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 Colvins 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 Colvins 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 officials 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, ...