Easter District of Kentucky
L FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY . — MAY 15 2025
CENTRAL DIVISION AT LEXINGTON Mar LeINGTON
. ..,,, Mobert A. Carr
GLERK U.S, BISTRICT COURT
JOHN NORMAN,
Administrator of the Estate of Desman CIVIL ACTION NO. §:22-ev-300-KKC
LaDuke, □
Plaintiff,
v. OPINION & ORDER
JOSEPH HORTON,
individually, et al.
Defendants.
ok He toe
This matter is before the Court on the Defendants’ motion for summary judgment.
(DE 57.) For the following reasons, the motion is granted.
I. Factual Background
This case arises from an unquestionably tragic encounter between Desman LaDuke
and members of the Nicholasville Police Department in October of 2022. LaDuke lived ona
residential street in Nicholasville, Kentucky with his girlfriend, Kassidy Marksberry, and
one other roommate. On the morning of the incident, LaDuke and Marksberry were invoived
in an emotionally charged argument. As a result of the argument, LaDuke began making
threats to commit suicide, Alarmed, Marksberry hid a gun that LaDuke’s aunt, Melissa
Marks, had given him. After threatening to kill himself with a knife if Marksberry did not |
reveal the gun’s location, Marksberry told LaDuke where it could be found.
While LaDuke searched for the gun, Marksberry called Marks—who had been a
maternal figure in LaDuke’s life. Marks then contacted 911, reporting LaDuke as a suicide
threat, advising law enforcement that he had a gun, and requesting authorities to make sure
he was safe. Two patrol officers from the Nicholasville Police Department were dispatched to
investigate the suicide threat. When those officers arrived at the residence, they asked
LaDuke to speak with them and exit the residence. LaDuke refused, expressing that he had
nothing to talk about with them and that he would not be leaving the residence. He did,
however, permit Marksberry to leave.
Outside the residence, Marksberry informed the responding officers about the full
nature of the situation—explaining that LaDuke’s suicide threats were credible and that he |
had access to a gun. Given the existence of a credible suicide threat, LaDuke’s unwillingness
to discuss his well-being, and the presence of a gun, the patrol officers contacted the
Department’s upper command staff. Upper command staff Gncluding Captain Matt Marshall,
Assistant Chief Michael Fleming, and Chief Todd Justice) then decided to activate the
Department’s Special Response Team (“SRT”). The SRT was commanded by Lieutenant
Jason Fraddosio and consisted of various officers, including Officer Joseph Horton.
Negotiators and responding SRT officers were informed about LaDuke’s distressed
and suicidal mental state, the presence of a gun, and other pertinent information as they
made their way onto the scene. SRT officers then took position around the perimeter of the
residence and trained assault rifles on the house. Fruitless dialogue between the
Department's negotiators and LaDuke followed. At times, LaDuke was unresponsive. At
others, LaDuke was agitated and confrontational—confirming his suicidal intentions,
advising officers that no one was going inside the residence and no one was going out, asking
officers to shoot him, and even threatening the officers’ lives on at least one occasion.
LaDuke removed the blinds from the back left window of his residence and stood
behind it approximately two hours into the encounter. This gave SRT officers their first clear
1 LaDuke was overheard saying “there’s a 95[%] chance that I die or the police die[.]” (DE 53.)
view of LaDuke, When this occurred, Lieutenant Fraddosio and Officer Horton were
positioned next to the corner of a neighboring house—a vantage point which gave them a
clear view of the window LaDuke was standing behind. With the blinds not obstructing their
view, SRT officers could see that LaDuke was holding at least one handgun? while he stood
behind the window. Officers repeatedly instructed LaDuke to drep his gun during
approximately the next four minutes of the encounter. LaDuke did not comply and instead
began tapping the gun against the window (and in the direction of the officers) and moving
the gun in an up-and-down motion. At the gun’s apex, LaDuke aimed it at his head. When
lowered, the gun pointed out the window and towards the SRT officers positioned throughout
the backyard. At this time, LaDuke had ceased communications with the negotiators, but
Captain Marshall was attempting to get LaDuke to reopen dialogue through a phone call.
After LaDuke engaged in the up-and-down motion with his gun several times,
Lieutenant Fraddosio advised the SRT officers that they may have to shoot if LaDuke
persisted in pointing his gun in their direction. The officers continued to monitor LaDuke.
Then, while observing LaDuke through the magnified optic on bis assault rifle, Officer
Horton saw LaDuke lower his gun yet again. This time, however, Officer Horton perceived
LaDuke’s gun to be leveling out in a more deliberate manner than what he had done before.
All told, Officer Horton believed LaDuke was leveling the gun to a position that would be
pointed at either himself or other officers positioned in the backyard. In this brief moment,
Officer Horton fired one shot which struck LaDuke in the chest. LaDuke was then taken to -
the hospital, where he died from the gunshot wound. .
2 The Defendants maintain that LaDuke was seen holding two handguns. This is consistent
with police reports which noted that two handguns were later recovered from the scene. But
because testimony from some officers at the scene support the Estate’s position that LaDuke
only held one gun, the Court resolves the issue in the Estate’s favor for the purpose of
summary judgment and proceeds on the understanding that LaDuke held only one gun.
John Norman, as the administrator of LaDuke’s Estate, now brings this action. The
Kstate claims that Lieutenant Fraddosio, in both his individual and official capacities, and
Officer Horton, in his individual capacity, violated several of LaDuke’s constitutional rights
during the encounter described above, all in violation of both federal and state law.
IE. Standard of Review
A district court will grant summary judgment when the moving party shows there is
no genuine dispute regarding any material fact and that the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). If the moving party carries this burden, the burden of production shifts to the
nonmoving party to “produce evidence that results in a conflict of material fact to be resolved
by a jury.” Cox vu. Ky. Dept. of Transp.,
53 F.3d 146, 150 (6th Cir. 1995). Summary judgment
must be entered against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case. Celotex,
477 U.S. at 322.
At the summary judgment stage, the Court does not weigh the evidence and determine
the truth of the matter. Wiley v. United States, 20 F.3d 222, 226 (6th Cir, 1994) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 249 (1986)), Further, the Court is not to judge
the evidence or make findings of fact. 60 Ivy Sireet Corp. v. Alexander,
822 F.2d 1432, 1435-
36 (6 Cir. 1987). Rather, this Court determines whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law. Anderson,
477 U.S. at 251-52. - □
Ill. Analysis
A. The Estate’s individual capacity § 1983 claims (Count D
Count I of the Complaint alleges that Officer Horton and Lieutenant Fraddosio (“the
Defendants’), in their individual capacitios, subjected LaDuke to excessive force in violation
of the Fourth Amendment. The Estate asserts two theories of excessive force, ‘First, the
Estate argues the Defendants engaged in an “excessive show of force” by holding LaDuke at
gunpoint. (DE 70 at 20-21.) Second, the Estate argues the Defendants engaged in excessive
force by using deadly force on LaDuke. The Court will address each theory in turn, separating .
the analysis between Horton and Fraddosio when necessary. See Heyerman v. County of
Calhoun, 680 F.8d 642, 647 (6th Cir. 2012) (“[p]ersons sued in their individual capacities
under Section 1983 can be held liable based only on their own unconstitutional behavior.”).
i. Show of force
The Estate claims the Defendants engaged in excessive force by pointing their guns
at LaDuke’s residence when they arrived at the scene. The Estate argues this “show of force”
was excessive because LaDuke posed no danger at that point in time, In particular, the Estate
claims LaDuke posed no danger because he “had not been seen with any guns and had made
no threats prior to the SRT surrounding his home with assault rifles.” (DE 70 at 21—22.)
“The Fourth Amendment's guarantee against unreasonable selzures encompasses a
protection against use of excessive, or unreasonable, force ‘in the context of an arrest or
investigatory stop.” King v. City of Rockford, Michigan, 97 F.4th 379, 393 (6th Cir. 2024)
(quoting Graham v. Connor,
490 U.S. 386, 394 (1989)). “The reasonableness of a use of force
is assessed from the perspective of a reasonable officer on the scene without the benefit of
‘20/20 vision of hindsight.” Jd. (quoting Graham,
490 U.S. at 396--97). In certain cases, the
mere show of force may give rise to an excessive force claim. See Saad uv. Krause, 472 F.App’x
403, 404 (6th Cir, 2012). The key inquiry remains whether the show of force was objectively
reasonable. Vanderhoef v. Dixon,
938 F.3d 271, 280 (6th Cir. 2019).
Here, the Defendants argue that they cannot be held liable under the Estate’s “show
of force” theory because they are entitled to qualified immunity on that claim. When the issue
of qualified immunity is raised by the defense at the summary judgment stage, the Court
must determine whether: (1) the officers violated a constitutional right; and (2) the right was
clearly established. Kovacic v. Cuyahoga Dep't of Child, & Fam, Serus., 724 F.3d 687, 695
(6th Cir. 2013). “In evaluating if a defendant is entitled to qualified immunity, the Court
must adopt the plaintiffs version of the facts... unless the plaintiffs version is blatantly
contradicted by the record, so that no reasonable jury could believe it.” Soudemire v. Mich.
Dept. of Corr., T05 F.3d 560, 565 (6th Cir. 2013).
In this case, the Court need not decide whether the Defendants violated LaDuke’s
constitutional rights by aiming their guns at him because, regardless, they did not violate
LaDuke’s clearly established rights. Baynes uv. Cleland, 799 F.3d 600, 610 (6th Cir. 2015)
(noting that courts may consider either prong of the qualified immunity analysis first).
“Plaintiffs bear ‘the burden of showing that a right was clearly established,” Brown v. City
of Wyoming, No. 23-1285,
2024 WL 5040781, at *7 (6th Cir. Dec. 9, 2024) (citation omitted).
That generally requires plaintiffs to “identify a case where an officer acting under similar
circumstances as [the Defendants] was held to have violated the Fourth Amendment.” White
v. Pauly,
580 U.S. 78, 79 (2017). “The Supreme Court has recognized, especially in the Fourth
Amendment excessive-force context, that ‘the clearly established law must be particularized
to the facts of the case.” Brown,
2024 WL 5040781, at *7 (White, 580 U.S. at 79). Ultimately,
a “defendant cannot be said to have violated a clearly established right unless . . . existing
precedent [] placed the statutory or constitutional question confronted by the official beyond
debate.” Wenk vu. O'Reilly,
783 F.3d 585, 598 (6th Cir. 2015) (citation omitted).
Here, the Estate seems to allege that an unarmed and otherwise non-threatening
individual has a clearly established right not to have guns pointed at them by police. (DE 70
at 21-22.) The Court agrees with that general principle of law. See Vanderhoef, 938 F.8d at
280-81 (holding that an officer pointing a gun at a citizen can be objectively unreasonable if
.
the citizen was either unarmed or otherwise posed no danger). But because the facts of this
case “do[ ] not fit cleanly within,” the clearly established right the Estate requests be applied,
the Defendants are entitled to qualified immunity. King, 97 F.4th at 397 (“[b]ecause King’s
conduct ‘does not fit cleanly within’ our existing excessive force case law, King cannot
overcome the clearly established hurdle of qualified immunity,”) (quoting Rudlaff v. Gillispie,
791 F.3d 688, 644 (6th Cir. 2015)).
The line of cases holding that unarmed and non-threatening individuals have a clearly
established right not to be held at gunpoint involve plaintiffs who unquestionably posed no
danger to law enforcement. Take the facts in Vanderhoef, for example, a case the Estate cites
in support of the notion that LaDuke’s clearly established right was violated. In Vanderhoef,
the plaintiff was an unarmed, “nonfleeing teenager,” whom the defendant officer “did not
reasonably suspect of any prior crime beyond speeding and reckless driving.” Vanderhoef,
938 F.8d at 281. There, the Sixth Circuit held that such a plaintiff had a clearly established
right to not be held at gunpoint by the defendant. /d. Or consider the plaintiff in Saad v, City
of Dearborn, another case the Estate cites to set the parameters of the allegedly violated
right. No. 10-12635, 2011 WL 3112517 (£.D. Mich. July 26, 2011). In Saad, the defendant
officer held the plaintiff at gunpoint to gain entry into her home on the officer's belief that a
fleeing suspect, the plaintiffs son, had entered the home. Jd. at *1. The plaintiff herself,
however, was unarmed, was suspected of no crime, and otherwise posed no risk to the
defendant's safety, Id. at *4. The Sixth Circuit affirmed the district court’s decision that such
conduct, if proven, violated the plaintiff s clearly established right. Saad, 472 F. App'x at 403.
Unlike the plaintiffs in Vanderhoef and Saad, LaDuke was certainly more than an
unarmed and non-threatening subject. The uncontradicted evidence reveals that when SRT
officers arrived on the scene and aimed guns at LaDuke’s house,’ the team knew that LaDuke
had access to a gun, had expressed suicidal intentions, had refused to interact with police,
and had refused to comply with commands to exit his residence. Dickerson v. MeClellan, 101
F.3d 1151, 1155 n.8 (6th Cir. 1996) (courts “consider only the facts the officers knew at the
time[.]”). It is also undisputed that when SRT officers arrived, no one, besides Marksberry
earlier that morning, had actually seen LaDuke holding a gun and LaDuke had not yet made
threats towards law enforcement. On these facts, the Estate argues that LaDuke
unquestionably posed no danger to law enforcement or others when Horton, Fraddosio, and
others aimed their guns at the residence—thus placing this case squarely in the line of clearly
established “unarmed and non-threatening” cases.
The Estate overstates its position. Taking the undisputed facts together, this case is
ultimately distinguishable from the clearly established “unarmed and non-threatening”
cases, Put plainly, unlike the plaintiffs in Vanderhoef, Saad, and other unarmed and non-
threatening cases, LaDuke had immediate access to a firearm, had expressed an intent to
discharge that firearm, and had not complied with law enforcement’s commands. These facts
make LaDuke’s case materially different and thus distinguishable.
Moreover, the Estate’s contention that LaDuke posed no danger simply because he
had not been seen actually holding a gun is not supported by precedent. Rather, precedent
supports the notion that immediate access to a gun is tantamount to being armed in the
volatile and rapidly-evolving situations police often find themselves in—like the one in this
>The Court notes that the Estate has failed to explain the precise moment(s) in which each -
of the two named defendants aimed their weapons at the house. Nevertheless, the Court
views the facts in the ight most favorable to the Estate and therefore proceeds under the
reasonable inference that Horton and Fraddosio aimed their weapons at the house as soon
as they established their positions around the residence’s permitter. Under these facts, the
analysis is identical for both Horton’s and Fraddosio’s alleged “show of force.”
case. See Michigan v. Long, 463 U.S. 1032, 1048 (1983) (recognizing that individuals “may
injure police officers and others by virtue of their access to weapons, even though they may
not themselves be armed,”) (emphasis added). And the record is clear that, when SRT
officers first trained their weapons on LaDuke’s residence, they knew that LaDuke had
immediate access to a gun and had been noncompliant with law enforeement’s commands.
(DE 53, Marshall Depo., at 94—96). Accordingly, LaDuke was not the prototypical unarmed
and non-threatening individual that officers would have known had a clearly established
right not to be held at gunpoint.
Ultimately, based on the foregoing, the Court finds that the Estate fails to carry its
burden to show that this case fits within the clearly established right at issue. Had LaDuke
unquestionably posed no danger to law enforcement, an abundance of caselaw would have
made it clear to every officer at the scene that LaDuke had a constitutional right not to be
held at gunpoint. Tragically, however, Horton, Fraddosio, and the other officers were
confronted with an entirely different situation that morning—-one involving a suicidal
individual who had immediate access to a gun, had expressed an intent to discharge that
gun, and had not complied with commands.
The doctrine of qualified immunity is meant to “give[ ] government officials breathing
room to make reasonable but mistaken judgments about open legal questions,’ ‘protectfing]
all but the plainly incompetent or those who knowingly violate the law.” Jacobs v. Alam, 915
F.3d 1028, 1039 (6th Cir. 2019) (quoting Ashcroft v, al-Kidd,
563 U.S. 731, 748 (2011). Here,
holding LaDuke at gunpoint may not have been absolutely necessary, but it was not a clearly
established constitutional violation that existing precedent placed “beyond debate.” Wenk,
783 F.8d at 598; compare Leber v. Smith,
773 F.2d 101, 106 (6th Cir. 1985) (holding that
_officer approaching the plaintiffs vehicle after a high-speed chase with his weapon drawn
was reasonable where the plaintiff was “possibly suicidal,” and his actions were
“unpredictable,”), with Vanderhoef, 938 F.3d at 281 (holding the plaintiff had a clearly
established right not to be held at gunpoint where he “was a nonfleeing teenager,” whom the
officer “did not reasonably suspect of any,” serious crime). Horton and Fraddosio are therefore
entitled to qualified immunity on the Estate’s “show of force” § 1983 claim.
i. Deadly force □
The Estate also claims that Horton and Fraddosio used excessive deadly force on
LaDuke. The Estate argues that Horton engaged in excessive deadly force by firing the shot
that killed LaDuke and that Fraddosio engaged in the same by ordering Horton to shoot.
As an initial matter, the Court notes that any alleged tactical errors or misjudgments
that preceded the shooting cannot be considered in conjunction with the Estate’s deadly force
claims. “In this circuit, [the Court] consider[s] the officer's reasonableness under the
circumstances he faced at the time he decided to use force.” Thomas v. City of Columbus, 854
361, 365 (6th Cir. 2017) (referencing the so-called “segmented analysis” this circuit uses
to analyze excessive force claims). Under the segmented analysis, “the hours and minutes,”
leading up to the alleged use of force are disregarded and the Court focuses on the “split-
second judgments’ made immediately before the officer used allegedly excessive force.”
Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 407 (6th Cir. 2007) (quoting Dickerson, 101
F.3d at 1162).4
4A Supreme Court opinion published the day prior to this opinion being entered casts doubt
on the remaining validity of the “segmented analysis.” Barnes vu. Felix, et al,, 605 U.S.
(2025). In Barnes, the Court held that the Fifth Circuit’s “moment-of-threat rule,” under
which “a court looks only to the circumstances existing at the precise time an officer perceived
the threat inducing him to shoot,” “improperly narrow[s] the requisite Fourth Amendment
analysis.” Jd. Without the benefit of a Sixth Circuit opinion discussing Barnes’ effect on the-
segmented analysis, however, the Court will tread carefully forward. Ultimately, though, the
segmented analysis is inconsequential to the Court’s disposition of this case—which is based
on the totality of the circumstances.
: 10
The Court will begin by evaluating Officer Horton’s conduct. Ultimately, Horton’s use
of deadly force was not a constitutional violation if he had “probable cause to believe that
[LaDuke] pose[d] a significant threat of death or serious physical injury te the officer[s] or
others.” Thomas, 854 ¥.3d at 365 (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)). “When
considering whether an officer reasonably believed that a person posed an imminent threat
of serious bodily harm, courts must consider the totality of the circumstances.” Palma □□□
Johns,
27 F.4th 419, 432 (6th Cir. 2022).
In Graham, the Supreme Court highlighted certain factors courts should consider in
evaluating the totality of the circumstances in excessive force cases. 490 U.S. at 396-97. The
Graham factors, however, are tailored to criminal settings and are therefore largely
inapposite in cases where police respond to non-criminal emergencies. Estate of Hill v.
Miracle,
853 F.3d 806, 318 (6th Cir. 2017). In such scenarios, other “factual considerations
[become] particularly relevant,” for evaluating the totality of the cireumstances. Palma, 27
F.4th at 432. More specifically, when determining whether an individual posed an immediate
threat during a non-criminal emergency, the Court considers: (1) “why the officer was called
to the scene,” (2) “whether the officer knew or reasonably believed that the person was
armed,” (3) “whether the person verbally or physically threatened the officer or disobeyed the
officer,” (4) “how far the officer was from the peérson,” (5) “the duration of the entire
encounter,” (6) “whether the officer knew of any ongoing mental or physical health conditions
that may have affected the person’s response to the officer,” and M “whether the officer could
have diffused the situation with less forceful tactics,” Id. at 439-33 (citations omitted).
1, Reason for police presence
The “reason for police response” factor only weighs in favor of the use of deadly force
when an officer is responding to a volatile and “high-risk situation.” See Palma, 27 F.Ath at
11
432. Typically, an officer who responds to a report of an ongoing or completed crime has good
reason to fear for their safety. Id. In contrast, an officer who responds to a suicide threat or
a request for a wellness check does not deal with the same general safety threat. /d.
Here, although the closing moments of LaDuke’s interaction with law enforcement
can be aptly characterized as a “high-risk situation,” the undisputed facts show that police,
including Horton, initially responded to a low-risk situation. See Woodcock v. City of Bowling
Green, 679 F. App'x 419, 423 (6th Cir. 2017) (factor did not support use of deadly force when
the individual did not engage in threatening or violent behavior before police arrived). Before
Horton and other SRT officers arrived on the scene, LaDuke had threatened no one but
himself and had merely refused to talk with police. This factor thus weighs against finding
that LaDuke posed an immediate threat.
2. Presence of a weapon
The “presence of a weapon” factor weighs in favor of finding that an immediate threat
existed when there is strong evidence that a person was armed, Palma, 27 F.th at 433 ([t]he
stronger the evidence showing that a person is armed, the more likely the use of lethal force
is reasonable.”). However, lethal force is not per se reasonable merely because “a person is
visibly armed.” /d, (citing Thomas, 854 F.3d at 366) (‘an officer may [not] shoot a suspect
merely because he has a gun in his hand.”).
Here, the Estate cannot genuinely dispute the fact that LaDuke was visibly armed
when Horton fired the lethal shot. Every officer with a clear view of LaDuke either at the
moment of the shot or seconds before confirm this fact. And though the Court need not accept □
the officers’ “self-serving account,” of LaDuke’s final moments, the fact that LaDuke was
visibly armed is corroborated by circumstantial evidence—such as clear video audio evidence
in which officers can be heard telling LaDuke to drop his weapon. Adams v. Blount Cnty.,
12
Tennessee, 946 F.3d 940, 949 (6th Cir. 2020) (“in cases where the witness most likely to
contradict the officer’s testimony is dead, ‘the court may not simply accept what may be a
self-serving account by the police officer. It must look at the circumstantial evidence[,]” to
determine whether genuine issues of fact exist). Accordingly, because there is “strong
evidence showing that [LaDuke] was armed,” this factor weighs heavily in favor of finding
that he posed an immediate threat. Palma, 27 F.th at 433.
8, Disobedience and threatening behavior
An individual is more likely to pose an immediate threat when they engage in
threatening behavior, disobey an officer’s commands, or participate in a combination of the
two. Paima, 27 F.4th at 484; see United States v. Garner, 108 F. Supp. 2d 796, 802 (N.D. Ohio
2000) (suspect’s “act of disobedience, coupled with fhis] unstable demeanor, supported
[officer's] belief that [the suspect] posed a potential threat to his safety.”). The Sixth Circuit
has consistently held that this factor weighs in favor of finding that an individual posed an
immediate threat where that individual threatened others with a gun or where that
individual was visibly armed and disobeyed commands to drop their gun. See, e.g., Thornton
uv, City of Columbus,
727 F. App'x 829 (6th Cir. 2018) (holding that use of deadly force was
reasonable in part because officers responded to a call about a man threatening others with
a gun); see also Tucker v. Marquette Cnty., Michigan, No. 20-1878,
2021 WL 2828027, at
(6th Cir, July 1, 2021) Cholding that use of deadly force was reasonable where a suicidal
individual was visibly armed with a shotgun, ignored commands to drop it, and advanced
towards the officer) (collecting similar cases).
Here, the first threatening behavior LaDuke engaged in took place during the
beginning stages of the encounter. Captain Marshall testified that early on, LaDuke told him
that “there’s a 95 percent chance that I die or the -- the police die[.]” (DE 53, Marshall Depo.,
at 67.) Horton testified that he was not aware of the exact threat LaDuke had made to
13
Captain Marshall but that he was aware that LaDuke had, in fact, made threatening
statements towards law enforcement at the time he used deadly force. And while LaDuke’s
threats, without more, may not have substantiated him as a threat to the officers’ safety,
those threats certainly contributed to Horton’s discernment of the situation. Caie v. W.
Bloomfield Twp., 485 Fed. Appx. 92, 94 (6th Cir.2012) (holding that a suicidal individual's
verbal threats of physical violence toward officers, along with other erratic conduct, presented
a strong risk to the safety of the officers).
Later on, LaDuke engaged in more threatening and defiant behavior. In the final
minutes of the encounter, LaDuke was visibly armed and refused to comply with the officers’
repeated command to drop his gun. (DE 62, Balltrip BWC at 12:15:13.) Instead of complying,
and according to the officers’ uncontradicted testimony, LaDuke began tapping his gun on
the window he was standing behind and moving it in the up-and-down motion previously
described. Each of those maneuvers resulted in LaDuke’s gun intermittently being pointed
towards the SRT officers’ positions in the backyard.
Taken together, these undisputed facts confirm that LaDuke engaged in what caselaw
confirms can only be described as threatening and disobedient behavior. This factor thus
weighs in favor of finding that LaDuke posed an immediate threat.
The Estate argues that genuine disputes of fact exist as to whether LaDuke actually
engaged in threatening behavior. Specifically, the Estate takes issue with the officers’ self-
serving testimony that LaDuke aimed his gun in their direction. The Estate suggests that
‘Though statements made well before the use of deadly force are typically disregarded under
the segmented analysis, the fact that LaDuke had made threatening statements was known
by Horton at the moment in which he decided to employ deadly force and was a part of
Horton’s “objective assessment of the danger,” LaDuke posed in that moment. Mullins v.
Cyranek, 805 F.3d 760, 766 (6th Cir, 2015); see also Barnes, 605 U. 8. ____ (the ‘totality of
the circumstances’ inquiry into a use of force has no time limit.”). Thus, those earlier threats
are a relevant and appropriate part of this analysis.
14
LaDuke may have been lowering his gun during the up-and-down motion sequence to answer
a phone call from Captain Marshall, who was attempting to reopen dialogue with LaDuke in
the moments before Horton’s shot, But the Estate’s theory is merely speculative. Chappell v.
City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009) (“[t]he court's duty to view the facts in
the light most favorable to the nonmovant does not require or permit the court to accept mere
allegations that are not supported by factual evidence.”). Moreover, the officers’ testimony
regarding the direction of LaDuke’s gun’s movement is corroborated by circumstantial
evidence, such as the fact that LaDuke had repeatedly raised and lowered his gun without
attending to his phone. And even accepting the Estate’s speculative theory that LaDuke was
not aiming his gun at Horton or any other officer, caselaw makes clear that whether an
individual actually “took aim” is not vital to the immediate threat analysis. See Thornton,
727 F, App'x at 831, 837 (holding that a sufficient threat existed from a suspect who held, but
did not aim, a shotgun while looking at and walking toward officers, ignoring their commands
to drop the gun); see also Thomas, 854 F.3d at 366 (‘a suspect could raise and fire agunwith □
little or no time for an officer to react.”).
Accordingly, the Court finds that the Estate fails to establish a genuine dispute of
material fact as to this factor, and the conclusion remains that this factor weighs in favor of
finding that LaDuke posed an immediate threat.
4, Distance between LaDuke and the officers
The distance between an individual and officers is not probative of what degree of
threat that individual poses “when the person is armed and aiming a firearm at the officers.”
Palma, on F.4th at 435. In fact, discussion regarding the distance between an individual and
officers in such cases is “notably absent.” DeMerrell v, City of Cheboygan, 206 F. App'x 418,
429 (6th Cir. 2006). This case is no different, as the undisputed evidence confixms that
15
LaDuke was armed and periodically aimed his gun at the SRT officers in the backyard.
Accordingly, this factor is neutral.
5, Duration of the encounter
Generally, it is more unreasonable for officers to use deadly force during longer
encounters than when officers find themselves using deadly force in the context of “rapidly
evolving situations.” Palma, 27 F.4th at 436. But even during longer encounters, the use of
deadly force may be reasonable if an officer has “to make a split-second decision in response
to rapidly changing circumstances.” fd,
The record is clear that law enforcement’s interaction with LaDuke lasted a long time.
This would typically support a finding that LaDuke posed no immediate threat. But in this □
case, the circumstances of LaDuke’s prolonged encounter with law enforcement began to
rapidly change in its final moments.
At 12:15 p.m., some two hours into the incident, officers can be heard on body camera
footage confirming their first visual on LaDuke holding a gun. (DE 62, Balltrip BWC at
12:15:06.) In the minutes that followed, LaDuke refused to put the gun down, and
uncontradicted testimony establishes that LaDuke periodically pointed his gun in the
officers’ direction. Then, in the seconds before Horton fired the fatal shot, an even more
“rapidly changing circumstance,” presented itself. According to Horton, in LaDuke’s final
moments, “he [got] a serious look on his face, and that’s when he started lowering -- leveling
the guns in a -- in like a -- almost a slower fashion down towards the window, towards the
officers [ ]. And that's when I shot.” (DE 55, Horton Depo., at 114.) Horton’s shot was fired
precisely four minutes and fifty-one seconds after LaDuke was first seen brandishing his gun.
This gap in time is notable because Horton’s inaction during those intervening minutes
corroborates his testimony that he perceived LaDuke’s conduct in that final moment as
different and more threatening than what he had previously observed.
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Ultimately, this factor weighs in favor of finding that LaDuke posed an immediate
threat. Even viewing the record in the light most favorable to the Estate, it is clear that
LaDuke brandished and pointed a gun erratically in those final minutes. Given those “rapidly
changing circumstances,” this factor supports Officer Horton. Palma, 27 F.4th at 436.
6. Mental health conditions
An individual may be more or less likely to pose an immediate threat when they suffer
from mental illness. Palma, 27 F.4th at 436-38 (“mental illness may mitigate the risk in one
situation and aggravate the risk in another.”), An individual's mental conditions are only
relevant to the immediate threat analysis, however, when the officer was aware of those
conditions at the time they decided to use deadly force. Id. at 436. Ultimately, “only in
extreme cases fhas the Sixth Circuit] found that an officer reasonably used lethal force
against a mentally ill person. In every case that [it has been so found], the officers used lethal
force against a mentally ill person who was armed and threatening officers.” Id. at 437
(emphasis in original).
Here, Horton was aware that LaDuke had mental health issues before he used deadly
force against him. Thus, Horton had to take LaDuke’s condition into account before using
force. What is unclear is whether LaDuke’s mental health issues “mitigate[d] the risk,” or
“agerevate[d] the risk,” in this situation. Palma, 27 F.4th at 438. Even assuming that
LaDuke’s mental issues mitigated the risk, this case fits into the narrow line of cases where
it has been found that an officer reasonably used lethal force against a mentally ill person on
account of that person being “armed and threatening.” Id. at 437. Accordingly, while the
existence of LaDuke’s mental health issues may marginally weigh against finding that he
posed an immediate threat, there is a clear exception for situations where a mentally ill
person is armed and threatening. As such, this factor does not push the needle for the Estate.
17
7, Less intrusive alternatives
An individual! is less likely to pose an immediate threat if the danger they create can
be readily avoided by alternatives to force. Palma, 27 F.4th at 439. This factor recognizes
that, “[s]ometimes, the time or space available to an-officer may mean that the reasonable
thing to do is monitor the suspect, issue a warning, or take cover.” Thomas, 854 F.3d at □□□□
67 (citation omitted). At the same time, however, the Fourth Amendment does not require
officers to use “the least intrusive means available,” to respond to dangerous situations. Lyons
uv. City of Xenta, 417 F.3d 565, 576 (6th Cir. 2005).
Here, through its expert, the Estate argues that Horton should have taken cover when
LaDuke pointed his gun in the officers’ direction instead of shooting him. (DE 45-1, expert
report, at Dawe ID# 245-47.) As a matter of law, however, the Estate’s position goes too far.
The Estate fails to cite precedent suggesting that officers are either required or expected to
“take cover,” when faced with an armed and threatening individual. Likewise, the Estate
cites no case suggesting that it is unreasonable to use deadly force in response to an armed
and threatening individual when “taking cover” was a conceivable option. Contra Thomas,
854 F.3d at 366 (holding it was reasonable for an officer to use deadly force instead of taking
cover when faced with an armed and threatening subject). Simply put, the Estate fails to cite
such precedent because the Fourth Amendment does not require an officer to gamble with
their own life when dealing with such a dangerous and unpredictable situation. See Tucker,
2021 WL 2828027, at *3 (holding officer did not have to wait on an armed individual to put
their finger on the trigger before employing deadly force because, “[t]he Fourth Amendment
[did] not require [the] officer to make that gamble.”).
The Court cannot measure this factor “with the 20/20 vision of hindsight.” Graham,
490 U.S. at 396. Accordingly, because the Estate’s argument concerning “less intrusive
18
alternatives” fails as a matter of law, this factor weighs in favor of finding that LaDuke posed
an immediate threat.
8 Balancing factors
After weighing these factors, the Court concludes that Horton must prevail at the
summary judgment stage because a reasonable jury could only find that LaDuke did, in fact,
pose an immediate threat when Horton shot him. No one factor on its own supports this
conclusion. Rather, the totality of the circumstances and applicable precedent counsel here
. that Horton had probable cause to believe that LaDuke—an armed individual who had aimed
his weapon at police officers—posed a significant threat of death or serious physical injury
to the officers at the scene. Accordingly, Horton’s use of force was not a constitutional
violation, Thomas, 854 F.3d at 365.
Notwithstanding, even if the Estate were able to establish that Horton violated
LaDuke’s constitutional right, Horton would be entitled to qualified immunity if that right
was not clearly established at the time of the violation. “The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates
that right.” Anderson vu. Creighton, 483 U.S. 635, 640 (1987). The Hstate need not identify a
case with the exact same fact pattern or even “fundamentally similar” or “materially similar”
facts, Id, Rather, “the salient question ... is whether the state of the law ... gave [Horton] fair
warning that [his] aleged treatment of [LaDuke] was unconstitutional.” Hope v. Pelzer,
536
U.S. 730, 741 (2002). .
The Estate cites Heeter v. Bowers as clearly establishing LaDuke’s right to not have
deadly force used against him under the facts of this case. 99 F.4th 900 (6th Cir. 2024).% In
86 Though Heeter is a 2024 opinion, it concerned an incident which tock place in 2018. Thus,
the Sixth Circuit's analysis of Heeter’s clearly established rights as of 2018 is relevant to the
Court’s inquiry here--which involves looking at LaDuke’s rights as of October 2022.
19
that case, officers were called to the home of Bill Heeter, who was armed with a gun and
threatening to shoot himself. Jd. at 905. Officers responded and entered Heeter’s home, Id.
Once inside, officers observed Heeter standing in his kitchen with his hands in his pockets.
Id, They commanded him to raise his hands and drop his gun (which was ostensibly either
in his pocket or resting on a table within reaching distance—a disputed fact in Heeter).
Id. In
his final moments, Heeter took his hands out of his pockets and made a slight body
movement. /d. An officer then shot Heeter five times in the chest at close range. Jd, Under
those facts, the Sixth Circuit held that suicidal individuals, like Heeter, had a clearly
established right not to be shot when that individual “had moved slightly, even if the person
held a gun in their pocket or could grab a gun within reach.” Jd. at 915.
This case is so factually different than Heeter that the Court cannot say as a matter
of law that Horton had fair warning that his alleged treatment of LaDuke was
unconstitutional. Unlike the suicidal individual in Heeter, LaDuke not only clearly held a gun
at the moment he was shot, but he was also pointing that gun in the direction of law
enforcement officers. Again, because the facts of this case “dof ] not fit cleanly within,” the
clearly established right the Estate requests be applied, Horton is entitled to qualified
immunity. King, 97 F.4th at 397. Put plainly, Horton’s decision to shoot LaDuke was not a
clearly established constitutional violation that existing precedent placed “beyond debate.”
Wenk, 783 F.3d at 598.
The Estate’s excessive deadly force claim against Fraddosio must similarly fail. The
Estate premises its deadly force claim against Fraddosio on a personal supervisory liability
theory—alleging that Fraddosio ordered Horton to fire the shot that killed LaDuke and
therefore encouraged and participated in Horton's constitutional violation. Bellamy uv,
Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (to establish personal supervisory liability under
20 .
Section 1983, “[t]here must be a showing that the supervisor encouraged the specific incident
of misconduct or in some other way directly participated in it.”). Even taking the Estate’s
allegation as true, its personal supervisory lability claim against Fraddosio must faiTbecause
Horton, Fraddosio’s “supervised employee,” did not commit a constitutional violation. Griffith
. v. Franklin County, 975 F.3d 554, 579 (6th Cir. 2020) (“a plaintiff cannot establish a claim
for supervisory liability without establishing an underlying constitutional violation by a
supervised employee.”). □
B. The Estate’s official capacity § 1983 claim (Count V)
Count V of the Complaint alleges that Lieutenant Fraddosio, in his official capacity,
violated LaDuke’s constitutional rights. A claim against a municipal official, like Fraddosio,
in their official capacity creates a Monell styled municipal liability claim. Monell v. Dept. of
Soc. Serus., 486 U.S. 658, 694 (1978). The Estate’s Monell claim, however, fails at the first
stage of the analysis. This is because “where there has been no showing of individual
constitutional violations on the part of the officers involved, there can be no municipal
liability.” Baker v. City of Trenton,
936 F.3d 528, 5385 (6th Cir, 2019). Here, there can be no
liability against Fraddosio in his official capacity because the Court has found no showing of
individual constitutional violations on the part of any officer involved. Fraddosio, in his
official capacity, is therefore entitled to summary judgment on Count V.
C. The Estate’s state law claims
The Estate also brings several state laws claims against Horton and Fraddosio,
‘including claims of assault and battery (Count ID), negligence and gross negligence (Count:
wrongful death (Count IV), and punitive damages (Count V1).
In the operative complaint, the Hstate bases its state law claims on the alleged
excessive force utilized by the Defendants. (DE 31, Second Amended Complaint, at [4] □□□□
69.) In the Estate’s response to the Defendants’ motion for summary judgment, however, the
21
Estate alleges—for the first time—that its state law claims are premised not on any alleged
use of force, but rather that those claims are premised on Horton’s and Fraddosio’s failure to
comply with one internal Nicholasville Police Department policy pertaining to interactions
with diminished persons. (DE 70 at 16-19.) The Defendants argue the Estate’s new theory
regarding its state law claims must be disregarded. For the following reasons, the Court will
disregard the Kstate’s new theory.
It is true that “the federal rules, and the decisions construing them, evince a belief
- that when a party has a valid claim, he should recover on it regardless of his counsel’s failure
to perecive the true basis of the claim at the pleading stage.” Colonial Refrigerated
Transportation, Inc. v. Worsham, 705 F.2d 821 (6th Cir. 1983). But the federal rules and the
decisions construing them still place boundaries on how far outside of the pleadings a party’s
case may stray. “The ultimate inquiry,” involves evaluating “whether the change in argument
made by a party would cause a ‘shift in the thrust of the case’ that would prejudice the other
party.” Grand Traverse Band of Ottawa & Chippewa Indians v. Blue Cross Blue Shield of
Michigan,
619 F. Supp. 3d 778, 780 (E.D. Mich. 2022) (quoting S.#.C. v. Sierra Brokerage
Serus., Inc.,
712 F.3d 321, 327 (6th Cir. 2013)).
Here, the Hstate’s change in argument materially alters the factual and legal
questions presented by its state law claims. Under the Estate’s original liability theory, the
factual and legal questions simply revolved around whether the officers’ use of force was
permissible. Under the Estate’s new theory, the factual and legal questions would focus on
whether the officers were familiar with the Department’s “diminished person policy,”
whether that policy was breached during law enforcement’s encounter with LaDuke, whether
that policy was ultimately permissible, and so on. It is thus clear to the Court that the
Estate’s change in argument moves the target too much and that allowing such a change at
the summary judgment stage would deny Horton and Fraddosio a fair opportunity to
22
investigate and take discovery on the Estate’s claims. Accordingly, the Court must disregard
the Hstate’s new theory.
The Court will proceed with the Estate’s state law claims now appropriately refocused
on the original lability theory. In their motion for summary judgment, Horton and Fraddosio
argue they are entitled to judgment on the state law claims based on the defense of qualified
official immunity. For the following reasons, the Court finds that Horton and Fraddosio are
entitled to that immunity.
“Under Kentucky law, qualified [official] immunity protects a police officer so long as
he performed ‘(1) discretionary acts or functions... ; (2) in good faith; and (3) within the
scope of [his] authority.” Reich v. City of Elizabethtown, Kentucky, 945 F.3d 968, 982 (6th
Cir. 2019) (quoting Yanero v. Davis,
65 S.W.3d 510, 621-22 (Ky. 2001). “This doctrine applies
to negligence actions and intentional torts.” /d. (citing Gali vu. W. Ky. Univ.,
762 F. App'x 246,
253 (6th Cir. 2019).
Here, under the first prong, “the determination of the amount of force required,
including the decision to use deadly force, is a discretionary act.” Reich, 945 F.3d at 982
(citations omitted), And for the third prong, “the use of deadly force plainly falls within the
scope of a police officer’s authority.” /d. at 983 (citing Ky. Rev. Stat. Ann. § 508,050(1)-(2)).
That leaves only the question of whether Horton and Fraddosio acted in good faith
under the second prong. The good faith analysis involves an objective and subjective
component. Put another way, if the Estate were able to prove that Horton or Fraddasio either.
objectively or subjectively acted in bad faith, then that officer would not be entitled to the
protections afforded by qualified official immunity. Bryant v. Pulaski Cty. Detention Cir., 3380
S.W.3d 461, 466 (Ky. 2011).
For the objective component, “a court must ask whether the officer’s conduct
demonstrates ‘a presumptive knowledge of and respect for basic, unquestioned constitutional
23
rights.” Reich, 945 F.3d at 983 (quotation omitted). Here, the Court’s analysis of the Estate’s
underlying Fourth Amendment claims “takes care of [this] prong—the officers did not violate
[LaDuke’s] constitutional right to be free from excessive force and, even if they did, the
unlawfulness of the officers’ conduct was not clearly established at the time.” fd.
For the subjective component, “courts ask whether the official behaved with
‘permissible intentions,” Reich, 945 F.3d at 983. To show that Horton or Fraddesio behaved
with impermissible intentions, the Estate is required to “point[{} to... evidence that an officer
willfully or maliciously intended to harm [LaDuke] or acted with a corrupt motive.” Id.
Gnternal quotation marks and citation omitted). Here, the Estate points to no such evidence
and the Court found none in its own independent review of the evidence.
Accordingly, because all qualified official immunity elements are satisfied, the
Estate’s claims of assault and battery, negligence and gross negligence, and wrongful death
fail, See e.g., Retch, 945 F.3d at 983. The Estate’s punitive damages claim also fails, as a claim
for punitive damages is not a separate cause of action but is rather a remedy available to
litigants. Smith v. Westlake Vinyls, Inc., 403 F. Supp. 3d 625, 685-36 (W.D. Ky. 2019).
IV. Conclusion
For the foregoing reasons, it is hereby ORDERED that the Defendants’ motion for
summary judgment (DE 67) is GRANTED,
This 16 day of May, 2025.
( Ww Ne Signed By:
* ‘Karen K Caldwell
Magee □ United States District Judge
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