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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

          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 ...


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