Opposition Brief — Wince v. Stemler

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JUL 2 3 2004 |

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No. 03-1574 aoe

In The

Supreme Court of the United States

BOBBY JOE WINCE, in his individual capacity;

JOHN DOLAN, in his individual capacity; and

THOMAS DUSING, in his individual capacity,

Petitioners,

SUSAN STEMLER, WILLIAM CHIPMAN,

Administrator of the Estate of CONNI BLACK, and

RANDY BLACK, Legal Guardian of Shianne Black,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

| RICHARD G. MEYER

MARK D. GUILFOYLE

Counsel of Record

SUSANNE R. WHERLEY

DETERS, BENZINGER & LAVELLE

| 207 Thomas More Parkway

Crestview Hills, KY 41017

(859) 341-1881

: ERIc C. DETERS

300 Buttermilk Pike, Suite 322

Ft. Mitchell, KY 41017

(859) 426-5300

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

gate, an me ait Naso: sapie deme ae ts peta SE Bek ade TD ae

QUESTIONS PRESENTED FOR REVIEW

1. The Application of the Rooker-Feldman Doctrine

In order to determine the applicability of the Rooker-

Feldman doctrine to the substantive due process claim of

Plaintiff-Respondent Chipman, the Court must a:‘ferenti-

ate between the two factual scenarios which informe’ the

respective federal and state court decisions at issue. ‘ine

first scenario occurred when the Petitioner police officers

forced the decedent, Conni Black, into the vehicle of an

obviously drunk driver, known by the police to have just

previously assaulted and terrorized Black and her com-

panion, Susan Stemler. This is the “police stop” scenario

which led the Sixth Circuit to acknowledge the validity of

Respondent’s substantive due process claim. The second

scenario occurred some short time thereafter when the

vehicle into which Black had been forced by threat of

arrest collided with a guardrail along the interstate

highway. Because Black sustained fatal injuries in this

collision, it gave rise to Respondent’s state law wrongful

death claim.

The Kentucky Supreme Court affirmed the summary

judgment dismissal of this claim on the sole basis that

decedent was not in police custody at the time of the fatal

accident. The question, then, is whether the Sixth Circuit

properly declined to apply the Rooker-Feldman doctrine by

finding that the state wrongful death claim (with its

necessary focus on the immediate cause of the collision) is

not “inextricably intertwined” with the Respondent’s

substantive due process claim (with its necessary focus on

the issue of police custody during the investigative traffic

stop).

ere reeenr ee

QUESTIONS PRESENTED

FOR REVIEW - Continued

2. The Application of Claim Preclusion

Plaintiff-Respondent Chipman filed parallel simulta-

neous suits in state and federal court asserting, in the

respective courts, a wrongful death claim and a substan-

tive due process claim under 42 U.S.C. § 1983. Plaintiff-

Respondent Stemler filed her two surviving claims, exces-

sive force and fabrication of evidence, in federal court only.

The issue for Chipman’s and Stemler’s federal claims is

whether Kentucky’s transactional rule for claim-splitting

is applicable or not and, if it is not applicable, whether the

Sixth Circuit correctly concluded that the appropriate

inquiry under the Kentucky law of claim preclusion is the

identity or lack of identity of the state and federal causes

of action.

Application of both doctrines, Rooker-Feldman and

Claim Preclusion, involves a fairly detailed examination of

the underlying facts, as well as the complex procedural

history of this litigation. Though essential to a proper

application of these doctrines, no such examination ap-

pears in the Petition. Such a review follows.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .............. i

Ce CE Se FEB vncesessessrereserececsvetereresenvivonverss iii

ee Ce BA CEE vcs eccivicvccsevncesesccevevensccseees Vv

OPPOSITION TO PETITON FOR WRIT OF CER-

al dd a cinanadee sipenndicevensdiknenenvnnitenesis 1

TA eM PE THREE CAGE ce cnseecsccesevescsssesssvesscssees 1

A. STATEMENT OF MATERIAL FACTS ..... 1

Be I I ons viwndversaxcescerninesaerente 2

ee PING incascssiissvesesceccsssvesess 3

3. Stemler’s Prosecution .................::0000 4

B. PROCEEDINGS BELOW......................08 5

1. State Court Proceedings ..................... 5

a. Chipman’s Claim,.....................00 5

a gg eee 6

2. Federal Court Procedings .............000+: 7

Si. CATH CIMIIIS 006s ccs ccsesccrsevceene 7

BD. Steers CIMUING.....00.c0ccscessccccecsccess 8

RESPONDENTS’ ARGUMENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORAR ....... 10

I. SINCE THE SIXTH CIRCUITS OPINION

DID NOT IN EFFECT OVERRULE THE

STATE COURT’S OPINION, THE ROOKER-

FELDMAN DOCTRINE IS INAPPLICABLE

EE EE sisiccieicnnvesasercsvnininesatwdsdenaxsevareese 10

II.

Ill.

IV.

TABLE OF CONTENTS - Continued

Page

SINCE NEITHER A BROAD NOR A NARROW

INTERPRETATION OF THE ROOKER-

FELDMAN DOCTRINE IS APPLICABLE TO

THIS CASE, IT IS UNSUITABLE FOR

CLARIFYING THAT DOCTRINE ................

PRIOR CASE LAW FROM THIS COURT

PLAINLY PERMITTED RESPONDENTS TO

FILE SIMULTANEOUS PARALLEL CLAIMS

IN STATE AND FEDERAL COURT................

THE SIXTH CIRCUIT CORRECTLY AP-

PLIED KENTUCKY LAW IN REJECTING

PETITIONERS’ CLAIM PRECLUSION AR-

A. The Transactional Rule is Inapplicable

As Respondents Have Not Split Their

Causes Of Action.............ccccscccseescesseseerese

B. The Transactional Rule Does Not Bar

Respondents’ ClaimsS.............::::00+00 ee

C. Respondents’ Federal And State Causes

Of Action Are Not “The Same” For Pur-

poses Of Claim Preclusion .............+++::15++

CONCLUSION ........ccccccovsccsccrseveecescccsossecesscsvenesssesecees

APPENDIX

Stemler v. City of Florence, 126 F.3d 856 (CA6 1997)......App. 1

TABLE OF AUTHORITIES

Page

CASES

Arnold v. K-Mart Corporation, 747 S.W.2d 130 (Ky.

ADD. 1968)..00.:scrsersseseccessecersssesssscossceslibvesseesanasenesonsrsnneees 22

Atlantic C.L.R. Co. v. Brotherhood of Locomotive

Engineers, 398 U.S. 281 (1970) ........:eeeseeeeeeseeeeees 16, 17

Centifanti v. Nix, 865 F.2d 1422 (CA3 1989) ............:.0 14

Chipman v. City of Florence, 858 F. Supp. 87 (E.D.

Key: 19DG) .ccecesscvescsssesnmerveccesnvessnsgenssemessationctsncscboversaetnrnet 7

Chipman uv. City of Florence, No. 1996-CA-001287-

MR (Ky.Ct.App. Nov. 25, 1998)..........:ccccssseeeessseeeeesseeeeeens 6

Chipman v. City of Florence, No. 94-CI-00202 slip

op. at 4 (Boone Co., Ky., Cir. Ct. Apr. 2, 1996).............. 6

City of Florence v. Chipman, 38 S.W.2d 387 (Ky.

DOTY oo snovcsaceecicsnecdordentvcnnciaeen eminem aaneien naan 6

Colorado River Water Conservation District No. 7 v.

United States, 424 U.S. 800 (1976) ..........cceeeeeeeeeeeeeeeees 17

Dennis v. Fiscal Court of Bullitt County, 784 S.W.2d

GOS (Ky. App. 1990)...............ccccccsceccescessneeetoeees 19, 20, 21

District of Columbia Court of Appeals v. Feldman,

GOO U7. BOE COED aves vivvicinscntionecsscconccnstenntcvcsssermccantenses 10

Egbert v. Curtis, 695 S.W.2d 123 (Ky. App. 1985)....... 21, 22

England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411 (1964)... eeeeeeeeeeeeeeeeeeees 17

Harris v. Ashley, 165 F.3d 27 (CA6 1998) ...19, 20, 21, 24, 26

Hays v. Sturgill, 193 S.W.2d 648 (Ky. 1946)............... 26, 27

Holloway v. Brush, 220 F.3d 767 (CA6 2000) ............:::00+ 12

Kirchner v. Riherd, 702 S.W.2d 33 (Ky. 1985)............. 21, 22

TABLE OF AUTHORITIES - Continued

Page

Kougasian v. TMSL, Inc., 359 F.3d 1136 (CA9 2004)... 15, 16

Moccio v. N.Y. State Office of Ct. Adm., 95 F.3d 195

(GAS TODD) ..cccvrcversvecsserssipsscvveevescenssenesssventevesesensetaes 14, 15

Newman v. Newman, 451 S.W.2d 417 (Ky. 1978).......... 29

Pennzoil Company v. Texaco, Inc., 481 U.S. 1

(ROBT) oo cecsseessesesecnssssvescsvveceesessentensserseneemeneaeniersen 11, 12, 13

Peterson Novelties, Inc. v. City of Berkley, 305 F.3d

BOB (CAG BOOB) ..ccccocseccoscrecssvsescessvvssseseusuavecsiesvsvessess 11, 12

Princess Lida of Thurn & Taxis v. Thompson, 305

LTS. 4B6 (1GBD) .ccerscrcescersescsrevvercecevsnssorsveccesvserevsusenseocenns 17

Razatos v. Colorado Supreme Court, 746 F.2d 1429

(CA10' 1984) .......c.ccccssssesssssessecscsnsovogeoesssreesesssesessseseens 14

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1928)....... 10, 12

Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d

808 (W.D. Ky. 2008) ...........ssesccccsssrereesesseeeeesessensoenes 26, 27

Stemler v. City of Florence, 126 F.3d 856 (CA6

BOTY oosccceccesessvoesssncsesssennsaressunsnsieessteerereimeranretnanenttel passim

Stemler v. City of Florence, 350 F.3d 578 (CA6

BOB) oeicecsverccceevscesersssesrentistansenseeeersierenielasressieneanieml passim

Stemler v. Florence, No. 94-CI-O00459...........::eseeeeeeeeeeeeeeeeees 6

Stern v. Nix, 840 F.2d 208 (CA3 1988).........::ccseseeeeereeees 14

Watts v. K, S & H, 957 S.W.2d 233 (Ky. 1997) ...... 18, 25, 27

Whittaker v. Cecil, 69 S.W.3d 69 (Ky. 2002).........::eeseeeees 29

Wicker v. Board of Education of Knott County, 826

F.2d 442 (CAG 1087) ........sessscvesercccssccvercerersoesorssesesessnsens 18

Yeoman v. Kentucky Health Policy Board, 983

S.W.2d 459 (Ky. 1998)...........cccsesssssssrrrreeeeeees 9, 19, 28, 29

TABLE OF AUTHORITIES — Continued

Page

STATUTES

ee SE ucsistscictnncuseceosiebniansedeivepionmmacionaeanveieenaia 18

Me CT, © Bi ircttcestcernnttnenicsemnnicimenimennin passim

OTHER AUTHORITIES

RESTATEMENT (SECOND) OF JUDGMENTS § 24

} RGR CRS RAR am ERD seen. esi eneRTCne 20, 21, 22, 23

RESTATEMENT (SECOND) OF JUDGMENTS § 25(e)

SAREE ae eae eee Rea emer Neen Nena ira Meet Ne Cn OY 23

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Susan Stemler, William Chipman as Administrator of

the Estate of Conni Black, and Randy Black as Legal

Guardian of Shianne Black oppose the Petition for a Writ

of Certiorari filed by Bobby Joe Wince, Thomas Dusing

and John Dolan on the basis that Petitioners primarily

seek to clarify a procedural/jurisdictional rule, the Rooker-

Feldman doctrine, which is wholly foreign to the disposi-

tive issues of this case. Likewise, Petitioners’ assertion

that the Sixth Circuit misapplied the Kentucky law of

claim preclusion by not applying the transactional rule

cannot withstand a careful review of that settled case law.

Nevertheless, when applying the transactional rule (for

the sake of argument only) or when applying the applica-

ble claim preclusion standard, Respondents’ substantive

due process, excessive force and fabrication of evidence

claims are not barred by res judicata.

STATEMENT OF THE CASE

A. STATEMENT OF MATERIAL FACTS

The following recitation of facts borrows heavily from

the Sixth Circuit’s statement of facts in Stemler v. City of

Florence, 126 F.3d 856 (CA6 1997). A copy of that opinion

is attached hereto as Appendix 1. The Sixth Circuit,

understandably appalled at Petitioners’ conduct leading to

the death of Respondent Chipman’s daughter, Conni

Black, offered this terse summary of the facts:

The very notion that police officers should not

have known that they could not [at the time of

the police stop] force an incapacitated woman to

drive off with an obviously drunk man who they

had reason to believe had beaten her betrays a

chilling and unacceptable vision of the role of the

police in our society.

Id. at 870.

On February 18, 1994, Conni Black and her former

boyfriend, Steve Kritis, had been drinking excessively at a

local bar. An altercation arose between Black and Kritis

during which Kritis forcefully struck Black a number of

times and then later struck Black’s friend, Susan Stemler.

In the circumstances, Black asked Stemler to drive her

home. Kritis immediately pursued the two women in his

truck with his headlights kept off and at one point in the

pursuit rear-ended Stemler’s car in an attempt to make

her stop.’

A witness to the chase (Terry Barker) observed that

the women were in obvious distress. He reported that

Kritis, at a high rate of speed, pulled ahead of Stemler’s

car, forcing her down a residential cul-de-sac. When

Stemler pulled her car into a driveway, Kritis pulled

behind to block her in. At this time, a retired police officer

(William Minnick) was awakened by the noise. He then

saw Kritis standing in his driveway on the passenger

(Conni Black’s) side of the car hitting the car window and

yelling. Stemler then maneuvered around Kritis’ truck and

drove up the street, but Kritis jumped in his truck and

again gave chase. According to Barker, Kritis was driving

about 60 miles per hour on the sidewalk of the residential

street. After calling 911, Minnick got in his car and fol-

lowed Kritis and Stemler to the main highway at the top

of his street.

1. The Police Stop

After the vehicles pulled back onto the main street,

they stopped at a red light. At this time, Barker flashed

his lights to alert a nearby police officer, Defendant-

Petitioner Thomas Dusing, who was responding to the 911

call. When Dusing pulled up to Barker, Barker informed

* These facts are being culled from the Sixth Circuit's recitation of

the deposition testimony of various witnesses as reported in the opinion

at 126 F.3d 856. (Appendix 1)

him that there was a “serious problem” with the two

vehicles ahead of him and that Kritis appeared to be a

threat to the safety of the two women. Dusing then pulled

his cruiser in front of Stemler’s car and Kritis’ truck.

Stemler told Dusing that Kritis was drunk, that he had

assaulted both her and Black, that he had threatened to

kill her, and that he had placed both of them in danger by

chasing after them at high speed.

Another police officer approached Kritis, who told the

officer that Stemler'was a lesbian who was kidnapping his

girlfriend. Witnesses say that the officers and deputies at

the scene repeated to each other and to others present

Kritis’ assertion that Stemler was a lesbian. Kritis was

never tested for intoxication or even asked to step out of

the truck, even though Dusing was told by another police

officer that Kritis smelled of alcohol. Subsequent observers

would also testify that, shortly after the police stop, it was

unmistakably apparent that Kritis was very drunk.

Dusing ordered an officer to approach Black, who was

still in the passenger seat of Stemler’s car, to advise her

that she would be arrested for public intoxication “if she

didn’t want to leave with the male.” Two officers then

lifted her out of the car and walked her back to Kritis’

truck, with Black stumbling as she made her way. One

officer then physically placed her into the passenger seat

of the truck.

2. The Fatal Accident

As soon as Black was in the truck, Kritis drove away.

By Kritis’ account, Black passed out, but then woke up and

began to hit him. While striking her back, Kritis lost

control of the truck, which swerved and collided into the

guardrail. Black was partially ejected from the passenger-

side window. Her arm was severed from her body and the

top of her skull was severed off by the guardrail, but Kritis

continued driving for several miles before stopping. Black

died immediately upon impact with the guardrail.

Police officers not involved in the earlier police stop

arrived at the location where Kritis had stopped (respond-

ing to a 911 call by an individual on the scene). It was so

apparent to these officers that Kritis was drunk that they

did not even need to conduct a field sobriety test to deter- -

mine that there was probable cause to arrest Kritis for

driving under the influence.

Based upon these facts, the Sixth Circuit in Stemler

concluded that witness testimony clearly supported a

claim that the police officers acted at the police stop with

deliberate indifference to the threat of injury to Black:

[The officers] knew, or reasonably should have

known, that Kritis was unfit to drive. They knew,

or reasonably should have known, that Kritis

had assaulted [Black] earlier in the evening and

had threatened to hurt her. Nevertheless, they

chose to act affirmatively to place her in harm’s

way.

126 F.3d at 870.

3. Stemler’s Prosecution

After arresting Stemler, Officer Wince took her for a

blood test.’ Stemler related that she had drunk a half-

glass of beer and two Irish coffees over the course of the

night. She concluded that the officers must have tampered

with her blood sample, which allegedly revealed a .17

blood alcohol level an hour after a breathalyzer test

supposedly registered a .105 blood alcohol level. Wince

handled her blood sample after he learned that Black had

died. A forensic scientist reviewed the specimens and the

timing of the tests and concluded that the sample’s integ-

rity had been destroyed, given that Wince waited five days

to deliver the sample and that there were no procedures to

* As with the above facts, the Stemler prosecution facts are being

taken from the Sixth Circuit's recitation of the deposition testimony as

reported in the opinion at 126 F.3d 856. (Appendix 1)

guard against tampering. When a blood sample is submit-

ted to the detective’s office of the Florence Police Depart-

ment, the clerk of that office is supposed to receive a

property card and an evidence tag; the clerk never re-

ceived either in this case in violation of department policy.

Stemler’s sample was the only sample that Wince had ever

kept in the Florence Police Departmeni refrigerator for

five days in his career and was also the only sample that

he had ever personally driven to the lab. According to

Officer Chester Snow, who supervised the property room,

it was “highly irregular” to keep a sample in the refrigera-

tor for five days.

Stemler was prosecuted in the Boone County District

Court for drunken driving. She defended the charge on the

ground that the evidence against her had been fabricated.

Dr. Gordon James testified at her trial that the handling

of the blood sample was “arbitrary” and that the chain of

custody had not been established. After her first trial

resulted in a hung jury, Boone County prosecutors deter-

mined to retry her. Although Wince claimed at Stemler’s

first DUI trial that he had not completed an evidence card,

at the retrial he produced a completed card which neither

the Florence Police Department clerk nor Snow had ever

seen. He claimed that he had completed the card on

February 9, at the time of the arrest; but the clerk testi-

fied that if that were true, she should have seen the card.

The second jury acquitted Stemler. As stated above,

although Stemler was twice tried for DUI and acquitted,

Petitioners did not even conduct a field sobriety test on

Kritis.

B. PROCEEDINGS BELOW

1. State Court Proceedings

a. Chipman’s Claims

On March 7, 1994, William Chipman, the administra-

tor of the estate of Conni Black, filed a wrongful death

action in the Boone Circuit Court against Florence police

officers, Boone County deputies, the City of Florence and

the Boone County Sheriff. The Boone Circuit Court en-

tered summary judgment on behalf of the defendants on

Chipman’s wrongful death claim. Chipman v. City of

Florence, No. 94-CI-00202 slip op. at 4 (Boone Co., Ky., Cir.

Ct Apr. 2, 1996). The Kentucky Court of Appeals reversed

the Boone Circuit Court. Chipman v. City of Florence, No.

1996-CA-001287-MR (Ky.Ct.App. Nov. 25, 1998). The

Kentucky Supreme Court reversed and reinstated the

summary judgment in favor of defendants. City of Florence

v. Chipman, 38 S.W.3d 387 (Ky. 2001).

The Kentucky Supreme Court reasoned that there

was no “special relationship” between Black and the

officers, when the pickup truck struck the guardrail,

to support a wrongful death claim. Jd. at 392. The Court

determined that no “special relationship” existed because

Black was not in custody “at the time the injury producing

act occurred,” which the Kentucky Supreme Court held to

be the time the truck struck the guardrail. Jd. More

specifically, the Court held:

There is no evidence from which it can be ascer-

tained that Black was in state custody or other-

wise restrained by the police at the time the

pickup truck struck the guardrail with the fatal

result. In addition, there is no evidence to sup-

port a claim that the conduct which caused the

pickup truck to leave the roadway and strike the

guardrail was the result of the actions of the po-

lice officers.

Id. at 392. The Kentucxy Supreme Court’s decision was

rooted in the absence of a special relationship at the time

the truck struck the guardrail.

b. Stemler’s Claims

Susan Stemler brought claims of malicious prosecu-

tion, false arrest, abuse of process, assault and battery,

false imprisonment and negligent or intentional infliction

of emotional distress. Stemler v. Florence, Boone Circuit

Court, No. 94-CI-00459. The state trial court granted

summary judgment in favor of the defendants on all

claims except Stemler’s assault and battery claim against

Wince, which Stemler voluntarily dismissed so that an

appeal could proceed. The Kentucky Court of Appeals

affirmed the decision of the trial court. Stemler did not

seek further appeal in state court on these claims.

2. Federal Court Proceedings

a. Chipman’s Claims

On March 31, 1994, three weeks after filing the

wrongful death action in state court, Chipman also filed a

complaint in federal court against the same defendants.

The complaint alleged that the defendants were liable

under 42 U.S.C. § 1983 because they had displayed delib-

erate indifference to the welfare of Conni Black by failing

to arrest Kritis and putting Black into his truck. The

district court granted the officers’ motions to dismiss

under Rule 12(b)(6) of the FRCP on the grounds of quali-

fied immunity. The district coui also granted the motions

for summary judgment of Fl<rence and Boone County.

Chipman v. City of Florence, 858 F. Supp. 87 (E.D. Ky.

1994), reconsideration denied on amended complaint, 866

F. Supp. 332 (E.D. Ky. 1994).

On October 8, 1997, the Sixth Circuit upheld the

district court’s order granting summary judgment to the

governmental defendants, Florence and Boone County.

Stemler, 126 F.3d at 866. (See Appendix 1). However, the

Sixth Circuit reversed the district court’s dismissal of the

claims against the individual officers, holding that there

were sufficient grounds to maintain a § 1983 claim against

the individual officers. Id. at 870. The only state court

decision prior to the Sixth Circuit’s decision was the state

trial court’s decision awarding summary judgment to the

defendant officers on the basis that Black was not in

custody when the pickup struck the guardrail and that the

conduct of the state actors was not the direct cause of the

fatal accident (the same rationale subsequently adopted by

the state Supreme Court). The Sixth Circuit noted the

state trial court’s opinion and commented that “[w]hile

these findings are entitled to preclusive effect, they are

irrelevant to the merits of her substantive due process

claim.” Stemler, 126 F.3d at 870, n.12. The Sixth Circuit

remanded the case to the district court for further proceed-

ings.

On remand, the district court held the case in abey-

ance pending a decision by the Kentucky Supreme Court

on the appeal from the Boone Circuit Court’s entry of

summary judgment in favor of defendants and the Ken-

tucky Court of Appeals’ reversal of that order, issued

February 22, 2001. Chipman later reached a settlement

with the Boone County officers. In June 2001, the federal

district court granted the officers’ motion for summary

judgment on Chipman’s substantive due process claim.

Relying on the doctrine of issue preclusion (and ignoring

the Sixth Circuit’s fn.12 cited above), the district court

concluded that the Kentucky Supreme Court’s decision

foreclosed Chipman’s substantive due process claim.

The Sixth Circuit reversed, holding that a § 1983

claim requires a showing that the state actors and the

plaintiff had a sufficiently direct relationship such that the

state actors owed Conni Black a duty not to subject her to

probable harm. Stemler v. City of Florence, 350 F.3d 578,

586 (CA6 2003). The relevant issue was whether Black

was in custody during the police stop. The Sixth Circuit

held that the two distinct federal and state causes of

action and the separate factual issues related to those

diverse claims were sufficiently distinguishable to pre-

clude the application of both res judicata and the Rooker-

Feldman doctrine. Id. at 588-89.

b. Stemler’s Claims

Stemler filed a § 1983 action against the officers and

the City of Florence. The district court granted the officers’

Rule 12(b)(6) motions to dismiss on the basis of qualified

Seb, oth PRE AE.

immunity. The district court then consolidated her remain-

ing case with Chipman’s and awarded summary judgment

to Florence. A voluntary dismissal was entered pursuant

to an agreement between the parties to dismiss the claim

so that an appeal could proceed. The agreement allowed

her to bring her claim again should she be successful upon

appeal. The Sixth Circuit affirmed the grant of summary

judgment in favor of the City of Florence. Stemler, 126

F.3d at 866.

Stemler amended her complaint to allege that an

officer fabricated blood sample evidence used in her DUI

trials and reasserted her excessive force claim. The district

court held the case in abeyance pending final judgments in

the state court proceedings. The district court denied the

officers’ motion for summary judgment. In its more recent

opinion, the Sixth Circuit reversed the denial of summary

judgment on Stemler’s equal protection claim (barred by

issue preclusion), but affirmed the denial of summary

judgment on her excessive force claim and fabrication of

evidence claim, her two sole surviving claims. The Sixth

Circuit held as follows:

Wince also argues that claim preclusion would

bar Stemler from bringing these claims in federal

court, because as [sic] she could have brought

them in state court. However, as discussed above,

the Kentucky law of claim preclusion only bars

bringing the same cause of action twice. Stem-

ler’s claims for falsification of evidence and ex-

cessive force could have been brought in state

court and were not. However, under Kentucky

law, as she did not bring identical causes of ac-

tion in state court, she is not barred from bring-

ing them in federal court. Yeoman, 983 S.W.2d at

465. The district court did not err when it de-

cided that claim preclusion did not apply to these

claims.

Stemler, 350 F.3d at 592. The instant Petition does not

contend that Stemler’s claims are barred by the Rooker-

Feldman doctrine. —

RESPONDENTS’ ARGUMENTS IN OPPOSITION

TO THE PETITION FOR WRIT OF CERTIORARI

I. SINCE THE SIXTH CIRCUITS OPINION DID

NOT IN EFFECT OVERRULE THE STATE

COURT’S OPINION, THE ROOKER-FELDMAN

DOCTRINE IS INAPPLICABLE TO THIS CASE.

The Rooker-Feldman doctrine prohibits federal courts

other than the United States Supreme Court from review-

ing state court proceedings to adjudicate federal claims

which are “inextricably intertwined” with issues decided in

state court proceedings. Rooker v. Fidelity Trust Co., 263

U.S. 413 (1923); District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983). In Rooker, the Supreme

Court held that the power to hear appeals from state court

judgments is exclusively held by the United States Su-

preme Court. Jd. at 415-16. Feldman held that lower

federal courts lack subject matter jurisdiction to engage in

appellate review of state court proceedings or to adjudicate

“claims “inextricably intertwined” with issues decided in

state court proceedings. 460 U.S. at 483.

The jurisdictional analysis thus hinges upon the

meaning of “inextricably intertwined,” which Justice

Marshall defined as follows:

While the question of whether a federal constitu-

tional challenge is inextricably intertwined with

the merits of a state-court judgment may some-

times be difficult to answer, it is apparent, as a

first step, that the federal claim is inextricably

intertwined with the state-court judgment if the

federal claim succeeds only to the extent that the

state court wrongly decided the issues before it.

Where federal relief can only be predicated upon

a conviction that the state court was wrong, it is

difficult to conceive the federal proceeding as, in

substance, anything other than a prohibited ap-

peal of the state-court judgment.

Pennzoil Company v. Texaco, Inc., 481 U.S. 1, 25 (1987)

(Marshall, J., concurring). The Sixth Circuit’s formulation

of the doctrine is consistent with this Court’s:

The federal claim is inextricably intertwined

with the state-court judgment if the federal claim

succeeds only to the extent that the state court

wrongly decided the issues before it. Where fed-

eral relief can only be predicated upon a convic-

tion that the state court was wrong, it is difficult

to conceive the federal proceeding as, in sub-

stance, anything other than a prohibited appeal

of the state-court judgment.

Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386,

391 (CA6 2002) Thus, a federal claim is “inextricably

intertwined” only if federal relief must be predicated upon

a conviction that the state court was wrong.

In applying this doctrine to the present case, the

precise issue is whether the Sixth Circuit’s holding that

Black was in police custody at the time of the police stop

for purposes of Respondent’s § 1983 action was a de facto

reversal of the state court’s dismissal of Respondent’s

wrongful death action. As stated above, the Kentucky

Supreme Court emphatically held that the basis for

affirming the summary judgment dismissal of the wrong-

ful death claim was that there was no special relationship

between Black and the officers at the time Kritis’ truck

struck the guardrail. Thus, as stated in the Sixth Circuit’s

opinion, federal relief most certainly can be granted in this

case without overruling the Kentucky Supreme Court’s

holding. Stemler, 350 F.3d at 588-89. In their respective

opinions, both the Kentucky Supreme Court and the Sixth

Circuit expressly recognized that each was deciding the

case before it on a separate set of facts: the collision facts

being dispositive of the state claim and the police stop

facts of the federal claim.

Any finding by the federal court that Black was in

custody during the traffic stop would not implicitly require

a conclusion that the state court improperly decided the

issues before it. As stated by the Sixth Circuit:

The Kentucky Supreme Court’s discussion of

whether Black was ever in custody was dicta,

and therefore any finding by the federal court

that Black was in custody at some point during

the encounter would not implicitly hold that the

state court improperly decided the issues before

it. The issue of Black’s custody before the truck

hit the guardrail was not an issue that was sali-

ent before the Kentucky court.

Stemler, 350 F.3d at 589.

While the Kentucky Supreme Court stated that there

was no evidence in the record to support a finding that

Black was “ever” in custody, the Kentucky Supreme

Court’s statement that Black was never in custody

was not necessary to its judgment. The Kentucky

Supreme Court’s statement was pure dictum, and was

implicitly recognized as such by the court’s own opinion.

The Kentucky Supreme Court specifically stated its

holding as follows: “There is no evidence in the record

from which it can be concluded that Black was in custody

by the police or any state actor at the time the pickup

truck struck the guardrail.” City of Florence, 38 S.W.3d at

392.

As discussed earlier, application of the Rooker-

Feldman doctrine requires only a consideration of whether

the federal court must re-review issues that “actually

arose” in the state court, or whether the state court

wrongly decided “the issues before it.” Rooker, 263 U.S. at

415-16; Pennzoil, 481 U.S. at 29; see also Holloway v.

Brush, 220 F.3d 767, 778-779 (CA6 2000) (refusing to

apply Rooker-Feldman where clear conceptual distinction

existed between the state court holding and the issue

before the federal court); Peterson Novelties, 305 F.3d at

392-93 (holding “[t]he state court certainly could have

found the City in violation of its May 9 order, and it

declined the opportunity to do so”; consequently, “it would

NS 2.

therefore be entirely possible for the district court in this

case to provide Peterson federal relief not predicated upon

a conviction that the state court was wrong, and for that

reason the Rooker-Feldman doctrine does not preclude the

court’s adjudication”). Adhering to this Court’s clear

enunciation of the Rooker-Feldman doctrine, the Sixth

Circuit did not in effect reverse the state court’s opinion

that there was no “special relationship” between Black and

the police at the time of her fatal collision.

II. SINCE NEITHER A BROAD NOR A NARROW

INTERPRETATION OF THE ROOKER-FELDMAN

DOCTRINE IS APPLICABLE TO THIS CASE, IT

IS UNSUITABLE FOR CLARIFYING THAT DOC-

TRINE.

Petitioners place great emphasis upon their argument

that the lower federal courts are inconsistently applying

the Rooker-Feldman doctrine. Petitioners claim that

application of the “inextricably intertwined” test varies in

the lower courts due to the Supreme Court’s lack of guid-

ance. Petitioners press this claim even though they ac-

knowledge that the recent Pennzoil opinion clearly defined

a federal claim to be “inextricably intertwined” where “the

federal claim succeeds only to the extent that the state

court wrongly decided the issues before it.” Petition for

Writ of Certiorari, p. 9. Petitioners cite case law from

varying circuits to illustrate their argument. When the

“contradictory” cases cited by Petitioners are closely

examined, it is clear that no contradiction exists. More-

over, the particular case at hand cannot serve to clarify the

Rooker-Feldman doctrine because Rooker-Feldman is

inapplicable under any interpretation of the doctrine by

the lower courts.

Petitioners’ analysis fails to acknowledge that the

application of “inextricably intertwined” is unavoidably

fact-intensive. The application of the rule is dependent

upon the specific claims, the exact issues and the precise

facts confronting each state and federal court. For exam-

ple, Petitioners compare Stern v. Nix, 840 F.2d 208 (CA3

1988) with Centifanti v. Nix, 865 F.2d 1422 (CA3 1989) and

Razatos v. Colorado Supreme Court, 746 F.2d 1429 (CA10

1984), in support of their argument that Rooker-Feldman

is applied inconsistently. Yet these cases have no relevance

to the case sub judice because they merely involve the

issue whether a constitutional challenge is general or

connecte. to a particular case. This element of Rooker-

Feldman is not at issue in the case at hand.

In fact, these cases show that Rooker-Feldman is

applied consistently. The cases apply the exact same rule

of law, but have different holdings due to significant

variations in the facts being treated. The Centifanti court

specifically distinguished its holding in Stern based upon

the differences in the relief requested. Stern also specifi-

cally distinguished Razatos on the basis of the differing

type of relief requested. The courts consistently applied

the same Rooker-Feldman standard, but came to different

conclusions based on the effect of the different remedies

requested by the plaintiffs. Thus, Petitioners’ citation to

these cases, upon a closer look, serves only to illustrate

that the lower courts consistently apply the same stan-

dard.

Petitioners also claim that the circuits are split in that

some apply a “narrow” interpretation of Rooker-Feldman

while others apply a “broad” interpretation. With regard to

the case at hand, this is a distinction without a difference.

Regardless of how broad or narrow Rooker-Feldman is

applied, the federal claim in the case sub judice can be

decided, and was decided, without impugning the sound-

ness of the state court’s decision.

For example, Petitioners cite Moccio v. N.Y. State

Office of Ct. Adm., 95 F.3d 195 (CA2 1996) as illustrative

of the so-called “broad” interpretation. Moccio merely

notes the occasional overlap of Rooker-Feldman with res

judicata, and applies the local res judicata standard to

determine if Rooker-Feldman applies. By that standard,

the question was whether the federal claim was “actually

and necessarily decided in a prior proceeding.” Jd. at 200.

Applying this res judicata standard to the case at hand

does not change the outcome. Thus Chipman’s § 1983

-claim is not barred by the Rooker-Feldman doctrine

because the custody issue before the federal court was not

“actually and necessarily decided” by the Kentucky Su-

preme Court (as noted in the Sixth Circuit’s opinion itself).

On the other hand, Petitioners cite Kougasian v.

TMSL, Inc., 359 F.3d 1136 (CA9 2004) as applying a

“narrow” interpretation of Rooker-Feldman:

In this case, Kougasian has asserted no legal er-

ror by the state court. She is therefore not bring-

ing a de facto appeal under Rooker-Feldman.

Because she is not bringing a forbidden de facto

appeal, there are no issues with which the issues

in her federal claims are “inextricably inter-

twined” within the meaning of Rooker-Feldman.

Therefore, even though Kougasian’s remaining

four causes of actions are essentially identical to

the causes of action already adjudicated in Kou-

gasian I and/or II, Rooker-Feldman does not bar

Kougasian’s federal suit on those causes of ac-

tion.

Id. at 1143. Similarly, Chipman has not asserted legal

error by the Kentucky Supreme Court. The Kentucky

Supreme Court’s ratio decidendi is unrelated to the issue

which the Sixth Circuit was called upon to decide. Thus,

using this “narrow” construction of Rooker-Feldman, it is

likewise inapplicable. Respondent Chipman’s claim is

simply not an appropriate vehicle for redefining Rooker-

Feldman.

| ia alll

Ill. PRIOR CASE LAW FROM THIS COURT

PLAINLY PERMITTED RESPONDENTS TO

FILE SIMULTANEOUS PARALLEL CLAIMS

IN STATE AND FEDERAL COURT.

Petitioners argue that “[t]he Sixth Circuit’s refusal to

apply the Rooker-Feldman doctrine is an open invitation

for parties to split their causes of action between state and

federal courts, in derogation of well-established public

policies.” Petition for Writ of Certiorari, p. 13. Petitioners’

argument, in other words, is that the Rooker-Feldman

doctrine in effect outlaws the simultaneous litigation of

parallel state and federal claims. The scant authority for

this proposition cited in the Petition is readily distin-

guishable.

Although Rooker-Feldman does prohibit de facto

appeals in federal district courts from state court judg-

ments, it is certainly not an across-the-board prohibition of

tandem litigation in state and federal courts. In fact,

parallel state and federal litigation is “one of the hall-

marks of our federal system.” Kougasian v. TMSL, 359

F.3d 1136, 1143 (CA9 2004). Similarly, in Atlantic C_L.R.

Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281

(1970), this Court held:.

Although the federal court did have jurisdiction

of the railroad’s complaint based on federal law,

the state court also had jurisdiction over the

complaint based on state law and the union’s as-

serted federal defense as well. While the railroad

could probably have based its federal case on the

pendent state law claims as well, it was free to

refrain from doing so and leave the state law

questions and the related issue concerning pre-

clusion of state remedies by federal law to the

state courts. Conversely, although it could have

tendered its federal claims to the state court, it

was also free to restrict the state complaint to

state grounds alone. In short, the state and fed-

eral courts had concurrent jurisdiction in this

case, and neither court was free to prevent either

party from simultaneously pursuing claims in

both courts.

Id. at 295. There is no outright bar to parallel or related

lawsuits in state and federal courts as Petitioners claim.

See, e.g., Princess Lida of Thurn & Taxis v. Thompson, 305

U.S. 456, 466 (1939). Generally, as between state and

federal courts, the rule is that “the pendency of an action

in the state court is no bar to proceedings concerning the

same matter in the Federal court having jurisdiction... .”

Colorado River Water Conservation District No. 7 v. United

States, 424 U.S. 800, 817 (1976).

Support for this flexible policy lies in numerous

doctrines that this Court has established regarding feder-

alism and its impact on state court proceedings. Many

safeguards exist to allow simultaneous state and federal

actions while protecting against infringement on state

rights by federal courts. To name only a few, the Younger

doctrine, the Pullman doctrine, the England Reservation,

pendency of actions and the principles of res judicata

permit simultaneous federal and state court filings while

protecting states’ rights against federal encroachment. The

England Reservation, for example, permits a plaintiff who

goes to state court for a ruling on the state law question to

preserve the right, either expressly or by implication, to

litigate federal claims in federal court. England v. Louisi-

ana State Board of Medical Examiners, 375 U.S. 411

(1964). Commenting on England, the Sixth Circuit thus

noted:

We realize that a party who is allowed to proceed

in both federal and state forums may enjoy two

bites of the apple. However, two safeguards exist.

First, to the extent that a plaintiff does more

than protect his rights under state law by fully

litigating federal claims, England bars relitiga-

tion of those claims. Second, if a plaintiff at-

tempts to split a cause of action between federal

and state courts where abstention is inappropri-

ate, the federal court may accord full preclusive

effect to a prior state decision.

Wicker v. Board of Education of Knott County, 826 F.2d

442, 446 (CA6 1987).° Indeed, the Rooker-Feldman doc-

trine itself permits tandem federal and state court pro-

ceedings as long as the federal court does not sit in review

of the state court’s decision.

Respondent Chipman filed parallel complaints, one in

state court and one in federal court, alleging separate

claims for relief. Whereas Respondent asserted his wrong-

ful death claim in state court, he properly asserted the

§ 1983 civil rights claim in federal court in accordance

with 28 U.S.C. § 1331. While Respondents Chipman and

Stemler could have brought all claims in one court, Re-

spondents were not required to do so. Petitioners’ asser-

tion of a blanket prohibition against simultaneous suits in

federal and state courts is totally at odds with the case law

developed by this Court.

IV. THE SIXTH CIRCUIT CORRECTLY APPLIED

KENTUCKY LAW IN REJECTING PETITION-

ERS’ CLAIM PRECLUSION ARGUMENT.

Petitioners contend that the Sixth Circuit misapplied

Kentucky law that defines “the same cause of action”

element of the claim preclusion doctrine. Petitioners argue

that this Court should apply a “transactional rule” to

determine if the causes of action are the same for purposes

* In their state court proceedings, Chipman and Stemler did not

attempt to fully litigate their federal claims and, as discussed more

fully below, they did not split a single cause of action as that concept is

defined in settled Kentucky case law. In this latter regard, see espe-

cially Watts v. K, S & H, 957 S.W.2d 233 (Ky. 1997), discussed below,

where the Kentucky Supreme Court permitted separate negligence

actions against the drunk driver who injured plaintiff and the vendor

who sold liquor to the drunk driver.

— Matad aie AOteensad cies

of claim preclusion. Petitioners’ argument is misplaced, as

the transactional approach applies only to a subsidiary

principle of res judicata known as “splitting the cause of

action.” Since Respondents did not split a single cause of

action, this subsidiary rule does not come into play. Never-

theless, even under the transactional analysis, Respon-

dents’ claims are not barred. The governing principle,

therefore (as the Sixth Circuit noted), is found in Yeoman

v. Kentucky Health Policy Board, 983 S.W.2d 459, 465 (Ky.

1998), where the Kentucky Supreme Court held that claim

preclusion does not apply unless the two causes of action

are identical.

A. The Transactional Rule Is Inapplicable As

Respondents Have Not Split Their Causes

Of Action.

In fashioning their claim preclusion argument, Peti-

tioners rely on two cases which are inapposite to the

undisputed facts and procedural history of the case at

hand, namely Harris v. Ashley, 165 F.3d 27 (CA6 1998)

and Dennis v. Fiscal Court of Bullitt County, 784 S.W.2d

608 (Ky. App. 1990). These two cases, and the precedent

for these cases, apply a transactional approach to deter-

mine if a single cause of action has been improperly split

and therefore barred by res judicata. Splitting a cause of

action is a subsidiary of res judicata that is not at issue in

this case.

In Harris, supra, when his state complaint was

dismissed, plaintiff subsequently filed suit in federal court.

The Sixth Circuit stated, “the rule against splitting claims

is nothing more than that aspect of res judicata which

requires the court to determine the scope of the prior

claim; i.e., to decide if the second action involves issues

which should have been litigated in the first action, but

were not” Id. at 27. The plaintiff clearly intended all his

claims to be litigated in the original court, but filed a

second complaint in an attermpt to take a “second bite of

the apple” after his first complaint was dismissed.

The court in Harris thus invoked the rule against splitting

claims as set forth in RESTATEMENT (SECOND) OF JUDG-

MENTS § 24 to conclude that the second complaint was

properly barred. “Applying Kentucky law to the case at

hand, it is obvious that Harris’s prior whistleblower suit

involved the same transaction as her current § 1983 suit:

namely her vocal criticism of the Kentucky Department of

Financial Institutions and her supervisor’s decision to

discharge her, allegedly in retaliation for that criticism.”

Id. In contrast, as recounted in detail above, Respondent’s

§ 1983 claim herein does not hinge on the manner of Conni

Black’s death in colliding with the guardrail, the disposi-

tive factual consideration in the state wrongful death

claim, but rather hinges on the events occurring at the

police stop.

In Dennis, supra, a terminated police officer’s § 1983

action had been dismissed by the federal court on the basis

of Kentucky’s one-year statute of limitations for personal

injury claims (the most closely analogous claim). The

officer subsequently filed the same claims (“essentially

mirrored the allegations”) in state court. 784 S.W.2d at

609. The Kentucky Court of Appeals held that when the

federal court had dismissed the civil rights claim based on

limitations, the federal court opinion effectively dismissed

the claim on its merits and thereby exercised pendert

jurisdiction over the state law claims and dismissed them

as well. Id. at 611. Applying the subsidiary rule set forth

in RESTATEMENT (SECOND) OF JUDGMENTS § 24 (1982), the

court held that plaintiff improperly split his cause of action as

“it is abundantly clear that appellant intended to litigate all

his claims, those arising under both federal as well as state

law, in federal court.” Jd. In contrast, in the case at hand,

both the Kentucky Supreme Court and the Sixth Circuit

recognized the critical legal and factual distinctions be-

tween a state wrongful death claim on the one hand and a

substantive due process claim on the other. Whereas the

former depended upon a special relationship between the

police and decedent at the time of the guardrail collision,

the latter depended upon the knowledge and conduct of

the police officers at the investigative stop which had

preceded the fatal collision.

In sum, Harris is clearly distinguishable from the

present case as Respondents filed simultaneous suits

with the clear original intention of bringing two separate

causes of action in federal and state court. Respondents in

no way sought, nor currently seek, to “take a second bite of

the apple,” as Harris would discourage. Indeed, the thrust

of the federal lawsuit was not to prove that there was a

“special relationship” between Conni Black and the police

at the time of the collision, but rather a custodial relation-

ship based on the totality of the circumstances transpiring

during the police stop. Dennis is similarly distinguishable

from the case at hand: Respondents were in no way

required to file suit in either state or federal court. Thus,

the cause of action was not improperly split.

A closer examination of Kentucky case law on splitting

a cause of action makes it even clearer that this doctrine is

foreign to the case at hand. The chief precedential cases in

Kentucky regarding claim splitting are Kirchner v. Riherd,

702 S.W.2d 33 (Ky. 1985) and Egbert v. Curtis, 695 S.W.2d

123 (Ky. App. 1985). In Kirchner, the plaintiff filed suit in

circuit court for personal injuries suffered in an automobile

accident. The defendant filed a motion to dismiss, pleading

res judicata as a result of Riherd splitting his cause of

action, having previously filed an action against the defen-

dant in small claims court for property damage arising out

of the same accident. The Kentucky Supreme Court held

that splitting a cause of action bars a party who has sued

for a part of an entire demand to sue for the residue in

another action. Kirchner also cited the RESTATEMENT

(SECOND) OF JUDGMENTS, § 24 (1982), for support. 702

S.W.2d at 34. Thus property damage and personal injury

claims arising out of the same accident must be brought

in one action. This of course does not mean that a state

wrongful death claim arising out of a highway accident

must be brought in the same case asserting a substantive

due process claim arising out of a police stop.

Similarly, in Egbert v. Curtis, 695 S.W2d 123 (Ky.

App. 1985), the court barred a plaintiff from suing in

district court after receiving judgment in small claims

court. The court noted that a subsidiary rule of res judi-

cata is that a cause of action may not be split and tried

piecemeal. Jd. at 124. The court found that the plaintiff’s

counterclaim was compulsory and thus belonged in the

earlier litigation, and therefore was res judicata under the

subsidiary rule prohibiting the splitting of a cause of

action. Id.

In Arnold v. K-Mart Corporation, 747 S.W.2d 130 (Ky.

App. 1988), where an employee lost an action in small

claims and thereafter brought an action in circuit court,

the opinion distinguished Kirchner and Egbert. In Arnold,

the Kentucky Court of Appeals noted that the relief sought

in small claims court, judgment for salary and benefits,

was a different subject matter than damages requested of

the circuit court for wrongful termination:

In our view, the district court did not have to de-

cide whether or not the termination was wrong-

ful in order to find that_K-Mart owed the salary

and benefits. The question of the wrongfulness of

the appellant’s discharge is simply not ‘material’

or ‘essential’ to a determination of whether K-

Mart owed a debt to the appellant. Therefore, the

instant action is not barred by res judicata.

Id. at 133. A synthesis of these Kentucky cases shows that

causes of action are improperly split only where a subse-

quent action is filed due to the failure of the first action,

and the claims in the subsequent action were required to

be brought in the original action.

The Kentucky courts frequently cite the RESTATEMENT

(SECOND) OF JUDGMENTS § 24 (1982) in support of their

holdings on splitting cause of action defenses. A review of

§ 24 reveals its inapplicability, and consequently the

inapplicability of the rule against splitting a cause of

action, to the present case. Section 24 states in relevant

part:

‘ q

ne ee at ee Le

When a valid and final judgment rendered in an

action extinguishes the plaintiff’s claim pursu-

ant to the rules of merger or bar, the claim extin-

guished includes all rights of the plaintiff to

remedies against the defendant with respect to

all or any part of the transaction, or series of

connected transactions, out of which the action

arose.

Section 24 therefore applies only when a final judgment in

one action serves to bar the plaintiff’s claim in a second

action. If that occurs, all claims that are part of the trans-

action are extinguished along with a plaintiff’s second

claim. This typically occurs in cases where a plaintiff

receives an unfavorable result and brings a new set of

claims against the same party. The purpose behind the

rule, as stated by Petitioners, is to prevent a never-ending

lawsuit. Hence, the rule applies to subsequent suits, not

to parallel suits filed at the same time.*

* See, e.g., RESTATEMENT (SECOND) OF JUDGMENTS § 25(e) (1982),

entitled “Exemplifications of General Rule Concerning Claim Splitting,”

which states that “A given claim may find support in theories or

grounds arising from both state and federal law. When the plaintiff

brings an action on the claim in a court, either state or federal, in which

there is no jurisdictional obstacle to his advancing both theories or

grounds, but he presents only one of them, and judgment is entered

with respect to it, he may not maintain a second action in which he

tenders the other theory or ground.” The Restatement provides two

illustrations to show when a second suit would not be permitted. The

first illustration states that where a party’s action is dismissed from

federal court, and the party then seeks to commence an action for

damages against B in a state court, the state court action is barred. The

second illustration bars a subsequent suit when judgment is entered

against a plaintiff in state court, and the plaintiff then subsequently

attempts to bring an action against B in a federal court for the same

action. The Restatement upon which Petitioners rely thus applies only

to federal or state claims brought subsequent to the resolution of the

original action.

The case sub judice is completely distinguishable from

the Kentucky case law that applies the transactional rule

to determine the extent res judicata bars claims that were

improperly split. The rule against claim splitting exists to

prevent “reactive claims,” or claims which are brought

subsequent to, or “in reaction to,” a dismissal in order that

the plaintiff can attempt to secure redress in another

manner. Reactive claims are clearly an attempt to take

two bites of the apple. Respondent’s parallel, simultaneous

suits were not improperly split, therefore the transactional

rule does not apply. Respondents did not file a subsequent

action after having lost a previous action. Nor were Re-

spondents required to file their claims together in one

court. Respondents exercised their right to choose a forum

by filing simultaneous cases in order that their federal

claim could be decided in federal court and their state

claim in state court. The subsidiary rule to res judicata

simply does not apply to this case.

B. The Transactional Rule Does Not Bar Re-

spondents’ Claims.

Although the case law makes clear that Respondents

have not split their cause of action and the transactional

rule therefore does not apply, application of the transac-

tional rule to the present case illustrates the ultimate

futility of Petitioners’ argument. Assuming, for the sake of

argument only, that Petitioners’ “splitting the causes of

action” argument is applicable, Respondents’ claims are

nevertheless not barred by the transactional rule.

Petitioners notably fail to define the full scope and

limitations of the transactional approach in Kentucky case

law. Petitioners cite Harris v. Ashley, 165 F.3d 27 (CA6

1998), as a case on‘point. Harris defines the transactional

approach as follows:

Like the Restatement, Kentucky law takes a

transactional approach to determine whether

there is a sufficient identity of causes of action —

an approach which looks beyond the legal

theories asserted to see if the two claims

stem from the same underlying factual cir-

cumstances. In Dennis, for example, the court

held that an assessment of identity of claims re-

quires the court to look at claim in factual

terms and to make it coterminous with the

transaction regardless of the number of substan-

tive theories, or variant forms of relief flowing

from those theories, that may be available to the

plaintiff; regardless of the number of primary

rights that may have been invaded; and regard-

less of the variations in the evidence needed to

support the theories or rights. The transaction is

the basis of the litigative unit or entity which

may not be split.

Id. at 27 (emphasis added). The sine qua non of the trans-

actional approach is therefore an examination of the exact

factual circumstances surrounding the separate claims.

Where the claims do not stem from the same underlying

factual circumstances, the claims are not required to be

litigated in the same action. Thus, the Harris court found

that the plaintiff’s whistleblower suit and § 1983 suit

were based on the same transaction because they stemmed

from the exact same set of facts: plaintiff’s vocal criticism

of her employer.

Compare, however, Watts v. K, S & H, 957 S.W.2d 233

(Ky. 1997), in which the Kentucky Supreme Court re-

versed a decision by the Kentucky Court of Appeals

applying res judicata to bar a dram shop action where the

plaintiff had previously brought a negligence suit against

the drunk driver to whom the dram shop defendant had

sold liquor. Jd. at 237. The Watts court explained that

there was no identity between the two causes of action

because the first action involved the drunk driver’s negli-

gence in operating the vehicle that collided with plaintiff,

whereas the second action involved the liquor store’s

negligence in selling alcohol to the minor who later be-

came drunk and collided with plaintiff. Id. at 238. “To put

it in transactional terms, the two cases did not arise from

the same set of facts: the negligence action focused on the

accident and the dram shop claim focused on the purchase

of alcohol.” Harris, 165 F.3d at 27 (discussing Watts). Watts

thus expressed a clear limitation on the rule against

splitting the cause of action: it does not apply where the

cases do not arise from the same set of facts, even if those

facts are causally related. Thus, even though the causes of

action in Watts were both temporally and causally tied

together in that the drinking precipitated the accident, the

subsequent action was nevertheless not barred by claim

preclusion because the legal/factual basis of each claim

was sufficiently distinct. See also Hays v. Sturgill, 193

S.W.2d 648 (Ky. 1946) (holding will construction case

sufficiently distinct from subsequent claim concerning

grantor’s soundness of mind).

In Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d

808 (W.D. Ky. 2003), plaintiff brought suit in state court

for breach of a sales contract on a vehicle and subse-

quently brought suit in federal court alleging violations of

the Fair Credit Reporting Act. The court held that pursu-

ant to Watts and Hays, the plaintiff’s federal claims were

not precluded:

Though both lawsuits arise out of an automobile

sale, the similarities end there. More simply put,

the first case involves the sale price of an auto-

mobile and the second an arguable invasion of

privacy. The first judgment is therefore not nec-

essarily conclusive of matters which were not

germane to, implied in or essentially connected

with the actual issues in the case although they

may affect the ultimate rights of the parties and

might have been presented in the former action.

Therefore, one cannot say that the breach of con-

tract and Fair Credit Reporting Act claims in-

volve relitigation of the same issues and facts.

Kentucky’s claim preclusion rule does not bar

this action.

Id. at 814-815 (internal citations and quotations omitted).

Like the situations in Watts, Hays and Smith, Chip-

man’s federal and state actions did not arise from the

same set of facts: the state action focused on the accident

and the federal claim focused on the police stop. Nor does

Stemler’s fabrication of evidence claim stem from the same

set of facts underlying her state court claims. Thus, the

’ facts involved in her fabrication claim are based on the

individual actions of Officer Wince in the days and weeks

subsequent to the police stop and Stemler’s arrest. Peti-

tioners’ exceedingly broad application of “transactional

nucleus” would lead to the unacceptable preclusion of

claims that do not share a common core of related facts. It

is irrelevant to a transactional analysis that the separate

factual circumstances involve the same parties and oc-

curred on the same date; it is also irrelevant in the case at

hand that the police stop and the accident are causally

related. What is essential to such an analysis is the clear

delineation of disparate facts underlying separate causes

of action. The police stop is not relevant to the state claim

(as the Kentucky Supreme Court held), just as the acci-

dent scenario is not relevant to a determination of the

federal claim (as the Sixth Circuit held). Nor are the

events of the police stop or the accident scene relevant to

Stemler’s fabrication of evidence claim.

Regarding Stemler’s excessive force claim, Petitioners

would like to have their cake and eat it too. Petitioners

argue against “splitting a cause of action” as they define it,

yet argue that Stemler should have revived the excessive

force claim in state court rather than federal court even

though the only remaining claims were in federal court.

The voluntary dismissal agreements, which Petitioners’

agreed to, permitted Stemler to revive her claim in either

forum. See, e.g., Stemler, 350 F.3d at 591.

Petitioners’ application of the transactional analysis is

fatally flawed. Assuming arguendo that the transactional

rule is applicable, it nevertheless does not bar Respon-

dents’ claims.

C. Respondents’ Federal And State Causes Of

Action Are Not “The Same” For Purposes

Of Claim Preclusion.

The law regarding claim preclusion that Petitioners

seek to apply is clearly not on point, as discussed above.

The applicable rule of law is set forth in the recent seminal

Kentucky Supreme Court opinion in Yeoman v. Kentucky

Health Policy Board, 983 S.W.2d 459, 465 (Ky. 1998),

which strikes the death knell to Petitioners’ claim preclu-

sion argument.

In Yeoman, the Kentucky Supreme Court took the

opportunity to define the two components of res judicata.

The issues arose in the context of a suit challenging the

constitutionality of Kentucky House Bill 250, legislation

aimed at making wide-ranging health care reforms. Since

there had been litigation challenging earlier legislation

which had included similar health care reform proposals

(viz., House Bill 1), the Court first had to resolve claims

that the prior litigation would preclude the claim then

before it. The Court rejected the applicability of claim

preclusion finding that House Bill 250 was similar but not

identical to House Bill 1.

Yeoman states that “claim preclusion bars a party

from re-litigating a previously adjudicated cause of ac-

tion.” Id., at 465 (emphasis added). Yeoman sets forth the

elements of claim preclusion as follows: “First, there must

be identity of the parties. Second, there must be identity of

the causes of action. Third, the action must have been

resolved on the merits.” Jd., citing Newman v. Newman,

451 S.W.2d 417, 419 (Ky. 1978). Identity of the causes of

action means “the subject matter of the subsequent suit

must be identical.” Jd. Petitioners recognized as much in

their brief, actually citing Whittaker v. Cecil, 69 S.W.3d 69

(Ky. 2002), as follows: “ ... the doctrine [of res judicata]

does not act as a bar in a subsequent proceeding if the

issues or questions of law are different. ...” Petition for

Writ of Certiorari, p. 25. In the absence of prohibited

claim-splitting (i.e, two claims arising out of the exact

same facts), Yeoman has made clear that the causes of

action must be identical for claim preclusion to be applica-

ble.

In the present case, the causes of action decided by

the state court are clearly not identical to the causes of

action before the federal court. Chipman’s state wrongful

death claim required a legal analysis of the existence of a

“special relationship” between Black and the officers at the

time the Kritis’ truck struck the guardrail. Chipman’s

federal § 1983 claim required a legal analysis of the

existence of “custody” of Black by the officers at the time of

the police stop. Stemler’s federal excessive force and

fabrication of evidence claims were not considered by the

state courts; therefore, under the third prong of Yeoman,

the claims are not barred by claim preclusion because they

were not resolved “on the merits.” See Yeoman, supra, at

465.

CONCLUSION

The Sixth Circuit Court of Appeals was correct in

concluding that the Rooker-Feldman doctrine is not

applicable to the case at hand, whether that doctrine is

construed broadly or narrowly. Likewise, Petitioners’ claim

preclusion argument is of no avail because Respondents’

substantive due process, excessive force and fabrication of

evidence claims are neither factually nor legaily the same

as their state court claims. Therefore the Petition for Writ

of Certiorari ought not to be granted.

Respectfully submitted.

RICHARD G. MEYER

MARK D. GUILFOYLE

Counsel of Record

SUSANNE R. WHERLEY

DETERS, BENZINGER & LAVELLE

207 Thomas More Parkway

Crestview Hills, KY 41017

(859) 341-1881

ERIC C. DETERS

ERIC DETERS & ASSOCIATES

300 Buttermilk Pike, Suite 322

Crestview Hills, KY 41017

(859) 426-5300

App. 1

SUSAN STEMLER, Plaintiff-Appellant, v.

CITY OF FLORENCE; BOBBY JOE WINCE;

THOMAS DUSING; and JOHN DOLAN,

Defendants-Appellees. WILLIAM CHIPMAN,

Administrator of the Estate of Conni Black,

Plaintiff-Appellant, v. CITY OF FLORENCE;

BOBBY JOE WINCE; THOMAS DUSING;

JOHN DOLAN; RON KENNER, Boone County

Sheriff; ROB REUTHE; and CHRIS ALSIP,

Defendants-Appellees.

No. 96-5993, No. 96-5996

UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

126 F.3d 856; 1997 U.S. App. LEXIS 27677;

1997 FED App. 0300P (6th Cir.)

August 1, 1997, Argued

October 8, 1997, Decided

October 8, 1997 Filed

COUNSEL: ARGUED: Eric C. Deters, Richard G.

Meyer, DETERS, BENZINGER & LAVELLE, Covington,

Kentucky, for Appellant.

Jeffrey C. Mando, ADAMS, BROOKING, STEPNER,

WOLTERMANN & DUSING, Covington, Kentucky, for

Appellee.

ON BRIEF: Eric C. Deters, Richard G. Meyer, DETERS,

BENZINGER & LAVELLE, Covington, Kentucky, for

Appellant.

Jeffrey C. Mando, ADAMS, BROOKING, STEPNER,

WOLTERMANN & DUSING, Covington, Kentucky, R.

Keni “Vestberry, David Whalin, LANDRUM & SHOUSE,

Louisville, “Zentucky, Hugh O. Skees, ROUSE, SKEES,

App. 2

WILSON & DILLON, Florence, Kentucky, W. Kenneth

Nevitt, K. Thaddeus Keal, WILLIAMS & WAGONER,

Louisville, Kentucky, for Appellee.

JUDGES: Before: MERRITT, WELLFORD, and BOGGS,

Circuit Judges. BOGGS, J., delivered the opinion of the

court, in which MERRITT, J., joined. WELLFORD, J. (pp.

35-38), delivered a separate concurring opinion.

OPINION BY: BOGGS

OPINION: :

BOGGS, Circuit Judge. In No. 96-5996, the estate of

Conni Black (hereinafter “Black”) appeals the judgment

entered against her on her substantive due process claim

against officers of Boone County, Kentucky, and of the City

of Florence arising from her death in a car accident on the

night of February 18, 1994, shortly after those officers

removed her from the car of Susan Stemler and placed her

in the truck of her drunk and violently abusive boyfriend,

Steve Kritis. In No. 96-5993, Stemler appeals the judg-

ment entered against her on her claims of false arrest,

malicious prosecution, and violation of equal protection

arising from her arrest at that time for driving under the

influence; she alleges that the officers arrested her solely

because they believed her to be a lesbian. For the reasons

explained herein, with respect to both plaintiffs, we affirm

the district court’s award of summary judgment to the City

of Florence and to the Boone County defendants in their

official capacities. However, we reverse the dismissal of

Black’s complaint against the individual officers, and we

also reverse the dismissal of Stemier’s complaint against

the individual officers with respect to her equal protection

claim.

Bia ine

App. 3

I. Background

A. The Assaults and Car Chase

On February 18, 1994, at about 10:45 p.m., Conni

Black and her boyfriend, Steve Kritis, arrived at Willie’s

Saloon in the Ramada Inn in Florence, Kentucky.’ Both

Black and Kritis had been drinking heavily. While line

dancing, Black met Susan Stemler. Around 2:00 a.m., the

two went to the women’s restroom and discussed problems

that each had with their respective boyfriends. During this

conversation, Black toid Stemler that she wanted to leave

Kritis. According to one witness, Christine Stillwell:

Steve Kritis then burst into the restroom and

slung the door to the restroom hard. He came

into the restroom _elling. He stated in part: “If

you don’t get your fucking sister out of here, Ill

kill the bitch.” He yelled this at Laura Stemler.

He grabbed Conni Black on the arm as he

screamed at her. He slammed her against a toilet

stall. He then yanked her out of the restroom. Af-

ter he left the restroom, I could still hear him

screaming outside of the restroom.... Conni

came back into the restroom. He yanked her out

physically of the restroom a second time.

At this point, I wondered why nobody had

called the police. When I went out of the rest-

room and into the lobby of the Ramada, I ob-

served Kritis pushing Conni around in the

* The procedural postures of these cases are somewhat odd, since

in both cases we are presented with an appeal from a dismissal under

Rule 12(b)(6) with respect to some defendants and an appeal from

summary judgment with respect to other defendants. Except where

otherwise noted, this opinion will discuss the record evidence viewed in

the light most favorable to the appellants.

App. 4

parking lot. As I went outside into the parking

lot, I observed Kritis stil] pushing Conni....

Kritis put his forehead against Conni’s and

put his hands behind his back. For every step

Conni took to flee Kritis, Kritis took one forward

still pressing his forehead against hers. He then

made a fist to hit her. He looked at me and saw

that I was watching and released his fist.

According to Stemler, after Kritis removed Black from

the restroom, Kritis slammed Black against a concrete

wall in the hotel lobby; Black’s head hit the wall and she

briefly passed out. Black asked Stemler to drive her home,

and Stemler agreed. As they were leaving, Kritis struck

Stemler in the back of the head with a blunt object. Stem-

ler and Black got into Stemler’s car and drove away at

about 2:15 a.m. Kritis pursued them in his truck. Kritis

did not have his headlights on. At one point during the

chase, Kritis rear-ended Stemler’s car with his truck in an

attempt to make her car stop. A witness, Terry Barker, was

driving east on U.S. 42 in Florence at the time; he saw

that Kritis was chasing the women and that the women

were in obvious distress, and decided to follow the vehi-

cles.

According to Barker, at one point the truck got ahead

of the car and forced it down Woodland Avenue, which

ends in a cul-de-sac. Stemler pulled her car into a drive-

way, and Kritis stopped his car behind her to block her|

access to the street. Fortunately, the driveway belonged to

William Minnick, a retired Florence police officer. His wife,

Nancy Minnick, heard a horn blowing at about 2:30 a.m.

When she opened her door, she saw Kritis standing in her

driveway on the passenger side of the car. Kritis was

hitting the car window and yelling. The car backed out

nA ah aa nt ie lade as

App. 5

around the truck and drove up the street. Kritis jumped in

the car and again gave chase; according to Barker, he was

driving at about sixty miles per hour on the sidewalk of

the residential street. By this point, Mr. Minnick was

awake and dressed; he called 911, and then got in his car

and followed Kritis and Stemler. Barker also continued to

follow them.

B. The Police Stop

After the vehicles pulled back on to U.S. 42, they

stopped at a light at Tanners Lane. Barker flashed his

lights to alert a nearby police officer, defendant Lieutenant

Thomas Dusing, an officer of the Florence Police Depart-

ment, who was responding to the 911 call. When Dusing

pulled up to Barker, Barker informed him that there was a

“serious problem” with the two vehicles ahead of him, and

that Kritis appeared to be a threat to the safety of the two

women. After speaking with Barker, Dusing pulled his

cruiser in front of Stemler’s car and Kritis’s truck at the

intersection. As he left the cruiser, Stemler jumped out of

her car and ran to him. Stemler told Dusing that Kritis

was drunk, that he had assaulted both her and Black, that

he had threatened to kill her, and that he had placed both

of them in danger by chasing after them at high speed.

She was obviously emotionally distraught, and cried while

she related the evening’s events to Dusing. While Dusing

spoke with Stemler, four other officers arrived at the scene

in separate cars: officers Bobby Joe Wince and John Dolan

of the Florence Police Department, and officers Rob

Reuthe and Chris Alsip of the Boone County Sheriff’s

Office. Each of the four would later be named as defen-

dants in this litigation along with Dusing.

App. 6

During Stemler’s conversation with Dusing, Reuthe

approached Kritis, who was seated in his truck. According

to Reuthe’s testimony, Kritis told him that Stemler was a

lesbian,” and that she was kidnapping his girlfriend. After

speaking with Stemler, Dusing approached Reuthe;

Dusing would later testify that Reuthe told him at that

time that Stemler was a lesbian. Reuthe also told Dusing

that Kritis smelled of alcohol, but that he had not tested

Kritis for intoxication. Dusing then approached Kritis,

who repeated his assertion that Stemler was a lesbian.

Kritis also asked Dusing to bring Black to his truck,

Dusing told him that he would see what he could do.

Dusing asked Kritis whether he had seen Stemler driving

the car, and whether he would be willing to testify against

Stemler.

Dusing would later submit a police report claiming

that he did not smell alcohol on Kritis’s breath at that

time. This claim is contrary to his contemporaneous

statements to Wince and to Mr. Minnick that Kritis

smelled of alcohol. A blood test taken over two hours later

would reveal that Kritis had a blood alcohol level of .115,

which indicates that at the time of the police stop, his

blood alcohol level was probably between .155 and .175, at

least one-and-a-half times the legal limit in Kentucky of

.10.° Subsequent observers would also testify that, over an

hour after the police stop, it was immediately apparent

that Kritis was very drunk. Nevertheless, neither Dusing

nor any other officer ever tested Kritis for intoxication, or

even asked him to step out of the truck.

* Stemler denies that she is a lesbian.

> Both Black’s complaint and Stemler’s complaint allege that

Kritis’s blood alcohol level at the time of the police stop was .20.

App. 7

At some point, Dusing asked Wince to test Stemler for

intoxication. By that time, Wince had already heard

Kritis’s allegation that Stemler was a lesbian. Wince did

not find any of the standard DUI indicators in examining

Stemler; she did not have affected speech, impaired

balance, impaired walking, or impaired coordination, and

she did not seem disoriented. According to Wince, Stemler

failed the horizontal nystagmus gaze field test, a test in

which uncontrolled movement in a suspect’s eyes may

indicate drunkenness. However, Stemler alleges that

Wince did not know how to perform that test properly, and

had to ask for assistance with the test from Dolan. Stemler

alleges further that Dolan also did not know how to

perform the nystagmus test. Wince testified that the

breathalyzer revealed a blood alcohol level of .105.° Stem-

ler alleges that the breathalyzer was not properly cali-

brated.

After performing the field tests, Wince conferred with

Dusing and Dolan. By this time, all three cfficers had

heard Kritis’s claim that Stemler was a lesbian. Dusing

decided that they should arrest Stemler for driving under

the influence, and the other officers agreed. Dusing would

later concede that, in deciding to arrest Stemler and not

Kritis, he relied on Kritis’s version of events more than he

did Stemler’s. Wince approached Stemler, informed her

that she was under arrest, and asked her who she would

like to tow her car. Stemler broke into tears, pointed at

Kritis, and asked Wince, “Aren’t you going to check him?

Why don’t you check him?” As she was pointing, Wince

* Stemler’s complaint alleges that she had a blood alcohol level

below .10 at the time cf the police stop.

App. 8

grabbed her arm, pulled it behind her, and placed her in

handcuffs.”

At approximately the same time, two unknown

officers, one each from Florence and from Boone County,

approached Barker, who was parked across the street.

Barker related the complete story of the chase to both

officers. Barker overheard one of the officers relating his

story to a third officer. The officers asked him whether he

saw Stemler driving the car, and whether he would be

willing to testify against Stemler in court. Upon learning

that Stemler was being placed under arrest, Barker told

the officers that they were arresting the wrong person and

that Kritis was obviously “crazy”; the officers didn’t

appreciate that, became “arrogant,” and told him that he

didn’t “know what’s going on” and that he could “go on

about your business.” Barker was dumbfounded and

angered by the officers’ actions. Barker confirms that the

police never asked Kritis to leave the truck, despite the

fact that, as during the chase, Kritis still had not turned

his headlights on. Although the officers told Barker that

they would contact him to be a witness against Stemler,

they never did so. Furthermore, Wince failed to list Barker

as a witness at the scene in his field notes, and the card on

which the officers supposedly were writing down Barker’s

name and telephone number was lost.

While Wince was testing Stemler for intoxication, Mr.

Minnick arrived at the scene. He spoke first with defen-

dant Boone County Officer Chris Alsip. Alsip immediately

* In her complaint, Stemler alleges that Wince used excessive force

in handcuffing her. The district court denied Wince’s motion to dismiss

this claim; however, Stemler has voluntarily dismissed her excessive

force claim.

6 SAM dy OR

App. 9

“informed” him that Stemler was a lesbian. Minnick

thought that it was odd that Alsip could state that fact

with such certainty, given that Stemler had out-of-state

license plates- Wince also made a point of informing

Minnick that Stemler was a lesbian. Although the officers

at the police stop were aware that Minnick had observed

Kritis chasing Stemler, they asked him only whether they

observed Stemler driving her car.

Dusing ordered Dolan to approach Black, who was

still in the passenger seat of Stemler’s car, and to inform

her that she would be arrested for public intoxication “if

she didn’t want to leave with the male.” At that time,

Black was very intoxicated; her eyes were glassy and she

slurred her words. Alsip and Dolan lifted her out of the car

and assisted her to Kritis’s truck. Black stumbled as she

walked to the truck. Alsip physically placed her into the

passenger seat in the truck. Alsip would later admit that

he never heard Black say that she wanted to leave with

Kritis.° Dusing told Alsip only that Stemler was a lesbian

and that Kritis did not want his girlfriend with her; Alsip

would later concede that, if he had known of all the pre- —

ceding events that evening, he would not have placed

Black in the truck but instead would have arrested Kritis.

* Black’s complaint alleges that, “having lost the assistance of

Susan Stemler, under threat of arrest and against her will,” she

capitulated and allowed herself to be placed into Kritis’s truck. Dolan

testified that Black asked if she could leave with Kritis; however,

Black’s estate argues that Dolan had an incentive to be untruthful on

this point, and that the issue of his veracity should be reserved for the

factfinder. Given the officers’ admissions that Dusing ordered Dolan to

threaten Black with arrest, and Black’s earlier unwillingness to leave

with Kritis, a view of the evidence most favorable to Black would

indicate that she involuntarily left the scene of the police stop with

Kritis.

App. 10

C. The Subsequent Accident

As soon as Black was in the truck, at about 3:00 a.m.,

Kritis drove away. Kritis drove two blocks from the police

stop and then turned onto the northbound lanes of I-75.

Black had passed out in the truck. According to Kritis,

when she woke up, she “went haywire” and began hitting

him; he hit her back and lost control of the truck. The

truck swerved to the right and collided side-to-side with a

guardrail. The impact threw Black partially out of the

passenger side window. Black’s arm was completely

severed from her body and her head was severed into two

parts. The truck was damaged and the front tire was

blown. Kritis continued to drive slowly on I-75 and then

east on I-275 until the truck could proceed no further.

A passing motorist, Kristopher Waldespuhl, was

waved down by Kritis around 3:45 a.m. Kritis said, “my

girlfriend is kind of hurt,” and asked for help. According to

Waldespuhl, Kritis spoke “very nonchalantly,” and “had no

emotions at all, wasn’t upset.” It was immediately obvious

to Waldespuhl that Kritis was drunk; Kritis had alcohol on

his breath, his eyes were glazed and bloodshot, and he was

not acting sober. Kritis admitted to Waldespuhl that he

was drunk. He also told Waldespuhl that “they were

fighting at Willie’s and some dyke bitch took her from me.”

Waldespuhl walked over to the other side of the truck. It

was immediately apparent to Waldespuhl that Black was

dead, although Kritis was unaware of this fact.

Waldespuhl left to place a 911 call.

Officer Stephen Johnson of the Lakeside Park-

Crestview Police Department arrived at the scene. It was

obvious to Johnson that Kritis was drunk; he did not even

need to conduct a field sobriety test to determine that he

App. 11

had probable cause to arrest Kritis. Another officer at the

scene, Mike Mann, also immediately determined that

Kritis was drunk. According to Mann, “Steve Kritis told

me that he and his girlfriend were fighting and exchang-

ing blows. He stated that he felt a large ‘thud’ but contin-

ued driving the truck. His truck started to quit and he

pulled over.” Johnson placed Kritis under arrest for

driving under the influence at 4:30 a.m.’

An accident reconstruction specialist, Detective Jack

Prindle, determined that, at the time of the impact with

the guardrail, the truck was traveling at sixty-six miles

per hour. The truck had traveled from the scene of the

police stop to the scene of the accident in about five min-

utes. The accident occurred when the steering wheel

turned abruptly to the right; there is no way to know what

caused the wheel to turn. As the vehicle struck the guard-

rail, Black was partially ejected, causing her head and

right arm to be severed on the guardrail. Kritis continued

on for 2.5 miles before stopping.

D. Stemler’s Prosecution

After arresting Stemler, Wince took her for a blood

test. Stemler claims that she had had only a half-glass of

beer and two Irish coffees over the course of the night. She

suspects that the officers tampered with her blood sample,

which allegedly revealed a .17 blood alcohol level an hour

after the breathalyzer allegedly revealed a .105 blood

’ Kritis would subsequently plead guilty in the Boone County

District Court to manslaughter in the second degree and to wanton

endangerment in the first degree. He was sentenced only to probation.

After violating the terms of his probation, he is now serving a five-year

prison sentence.

ME ae es a eae

———

App. 12

alcohol level. Wince handled her blood sample after he

learned that Black had died. Larry Dehus, a “forensic

scientist,” reviewed the specimens and the timing of the

tests and concluded that the sample’s integrity had been

destroyed, given that Wince waited five days to deliver the

sample and that there were no procedures to guard

against tampering. When a blood sample is submitted to

the detective’s office of the Florence Police Department,

the clerk of that office, Mary Hayes, is supposed to receive

a property card and an evidence tag; Hayes never received

either with respect to Stemler’s blood sample. This was_a

violation of department policy. Stemler’s sample was the

only sample that Wince had ever kept in the Florence

Police Department refrigerator for five days in his career,

and was also the only sample that he had ever personally

driven to the lab. According to Officer Chester Snow, who

supervised the property room, it would be “highly irregu-

lar” to keep a sample in the refrigerator for five days.

Stemler was prosecuted in the Boone County District

Court for driving under the influence of alcohol. She

defended the charge on the ground that the evidence

against her had been fabricated. Dr. Gordon James testi-

fied at her trial that the handling of the blood sample was

“arbitrary” and that the chain of custody had not been

established. Her first trial resulted in a hung jury. She

was retried. Although Wince claimed at Stemler’s first

DUI trial that he had not completed an evidence card, at

the retrial he produced a completed card which neither

Hayes nor Snow had ever seen. He claimed that he com-

pleted the card on February 19, at the time of the arrest;

Hayes testified that if that were true, she should have

seen the card. The second jury acquitted Stemler.

App. 13

E. Related State Court Proceedings

On March 7, 1994, Black’s estate filed a wrongful

death action under Kentucky law against each of the

defendants in this case in the Boone County Circuit Court.

Chipman v. Florence, No. 94-CI-00202. Stemler also

brought suit against the defendants herein in the Boone

County Circuit Court, raising state-law claims of malicious

prosecution, false arrest, abuse of process, assault and

battery, false imprisonment and negligent or intentional

infliction of emotional distress. Stemler v. Florence, No. 94-

CI-00459. The state court consolidated the two suits, and

in separate orders on April 2 and April 26, 1996, it

awarded the defendants summary judgment on all claims

except Stemler’s assault and battery claim against Wince.

Stemler voluntarily dismissed that claim. Both Black and

Stemler have appealed the judgments against them, and

their appeals are pending in the Kentucky Court of Ap-

peals.

F. Proceedings Below

On March 31, 1994, William Chipman, the adminis-

trator of the estate of Conni Black, filed a complaint in the

United States District Court for the Eastern District of

Kentucky against Dusing, Dolan, Wince, Reuthe, and

Alsip. The complaint also named the City of Florence and

Ron Kenner, the Boone County Sheriff. The complaint

* The appellees have informed the court that Kenner died on May

11, 1997. The appellees should have informed the court at the same

time of the identity of Kenner’s successor. See FED. R. APP. P. 43(c).

Since Black sued Kenner only in his official capacity as Boone County

sheriff, for the purposes of this appeal we will treat the claims against

(Continued on following page)

App. 14

alleged that the defendants were liable under 42 U.S.C.

§ 1983 for Black’s wrongful death, insofar as the defen-

dants had displayed deliberate indifference in placing her

in the car in which she was later killed. On August 2,

1994, the district court granted the individual officers’

motions to dismiss under FED. R. CIV. P. 12(b)(6) on the

ground of qualified immunity. Chipman v. City of Florence,

858 F. Supp. 87 (E.D. KY. 1994), reconsideration denied on

amended complaint, 866 F. Supp. 332 (E.D. KY. 1994). On

July 3, 1996, the district court granted the City of Flor-

ence’s and Boone County’s motions for summary judgment.

Black now appeals, and her appeal is pending under

docket number 96-5996.

On January 24, 1995, Susan Stemler filed a complaint

under 42 U.S.C. § 1983 in the United States District Court

for the Eastern District of Kentucky against Wince,

Dusing, Dolan, and the City of Florence. The complaint

alleged claims of excessive force, wrongful arrest, mali-

cious prosecution, and violation of equal protection on the

bases of sex and sexual orientation. On October 6, 1995,

the district court granted the individual officers’ motion to

dismiss on grounds of qualified immunity. On July 3, 1996,

after consolidating Stemler’s case with Black’s, the district

court awarded summary judgment to the City of Florence.

Stemler now appeals both orders, and her appeal is

docketed in this court as No. 96-5993.

We have consolidated the two appeals for considera-

tion. We will consider first both plaintiffs’ claims against

the municipal defendants, then Black’s claims against the

him and the other Boone County defendants in their official capacities

as a suit directly against Boone County.

App. 15

individual officers, and finally Stemler’s claims against the

individual officers.

II. Municipal Liability Under § 1983

We may easily dispose of the claims against the City

of Florence and Boone County. While a municipality may

be held liable under 42 U.S.C. § 1983 for a constitutional

violation directly attributable to it, § 1983 does not impose

vicarious liability on a municipality for the constitutional

torts of its employees. See Monell v. Department of Soc.

Servs. of the City of New York, 436 U.S. 658, 692, 56 L. Ed.

2d 611, 98 S. Ct. 2018 (1978). Therefore, in order to state a

claim against a city or a county under § 1983, a plaintiff

must show that his injury was caused by an unconstitu-

tional “policy” or “custom” of the municipality. See Pem-

baur v. City of Cincinnati, 475 U.S. 469, 480-81, 89 L. Ed.

2d 452, 106 S. Ct. 1292 (1986). The plaintiffs both assert

that they were injured by the municipalities’ allegedly

deficient training programs. Where, as here, the identified

policy is itself facially lawful, the plaintiff “must demon-

strate that the municipal action was taken with ‘deliberate

indifference’ as to its known or obvious consequences. A

showing of simple or even heightened negligence will not

suffice.” Board of County Comm’rs of Bryan County v.

Brown, 137 L. Ed. 2d 626, 117 S. Ct. 1382, 1390 (1997)

(quoting City of Canton v. Harris, 489 U.S. 378, 388, 103

L. Ed. 2d 412, 109 S. Ct. 1197 (1989)). ““Deliberate indif-

ference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious

consequence of his action.” Brown, 117 S. Ct. at 1391. In

other words, the risk of a constitutional violation arising

as a result of the inadequacies in the municipal policy

must be “plainly obvious.” Jd. at 1393.

App. 16

As noted above, in the present case, both Stemler and

Black argue that the municipalities should be held liable

as a result of their failure to train their officers ade-

quately. Neither plaintiff has demonstrated that there is a

genuine issue of material fact as to whether the training

programs were adequate, or as to whether the city or the

county acted with deliberate indifference to the risk of a

constitutional violation. Officers of both the city and the

county are required to attend the Basic Police Academy of

the Kentucky Justice Cabinet Department of Criminal

Justice Training. The academy is a 400-hour course in

which officers are taught the elements of criminal offenses

under Kentucky law, the definition of probable cause, and

procedures for the handling of evidence. At the academy,

officers are also taught how to ensure the safety of poten-

tial victims of domestic violence. In addition, both the city

and the county require their officers to attend a forty-hour

training class every year; this program also includes

training as to the proper response to an allegation of

domestic violence. Neither Stemler nor Black have identi-

fied any reason to believe that the training programs were

inadequate in any way. Each argues only that the defen-

dant officers lacked complete familiarity with their de-

partment’s policy manuals; however, neither plaintiff

asserts any reason to believe that the city or the county

did not take proper steps to ensure that their officers knew

and complied with their policies.

Furthermore, a plaintiff ordinarily cannot show that a

municipality acted with deliberate indifference without

showing that the municipality was aware of prior uncon-

stitutional actions of its employees and failed to respond.

See Brown, 117 S. Ct. at 1390; Canton, 489 U.S. at 390-91.

The plaintiffs are unable to identify any prior instances of

App. 17

misconduct in the Boone County Sheriff’s Department.

With respect to the City of Florence, they argue only that

Wince had once had a sexual harassment complaint filed

against him by a co-worker.’ However, there is no indica-

tion that the city failed to respond appropriately to that

complaint, or that because of that one complaint it should

have been “plainly obvious” to the city that Wince would

falsely arrest a woman solely on the basis of her perceived

sexual orientation or force a woman against her will into

the truck of a drunk and violently abusive man. Therefore,

because the plaintiffs cannot show that either the city or

the county acted with deliberate indifference to the risk of

a constitutional tort, the award of summary judgment to

the municipal defendants must be affirmed.

III. Black’s Substantive Due Process Claim

A. Test for Qualified Immunity

We turn now to the merits of Black’s claim against the

individual officers. She alleges that the officers violated her

right to “substantive due process”” under the Fourteenth

* During the course of discovery, Stemler was denied access to the

defendants’ personnel files. Instead, the magistrate judge conducted an

in camera review of those files and determined that they did not

contain relevant evidence. Stemler now claims that the magistrate

judge erred and that the files may contain evidence of other incidents to

which the City of Florence failed to respond. However, she has waived

this claim by failing to appeal the magistrate judge’s ruling to district

court. See FED. R. CIV. P. 72(a).

In contrast to procedural due process, which guarantees that

individuals will be afforded fair procedures before they are deprived of

life, liberty, or property, substantive due process protects individuals

against “certain government actions regardless of the fairness of the

procedures used to implement them.” Daniels v. Williams, 474 U.S. 327,

331, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). But cf. JOHN HART ELY,

(Continued on following page)

App. 18

Amendment by forcing her to leave the scene of the police

stop in Kritis’s truck. In other words, her claim is that the

officers deprived her of her liberty (and, ultimately, her

life) without due process of law by threatening to arrest

her if she did not leave with Kritis, and by physically

placing her against her will in his truck. Because Black

seeks to hold the officers liable in their individual capaci-

ties under 42 U.S.C. § 1983, she must show not only that

the officers’ actions were unconstitutional, but also that

-they should have known at that time that they were

violating her rights. “[Glovernment officials performing

discretionary functions generally are shielded from liabil-

ity for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396,

102 S. Ct. 2727 (1982).

It is not necessary that the very action have been

previously held unlawful but, given the preexist-

ing law, the unlawfulness of the conduct must

have been apparent. In determining whether an

official is entitled to qualified immunity, this

court asks whether the law was clearly estab-

lished at the time of the alleged action.

Barton v. Norrod, 106 F.3d 1289, 1293 (6th Cir. 1997)

(citation omitted). In determining whether the officers

should have known in February 1994 that their actions

DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW

18 (1980) (suggesting that non-textual constitutional claims would be

better analyzed under the Privileges and Immunities Clause of the

Fourteenth Amendment; “Familiarity breeds inattention; and we

apparently need periodic reminding that ‘substantive due process’ is a

contradiction in terms — sort of like ‘green pastel redness.’ ”).

App. 19

weve unlawful, we look primarily to decisions of the

Supreme Court, this court, and other courts within our

circuit. See Cagle v. Gilley, 957 F.2d 1347, 1348 (6th Cir.

1992). 7

We review the district court’s determination that the

officers were entitled to qualified immunity de novo. See

Barton, 106 F.3d at 1293. In the present case, the district

court reviewed the relevant case law dealing with claims

that state actors violated substantive due process by

allowing individuals to become subject to an indirect

harm, and found much of that law to be confused and in

conflict. It then appeared to reason that, since the doctrine

of substantive due process was unclear in its entirety, no

such claim could ever survive a motion to dismiss on the

ground of qualified immunity: “This inquiry shows that

the law in this area is unclear and that not only would no

reasonable police officer have known what duty was owed

to the plaintiff under the facts alleged in this case, but

even the Supreme Court is uncertain on the matter.”

Chipman v. City of Florence, 858 F. Supp. 87, 90 (E.D. Ky.

1994) (citing DeShaney v. Winnebago County Dep't of Soc.

Servs., 489 U.S. 189, 199, 103 L. Ed. 2d 249, 109 S. Ct. 998

(1989)) (dismissing complaint); see also Chipman, 866 F.

Supp. 332, 335 (E.D. Ky. 1994) (denying motion for recon-

sideration).

This was error. While, as we will see below, there is a

good deal of uncertainty with regard to the precise con-

tours of substantive due process, it does not follow that

state actors are insulated from liability on all such claims,

no matter what the underlying facts may be. The fact that

the law may have been unclear, or even hotly disputed, at

the margins does not afford state actors immunity from

suit where their actions violate the heartland of the

7 App. 20

constitutional guarantee, as that guarantee was under-

stood at the time of the violation.” Stated differently, it is

simply irrelevant that the definition of the right to sub-

stantive due process has been in flux if, under any defini-

tion found in the case law at the time, the defendants

should have known in February 1994 that their actions

violated that right.

B. Custody Establishes the Existence of a Duty

We therefore proceed to determine whether the

individual officers violated law that was clearly estab-

lished in February 1994 when they forced Black into

Kritis’s truck. When, as here, a plaintiff alleges that state

actors violated substantive due process by placing her at

risk of harm from a third party, the court is presented with

two distinct, though interrelated inquiries. First, in order

to find for the plaintiff, the court must conclude that the

plaintiff and the state actors had a sufficiently direct

relationship such that the defendants owed her a duty not

to subject her to danger. Second, the court must also

conclude that the officers were sufficiently culpable to be

liable under a substantive due process theory.

" An instructive parallel: the district court’s theory is analogous to

an attempt to strike down a statute as unconstitutionally vague on its

face because the application of the statute is not clear at the margins.

Such an attempt will be unavailing, since federal courts will consider a

facial vagueness claim only if a statute is unconstitutionally vague in

all possible applications. See Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 102 S. Ct.

1186 (1982). Similarly, the mere fact that a state actor may be entitled

to qualified immunity on some claims under a particular constitutional

theory because the law is unclear in some respects does not imply that

he will be immune from any and all suits arising under that theory.

App. 21

With respect to the first question, while the state does

not owe its citizens a constitutional duty to keep them

from harm in all circumstances, it has been clearly estab-

lished that such a duty will arise when the state has acted

to deprive an individual of certain indicia of liberty:

The affirmative duty to protect arises not from

the State’s knowledge of the individual’s pre-

dicament or from its expressions of intent to help

him, but from the limitation which it has im-

posed on his freedom to act on his own behalf. In

the substantive due process analysis, it is the

State’s affirmative act of restraining the individ-

ual’s freedom to act on his own behalf — through

incarceration, institutionalization, or other simi-

lar restraint of personal liberty — which is the

“deprivation of liberty” triggering the protections

of the Due Process Clause, not its failure to act to

protect his liberty interests against harms in-

flicted by other means.

DeShaney v. Winnebago County Dep't of Soc. Servs., 489

U.S. 189, 200, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989)

(citation omitted); see also Youngberg v. Romeo, 457 U.S.

307, 315-16, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) (invol-

untarily committed mental patients have substantive due

process right, analogous to Eighth Amendment right of

prisoners, to protection from harm). In the present case,

Black’s complaint alleges — and the record evidence could

reasonably be read to show — that the officers threatened

to arrest her if she did not leave in Kritis’s truck, and they

physically lifted her out of Stemler’s car and placed her in

the truck against her will. In so doing, the officers took the

“affirmative act of restraining [Black’s] freedom to act on

her [own] behalf,” and consequently imposed upon them-

selves a duty to ensure that they were not placing her in

ane i

App. 22

danger. Their actions were, in the words of DeShaney, a

restraint on Black’s personal liberty, not a failure to act on

her behalf. See also Collins v. City of Harker Heights, 503

U.S. 115, 127, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992).

The defendants rely on Foy v. City of Berea, 58 F.3d

227 (6th Cir. 1995), to argue that they did not infringe

Black’s liberty. In Foy, the plaintiff had been drinking in a

dormitory with his friends. After receiving a complaint,

the police came to the dormitory and told them, “Get in

your car and get out of here or somebody is getting ar-

rested.” Although the police had told them only to leave

the premises, the plaintiff and his friends then decided to

take a lengthy drive from Berea, Kentucky, to Crestline,

Ohio. Forty-five minutes into that journey, the driver

crashed the car, killing Foy. This court held that the

defendant police officers had not violated Foy’s right to

substantive due process, since there was no restraint on

his liberty that had caused him to keep driving. Id. at 230.

The defendants also rely on Walton v. City of Southfield,

995 F2d 1331 (6th Cir. 1993). In Walton, we held that

police officers who had arrested the driver of a car, and

who had abandoned in a nearby building the children

(ages 15 and 2) who were the passengers of that car — but

who had never taken the children into their custody —

were entitled to qualified immunity from a substantive

due process challenge.

Neither case is apposite. In the present case, Black

was rendered unable to protect lerself by virtue of both

the threat of arrest and her physical placement in the

truck by the officers. Unlike Foy, Black never had the

opportunity to make a voluntary choice to continue driving

with Kritis beyond the span of time that the police had in

effect ordered her to do so; her fatal accident occurred

App. 23

about five minutes after the truck left the police stop.

Furthermore, unlike Walton, Black was in the custody of

the defendant officers in the sense that they had affirma-

tively acted to deprive her of her liberty, rather than

merely negligently refused to act to protect her. See

Walton, 995 F.2d at 1336-37. In sum, neither Foy nor

Walton did anything to alter the clear and simple rale that

state actors owe a duty of care to those individuals of

whom they deprive their liberty, and a reasonable jury

could conclude that the officers had deprived Black of her

liberty by placing her in the truck or by threatening her

with an arrest that would have been unwarranted under

Kentucky law. See Ky. Rev. Stat. § 222.202 (offense of

public intoxication involves drinking in public or endan-

gering one’s self, other persons, or property).

While it is clear that the state owes a duty of care to

an individual who has suffered a deprivation of liberty by

the state — e.g., an individual who has been in the state’s

custody — there is also dicta in DeShaney that suggests

that the state may also owe a duty to individuals in non-

custodial settings:

While the State may have been aware of the

dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do

anything to render him any more vulnerable to

them.

489 U.S. at 201. A number of courts have relied on this

language to hold that the state may owe an individual a

duty of care under substantive due process, even if the

individual is not in the state’s custody, if the state has

created a risk of harm to the individual. See Kneipp v.

Tedder, 95 F.3d 1199, 1206-09 (3d Cir. 1996) (collecting

cases). Our court has suggested in dicta that DeShaney

App. 24

stands for the proposition that “a duty to protect can arise

in a noncustodial setting if the state does anything to

render an individual more vulnerable to danger.” Gazette

v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994). The

defendants argue that this rule was not clearly established

in February of 1994, and remains unclear today. We need

not opine as to the circumstances under which a substan-

tive due process claim in a non-custodial setting is possi-

ble, or as to whether that possibility had been clearly

established in 1994. Under any definition of the term,

Black was in the defendant officers’ custody at the time

she was forced into Kritis’s truck. Because we, unlike the

district court, believe that any uncertainty at the margins

of the DeShaney test is not relevant to Black's claim, we

hold that the defendants should have known under clearly

established law that they owed Black a duty not to force

her into harm’s way.

C. The Defendants Violated Their Duty to Black by

Exhibiting Deliberate Indifference to Her Fate

Our holding that the officers owed Black a duty of

care does not end our inquiry, for we also must determine

what duty of care they owed, and whether they breached

that duty. Over the last decade, the Supreme Court and

this court have gradually defined the level of culpability

with which a state defendant must act in order to be held

liable for a violation of substantive due process. In Daniels

v. Williams, 474 U.S. 327, 334 n.3, 88 L. Ed. 2d 662, 106 S.

Ct. 662 (1986), the Supreme Court held that an allegation

of simple negligence would not be sufficient to support a

due process claim, but reserved judgment as to whether an

allegation of gross negligence would suffice. In Nishiyama

v. Dickson County, 814 F.2d 277 (6th Cir. 1987) (en banc),

App. 25

this court answered that reserved question in the affirma-

tive. In that case, the plaintiff had been killed by an

inmate who stopped her by using a patrol car that he had

been allowed to use by county officials despite repeated

warnings. We held that the plaintiff had stated a substan-

tive due process claim:

The allegation in the present complaint of gross

negligence on the part of the defendants was suf-

ficient to charge them with arbitrary use of gov-

ernment power....... [A] person may be said to

act in such a way as to trigger a section 1983

claim if he intentionally does something unrea-

sonable with disregard to a known risk or a risk

so obvious that he must be assumed to have been

aware of it, and of a magnitude such that it is

highly probable that harm will follow.

Id. at 282.

This aspect of Nishiyama has since been further

refined. In Lewellen v. Metropolitan Gov't of Nashville &

Davidson County, 34 F.3d 345 (6th Cir. 1994) - a case

decided after the defendant officers forced. Black into

Kritis’s car — we held that, with respect to non-custodial

cases, Nishiyama was no longer an accurate statement of

the law after DeShaney and Collins v. City of Harker

Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct. 1061

(1992). In holding that a school board’s negligence in

building a school too close to a power line was not action-

able under § 1983, we set forth a new test: “What seems to

be required is an intentional infliction of injury ... or

some other governmental action that is ‘arbitrary in the

constitutional sense.’” Lewellen, 34 F.3d at 351 (quoting

Collins, 503 U.S. at 129); see also Gazette, 41 F.3d at 1067

(gross negligence is not actionable under substantive due

App. 26

process). We also expressed doubt as to whether even

deliberate indifference by state actors could give rise to a

substantive due process claim by a plaintiff who was not in

the custody of the state. Lewellen, 34 F.3d at 350 n.4.

Of course, the phrase “arbitrary in the constitutional

sense” is not self-defining; indeed, in Collins, the only

elucidation that the Supreme Court provided for that

phrase was a reference to the old chestnut of substantive

due process claims, “conscience shocking.” 503 U.S. at 128.

The defendants’ argument is essentially that Black’s claim

fails the test of Lewellen and Collins because there is no

law now, nor was there in 1994, clearly specifying any area

of liability under substantive due process. In essence, they

argue that there is no clearly established law holding that

they have any duty to persons in their custody. As they

conceded at oral argument, under their theory, they would

not be liable even if they physically carried Black to the

middle of a busy highway and left her there. However,

Collins carefully noted that its holding was limited to

those cases where a plaintiff was not in the custody of the

state, and specifically reaffirmed the established law that

the state is required to take care to protect persons in its

custody from danger. See Collins, 503 U.S. at 127; see also

Lewellen, 34 F.3d at 350 n.4. Since, as we have held above,

viewing the facts in her favor, Black was in the defendants’

custody at the time that they forced her into Kritis’s truck,

they owed her a duty not to endanger her safety.

In cases such as this one, where the plaintiff suffered

injury as a result of being placed in the state's custody, it

has consistently and uncontroversially been the rule that a

constitutional claim arises where the injury occurred as a

result of the state’s deliberate indifference to the risk of

such an injury. See Farmer v. Brennan, 511 U.S. 825, 834,

App. 27

128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994); Wilson v. Seiter,

501 U.S. 294, 303, 115 L. Ed. 2d 271, 111 S. Ct. 2321

(1991); Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d

251, 97 S. Ct. 285 (1976). Although each of these cases

involved an Eighth Amendment claim raised by a prisoner,

we have consistently held that at least the same standard

applies to substantive due process claims raised by other

persons in the custody of the state. See Durham v.

Nu‘Man, 97 F.3d 862, 869 (6th Cir. 1996) (patient at state

mental hospital), cert. denied, 137 L. Ed. 2d 496, 117 S. Ct.

1337 (1997); Lintz v. Skipski, 25 F.3d 304, 306 (6th Cir.

1994) (children in state foster home); Heflin v. Stewart

County, 958 F.2d 709, 713-14 (6th Cir. 1992) (pretrial

detainee); Meador v. Cabinet of Human Resources, 902

F2d 474, 476 (6th Cir. 1990) (children in state foster

home). While Lewellen may have declared that the range

of culpable conduct is narrower in cases where the plaintiff

is not in the state’s custody, it did nothing to change the

standard of deliberate indifference in cases involving a

custodial relationship. See Foy, 58 F.3d at 232 (noting

distinction). In cases in which a plaintiff alleges an injury

arising out of the state’s custody over her, the deliberate

indifference test ensures that injuries arising out of truly

arbitrary governmental action are compensated, while at

the same time avoiding the imposition on to the states of a

broad, federalized system of tort law. We therefore re-

affirm the application of that test today.

We again note that the district court erred in holding

that the entire field of substantive due process law regard-

ing state liability for indirect injury was not clearly estab-

lished in 1994. See Chipman, 858 F. Supp. at 90. Although

the discussion above reveals that there is obviously con-

siderable uncertainty at the margin, the core principle

App. 28

that the state must not act with deliberate indifference to

the risk of injury to persons in its custody is well-

established. In the present case, we believe that Black’s

complaint, as well as the record evidence read in the light

most favorable to her, supports a claim that the defendant

officers acted with deliberate indifference to the threat of

injury to her. They knew, or reasonably should have

known, that Kritis was unfit to drive. They knew, or

reasonably should have known, that Kritis had assaulted

her earlier in the evening and had threatened to hurt her.

Nevertheless, they chose to act affirmatively to place her

in harm’s way.

The very notion that police officers should not have

known that they could not force an incapacitated woman

to drive off with an obviously drunk man who they had

reason to believe had beaten her betrays a chilling and

unacceptable vision of the role of the police in our society.

In short, these facts support a substantive due process

claim under law that was clearly established in 1994, and

we are therefore obliged to reverse the dismissal of her

complaint against the individual officers.”

The defendants have argued that Black is precluded from

relitigating the findings of the Boone County Circuit Court in her state-

law civil suit. In awarding judgment to the defendant officers on Black’s

wrongful death claim, the state court held that none of the state actors

were the direct cause of the accident on the highway. Chipman v. City of

Florence, No. 94-CI-00202 slip op. at 4 (Boone Co., Ky., Cir. Ct. Apr. 2,

1996). While those findings are entitled to preclusive effect, they are

irrelevant to the merits of her substantive due process claim.

App. 29

IV. Stemler’s Claims against the Individual

Officers

We turn now to the merits of Stemler’s claims against

the individual officers. She has raised claims of false

arrest and malicious prosecution against the officers. She

also asserts that her arrest violated the Equal Protection

Clause insofar as it was based either on her sex or on her

supposed sexual orientation. We again review the law to

determine whether the officers should have known in

February 1994 that their actions were in violation of

applicable federal constitutional or statutory guarantees.

A. False Arrest and Malicious Prosecution

As noted above, Stemler brought a suit against the

defendants herein in the Boone County Circuit Court

alleging various state-law theories. The state court

awarded summary judgment to the defendants on April 2,

1996. The state court described the facts in relevant part

as follows:

Upon speaking to Stemler, Officer Wince noted

the odor of alcohol, conducted field sobriety tests,

administered a PBT test (which read .105), and

obtained an admission from Stemler that she had

consumed alcoholic beverages. Based upon the

above, Officer Wince decided to arrest Stemler

for DUI.

Stemler v. City of Florence, No. 94-CI-00459, slip op. at 2

(Boone Co., Ky., Cir. Ct. Apr. 2, 1996) (consolidated with

Chipman). The court reasoned that the evidence estab-

lished that there was probable cause to arrest her:

There are no genuinely disputed material facts

relating to the question of probable cause for the

App. 3U

arrest of the Plaintiff, Stemler. Stemler stated at

the scene that she had consumed alcohol, she

had the smell of alcohol on her person, her per-

formance on the field sobriety tests and her pre-

liminary breath test result of .105 certainly

constitutes [sic] probable cause.

Id. at 5. The state court then held that the existence of

probable cause precluded both the false arrest claim and

the malicious prosecution claim under Kentucky law.

Stemler is precluded from relitigating in this case the

issue of whether there was probable cause to arrest her to

the same extent that Kentucky would accord preclusive

effect to the judgment against her in her state court civil

suit. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465

U.S. 75, 82, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984); Allen v.

McCurry, 449 U.S. 90, 97, 66 L. Ed. 2d 308, 101 S. Ct. 411

(1980). Under Kentucky law, “when an issue of fact or

law is actually litigated and determined by a valid and

final judgment, and the determination is essential to the

judgment, the determination is conclusive in a subsequent

action between the parties, whether on the same or a

different claim.” Revenue Cabinet v. Samani, 757 S.W.2d

199, 202 (Ky. Ct. App. 1988) (quoting RESTATEMENT (SEC-

OND) OF JUDGMENTS § 27 (1980)). The issue of probable

> Stemler argues, without elaboration, that she did not receive a

fair hearing in the state court in her state-law civil suit. However, a

state court proceeding is accorded preclusive effect in a later § 1983 suit

so long as it meets minimal standards of due process. See Kremer uv.

Chemical Constr. Corp., 456 U.S. 461, 482, 72 L. Ed. 2d 262, 102 S. Ct.

1883 (1982); Osborn v. Ashland Bd. of Alcohol, Drug Addiction &

Mental Health Servs., 979 F.2d 1131, 1134 (6th Cir. 1992). Stemler does

not identify any reason to believe that she suffered a deprivation of due

process in the state court.

App. 31

cause for Stemler’s arrest was actually litigated and

decided in the state court suit, and was necessary to the

disposition of the case. Although Stemler’s appeal is

pending in that case, the pendency of an appeal does not

destroy the finality of the judgment for the purposes of

issue preclusion under Kentucky law. See Roberts v.

Wilcox, 805 S.W.2d 152, 153 (Ky. Ct. App. 1991). Thus, this

court is bound by the state court’s determination that

there was probable cause for Stemler’s arrest.

The existence of probable cause for Stemler’s arrest

forecloses her false arrest claim. A plaintiff bringing a

constitutional claim of false arrest under the Fourth

Amendment must show that there was not probable cause

for the arrest. See Donovan v. Thames, 105 F.3d 291, 298

(6th Cir. 1997) (applying Kentucky doctrine of collateral

estoppel).* Likewise, the existence of probable cause

would negate the possibility of liability under a state-law

malicious prosecution theory, and therefore under a

federal constitutional theory as well, at least to the extent

that Stemler alleges that the defendants sought to prose-

cute her despite knowing that there was not probable

cause to do so. See Baker v. McCollan, 443 U.S. 1387, 145,

oi L. Ed. 2d 433, 99 S. Ct. 2689 (1979); Coogan v. City of

Wixom, 820 F.2d 170, 175 (6th Cir. 1987).

“4 Because we affirm the dismissal of the false arrest claim on the

ground of collateral estoppel, we do not address the reasoning of the

district court, based on Albright v. Oliver, 510 U.S. 266, 127 L. Ed. 2d

114, 114 S. Ct. 807 (1994), that the right to be free from false arrest is

not clearly established. On remand, if in the interim Stemler should

secure a reversal on appeal of the judgment against her in her state-law

suit, thereby destroying the collateral estoppel effect of that judgment,

the district court should consider in the first instance whether Stem-

ler’s claim may proceed under the standard of qualified immunity that

we have set out in this opinion.

App. 32

Stemler, however, is not now asserting that sort of a

malicious prosecution claim. Instead, she asserts that even

if there were probable cause to prosecute her, Wince

committed a constitutional tort by falsifying evidence

against her. Under law that was clearly established in

1994, Wince would have violated Stemler’s right to due

process if he knowingly fabricated evidence against her,

and if there is a reasonable likelihood that the false

evidence could have affected the judgment of the jury. See

United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.

1989); see also Riley v. City of Montgomery, 104 F.3d 1247,

1253 (11th Cir. 1997); United States v. Epley, 52 F.3d 571,

576 (6th Cir. 1995); Grillo v. Coughlin, 31 F.3d 53, 56 (2d

Cir. 1994). A claim of fabrication of evidence does not

require a conclusion that the state did not have probable

cause to prosecute the claimant. The state court only

found that there was probable cause to prosecute Stemler,

and made no findings with regard to any claim of fabrica-

tion of evidence. Thus, since the state court in the civil suit

made no findings on this issue, and the court in the state

criminal case did not make any findings on this issue that

were necessary to the final judgment (i.e., Stemler’s

acquittal), she would not be estopped from pursuing this

claim.

B. Failure to Plead an Evidence-Tampering Theory

However, Stemler did not allege this alternative

theory in her complaint. The closest she comes to making

such an allegation is at paragraph 48 of her amended

complaint: “The Defendants, Officers Wince, Dolan,

Dusing and City of Florence, instituted and continued the

original criminal judicial proceeding against the Plaintiff

by insisting upon her prosecution and conviction despite

App. 33

their personal knowledge Plaintiff should not be so prose-

cuted.” This allegation cannot fairly be read to give notice

that she seeks to assert an evidence-tampering claim. The

record reflects that the evidence-tampering claim first

arose on May 7, 1996, in Stemler’s response to the city’s

motion for summary judgment, after the individual offi-

cers were dismissed from the suit.

It is well-settled that the parties may constructively

amend the complaint by agreeing, even implicitly, to

litigate fully an issue not raised in the original pleadings.

See 6A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRAC-

TICE AND PROCEDURE § 1493 at 19 (2d ed. 1990). However,

such a constructive amendment can have no effect upon a

party who has been dismissed from the action, and who is

not given notice that a new claim of liability has been

asserted against him. Stemler, of course, was free to seek

leave to amend her complaint again to raise her new

theory of falsification of evidence, or to file a new com-

plaint against Wince explicitly raising that claim. She did

not do so. The district court did not err in dismissing

Stemler’s complaint by failing to consider a cause of action

that she had not yet alleged. Consequently, this court is

powerless to engage in any further review of her allegation

that Wince falsified evidence against her in her criminal

trial.

C. Equal Protection

The defendants also assert that Stemler is collaterally

estopped from pursuing her equal protection claims.

However, the determination of probable cause does not

preclude a plaintiff from pursuing a claim that the state

chose to prosecute her due to invidious discrimination. The

App. 34

courts have long held that a selective enforcement claim

may be available even where there is probable cause for

prosecution. See Wayte v. United States, 470 U.S. 598, 607,

84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985); Oyler v. Boles,

368 U.S. 448, 455-56, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962).

While we have held that the possibility of a discriminatory

motive does not affect the inquiry into the objective rea-

sonableness of an arrest for the purposes of the Fourth

Amendment, see United States v. Ferguson, 8 F.3d 385, 391

(6th Cir. 1993) (en banc), that case did nothing to question

the long-established availability of a separate selective

enforcement claim under the Equal Protection Clause. The

Supreme Court subsequently confirmed our interpretation

of the Fourth Amendment, and at the same time even

more explicitly re-confirmed the availability of an equal

protection claim despite the existence of probable cause:

We of course agree with petitioners that the Con-

stitution prohibits selective enforcement of the

law based on considerations such as race. But

the constitutional basis for objecting to inten-

tionally discriminatory application of laws is the

Equal Protection Clause, not the Fourth

Amendment.

Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89,

116 S. Ct. 1769 (1996). Stemler is not collaterally es-

topped, and we therefore proceed to the merits of Stemler’s

equal protection claims.

In order to state a claim of selective prosecution, a

plaintiff must demonstrate three elements:

First, [the state actor] must single out a person

belonging to an identifiable group, such as those

of a particular race or religion, or a group exer-

cising constitutional rights, for prosecution even

Se a ee ee ee

App. 35

though he has decided not to prosecute persons

not belonging to that group in similar situations.

Second, he must initiate the prosecution with a

discriminatory purpose. Finally, the prosecution

must have a discriminatory effect on the group

which the defendant belongs to.

United States v. Anderson, 923 F.2d 450, 453 (6th Cir.

1991) (citing Wayte, 470 U.S. at 608 n.10 & 609). With

regard to the first element, it is an absolute requirement

that the plaintiff make at least a prima facie showing that

similarly situated persons outside her category were not

prosecuted. See United States v. Armstrong, 517 U.S. 456,

134 L. Ed. 2d 687, 116 S. Ct. 1480, 1487 (1996). Further-

more, there is a strong presumption that the state actors

have properly discharged their official duties, and to

overcome that presumption the plaintiff must present

clear evidence to the contrary; “the standard is a demand-

ing one.” 116 S. Ct. at 1486.

We believe that this is the rare case in which a plain-

tiff has successfully stated a claim of selective prosecution.

Stemler’s complaint adequately alleges, and the record

evidence supports a finding, that the defendant officers

chose to arrest and prosecute her for driving under the

influence because they perceived her to be a lesbian, and

out of a desire to effectuate an animus against homosexu-

als. Each of the defendants was aware of Kritis’s assertion

that Stemler was a lesbian, and Dusing admitted that he

relied on Kritis’s version of the facts in deciding to arrest

Stemler. Furthermore, the record supports a finding that

Kritis was similarly situated to Stemler (or, indeed, far

drunker than she), that the defendant officers perceived

Kritis to be heterosexual, and that consequently they

App. 36

chose not to arrest him at the same time that they ar-

rested Stemler.

The defendants concede that Stemler’s complaint

alleges, and the record evidence could support a finding,

that they decided to arrest and prosecute her because they

perceived her to be a lesbian. They do not attempt to

assert any justification whatsoever for this decision;

instead they argue that as a blanket matter it is always

constitutional to discriminate on the basis of sexual

orientation, citing Bowers v. Hardwick, 478 U.S. 186, 92 L.

Ed. 2d 140, 106 S. Ct. 2841 (1986). However, Bowers held

only that there is no substantive due process right to

engage in homosexual sodomy, and expressly declined to

consider an equal protection claim. 478 U.S. at 196 n.8. It

is inconceivable that Bowers stands for the proposition

that the state may discriminate against individuals on the

basis of their sexual orientation solely out of animus to

that orientation: “‘If the constitutional conception of equal

protection of the laws means anything, it must at the very

least mean that a bare desire to harm a politically unpopu-

lar group cannot constitute a legitimate governmental

interest.’” Romer v. Evans, 517 U.S. 620, 134 L. Ed. 2d

855, 116 S. Ct. 1620, 1627 (1996) (quoting United States

Dep't of Agric. v. Moreno, 413 U.S. 528, 37 L. Ed. 2d 782,

93 S. Ct. 2821 (1973)) (internal quotation and ellipses

omitted). Stated differently, since governmental action

“must bear a rational relationship to a legitimate govern-

mental purpose,” Romer, 116 S. Ct. at 1629, and the desire

to effectuate one’s animus against homosexuals can never

be a legitimate governmental purpose, a state action based

on that animus alone violates the Equal Protection Clause.

While this case, and Romer, involved animus related

to sexual orientation, the principle involved in our case

App. 37

really has nothing to do with that controversial area.

Moreno, the case quoted in Romer, above, involved com-

mune residents; the principle would be the same if Stem-

ler had been arrested discriminatorily based -on her hair

color, her college bumper sticker (perhaps supporting an

out-of-state rival) or her affiliation with a disfavored

sorority or company. .

It may be objected that Romer was not decided until

after the defendants arrested and sought to prosecute

Stemler allegedly for the sole reason of animus against her

perceived sexual orientation. But it didn’t take Romer to

tell us that such arbitrary state action is contrary to the

principle of equal protection of the laws.” It is a venerable

rule under the Equal Protection Clause that the state may

not choose to enforce even facially neutral laws differently

against different portions of the citizenry solely out of an

arbitrary desire to discriminate against one group. See,

e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373, 30 L. Ed. 220, 6

S. Ct. 1064 (1886).

Furthermore, while a plaintiff in a_ selective-

prosecution case must demonstrate that she was prose-

cuted because she was the member of some group, and not

merely because the state actor prosecuted her out of

purely personal animosity, see Futernick v. Sumpter Twp.,

78 F.3d 1051, 1057 (6th Cir.), cert. denied, 117 S. Ct. 296

(1996), the availability of such a claim has never been

limited only to those groups accorded heightened scrutiny

‘* We need not discuss whether any other aspect of Romer’s holding

is sufficiently new that a state actor could not be expected to anticipate

it. The core principle relevant in this case, that the state may not act

solely out of the desire to harm an unpopular group, was clearly

established by the case law in 1994.

App. 38

under equal protection jurisprudence. See id. at 1056.

Instead, a plaintiff makes out a selective-enforcement

claim if she shows that the state based its enforcement

decision on an “arbitrary classification,” Oyler v. Boles, 368

U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962), that is

to say, a classification that gives rise to-an inference that

the state “intended to accomplish some forbidden aim”

against that group through selective application of the

laws. Futernick, 78 F.3d at 1056. A selective-enforcement

claim such as this one is thus conceptually different from a

claim that a statute violates equal protection; while almost

every statute can be shown to have some conceivable

rational basis, thereby surviving an equal protection

challenge unless it is shown to discriminate against a

group accorded heightened scrutiny, it will often be diffi-

cult to find a rational basis for a truly discriminatory

application of a neutral law.

It is beyond cavil that Stemler has adequately alleged

a selective-enforcement claim here. The record supports a

finding that she was perceived to be a member of “an

identifiable group,” and that defendants sought to imple-

ment their animus against that group by arresting and

seeking to prosecute her. The defendant officers are

unable, and indeed have not even attempted, to demon-

strate that there is any conceivable rational basis for a

decision to enforce the drunk-driving laws against homo-

sexuals but not against heterosexuals. The defendants can

rely only on their assertion that discrimination on the

basis of sexual orientation should be accorded no scrutiny

whatsoever. We emphatically reject this assertion; the

proposition that the state may constitutionally discrimi-

nate by enforcing laws only against homosexuals (or

Centre College graduates or SAE members) is not now,

App. 39

and never has been, the law. Under the facts as we are

obligated to construe them, the defendants violated the

core principle of the Equal Protection Clause by choosing

to exercise the power of the state against Stemler solely

for the reason that they disapproved of her perceived

sexual orientation. Thus, the dismissal of her complaint

must be reversed.

V. Conclusion

With respect to both plaintiffs, the district court’s

award of summary judgment to the municipal defendants

and to the defendants in their official capacities is AF-

FIRMED. In No. 96-5996, the dismissal of Black’s com-

plaint against the individual officers is REVERSED. In

No. 96-5993, the dismissal of Stemler’s complaint against

the individual officers is REVERSED with respect to her

claim of denial of equal protection on the basis of sexual

orientation; in all other respects, the judgment of the

district court is AFFIRMED. Both cases are REMANDED

to the district court for further proceedings consistent with

this opinion.

CONCUR BY: HARRY W. WELLFORD

CONCUR: HARRY W. WELLFORD, Circuit Judge,

concurring. I concur in part II dealing with a conclusion of

no municipal liability and propriety of summary judgment

for the City and the County in this case. As to part I, I do

not necessarily subscribe to all of the findings made,

particularly as to subparts B and D. I do not think it

necessary to go into the detail recited by Judge Boggs to

rule on the orders granting qualified immunity to the

individual defendants.

App. 40

I also concur in parts IV.A and IV.B that “probable

cause for Stemler’s arrest forecloses her false arrest claim”

and that “probable cause would negate the possibility of

liability under a state-law malicious prosecution theory,”

or a false arrest claim. Also, I concur in the conclusion that

Stemler may not pursue further a claim that defendant

Wince falsified evidence against her in her state crirninal

trial.

As to part III, the claim on behalf of the deceased

Conni Black, I believe that the alleged conduct of the

individual police officers supports reversal of their motions

to dismiss. I do have reservations about concluding that

deliberate indifference may have been averred as a matter

of constitutional law, but I would agree with Judge Boggs

to the extent he maintains that “the defendants should

have known in February of 1994 that their [alleged]

actions violated [Black’s constitutional] right.”

I would not cite Nishiyama v. Dickson County, 814

F 2d 277 (6th Cir. 1987) (en banc), as persuasive authority

in this case. The individual defendants in that case had no

direct relationship of any kind with the victim. Further-

more, I am doubtful about the continuing authority of

Nishiyama, and I consider it settled in the Sixth Circuit

that gross negligence alone may not subject a police officer

to § 1983 liability absent a showing of willful disposition to

harm or to deliberately ignore the plight of the victim in

custody. Lewellen v. Metropolitan Gov't of Nashville &

Davidson County, 34 F.3d 345, 351 (6th Cir. 1994).

Lewellen also holds that liability of a state actor may

arise from some “action that is ‘arbitrary in the constitu-

tional sense.’” This is a higher standard than gross negli-

gence. Lewellen requires some designed and intentional

App. 41

activity on the part of the state actor to harm or punish

someone. Jd. And in this case, there was a sufficient

allegation of arbitrary conduct on the part of some defen-

dants intentionally designed to injure or punish Conni

Black. I would hold simply that Black’s estate has alleged

sufficient facts to survive a motion to dismiss and that we

should therefore reverse the contrary holding of the

district court and remand for further consideration of the

existence and proof of a constitutional tort. To put it

another way, the alleged conduct of certain individual

defendants may have been sufficiently shocking to the

conscience that the Black claim should not have been

dismissed against those defendants. See Collins v. City of

Harker Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct.

1061 (1992). I am, however, particularly reluctant to

expand upon the “highly elastic notion of substantive due

process.” Lewellen, 34 F.3d at 351.

I wholeheartedly agree with Judge Boggs’ conclusion

that “under any definition of the term, Black was in the

defendant officer’s custody at the time she was forced into

Kritis’ truck.” The district court erred, in my view, in

holding that Black, “who was very atoxicated ... was not

taken into custody in the ordinary sense.” I believe there is

adequate averment and showing that Black was effec-

tually taken into custody. The district court therefore

erred, I believe, in granting motions to dismiss as to the

individual defendants.

I next address part IV.C, Stemler’s remaining claims

against the individual officers based upon an alleged equal

protection violation, which Judge Boggs characterizes as

alleged selective prosecution. I cannot equate an alleged

animus against Stemler because of a perception about her

sexual proclivities with discrimination based upon race,

App. 42

sex, national origin, or the like.’ There may be enough

basis in Stemler’s claim that some individual defendants

based their law enforcement actions on some arbitrary and

capricious Classification or selectively enforced the laws on

drunken driving, public intoxication, or public endanger-

ment to warrant our reversing the dismissal of this claim.

However, I do not reach the categorical decision of Judge

Boggs that disapproval of Stemler’s perceived sexual

orientation was the sole, or even a significant, basis for her

arrest by the defendants, and that this action therefore

violated the equal protection clause.

The district court, upon remand, must also determine

the effect, if any, on the federal claims asserted in this case

of any future decision of the Kentucky Court of Appeals

concerning the individual claims of Stemler and on behalf

of Black. There is also the question whether plaintiffs

impermissibly split their causes of action in these cases.

They could have filed the § 1983 actions in state court. See

Kabealo v. Davis, 829 F. Supp. 923, 928 (S.D. Ohio 1993)

(splitting state claims from federal claims “would result in

a needless duplication of expense and judicial resources”);

Administaff, Inc. v. Kaster, 799 F. Supp. 685, 690 (W.D.

Tex. 1992) (“Federal and state claims ‘inexorably tied

together’ are best left together”).

I would affirm the decision of the district court as to

the municipal defendants, and as to defendants in their

official capacities. I would affirm dismissal of Stemler’s

* I believe Romer v. Evans, 517 U.S. 620, 134 L. Ed. 2d 855, 116 S.

Ct. 1620 (1996), simply holds that a statute purporting to deprive

homosexuals of any special protections under state law has no rational

relation to legitimate state government purposes. Furthermore, Romer

was decided long after these defendants acted in this case.

App. 43

claims of false arrest, malicious prosecution, and evidence

falsification. I would REVERSE and REMAND for

further proceedings and consideration of alleged federal

constitutional torts in light of the decision set out herein,

and in light of the Kentucky appellate decision on the

remaining claims.”

? TI also note the death of the Boone County Sheriff.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.