NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0585n.06

                                           No. 19-5397

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 DUSTIN AYALA,                                )                                       FILED
                                              )                                 Dec 02, 2019
         Plaintiff-Appellee,                  )                             DEBORAH S. HUNT, Clerk
                                              )
 v.                                           )
                                                                 ON APPEAL FROM THE
                                              )
                                                                 UNITED STATES DISTRICT
 MICHAEL HOGSTEN, in his Individual and )
                                                                 COURT FOR THE EASTERN
 Official Capacities as Greenup County Deputy )
                                                                 DISTRICT OF KENTUCKY
 Sheriff; GREENUP COUNTY SHERIFF OFFICE,      )
                                              )
         Defendants-Appellants.               )


       Before: GILMAN, KETHLEDGE, and READLER, Circuit Judges.

       KETHLEDGE, Circuit Judge. Deputy Sheriff Michael Hogsten and the Greenup County

Sheriff’s Office appeal the district court’s denial of qualified immunity on plaintiff Dustin Ayala’s

civil-rights suit. We affirm.

                                                 I.

       We take the facts in the light most favorable to Ayala unless they are clearly contradicted

by video. See Scott v. Harris, 

, 380–81 (2007). We have a video here. In May 2016,

Hogsten went to Ayala’s mobile home in Greenup County, Kentucky, to serve him with a court

order. Hogsten banged on the front door, but no one answered. Ayala had been in bed, but got up

and started to dress when he heard the noise. He peeked out of the window, saw a deputy at the

door, and told his girlfriend to get her cell phone and start filming. Ayala thought he heard the

deputy trying to turn the front-door handle; then he heard the same sound at the back door. By

that time, Ayala was dressed. He stepped out onto his front porch and called out to Hogsten.
No. 19-5397, Ayala v. Hogsten


       Hogsten came back to the front of the home and handed Ayala the court order. The cell

phone video starts there. For the first 8 seconds, it shows the two men shouting profanities at each

other, with Ayala standing on a porch about three feet above the ground, and Hogsten a few feet

away, at the bottom of several porch steps. Ayala accused Hogsten of trying to enter the mobile

home and yelled at him to leave; Hogsten cursed right back and told Ayala to “come down here

boy.” Ayala continued to swear and appeared to point or wave his hand towards Hogsten several

times. At the 8-second mark, Hogsten told Ayala that he was under arrest for “menacing”; at the

same time, he sprayed Ayala in the face with two bursts of pepper spray. Hogsten told Ayala to

put his hands behind his back, which he did without protest. Then, without handcuffing Ayala,

Hogsten took him off the porch, across a driveway, and into the backseat of a cruiser.

       The local district attorney charged Ayala with menacing, a state-law misdemeanor. A jury

acquitted him. Ayala then sued Hogsten and the Sheriff’s Office under 42 U.S.C. § 1983 and state

law, alleging among other things that his arrest had been unlawful and that Hogsten had used

excessive force, both in violation of the Fourth Amendment. Hogsten and the Sheriff’s Office

moved for summary judgment on those claims based on qualified immunity. The district court

denied their motion. This appeal followed.

       We review de novo the denial of qualified immunity. Binay v. Bettendorf, 

,

646 (6th Cir. 2010). An officer is entitled to qualified immunity unless his conduct violated a

constitutional right that was clearly established at the time. See 

–78.

       Hogsten argues that he had probable cause to arrest Ayala and is therefore entitled to

qualified immunity on Ayala’s unlawful-arrest claim. Probable cause is “reasonable grounds for

belief” that a crime has been committed. United States v. Padro, 

, 122–123 (6th Cir.

2013). Hogsten says he had probable cause to arrest Ayala for “menacing,” which a person



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No. 19-5397, Ayala v. Hogsten


commits “when he intentionally places another person in reasonable apprehension of imminent

physical injury.” Ky. Rev. Stat. Ann. § 508.050. Hogsten says he had that kind of fear because

of Ayala’s elevated position on the porch and his cursing and hand-waving. But the video arguably

shows otherwise: Ayala was unarmed, the two men were not within reach of each other, and

Hogsten himself called for Ayala to “come down here boy.” A jury could therefore find that

Hogsten was never in “apprehension of imminent physical injury” and thus lacked probable cause

to arrest Ayala for menacing.

       Hogsten also argues that he was entitled to qualified immunity on Ayala’s excessive-force

claim. The Fourth Amendment protects citizens from excessive force by an arresting officer. See

Smoak v. Hall, 

, 783 (6th Cir. 2006). Accordingly, an officer may not use pepper

spray on a “detainee who has been subdued, is not told he is under arrest, or is not resisting arrest.”

Grawey v. Drury, 

, 314 (6th Cir. 2009). Here, the video shows that Hogsten pepper-

sprayed Ayala at the same time Hogsten arrested him. Thus, Ayala lacked any opportunity to

resist arrest before Hogsten sprayed him. And the district court found that “there is no evidence

that [Ayala] was behaving in an aggressive, threatening way[.]” R. 40 at Page ID 373. Taken in

the light most favorable to Ayala, the facts therefore show that Hogsten’s use of pepper spray was

excessive.

       Hogsten and the Sheriff’s Office say they are also entitled to qualified immunity on Ayala’s

other state and federal claims; but as to those claims their motion for summary judgment did not

present even a “minimal level of argumentation” that would preserve those issues for appeal.

United States v. Huntington Nat’l Bank, 

, 332 (6th Cir. 2009). And this is not the

rare case where a failure to address arguments raised for the first time on appeal would result in a

manifest injustice. See Hayward v. Cleveland Clinic Found., 

, 615 (6th Cir. 2014).



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No. 19-5397, Ayala v. Hogsten


        Finally, the Sheriff’s Office says that it has official immunity from Ayala’s state-law

claims. But Kentucky law explicitly provides that sheriffs’ offices are not immune for acts

committed by their deputies. Ky. Rev. Stat. Ann. § 70.040; see Jones v. Cross, 

,

346 (Ky. 2008). Hogsten was a deputy of the Greenup County Sheriff’s Office, so that law applies

here.

        The district court’s judgment is affirmed.




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