RENDERED: AUGUST 8, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0778-MR
JEFFERSON COUNTY SHERIFF’S OFFICE; JEFFERSON COUNTY SHERIFF’S OFFICE MAJOR GEORGE GRISSOM, IN HIS INDIVIDUAL CAPACITY; AND JEFFERSON COUNTY SHERIFF JOHN AUBREY, IN HIS INDIVIDUAL CAPACITY APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE TRACY E. DAVIS, JUDGE ACTION NO. 20-CI-004224
KEJOHN JENNINGS APPELLEE
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: A. JONES, L. JONES, AND TAYLOR, JUDGES.
JONES, L., JUDGE: Jefferson County Sheriff John Aubrey (Sheriff Aubrey), the
Jefferson County Sheriff’s Office (JCSO), and JCSO Major George Grissom (Grissom) appeal from the June 5, 2024 Opinion and Order of the Jefferson Circuit
Court which denied Grissom’s claim of qualified official immunity as to the
individual capacity claims against him; and denied the JCSO’s claim of immunity
for the tortious acts of Grissom. Appellants also seek qualified official immunity
on behalf of Sheriff Aubrey which the circuit court failed to address.
FACTS AND PROCEDURAL POSTURE
During the summer of 2020, tensions were high and nationwide
protests were underway following the tragic deaths of Breonna Taylor, George
Floyd, and others at the hands of police. In Louisville, Kentucky, the park where
many of these protests occurred was close in proximity to the Jefferson County
Hall of Justice (HOJ). On July 10, 2020, at approximately 8:00 p.m., Appellee,
KeJohn Jennings, approached a set of chained doors at the HOJ. The doors did not
lock, but the chains prevented them from opening wider than a few inches.
Grissom was one of several JCSO deputies assigned to court security at the HOJ.
It is undisputed that Jennings was audibly and visibly agitated as he stood outside
the HOJ at the gap between the chained doors and shouted insults at JCSO Sgt.
John Porter (Porter). Both sides agree that Jennings was holding a bag in his hand.
According to Grissom’s seemingly unrebutted testimony, federal officials had
warned of incendiary devices which protestors had concealed in bags in other
locations across the nation.
-2- On the other hand, Grissom admitted Jennings could not have gained
entry to the HOJ through the chained doors, and it is undisputed that Jennings did
not threaten violence against anyone nor did Grissom know of Jennings previously
using, or threatening to use, violence. Moreover, Porter and other deputies in the
HOJ lobby notably chose to ignore and walk away from Jennings. Even though
those deputies spoke to Jennings and were located nearer to Jennings than
Grissom, Grissom chose to leave his office and walk into the vestibule, passing
those deputies, in order to confront Jennings himself. It is undisputed that Grissom
deployed pepper spray onto Jennings almost immediately after going into the HOJ
vestibule. The parties agree that Grissom never asked Jennings about the contents
of the bag he was holding. And it is undisputed that Grissom took no steps to seize
or inspect the bag, secure medical care for Jennings, or arrest him after deploying
the pepper spray.
The incident was captured on video which has been made part of the
record in this case. The circuit court reviewed and described the video as follows:
The video begins with Mr. Jennings standing outside the chained door of the HOJ talking through the gap about how[,] pursuant to an executive order of the Kentucky Supreme Court[,] the HOJ was supposed to be open to the public. [Jennings] is holding a black plastic bag and an article of clothing in his left hand. His right hand holds a cellular phone and is on the locked door adjacent to the chained door. Mr. Jennings asks into the whereabouts of Deputy Larry Priddy, with whom he had a prior incident. A sheriff’s deputy, subsequently
-3- identified as John Porter[,] approaches the chained door and pulls it closed[,] but it immediately returns ajar. Mr. Jennings makes racially insensitive remarks to Deputy Porter (both of whom are African American). And Deputy Porter leaves the vestibule. Mr. Jennings continues to shout through the gap at the chained door. As Deputy Porter leaves the vestibule, Major Grissom enters the vestibule. He takes four to four and a half steps towards the chained door, and[,] within six (6) seconds of entering the vestibule[,] he discharges OC Pepper Spray into the doorway gap[,] striking [Jennings]. In those six seconds, Major Grissom appears to make a hand gesture, but any dialog is not captured in the video. From the beginning of the video until the time [Jennings] is hit with the OC Pepper Spray, his hands and belongings remain as first described. In his left, a black plastic bag and an article of clothing, in his right a cellular phone, which remains on the locked door.
Opinion and Order, 6/05/2024, pg. 2-3.
Jennings sued Grissom, in his individual and official capacities; JCSO
Sheriff Aubrey, in his individual and official capacities; and the JCSO (collectively
referred to as Appellants). In his Amended Complaint, Jennings alleged Grissom’s
actions against him constituted criminal assault, civil battery, and intentional
infliction of emotional distress.1, 2 Jennings further alleged Grissom’s actions were
“wanton, malicious, intentional” and “purposefully undertaken for the purpose of
1 Amended Complaint at 6. 2 In the June 5, 2024 Opinion and Order of the Jefferson Circuit Court, the circuit court granted Appellants summary judgment on Jennings claim for damages from the intentional infliction of emotional distress. Jennings has not filed a cross-appeal, therefore, any issues relating to the intentional infliction of emotional distress claim or its dismissal are not before this Court and will not be addressed.
-4- injuring Mr. Jennings.”3 As to Sheriff Aubrey and the JCSO, Jennings alleged that
they were “negligent in their retention of Grissom” whom Jennings alleged has a
past history of violence and misconduct.4 Jennings further complained that Sheriff
Aubrey and the JCSO “failed to adequately and properly train [and supervise]
Grissom” and ensure proper policies and practices were put into place to prevent
conduct such as that engaged in by Grissom against Jennings.5 Finally, Jennings
alleged Sheriff Aubrey and the JCSO violated the Open Records Act, but that
claim is now moot.6
Immunity, if applicable, is intended to shield governmental actors and
agencies not just from liability for damages, but from “the burdens of defending
the action.” Rowan Cnty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006). Therefore, an
immunity defense may be raised before discovery is complete so long as the trial
court is presented with sufficient evidence to “reasonably make the determination”
of immunity. Barnette v. Evans, 697 S.W. 3d 749, 756 (Ky. App. 2024) (citations
omitted). Immunity is a question of law for the trial court, not a question of fact
3 Amended Complaint at 7. 4 Amended Complaint at 5, 7. 5 Amended Complaint at 8, 9. 6 The claim against Appellants for Violation of the Open Records Act was resolved long before Appellants sought immunity in their February 20, 2024 Motion and that issue is now moot and is not before this Court.
-5- for a jury. Sloas, 201 S.W.3d at 475. Nevertheless, though presented as a matter
of summary judgment, to answer the question of whether immunity applies, the
trial court must undertake some level of fact-finding outside the normal parameters
of the Kentucky Rules of Civil Procedure (CR). See Sloas, 201 S.W.3d at 475
(emphasis added) (“[O]nce the material facts are resolved, whether a particular
defendant is protected by official immunity is a question of law[.] ”). Thus, only
after the question of immunity has been decided and denied would the trial court
apply the “genuine issue of material fact” standard set forth in CR 56.03 to
determine whether a moving party is entitled to summary judgment on the
underlying claims.
Appellants sought the shield of immunity by filing a Motion for
Summary Judgment on February 20, 2024. However, in that motion Appellants
also alleged “[Jennings] has presented no affirmative evidence of a genuine issue
of material fact on any of his claims.”
From the Opinion and Order of the circuit court, we know discovery
in this case included at least the depositions of Grissom and Jennings; the policies
and procedures of the JCSO relating to use of force, including the use of pepper
spray; and the video of the incident taken by a third party and provided by
Jennings: all of which the circuit court reviewed prior to ruling on Appellants’
motion.
-6- The circuit court granted summary judgment to Sheriff Aubrey and
Grissom on the official capacity claims against them. The circuit court made no
ruling or analysis on Sheriff Aubrey’s request for qualified official immunity in his
individual capacity but denied immunity to Grissom on the claims against him in
his individual capacity. In denying Grissom immunity, the circuit court found that
Grissom’s use of force was discretionary under the policies and procedures of the
JCSO, and that Grissom acted in bad faith against Jennings. In addition, the circuit
court concluded that there were “myriad” questions of fact for the jury in order to
determine whether Grissom’s actions were justified. Finally, the circuit court ruled
that the “JCSO’s ‘cloak’ of sovereign immunity has been legislatively waived [by
KRS7 70.040] for the acts of its deputies. . . .” Thus, because the circuit court had
denied Grissom immunity and summary judgment, the circuit court denied the
JCSO’s claim of immunity as well.
Appellants jointly filed this appeal. Appellants also note that the trial
court failed to rule on Sheriff Aubrey’s entitlement to qualified official immunity
for all claims made against him in his individual capacity and ask this Court to
correct that error of omission by granting Sheriff Aubrey qualified official
immunity.
7 Kentucky Revised Statutes.
-7- DEFICIENT BRIEFS
Before we begin our analysis, both Appellants and Jennings urge us to
impose sanctions on the other for failing to comply with the Kentucky Rules of
Appellate Procedure (RAP). We agree that the briefs submitted by both parties are
deficient. Most obviously, Appellants submitted a thirty-one-page brief that does
not contain an appropriate word count certificate. RAP 31(G)(2)(a) provides that
an appellant’s opening brief “shall not exceed 8,750 words or 20 pages if computer
generated . . . .” (emphasis added). A brief longer than 20 pages must contain a
word count certificate, RAP 31(G)(1), which under RAP 15(C) must confirm “that
the brief falls within the relevant word limit. The certificate must also state the
number of words in the portion of the brief subject to the word limit.” Appellants’
opening brief is obviously computer-generated, but the purported word count
certificate does not contain an actual word count; instead, the brief only states,
(incorrectly), that it “is in conformity with the Kentucky Rules of Appellate
Procedure Rule 15.”
Also, as Jennings accurately notes, Appellants’ brief does not “contain
at the beginning of the argument a statement with reference to the record showing
whether the issue was properly preserved for review and, if so, in what manner.”
RAP 32(A)(4). Rather than attempting to rectify that deficiency, Appellants’ reply
brief insists they satisfied that requirement by citing portions of the circuit court’s
-8- order with which they disagree. Appellants are incorrect. Merely citing to a trial
court’s decision does not show with specificity where, or how, a party raised and
preserved the issues contained in its appellate brief.
Finally, Appellants chose to repeatedly cite to this Court’s opinion in
Volentine v. Sheehy, No. 2022-CA-0336-MR, 2023 WL 2052301 (Ky. App. Feb.
17, 2023). There are numerous problems with Appellants’ reliance upon that
opinion. First, it was not designated for publication. Unpublished opinions “are
not binding precedent.” Hardin v. Jefferson Cnty. Bd. Of Educ., 673 S.W.3d 437,
443 (Ky. App. 2023) (citing RAP 40(D)(1)). Citation to unpublished opinions is
thus “disfavored” under RAP 41(A). Second, an opinion of the Court of Appeals
cannot become final during the pendency of a motion for discretionary review. See
RAP 40(G)(2). A motion for discretionary review of this Court’s opinion in
Volentine was filed in March 2023, roughly nine months before Appellants
submitted their opening brief. Thus, Appellants have repeatedly cited to a
nonfinal, unpublished opinion for which discretionary review had been granted.
See RAP 40(H) (prohibiting citation to a nonfinal opinion). Appellants note the
grant of discretionary review in a footnote but do not further note that the granting
of discretionary review meant this Court’s opinion would automatically be
superseded by the then-forthcoming decision of our Supreme Court. See RAP
40(G)(2) (providing that if a motion for discretionary review is granted “the
-9- opinion of the court finally disposing of the matter supersedes all lower court
opinions arising from the appeal.”).
Unfortunately for Appellants, soon after they submitted their opening
brief, our Supreme Court rendered Sheehy v. Volentine, 706 S.W.3d 229 (Ky.
2024), which reversed the Court of Appeals’ Volentine decision upon which
Appellants relied. Appellants submitted their reply brief several months after the
issuance of the Supreme Court’s decision in Sheehy, but failed to mention the
Supreme Court’s decision in Sheehy, even though that decision unanimously
reversed this Court’s decision in Volentine, upon which Appellants relied in their
opening brief.
Turning to Jennings’ brief, his statement of points and authorities
bizarrely refers to persons and trial court rulings that seem to be from a separate
case unrelated to this action. Appellants also accurately note that the “Statement of
the Case” section of Jennings’ brief does not contain ample citations to the trial
court record, as required by RAP 32(B)(3). Appellants also assert Jennings’ word
count certificate is inaccurate.
We should sanction both parties for submitting briefs which
substantially fail to comply with RAP. Instead, however, we have reluctantly and
leniently decided to overlook the deficiencies. See Mullins v. Appalachian Reg’l
Healthcare, Inc., 707 S.W.3d 1, 6 (Ky. App. 2025) (listing some of an appellate
-10- court’s options when a party submits a noncompliant brief, including ignoring the
deficiencies). But we emphatically stress that we typically will impose sanctions
when a party does not substantially comply with RAP, and only have refrained
from doing so here because of the need to clarify the required findings a trial court
must make when ruling on both qualified official immunity and summary
judgment, and because both sides have submitted noncompliant briefs. See J.P.T.
v. Cabinet for Health and Fam. Servs., 689 S.W.3d 149, 153 (Ky. App. 2024);
RAP 10(B) (listing potential sanctions for a failure to substantially comply with
RAP, such as striking briefs, imposing fines, or dismissing an appeal).
STANDARD OF REVIEW
“[A]n order denying a substantial claim of absolute immunity is
immediately appealable even in the absence of a final judgment.” Breathitt Cnty.
Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009)). Accordingly, we have
jurisdiction to review denial of immunity despite the interlocutory nature of the
circuit court’s order. Id. As part of the order under review, the circuit court also
addressed substantive aspects of Appellee’s claims and further granted immunity
with respect to the official capacity claims. However, the scope of our appellate
review must be confined to the circuit court’s denial of immunity “and nothing
more.” Cabinet for Health and Family Services, Department for Medicaid
Services v. Sexton, by and through Appalachian Regional Healthcare, Inc., 566
-11- S.W.3d 185, 190 (Ky. 2018) (quoting Baker v. Fields, 543 S.W.3d 575, 578 (Ky.
2018)). Any issues beyond the denial of immunity are not yet ripe for our review,
and “our jurisdiction at this stage of the proceedings is strictly limited to the issue
of governmental immunity.” University of Kentucky v. Regard, 670 S.W.3d 903,
908 (Ky. 2023). Therefore, “we express no opinion whatsoever on the merits of
the underlying claim.” Id.
While the question of immunity is a question of law which the
appellate court will review de novo, answering the question of immunity requires
the trial court to make certain limited findings of fact which are “subject only to
the clear error review of the appellate courts under CR 52.01.” Sheehy, 706
S.W.3d at 236, 239 (footnote omitted). “Unless a factual conclusion is clearly
erroneous, neither the Court of Appeals nor [the Supreme Court] has authority to
set those conclusions aside.” Id. at 244.
In this case, Appellants not only asked for summary judgment on the
basis of immunity, but also sought summary judgment on the underlying claims
alleging Jennings failed to raise any genuine issues of material fact. “An issue of
material fact is ‘genuine’ at the summary judgment phase when discovery has
revealed facts which make it possible for the non-moving party to prevail at trial.”
Morales v. City of Georgetown, 709 S.W.3d 146, 153 (Ky. 2024) (citations
omitted). “The record must be viewed in a light most favorable to the party
-12- opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.
1991). “Because summary judgment does not require findings of fact but only an
examination of the record to determine whether material issues of fact exist, [the
appellate courts] generally review the grant of summary judgment without
deference to either the trial court’s assessment of the record or its legal
conclusions.” Morales, 709 S.W.3d at 153 (citations omitted).
ANALYSIS
I. The Trial Court is Required to Make Certain Findings of Fact to Determine Whether a Government Employee is Shielded Under the Doctrine of Qualified Immunity. Only After the Trial Court has Determined Immunity Does Not Apply Does the Trial Court Determine Whether there are Genuine Issues of Material Fact to be Tried by a Jury.
“[T]he difficulty for all judges with qualified immunity has not been
articulation of the rule, but rather the application of it.” Flatford v. City of
Monroe, 17 F.3d 162, 166 (6th Cir. 1994). Compounding this “arduous task,”
both the rule and its application have undergone much analysis in recent
history. Morales, 709 S.W.3d at 154. Rooted in both common law and the
constitutional doctrine of separation of powers, historically the rule has been
that “a state agency is entitled to immunity from tort liability to the extent that it
is performing a governmental, as opposed to a proprietary, function.” Sheehy,
706 S.W.3d at 236 (quoting Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001)).
-13- However, the General Assembly, via KRS 70.040, waived the sovereign
immunity traditionally enjoyed by the office of sheriff, imposing liability on the
office for acts committed by the sheriff’s deputies. Sheehy, 706 S.W. 3d at 236
(citing Jones v. Cross, 260 S.W.3d 343, 346 (Ky. 2008)). And, “when sued in
their individual capacities, public officers and employees enjoy only qualified
official immunity, which affords protection from damages liability for good
faith judgment calls made in a legally uncertain environment.” Yanero, 65
S.W.3d at 522.
“[W]hether an official is entitled to qualified immunity turns upon
‘the actor’s status as a governmental official; [and] the ministerial/discretionary
distinction[.]” Sheehy, 706 S.W.3d at 236-37 (quoting Meinhart v. Louisville
Metro Gov’t, 627 S.W.3d 824, 830 (Ky. 2021)). “Ministerial actions are those
that require ‘only obedience to the orders of others, or when the officer’s duty is
absolute, certain, and imperative, involving merely execution of a specific act
arising from fixed and designated facts.’” Morales, 709 S.W.3d at 155 (quoting
Yanero, 65 S.W.3d at 522). “A discretionary action is one ‘involving the
exercise of discretion and judgment, or personal deliberation, decision, and
judgment.’” Id. at 154 (quoting Yanero, 65 S.W.3d at 522). If the act was
discretionary, the trial court must then determine whether the action was taken
-14- in good faith and within the scope of the officer’s authority. Sheehy, 706
S.W.3d at 237.
Once a defendant moves for summary judgment on the basis of
qualified governmental immunity, making this determination requires the trial
court to make certain limited findings of fact based on evidence in the record. Id.
at 239. First, in order to determine whether an act was ministerial or discretionary,
the trial court must “review the relevant statute, regulation, rule, or policy[.]” Id. at
237. “Internal government rules, policies, and regulations necessarily constrain the
individual discretion of public employees, and in some instances limit their
discretion so greatly as to render their employment functions absolute, certain, and
imperative[.]” Morales, 709 S.W.3d at 155 (internal quotation marks and citations
omitted). If the trial court determines an act was ministerial, the court’s factfinding
role ends. Qualified official immunity is not afforded to a government employee
who negligently performs a ministerial act, and “[w]hether the [officer’s] actions
. . . amount to a tort or not depends on whether he negligently failed to perform his
mandatory acts, or negligently performed them, which is a question for a jury,
assuming of course there is evidence [creating a material issue of fact] that he
acted unreasonably, that is, negligently.” Sheehy, 706 S.W.3d at 237 (quoting
Marson v. Thomason, 438 S.W.3d 292, 301 (Ky. 2014)). On the other hand, if the
trial court determines the officer’s actions were “performed within the scope of
-15- his/her discretionary authority, the burden shifts to the plaintiff to establish by
direct or circumstantial evidence that the discretionary act was not performed in
good faith.” Sheehy, 706 S.W. 3d at 237 (quoting Yanero, 65 S.W.3d at 523).
The circuit court extensively reviewed the Use of Force policies of the
JCSO, citing and even highlighted in bold print portions of those policies.
Deputies are sometimes confronted with situations where control must be exercised to effect arrests and protect their life and/or the lives of others. Control may be achieved through advise [sic], persuasion, warnings, or by the use of physical force. While the use of reasonable physical force may be necessary in situations that cannot be otherwise controlled, force may not be resorted to unless other reasonable alternatives have been exhausted or would clearly be ineffective under the particular circumstances. Deputies are permitted to use that force necessary to protect themselves and others from bodily harm. [§1.3] (emphasis added).
Deadly force is defined as: “Any use of force that is likely to cause death or serious physical injury.” [§1.3(1).]
Non-deadly force is defined as: “Any use of force other than that which is considered deadly force.” [§1.3(2).]
Reasonable belief is defined as: “When facts or circumstances the deputy knows or should know, are such to cause an ordinary and prudent person to act or think in a similar way under similar circumstances.” [§1.3(3).]
The progression of force will encompass both deadly and non-deadly force. The force continuum used by the [JCSO] is based on the Pressure Point Control Technique
-16- (PPCT) Management System. One or all control techniques may be used depending upon the level of resistance offered by a suspect. [§1.3(A)(1).]
It is not necessary to follow the order of continuum when circumstances dictate that the deputy escalate to a higher level of control. Variables which may be included, but are not limited to: the size and gender of the deputy and the suspect, the totality of the circumstances such as the danger or imminent threat to the deputy or others, and the deputy’s reaction time or ability to respond. [§1.3(A)(2)] (emphasis added).
When the use of force is necessary, deputies shall, to the extent possible, utilize an escalating scale of options. The scale of options, in order of increasing severity, is as follows. a. Deputy Presence; b. Verbal Commands/Directives; c. Empty Hand Control; d. Less Lethal (OC Spray, Taser, Bean Bag Shotgun, & Baton); e. Firearms. [§1.3(F)(1).]
Where deadly force is not authorized, deputies should access [sic] the incident in order to determine which non- deadly technique or weapon is best to bring the incident under control or affect an arrest in a safe manner. It is not, however, the intent of this directive to require that deputies must try each of the available options before escalating to the next available option. The option uses [sic] should be based on the decision of the deputy involved in the incident. It is only required that the degree of force utilized is reasonable. When analyzing the “reasonableness” deputies should consider: [the] severity of the suspected criminal activity; Does the suspect pose an immediate threat to deputies or others; Is the suspect actively resisting or attempting to evade arrest? [§1.3(F)(2)] (emphasis added).
These options are available to deputies when there is a high probability of violence and they have determined that the use of deadly force is not yet justified. . . . (O.C.)
-17- “PEPPER SPRAY” Deputies are authorized to use O.C. in circumstances where the deputy reasonably believes that a degree of force is necessary to overcome actual or probable resistance or assaults, in order to take a suspect into custody. [§1.3(F)(d)(1)] (emphasis added).
The use of physical force by a deputy . . . upon another person is justifiable when the deputy, acting under official authority, is making or assisting in making an arrest, and the deputy: a. Believes that such force is necessary to effect [sic] the arrest. . . . [§1.3(G)(1)] (emphasis added).
Physical force may be used as a means of: a. Physical restraint or control; b. subduing a person resisting arrest; c. Defense of any person; or d. Moving, removing, or arresting, any person who is obstructing a lawful law enforcement action in such a manner that the enforcement action cannot be accomplished. [§1.3(G)(5).]
A deputy may use non-lethal force at any level necessary to: 1. Defend himself/herself or another person; 2. Subdue a person resisting arrest; or 3. Prevent escape from custody. [§1.4(A).]
OC [sic] Spray may be used as a means of: a. Physical restraint or control of a person who is combative and presents a physical danger to the deputy or any other person, or b. Defense of any person. [§1.4(E)(4)] (emphasis added).
OC [sic] Spray will not be used for the following: a. As a threat to make a person comply with a deputy’s verbal order when no physical violence is imminent; . . . or to punish someone. [§1.4(E)(5)] (emphasis added).
-18- If feasible, the deputy should attempt to warn the subject of the intention to use O.C. [§1.4(E)(6).]
Opinion and Order, June 5, 2024 at 7-8. After enumerating the relevant policy
sections, the circuit court determined that it was “unquestionable that Grissom
possesses considerable discretion concerning his use of force under the JCSO’s
policies.”8 We agree with the circuit court’s assessment.
The circuit court was short on analysis, but this Court notes that the
specific Use of Force policies quoted and emphasized in the June 5, 2024 Opinion
and Order repeatedly state that an officer’s actions must be reasonable; that the
officer must possess a reasonable belief in circumstances which justify his or her
actions; and that the officer’s actions are not required to follow a particular
“continuum” of progression in the escalation of force.9 In addition, the specific
policies of the JSCO discussing the use of pepper spray which also made extensive
use of words like “reasonable” and “reasonably believes,” and phrases like “may
be used.”10 This permissive language that provides guidance rather than explicit
instructions gives ample support for the circuit court’s conclusion that Grissom’s
8 Opinion and Order, June 5, 2024 at 8. 9 Opinion and Order, June 5, 2024 at 7-8. 10 Opinion and Order, June 5, 2024 at 8.
-19- actions were discretionary and that he was acting within the bounds of his
authority.
As specific examples, the circuit court quoted and emphasized §1.3
and §1.3(F)(2) of the JCSO’s policies which state that “[d]eputies are permitted to
use that force necessary to protect themselves or others from bodily harm,” and
that the determination of what “non-deadly technique or weapon” to use in a
situation is the “decision of the deputy involved in the incident.”11 As is plain from
the language of the policy, there is no fixed, one-size-fits-all, rigid formula for
determining whether a JCSO law enforcement officer may use force to protect
himself or herself (or others) or, if using force is necessary, what force may be
used. “There is considerable discretion inherent in law enforcement’s response to
an infinite array of situations implicating public safety on a daily basis.” Meinhart,
627 S.W.3d at 835. See also, e.g., Energy & Environment Cabinet, Div. of
Forestry, Commonwealth v. Robinson, 363 S.W.3d 24, 29 (Ky. App. 2012)
(holding that “when an actor must choose between or among various courses of
action, and that choice involves the exercise of judgment and/or overriding policy
issues, the act is discretionary.”).
11 Opinion and Order, June 5, 2024 at 7.
-20- Appellants did not dispute that Grissom’s actions were discretionary
and within the scope of his authority. Thus, the burden shifted to Jennings to prove
Grissom acted in bad faith.
“[Q]ualified official immunity yields to proof that a defendant’s
actions were malicious.” Martin v. O’Daniel, 507 S.W.3d 1, 6 (Ky. 2016).
“Acting with malice and acting in good faith are mutually exclusive.” Id. at 5.
This was reiterated recently in Sheehy: “Qualified official immunity cannot be
applied in cases where a government official . . . lacks good faith in the exercise of
a discretionary authority.” Sheehy, 706 S.W.3d at 233. Therefore, there are further
findings of fact related to good faith that must be made by the trial court to
determine whether an officer is shielded under the doctrine of qualified immunity.
To show Grissom “acted in bad faith when making an on-the-spot
judgment call,” Jennings “must [have] demonstrate[d] the officer knew or
reasonably should have known that the action he took within his sphere of official
responsibility would violate [Jennings’] rights or that the officer took the action
with the malicious intention to cause a deprivation of constitutional rights or other
injury[.]” Meinhart, 627 S.W.3d at 835 (internal quotation marks and citations
omitted). Bad faith may also exist when the public official’s acts demonstrate “a
corrupt motive” or are “objective[ly] unreasonable[.]” Yanero, 65 S.W.3d at 523.
“[I]n most cases, ‘good faith’ is just a presumption that exists absent evidence of
-21- ‘bad faith.’” Sloas, 201 S.W.3d at 475. Therefore, though the issue of qualified
immunity is presented to the trial court as a question of summary judgment, it is
not enough for the trial court to find that genuine issues of material fact exist
surrounding the question of good faith, it is the role of the trial court to make those
findings of fact.
It is here the circuit court seems to have become confused. The circuit
court explicitly stated “the [c]ourt believes [Jennings], and the video recording of
the subject incident, provides [sic] direct or circumstantial evidence that the
discretionary act was not performed in good faith.”12 This is a conclusion, but the
circuit court did not set forth any findings of fact to support that conclusion.
Instead, the trial court skipped to the standard summary judgment analysis of the
underlying claims:
The video of the subject incident creates myriad issues of genuine fact as to whether use of force was justified under the JCSO’s policies, and not simply Grissom’s discretionary authority thereunder. Examples include, but are not limited to: Whether force was necessary to protect sheriff’s deputies or others from bodily harm [§ 1.3]; whether there was a danger or imminent threat to the deputies or others [§ 1.3 (A)(2)]; whether there was an immediate threat to deputies or others [§ 1.3 (F)(2)]; whether there was a high probability of violence, or actual or probable resistance or assaults [§ 1.3 (F)(d)(1)]; whether there was any obstruction of a lawful law enforcement action [§ 1.3 (G)(5)]; whether [Jennings] presented a physical danger to deputies or any other
12 Opinion and Order, June 5, 2024 at 10.
-22- person [§ 1.4 (E)(4)]; and/or whether the O.C. pepper spray was used against [Jennings] simply to make him comply with a deputy’s verbal order when no physical violence was imminent or to punish him [§ 1.4 (E)(5)].
Opinion and Order, June 5, 2024 at 10-11. While justification is a defense to the
civil tort of battery, it is also relevant to a determination of good faith. See
Lexington-Fayette Urban County Government v. Middleton, 555 S.W.2d 613, 617
(Ky. App. 1977) (In an action for false arrest, assault and battery, “the burden of
proof is always on the plaintiff. However, once the plaintiff meets his burden and
establishes his case, if the defendant attempts justification of his conduct, then the
burden does shift to him to establish both that he had reasonable grounds [for
making the arrest] and in good faith did believe those grounds for making the
arrest and that he used no more force than necessary.”).
Because the jury must also answer the question of good faith, does not
relieve the trial court from answering that question. Qualified immunity is
determined by the trial court, not the jury. Where qualified immunity is sought for
a discretionary act, immunity is dependent upon the officer’s good faith.
Therefore, these “myriad issues of genuine fact” are questions for the circuit court
to answer and not just the jury.
The circuit court did make several findings of fact. The court
thoroughly reviewed and described the video of the incident. These are findings of
fact. And in a footnote to the Opinion and Order, the circuit court noted: “The
-23- video recording provided by [Jennings] does not clearly reflect Sgt. Porter verbally
commanding [Jennings] to leave the HOJ door, as reported by [Appellants]. It also
appears to refute Grissom’s claim that he led [sic] the can of O.C. Spray right in
front of [Jennings] and told him to leave ‘multiple times’ before he sprayed it.”13
These are findings of fact that the circuit court tried to couch in neutral terms
(“does not clearly reflect” and “appears to refute”) to seemingly avoid making
This Court understands that Sheehy is a new opinion of the Supreme
Court that was unavailable to the circuit court when it rendered its decision.
Furthermore, this Court realizes it may be uncomfortable for a trial court to answer
the question of good faith as it relates to qualified immunity knowing a jury may
later be presented the same question of good faith when analyzing the underlying
civil claim. However, this is what the trial court is called upon to do, and the court
cannot shy away from its duty. See Martin, 507 S.W.3d at 5 (citations omitted) (In
a case for malicious prosecution: “Malice is a material fact that a plaintiff must
prove to sustain a malicious prosecution claim. But, it is also a fact that defeats the
defendant’s assertion of qualified official immunity. . . . It thus becomes apparent
that the very same evidence that establishes the eponymous element of a malicious
prosecution action simultaneously negates the defense of official immunity.”).
13 Opinion and Order, June 5, 2024 at 11 n.8.
-24- Therefore, for failure to provide specific findings of fact from the
record to support the conclusion that Grissom acted in bad faith, we vacate the
circuit court’s denial of Grissom’s claim for qualified official immunity and
remand with the above instructions. Because a trial court cannot determine
whether there are material issues of fact for a jury until the question of immunity
has been resolved, we also vacate the circuit court’s decision that there are genuine
issues of material fact as to whether Grissom was justified in his use of force, and
remand for the circuit court to first make the proper findings of fact and
determination of the application of immunity. If, after making the required
findings of fact, the court again determines Grissom is not entitled to immunity,
then the court can properly address whether there are genuine issues of material
fact to be addressed by a jury pursuant to CR 56.
II. The Trial Court as the Finder of Facts Relating to the Application of Qualified Official Immunity is Entitled to Determine the Weight and Credibility of the Evidence.
This Court’s decision to vacate the order denying Grissom summary
judgment is based solely on the failure of the circuit court to provide findings of
fact to support the conclusion that Grissom is not entitled to qualified official
immunity because he acted in bad faith. However, this was not the basis of
Appellants’ appeal. Appellants claim the circuit erred by relying upon the wrong
-25- evidence in reaching its decision. As we are remanding for the circuit court to
make findings of fact, it is important to address Appellants’ evidentiary arguments.
First, Appellants argue the circuit court erred by “substituting its own
perceptions over Grissom’s real-time perceptions.”14 Much confusion has resulted
from the language used by the Kentucky Supreme Court in Meinhart that “it is not
in the public’s interest to allow a jury of laymen with the benefit of 20/20 hindsight
to second-guess the exercise of a police officer’s discretionary professional duty.”
Meinhart, 627 S.W.3d at 835. This was often used to argue, as Appellants do here,
that the courts also should not second-guess the officer’s “real-time perception” of
the events and the justification for his or her actions. Fortunately, the Kentucky
Supreme Court used Sheehy to set the record straight:
To say that a jury ought not question the discretionary acts of police officers does not mean no one ought to question them. The very fact that our law requires a good faith element to discretionary acts prior to granting qualified immunity implies that someone will review those actions if they are the subject of a lawsuit. If it is not a jury question, then it is manifestly one for the trial court. And if this review is to be meaningful, to be something more than a rubber-stamp, then it must be that an officer’s assertions must have a reasonable basis in fact.
Sheehy, 706 S.W.3d at 241. Therefore, it is up to the finder of fact, in this case the
trial court, to weigh the evidence and judge the credibility of the witnesses.
14 Appellants’ Brief at 25.
-26- Appellants also argue that the circuit court misinterpreted another
holding of Meinhart and erred by considering the JCSO policies when evaluating
the question of good faith. More particularly, Appellants state: “The JCSO
policies are not dispositive of good faith. JCSO policies were probative of whether
Grissom’s acts were discretionary and made within the scope of his authority, not
good faith.”15 We disagree. Meinhart stated: “Compliance with the rule, policy,
or regulation simply is not relevant in that calculus [of whether the public
employee’s act was discretionary or ministerial]. Rather compliance is relevant to
negligence and the issue of whether the act was undertaken in good faith.”
Meinhart, 627 S.W.3d at 830 (emphasis added). Therefore, the circuit court did
not err in considering the JCSO policies in relation to whether Grissom’s use of
force against Jennings was justified.
Finally, Appellants argue that it was “improper [for the trial court] to
solely rely on [the video of the incident] when holding Jennings to his burden to
prove the absence of bad faith.”16 In Sheehy, the Kentucky Supreme Court also
clarified the weight the trial court should give to video evidence of an incident.
First, this Court notes that the circuit court’s Opinion and Order indicates that the
court did not solely rely upon the video provided by Jennings. The circuit court
15 Appellants’ Brief at 23. 16 Appellants’ Brief at 23.
-27- reviewed the testimony of Jennings and Grissom, and the Use of Force policies of
the JCSO, as well as the video. Second, as here, the Sheehy appellants also argued
that the trial court “impermissibly relied on its review of . . . video footage in
hindsight[,] and should have only considered whether [the officer] had articulated
reasonable” justification for his actions. Sheehy, 706 S.W.3d at 239. The
Kentucky Supreme Court was not persuaded by their argument and declared:
As a simple matter of time and physics, all courts in almost every case review evidence “in hindsight.” If any evidence below is “in hindsight” then it is [the officer’s] recounting a past event from his own memory. The video footage at least has the virtue of recording events in real time that are subsequently capable of being reviewed for what it shows free from the vagaries of human memory and human bias. The video footage recorded the same events that [the officer] recounted thus, both were “real time perception” of the event in question. We acknowledge that the eyesight of police officers and the perspective of a video camera can be different; and in acknowledging that truth, police officers may react to something off-camera that governs their actions. In such instances the testimony of the officer himself may be the most credible or the only evidence. That is not the case, however, in all circumstances. It can be just as true that an officer’s perception and the camera’s perspective encompass the same area. In such instances, when a discrepancy exists between the video and the inperson testimony, an issue of weight and credibility is presented for the factfinder, subject only to the clear error review of appellate courts[.] . . . [T]he trial court is acting as the factfinder. . . and is empowered to make the determination that the video “speaks for itself” as a matter of substantive evidence or that the video is in fact inconsistent with [the officer’s] testimony, if viewed as demonstrative evidence. . . .
-28- When the video evidence and the officer’s testimony both regard the same events and are contradictory, the trial court – again in its capacity as factfinder – is empowered to note the inconsistency, weigh the evidence, and make credibility determinations.
Id. at 239-40 (citations omitted). Therefore, the trial court may give the video and
the testimony of the witnesses the weight the trial court believes they deserve with
neither being automatically assessed as outweighing the other.
However, this again notes the importance of detailed findings of fact
and analysis of the evidence by the trial court. Findings which were lacking here.
Findings which “need not be extensive, but they should be complete enough to
enable adequate appellate review.” Barnette, 697 S.W. 3d at 757 (internal
quotation marks and citations omitted).
III. We Decline to Address Claims Against Sheriff Aubrey in his Individual Capacity.
Appellants clearly asked for summary judgment on the individual
capacity claims against Sheriff Aubrey. See Record (R.) at 470-75. However,
Appellants admit in the introduction section of their brief that the circuit court
“ignored” the arguments in their motion for summary judgment that Sheriff
Aubrey enjoyed qualified official immunity for the individual capacity claims
against him. Appellants did not ask the circuit court to amend its decision to
address those claims. See, e.g., CR 52.02 (motion to amend a judgment); CR 59.05
-29- (motion to alter, amend, or vacate a judgment). Nonetheless, Appellants ask us to
hold that Sheriff Aubrey is entitled to immunity for the individual capacity claims
against him. We decline to do so.
The authorities cited by Appellants which purportedly allow us to
address matters which the trial court did not are materially distinguishable. For
example, Appellants cite precedent allowing an appellate court to affirm a trial
court on alternate grounds. Of course, we may affirm the trial court “for any
reason supported by the record.” McCloud v. Commonwealth, 286 S.W.3d 780,
786 n.19 (Ky. 2009). But here there is no decision to affirm, on alternate grounds
or otherwise, determining the viability of the individual capacity claims against
Sheriff Aubrey.
Issues involving qualified official immunity require “certain factual
findings” to be made. Meinhart, 627 S.W.3d at 829. But “it is axiomatic that
appellate courts are not fact-finders[.]” Calhoun v. CSX Transp., Inc., 331 S.W.3d
236, 245 (Ky. 2011). We decline to make factual findings and use those findings
to assess whether Sheriff Aubrey is entitled to qualified official immunity for the
individual capacity claims. “As an appellate court, we review judgments; we do
not make them.” Klein v. Flanery, 439 S.W.3d 107, 122 (Ky. 2014).
-30- IV. The JCSO Lacks Immunity for the Tortious Acts or Omissions of Grissom.
Jennings asserted claims against the JCSO in Counts II and III of his
complaint, such as a claim for failing to properly train Grissom. The circuit court
seemed to grant summary judgment to the JCSO on the claims in Count II but did
not rule on whether the JCSO was entitled to summary judgment on the claims in
Count III.
First, the circuit court held that the claims against Sheriff Aubrey in
Count II, which included claims such as supervisory liability and failure to train
Grissom, fell “within Sheriff Aburey’s official actions. These are not claims
alleging vicarious/respondeat superior liability against the JCSO for the tortious
acts of Grissom, to which KRS 70.040 has waived sovereign immunity” so “all
official capacity claims against Sheriff Aubrey (and the claims against Grissom in
is [sic] official capacity) are barred by absolute official immunity.”17 Thus, as we
construe it, the circuit court granted summary judgment to Appellants on all claims
in Count II of Jennings’ complaint, including those against the Sheriff’s Office. As
only a denial of immunity is able to be reviewed at this stage of the proceedings,
we decline to address further the grant of summary judgment to the JCSO for the
claims in Count II.
17 Opinion and Order of June 5, 2024 at 6 (emphasis original).
-31- However, the circuit court did not address whether the JCSO was
entitled to immunity or summary judgment on the claims against it in Count III.
Instead, the circuit court merely stated in a footnote that “Count III also alleges
municipal/organizational liability theories’ against Sheriff Aubrey and the JCSO
for an alleged continuing policy, pattern, custom and/or practice of willfully and
deliberately ignoring the rights of citizens, and failure to adequately train and
supervise Grissom.”18 The court did not further address those Count III claims on
the merits.
Consequently, for the same reasons we discussed when we declined to
address on the merits the individual capacity claims against Sheriff Aubrey, we
shall not address on the merits whether the JCSO is entitled to summary judgment
on the claims against it in Count III of Jennings’ complaint (such as the alleged
failure to adequately train Grissom and the alleged existence of a policy of
deliberately ignoring the rights of others). Instead, we view the scope of what is
properly before us regarding the JCSO as only encompassing whether the JCSO
may be held liable for the allegedly tortious acts of Grissom. Indeed, we perceive
that to be the only argument regarding the claims against the JCSO discussed in
Appellants’ brief. The entirety of Appellants’ one-paragraph argument about the
18 Opinion and Order of June 5, 2024 at 6 (internal quotation marks omitted).
-32- liability of the JCSO is that there can be no liability because Grissom is entitled to
qualified official immunity on all claims against him.
KRS 70.040 provides that “[t]he sheriff shall be liable for the acts or
omissions of his deputies; except that, the office of sheriff, and not the individual
holder thereof, shall be liable under this section.” Our Supreme Court held “the
plain language of KRS 70.040 leaves no room for any other reasonable
construction than a waiver of the sheriff’s official immunity (the office of sheriff)
for the tortious acts or omissions of his deputies.” Jones, 260 S.W.3d at 346. And
Sheehy confirms this: “Finally, because we conclude that qualified immunity does
not apply to [Deputy] Volentine’s actions, KRS 70.040 operates as a waiver of the
[Hardin County Sheriff’s Office’s] governmental immunity.” Sheehy, 706 S.W.3d
at 244 (quoting Jones, 260 S.W.3d at 346).
We have already vacated and remanded the circuit court’s decision
denying immunity and summary judgment to Grissom regarding the individual
capacity claims. Thus, as the immunity of the JCSO for the acts committed by
Grissom is dependent upon the immunity of Grissom, we also vacate and remand
the circuit court’s decision denying immunity and summary judgment to the JCSO.
-33- CONCLUSION
We view any remaining contentions of error in the parties’ briefs as
moot, unpersuasive, or unpreserved. See, e.g., Schell v. Young, 640 S.W.3d 24, 29
n.1 (Ky. App. 2021).
In summary, for the foregoing reasons, we VACATE the portion of
June 5, 2024 Opinion and Order of the Jefferson Circuit Court which denied
qualified official immunity and summary judgment to Grissom and the JCSO for
the claims against Grissom in his individual capacity and REMAND for the circuit
court to make required findings of fact. We AFFIRM the remainder of the Order.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Carol S. Petitt David B. Mour Mathew R. Bastin Louisville, Kentucky Pewee Valley, Kentucky
-34-