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C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1997-CA-003237-MR

DAVID LYONS; DAVID LYONS JR.; and PAUL COOPER APPELLANTS APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE STEPHEN RYAN, JUDGE ACTION NO. 94-CI-02465

v.

CITY OF LOUISVILLE; ROBERT O'NEIL; CITY OF ST. MATTHEWS; DAN MAHAFFEY; STEVE MOBLEY; and BRAD JEFFREY OPINION AFFIRMING ** ** ** ** ** ** ** BEFORE: HUDDLESTON, JOHNSON and KNOPF, Judges.

APPELLEES

HUDDLESTON, Judge.

David Lyons, David Lyons Jr. and Paul Cooper

appeal from the summary dismissal of their complaint seeking damages against the City of Louisville, the City of St. Matthews, Robert O'Neil, a Louisville police officer, Brad Jeffrey, a St. Matthews police officer, and Dan Mahaffey and Steve Mobley, both Jefferson County police officers, based on false imprisonment and assault claims. I. BACKGROUND FACTS AND PROCEEDINGS IN THE CASE

Officers O'Neil, Mahaffey, Mobley and Jeffrey perform undercover investigations in a joint police agency known as the

Metro Narcotic Unit.1

On March 17, 1994, Officer O'Neil went to

Cotter Home Public Housing Project (Cotter Homes) to investigate a tip regarding the trafficking of cocaine. He was approached by Officer O'Neil

Clarence Ware who attempted to sell him narcotics.

contacted Officer Mobley in order to make a controlled buy from Ware.2 Officers Mobley, Mahaffey and Jeffrey were given a

description of Ware and monitored Officer O'Neil's purchase of cocaine from Ware. As soon as Officer O'Neil purchased the cocaine from Ware, he left the area and secured the evidence in his vehicle. Officers Mahaffey and Jeffrey spotted Ware going into Cotter Homes. Approximately 15 minutes later, Officers Mahaffey and Jeffrey spotted Cooper, who they believed to be Ware, coming out of Cotter Homes. They radioed Officer O'Neil and requested that he identify

the suspect. Officers Mahaffey and Jeffrey observed Cooper on the street acting suspiciously. Cooper noticed that he was being Soon after,

watched by the officers and entered his apartment.

Lyons arrived at Cooper's apartment in a maroon Ford which he parked two parking spaces away from the officers. Cooper quickly Lyons and

ran out of his apartment and entered Lyons' vehicle.

The Metro Narcotics Unit is made up of officers from the Louisville Division of Police, the Jefferson County Police Department and several small-city police departments in Jefferson County. A "controlled buy" is a method of making a drug purchase which prevents a suspect from destroying evidence. An undercover detective purchases narcotics from a suspect and withdraws from the area to secure the evidence. Once the evidence is secured, the suspect is arrested by other officers. -22

1

Cooper drove to Lyons' house located at 2359 Alston Avenue with Officers Mahaffey and Jeffrey in pursuit. The officers could not see into Lyons' vehicle because of dark tint on the windows. Based on the belief that an illegal

narcotics transaction was occurring and concerned that evidence would be destroyed, the officers surrounded Lyons' vehicle with their weapons drawn. It is undisputed that the officers' weapons Lyons Jr., He went

were pointed at Lyons and Coopers but a few seconds.

who was in the house, heard the vehicle hit a garage wall.

outside and saw his father and Cooper being detained by the officers. Officers briefly pointed their weapons at Lyons Jr. in The officers

order to safeguard the area of the investigation.

holstered their weapons when Officer O'Neil recognized Lyons and told them that Cooper was not the suspect (Ware). On May 12, 1994, the appellants brought false

imprisonment, outrageous conduct and assault claims against City of Louisville, the City of Shively, the City of St. Matthews and Officers O'Neil, Mahaffey, Jeffrey, Mobley and Cook. On December

12, 1995, the circuit court dismissed the outrageous conduct claim. On August 1, 1996, the court dismissed claims against Officer Cook and the City of Shively. On May 30, 1997, the court dismissed On

claims against Officer O'Neil and the City of Louisville.

November 5, 1997, the court dismissed the claims against the City of St. Matthews and Officers Mahaffey and Mobley. from the This appeal is

May 30, 1997, and November 5, 1997, orders. II. FALSE IMPRISONMENT AND ASSAULT

-3-

Appellants

argue

that

there

are

genuine

issues

of

material facts as to whether reasonable suspicion existed that justified the stopping of Lyons' vehicle and whether the Officers acted in good faith. Appellants contend that because Cooper did

not wear stone washed jeans, had a disabled arm and walked with a limp, it was unreasonable for the officers to stop Lyons' vehicle.3 In an action for false imprisonment, the plaintiff must establish that his imprisonment occurred without legal authority or basis.4 Lexington-Fayette Urban County Government v. Middleton, See also City of Lexington Where an officer has a a particular person

Ky. App., 555 S.W.2d 613, 617 (1977). v. Gray, Ky., 499 S.W.2d 72 (1973). reasonable, articulable suspicion

that

encountered was involved in or is wanted in connection with a completed felony, an investigatory stop is permissible. Collier v. Commonwealth, Ky. App., 713 S.W.2d 827 (1986). See Terry v. Ohio, An investigatory

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

stop is permissible on less than full probable cause. Collier, 713 S.W.2d at 828. On the other hand, officers may arrest any person

whom they believe, upon reasonable grounds, to have committed a felony, although no felony was actually committed. Vornbrock, 270 Ky. 712, 110 S.W.2d 659, 661 (1937). Tucker v. The trial

Clarence Ware wore stonewashed jeans and a stonewashed jacket and Cooper wore blue jeans and a blue jacket. Cooper testified in his deposition that there is no restriction in the movement of his arm or in its range of motion. Cooper also testified that he walked perfectly. Appellants brought both false imprisonment and false arrest claims against the Appellees. However, in cases involving police officers, there is no distinction between false arrest and false imprisonment because the latter is always the result of the former. Middleton, text supra, 555 S.W.2d at 619. -44

3

court

determined

that

the

Appellees

were

engaged

in

an

investigatory stop rather than an arrest. dispute this determination, of the stop but of

The Appellants do not contend that the these

rather

reasonableness

Lyon's

vehicle,

under

circumstances, is an issue for the jury. The trial court must determine what facts constitute reasonable suspicion to stop and probable or reasonable cause for an arrest. Ornelas v. United States, 517 U.S. 690, 134 L.Ed.2d

922, 116 S.Ct. 1657 (1996); and see Jeffers v. Heavrin, 10 F.3d 380 (6th Cir. 1993); Tucker v. Vornbrock, supra. Reasonable suspicion

and probable cause involve questions of both law and fact and are reviewed de novo. Ornelas, 134 L.Ed.2d at 920. "[A] reviewing

court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers."
5

Id.

In the present case, the circuit court concluded that: The undisputed facts show that Officer O'Neil had purchased suspected cocaine from a black male at Cotter Homes; Mr. Cooper was spotted in the housing project approximately one block away from where the suspect was last seen; Mr. Cooper fit the detailed description of the suspect; and he left in the maroon vehicle. Based

The trial court determined that Cooper's attire and physical appearance matched that of Ware to such a degree that the mistake in his identity for that of Ware was not unreasonable or in bad faith. Ware is a black male, 25 years old, 5 feet 10 inches tall, 162 pounds, black hair and brown eyes, and Cooper is a black male, 29 years old, 5 feet 9 inches tall, 160 pounds, black hair and brown eyes. -5-

5

thereon,

the

Officers

had

a

reasonable;

articulable

suspicion that the suspected drug dealer from Officer O'Neil's earlier felony drug buy was in Capt. Lyons' vehicle. We agree that based on the similarities in the appearance and clothing of Ware and Cooper, and the proximity of the action each took, the officers had reasonable suspicion to investigate the Appellants.6 Appellants' assault claims must also be dismissed. An

assault is defined as "an unlawful offer of corporeal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as a well-founded fear of

immediate peril."

Brown v. Crawford, 296 Ky. 249, 177 S.W.2d. 1, As noted, reasonable grounds hence, they did not act

2-3 (1943) (Emphasis supplied). existed for the Appellees'

actions;

unlawfully.

See Middleton, supra. III. QUALIFIED IMMUNITY

In Ashby v. City of Louisville, Ky. App., 841 S.W.2d 184, 188 (1992), this Court said that "[i]n Kentucky, personal liability for a public officer's or public employee's negligent performance of duties depends on whether the powers or duties in question were ministerial or discretionary in nature." The key distinction

between a ministerial and a discretionary duty is whether the duty

Although the proper review is de novo, Ornelas, text supra, even when viewed in a light most favorable to the Appellants, the facts require judgment for the Appellees. -6-

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is mandatory or whether the act complained of involved policymaking or judgment. A discretionary duty involves judgment, planning or

policy decisions.

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