXON, JUDGES.

DIXON, JUDGE: Cleveland “Stewart” Askew, Jr., appeals from the order

granting Trooper Edward “Eddie” Whitworth summary judgment on immunity

grounds, entered by the Jefferson Circuit Court on January 3, 2022. Following a

careful review of the record, briefs, and law, we affirm.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Stewart was very close to his pet dog. While Stewart worked, his dog

stayed at his parents’ house in Shelby County, where his sister and her son also

lived. Unfortunately, Stewart’s dog went through an open gate, into traffic, and

was killed. Upon learning of his dog’s death, Stewart sought “retribution” by

strangling his parents’ cat, shooting at his sister’s dog three times inside the house

in the presence of family, and threatening his family. Stewart’s mom contacted the

police who filed a complaint and obtained an arrest warrant. Stewart’s family

stayed at a hotel, fearing what Stewart might do.

After an unsuccessful attempt to execute the arrest warrant by local

law enforcement, Kentucky State Police (KSP) Troopers Brian Miller and Eddie

Whitworth were dispatched to arrest Stewart. They arrived at Stewart’s apartment

complex in Jefferson County at approximately 11:30 p.m. Trooper Miller stood

sentry by an exterior window of the building while Trooper Whitworth knocked on

the door and rang the doorbell. Trooper Whitworth did not otherwise announce

himself and backed away from the door and slightly down the dimly lit hallway so

as not to be seen through the peephole.

Stewart, who had been asleep on his couch, opened the door and

looked down the hallway1 with a gun at his side. Trooper Whitworth – armed with

1

It is disputed exactly how far Stewart emerged from his doorway.

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a flashlight and gun and seeing Stewart’s gun – announced, “State Police” and

demanded Stewart drop his weapon.2 Trooper Whitworth recognized Stewart and

observed he had a “crazy” look in his eyes. Stewart did not comply with the

directive to drop his weapon and appeared to “lunge”3 toward Trooper Whitworth,

who again announced, “State Police” and demanded Stewart drop his gun.4 Due to

Stewart’s noncompliance and Trooper Whitworth’s fear for his life, Trooper

Whitworth fired three shots, two of which struck Stewart while one became lodged

in the apartment. After being shot, Stewart came to rest inside his apartment. An

ambulance was called, and Stewart was treated for injuries to his ear, neck,

shoulder, and back5 at a local hospital.

One year later, Stewart filed this lawsuit against Trooper Whitworth,

Trooper Miller, the KSP, the KSP Commissioner, and a KSP captain. Significant

discovery was conducted, including depositions and expert witness reports, and

transcript testimony from a four-day criminal jury trial in Jefferson County and

2

Stewart claims Trooper Whitworth did not speak prior to shooting. Stewart interviewed other

residents who were in their apartments that night and asserts they did not hear Trooper

Whitworth’s voice prior to shots being fired. However, a witness who was outside the apartment

complex that night, as well as Trooper Miller, testified they heard these commands.

3

Stewart denies “lunging” toward Trooper Whitworth.

4

Again, Stewart alleges Trooper Whitworth did not say anything prior to shooting him.

5

One bullet appears to have grazed Stewart’s ear, one bullet appears to have entered Stewart’s

shoulder and exited through his back, and one bullet entered Stewart’s neck and came to rest

near his spine.

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another criminal trial in Shelby County was submitted into the record. Defendants

moved the trial court for summary judgment on various grounds, including

sovereign and qualified immunity. The trial court ultimately granted summary

judgment on behalf of Defendants. This appeal followed.

STANDARD OF REVIEW

Summary judgment is appropriate “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.” CR6 56.03. An

appellate court’s role in reviewing a summary judgment is to determine whether

the trial court erred in finding no genuine issue of material fact exists and the

moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916

S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de

novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.

Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12

S.W.3d 698 (Ky. App. 2000)).

ANALYSIS

On appeal, Stewart contends the trial court erred in finding Trooper

Whitworth entitled to qualified immunity. Sovereign immunity is broad,

6

Kentucky Rules of Civil Procedure.

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protecting the state not only from the imposition of money damages but also from

the burden of defending a lawsuit. Meinhart v. Louisville Metro Gov’t, 627

S.W.3d 824, 830 (Ky. 2021); Lexington-Fayette Urban Cnty. Gov’t v. Smolcic, 142

S.W.3d 128, 135 (Ky. 2004) (“Immunity from suit includes protection against the

‘cost[s] of trial’ and the ‘burdens of broad-reaching discovery’ that ‘are peculiarly

disruptive of effective government.’”) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). The doctrine of

sovereign immunity also covers departments, boards, and agencies that are integral

parts of state government, such as police departments and their employees. See

Bryant v. Louisville Metro Hous. Auth., 568 S.W.3d 839, 846 (Ky. 2019). The

immunity of governmental and quasi-governmental agencies is referred to as

“governmental” as opposed to “sovereign” immunity; although this delineation in

terminology is a distinction without a difference. Id. The immunity that extends to

governmental employees in their individual capacities is commonly referred to as

“qualified” immunity. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).

Whether qualified immunity extends to an individual turns on whether

their actions – or inactions – were discretionary or ministerial. Id. “Generally, a

governmental employee can be held personally liable for negligently failing to

perform or negligently performing a ministerial act.” Marson v. Thomason, 438

S.W.3d 292, 296 (Ky. 2014). By contrast, such employees are immune when

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performing discretionary acts, so long as they act in good faith. Thus, qualified

immunity “rests not on the status or title of the officer or employee, but on the

function performed.” Yanero, 65 S.W.3d at 521.

In the case herein, Trooper Whitworth’s actions in executing the arrest

warrant were clearly discretionary in nature and within the scope of his authority.

Thus, the key question in this case is whether Trooper Whitworth acted in good

faith.

Concerning good and bad faith, the Supreme Court of Kentucky has

held:

The good faith qualification has both an objective

and a subjective component. Objectively, a court must

ask whether the behavior demonstrates a presumptive

knowledge of and respect for basic, unquestioned

constitutional rights. Subjectively, the court’s inquiry is

whether the official has behaved with permissible

intentions. However, . . . most case law addresses these

elements by stating when the qualified immunity is not

available, or when the public official is acting in bad

faith. Thus, bad 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 a person

in the plaintiff’s position, i.e., objective

unreasonableness. Acting in the face of such knowledge

makes the action objectively unreasonable. Or, bad faith

can be predicated on whether the public employee

willfully or maliciously intended to harm the plaintiff or

acted with a corrupt motive, which requires a subjective

analysis.

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Bryant v. Pulaski Cnty. Det. Ctr., 330 S.W.3d 461, 466 (Ky. 2011) (internal

quotation marks and citations omitted). The burden of proof is on Stewart to show

that Trooper Whitworth’s actions were not performed in good faith. Id. at 466-67.

A trial court’s grant of summary judgment concerning immunity can

sometimes differ from other grants of summary judgment. Even so,

the qualified-immunity defense does not change the

normal summary-judgment rules. So when deciding

whether force was excessive or whether our precedent

clearly established that result, we must view genuine

factual disagreements in the light most favorable to the

plaintiff. If a reasonable jury could credit the

plaintiff’s version of events and if that version clearly

shows the excessive nature of the defendants’ force, we

cannot grant the officers summary judgment.

Gambrel v. Knox Cnty., Kentucky, 25 F.4th 391, 400 (6th Cir. 2022) (emphasis

added) (citations omitted). Ordinarily, the existence of material disputed facts acts

as a prohibition to a trial court’s ability to grant summary judgment; however, that

is not always the case on the question of immunity. Meinhart, 627 S.W.3d at 829.

In such cases, discovery need not be completed nor must all disputed facts be

resolved by a jury before a trial court can rule on the issue of qualified official

immunity. Id. Otherwise, the fundamental purposes of immunity would be

eviscerated. Id. The Supreme Court of Kentucky has recognized that “trial courts

must make certain factual findings when deciding a party’s entitlement to qualified

official immunity[.]” Id. Such factual findings include whether actions are

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performed in good faith. In the case herein, the trial court found that Trooper

Whitworth acted in good faith.

Stewart argues the trial court erred in finding Trooper Whitworth

acted in good faith because, taking Stewart’s allegations as true, Trooper

Whitworth’s actions were not objectively reasonable when he shot Stewart

immediately after he opened the door without saying anything or giving any

warning whatsoever. It is well-established:

The Fourth Amendment protects citizens from excessive

force during an arrest, investigatory stop, or other

seizure. Excessive force claims hinge on whether the

officers’ actions were objectively reasonable in light of

the facts and circumstances confronting them, without

regard to their underlying intent or motivation. The

inquiry draws from the totality of the circumstances and

must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight. Three non-dispositive and non-exclusive

factors guide the inquiry: (1) the severity of the crime at

issue, (2) whether the suspect posed an immediate threat

to the safety of the officers or others, and (3) whether the

suspect was actively resisting arrest or attempting to

evade arrest by flight.

Crowe v. Steward, 5:20-CV-203-REW, 2022 WL 4291331, at *4 (E.D. Ky. Sept.

16, 2022) (emphasis added) (internal quotation marks, brackets, and citations

omitted).

In the case herein, from the perspective of a reasonable officer on the

scene, Trooper Whitworth was attempting to arrest Stewart who, earlier in the day,

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had threatened his own family, strangled a cat, and fired his gun at his sister’s dog

in the presence of family. When Stewart answered the door, he had a gun in his

hand and a “crazy” look in his eyes; he did not drop his gun after being

commanded to do so; and he moved in what was perceived to be an aggressive

manner toward Trooper Whitworth, making him fear for his life. Trooper

Whitworth’s commands were loud enough to be heard by Trooper Miller down the

hallway and another resident who happened to be outside at the time. Conversely,

“[n]o reasonable juror could adopt the interpretations Plaintiff offers” that Trooper

Whitworth said absolutely nothing prior to shooting Stewart. Crowe, 2022 WL

4291331, at *6.7 Thus, Trooper Whitworth’s actions were objectively reasonable

considering the facts and circumstances confronting him.

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This case is distinguishable from King v. Taylor, 694 F.3d 650 (6th Cir. 2012), because in that

case “a jury could find, based upon the forensic evidence, expert testimony, and common sense,

that King did not threaten the officers by pointing a gun at them just before he was shot.” Id. at

662. Here, whether Stewart pointed his gun at Trooper Whitworth prior to being shot is not a

genuine issue of material fact that would preclude summary judgment; neither does whether

Trooper Whitworth is entitled to qualified immunity hinge on that fact.

Similarly, this case is also distinguishable from Brandenburg v. Cureton, 882 F.2d 211 (6th Cir.

1989). In that case:

Though detective Sharp claims that Mr. Brandenburg had

pointed his weapon “directly at us,” presumably proving that he or

any officer would have a subjective belief in a threat of serious

physical harm, there are facts which might indicate otherwise.

Appellants’ own expert testified that the position of the body after

death indicated that the right hand was not grasping the trigger and

that the position of the left arm could not prove that Mr.

Brandenburg was aiming his weapon at the officers. Furthermore,

the jury might reasonably consider why the two other officers did

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Because Stewart failed to put forward any evidence that Trooper

Whitworth acted in bad faith, either subjectively or objectively, the trial court did

not err in finding Trooper Whitworth entitled to qualified immunity as a matter of

law. We further echo the sentiments of the Supreme Court of Kentucky:

it is not in the public’s interest to allow a jury of laymen

with the benefit of 20/20 hindsight to second-guess the

exercise of a police officer’s discretionary professional

duty. Such discretion 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. . . .

Finally, we pause to note immunity is intended to

act as a shield, not just from liability, but also the burdens

of a suit.

Meinhart, 627 S.W.3d at 835-36. Accordingly, the trial court was well within its

authority to find Trooper Whitworth immune and to dismiss Stewart’s claims.

not fire shots if it was quite obvious that they were being

threatened with imminent bodily harm.

Although this court intimates no view regarding the weight

of the evidence, we recognize that a reasonable person might

believe that detective Sharp acted unreasonably in firing the shot

that killed Mr. Brandenburg.

Id. at 215. Once again, in this case, whether Stewart pointed his gun at Trooper Whitworth prior

to being shot is not a genuine issue of material fact that would preclude summary judgment, nor

does Trooper Whitworth’s entitlement to qualified immunity hinge on that fact.

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CONCLUSION

Therefore, and for the foregoing reasons, the order entered by the

Jefferson Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Adrian Mendiondo Jason M. Nemes

Lexington, Kentucky Robert J. Nemes

Louisville, Kentucky

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