APPEAL
FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CV-16-180]
HONORABLE RICHARD L. PROCTOR, JUDGE
Sara
Monaghan, for appellants.
Easley
& Houseal, PLLC, by: B. Michael Easley, for appellees.
MEREDITH B. SWITZER, Judge
Alfred
Kennedy and his son, Wayne Kennedy, filed a complaint against
Brodie Faughn, Billy Colvin, and John Does 1 and 2. Faughn
was a police officer for the City of Wynne, and Colvin was
police chief for the City of Cherry Valley. The Kennedys
allege that the officers were agents and employees of their
respective cities and acting under color of state law. The
complaint contains factual allegations describing actions
taken by the individual defendants against either Wayne or
Alfred Kennedy. The Kennedys sought compensatory and punitive
damages for the alleged torts of assault, battery, and false
arrest, and for violations of their civil rights under the
Arkansas Civil Rights Act (ACRA), Arkansas Code Annotated
sections 16-123-101 to -108 (Repl. 2016). Faughn and Colvin
answered the complaint "each in their official
capacities," denied the allegations of wrongdoing, and
asserted entitlement "to absolute, qualified, good
faith, and statutory immunity." The officers
affirmatively asserted that at no time had the policies,
practices, or customs of the cities of Wynne or Cherry Valley
resulted in a violation of the Kennedys' constitutional
rights; however, no allegations of this type were made in the
complaint. The officers subsequently moved for summary
judgment on the basis of qualified immunity. The St. Francis
County Circuit Court denied the officers' motion and this
interlocutory appeal followed.[1] Faughn and Colvin raise two
points on appeal: (1) the trial court erred in characterizing
the ACRA claims against the officers as
"individual-capacity" claims and in subsequently
denying the officers qualified immunity; and (2) the trial
court erred in denying them qualified immunity on the
Kennedys' tort claims because the force used by the
officers was reasonable. We affirm in part and reverse and
dismiss in part.
I.
ACRA Claims
Faughn
and Colvin's first argument on appeal is two-fold. First,
they contend the trial court erred by interpreting the
Kennedys' ACRA claims as claims against them in their
individual capacities rather than their official capacities.
Furthermore, Faughn and Colvin contend that even if the
claims were correctly regarded as individual-capacity claims,
they were still entitled to qualified immunity, and the trial
court erred in denying them summary judgment on that basis.
A.
Individual-Capacity versus Official-Capacity Claims
We
begin with the "individual-capacity" portion of
Faughn and Colvin's argument and hold that the trial
court did not err in interpreting the ACRA claims as
individual- capacity claims. None of the parties has cited an
Arkansas case that controls the determination of whether a
defendant has been sued in his or her individual or official
capacity, and our research has not revealed one either.
However, ACRA specifically provides that we may look to
federal decisions construing 42 U.S.C. § 1983 as
persuasive authority in construing Arkansas Code Annotated
section 16-123-105.[2] The distinction between
individual-capacity and official-capacity claims is
important. Individual-capacity claims seek to impose personal
liability upon a government official for actions he or she
takes under color of state law. Kentucky v. Graham,
473 U.S. 159 (1985). Official-capacity claims are asserted
against an entity of which the officer is an agent. They are
not suits against the official personally; the entity is the
real party in interest. Id. An award of damages
against a government official in his or her individual
capacity can be executed only against the official's
personal assets, while a plaintiff seeking to recover on a
damages judgment in an official-capacity suit must look to
the government entity itself. Id.
To
establish individual liability in a Section 1983 action, it
is sufficient to show that the official being sued acted
under color of state law and caused the deprivation of a
federal right. Id. For a governmental entity to be
held liable in an official-capacity action, more is required.
Id. Only when the entity itself is a moving force
behind the deprivation of a federal right will the entity be
held liable under Section 1983; the entity's policies or
customs must have played a part in the violation of federal
law, and the only defenses to liability or immunities that
can be claimed in an official-capacity action are forms of
sovereign immunity possessed by the entity. Id. at
167.
Faughn
and Colvin rely on cases from the Eighth Circuit Court of
Appeals for the proposition that a complaint that does not
specifically name the defendant in his or her individual
capacity is presumed to be one against the defendant in his
or her official capacity only. See, e.g.,
Baker v. Chisom, 501 F.3d 920 (8th Cir. 2007).
However, the Ninth Circuit has adopted an opposite
presumption that claims are made against the defendant in his
or her individual capacity if the complaint is silent about
the capacity in which the defendant is being sued.
See, e.g., Price v. Akaka, 928
F.2d 824 (9th Cir. 1991). Other federal circuits approach the
issue by examining the "course of proceedings."
See, e.g., Kentucky v. Graham,
supra (discussing holistic look at the record to
make the determination of individual capacity versus official
capacity).[3] We find the "course of
proceedings" approach more persuasive. Generally, we
require fact-based pleadings and frown upon the need for
"magic words," which runs counter to
appellants' position. See, e.g., Ark. R. Civ. P.
8 (2019); Atwood v. Ark. Dep't of Human Servs.,
2019 Ark.App. 448, __ S.W.3d __; Kiswire Pine Bluff, Inc.
v. Segars, 2018 Ark.App. 296, 549 S.W.3d 410; Duvall
v. Carr-Pool, 2016 Ark.App. 611, 509 S.W.3d 661;
Schermerhorn v. State, 2016 Ark.App. 395, 500 S.W.3d
181. In addition, our supreme court has looked to the
"complaint as a whole" to determine the true nature
of the action. See generally, Stokes v.
Stokes, 2016 Ark. 182, 49 S.W.3d 113; Bristol-Meyers
Squibb Co. v. Saline Cty. Circ. Ct., 329 Ark. 357, 947
S.W.3d 12.
Here,
even though the Kennedys did not specify that they were suing
Faughn and Colvin in their "individual capacities,"
the complaint was titled using their individual names rather
than their official titles. The factual allegations in the
complaint described only individual conduct by Faughn,
Colvin, and John Does 1 and 2 and contains no allegations
regarding unconstitutional police-department procedures,
policies, or customs. The Kennedys also sought punitive
damages against the defendants, which are not available in an
"official-capacity" case. Presumably, Faughn and
Colvin also understood the suit to be one against them in
their individual capacities, as they asserted qualified
immunity, which is available only in individual-capacity
cases. Hafer v. Melo, 502 U.S. 21 (1991).
Considering the entire "course of proceedings," we
are convinced the trial court did not err in concluding that
the Kennedys sued defendants in their individual, rather than
their official, capacities.
B.
Qualified Immunity on ACRA Claims
Turning
to the second portion of their first point on appeal, Faughn
and Colvin contend that even if the action was correctly
regarded as one against them in their individual capacities,
they were still entitled to qualified immunity on the ACRA
claims. Accordingly, they claim the trial court erred in
denying their motion for summary judgment. We disagree in
part and agree in part, but on different grounds.
Qualified
immunity protects an officer from liability in an
excessive-force case unless the officer's conduct
violates a clearly established constitutional or statutory
right of which a reasonable person would have known. See
Harlow v. Fitzgerald, 457 U.S. 800 (1982); Shekleton
v. Eichenberger, 677 F.3d 361 (8th Cir. 2012). Whether a
party is immune from suit is purely a question of law and is
reviewed de novo on appeal. Harris v. Parrish, 2018
Ark.App. 348, 552 S.W.3d 475. Whether summary judgment on
grounds of immunity is appropriate on a particular set of
...