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Faughn v. Kennedy

Court of Appeals of Arkansas, Division IV

December 4, 2019

Brodie FAUGHN and Billy Colvin, Appellants
v.
Alfred KENNEDY and Wayne Kennedy, Appellees

          Rehearing Denied February 5, 2020

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          APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CV-16-180], HONORABLE RICHARD L. PROCTOR, JUDGE

          Sara Monaghan, for appellants.

         Easley & Houseal, PLLC, Forrest City, by: B. Michael Easley, for appellees.

         OPINION

         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

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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, 105 S.Ct. 3099, 87 L.Ed.2d 114 (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, ...


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