Unruh v. City of Wichita

540 P.3d 1002

Jason UNRUH, Appellant,

v.CITY OF WICHITA, et al., Appellees.

No. 124,254

Supreme Court of Kansas.

Oral Argument Held March 28, 2023.

Opinion Filed January 5, 2024.

Michael T. Jilka, of Graves & Jilka, P.C., of Lawrence, argued the cause and was on the briefs for appellant.

David R. Cooper, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, argued the cause, and Sharon L. Dickgrafe, chief deputy city attorney, and Jennifer L. Magana, city attorney, were with him on the briefs for appellee.

The opinion of the court was delivered by Biles, J.:

Wichita police forcefully apprehended Jason Unruh after he led them on a nighttime car chase down city streets in a pouring rain. The pursuit ended when his vehicle spun out of control, hopped a curb, and came to rest over a sidewalk. He pulled himself out through the driver's side window holding a bag of methamphetamine and tumbled to the ground. He ignored commands to stop, and officers subdued him as he scooped up drugs that spilled onto the wet pavement. About 23 months later, Unruh sued for personal injuries, claiming officers negligently used excessive force to arrest him. The issue is whether his claim is for common-law civil battery, rather than common-law negligence as he alleges.

Unruh contends the officers misperceived the threat he presented at the scene but agrees they intentionally used force while making a lawful felony arrest. The district court granted defendants summary judgment after construing this claim as an allegation of civil battery. This means the one-year statute of limitations for battery bars Unruh's lawsuit. See K.S.A. 60-514(b). He appealed that ruling, but a Court of Appeals panel agreed with the district court. Unruh v. City of Wichita , No. 124,254, 2022 WL 2392657, at *8 (Kan. App. 2022) (unpublished opinion). On review, we affirm.

Civil battery and negligence are discrete concepts with different elements of proof. The law defines civil battery as the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of contact that is harmful or offensive. McElhaney v. Thomas , 307 Kan. 45, 53, 405 P.3d 1214 (2017). In contrast, negligence requires proof that: (1) the defendant owed plaintiff a legally recognized duty; (2) the defendant breached that duty; (3) the defendant's breach of duty caused plaintiff's injuries; and (4) plaintiff suffered damages. Reardon v. King , 310 Kan. 897, 903, 452 P.3d 849 (2019). Intent is not an element when deciding whether a breach of a legal duty occurred. Labeling a claim in a pleading as an action in negligence does not alter its character when deciding the applicable limitations period.

Here, Unruh asserts the officers misunderstood how dangerous he may have been, which in turn, allegedly caused them to use more force than necessary to make his arrest. But he fails to come forward with evidence establishing the officers owed him a legally recognized duty of care that arose independent of the force he alleges to be excessive. Unruh states only a civil battery claim.

Granted, a discrete negligent act might arise during an incident involving excessive police force, when the elements of the negligence claim can be separately and distinctly analyzed apart from the elements of common-law battery. See Unruh, 2022 WL 2392657, at *8 ("[W]e do not discern any negligent act which was separate from and preceding the application of force, and Unruh does not assert that the officers breached a standard of care beyond that of not using excessive force."). But without something more, Unruh's dispute over the degree of nonlethal force applied when officers made a felony arrest simply invokes civil battery's privilege element, which is tied to a statute in this instance. K.S.A. 2022 Supp. 21-5227(a) declares a police officer is justified in using any force, short of deadly force, the officer reasonably believes necessary to effect an arrest or defend oneself or another officer from bodily harm while making an arrest.

The arresting officers may have committed civil battery if they used more force than is statutorily privileged to make a lawful arrest. But to pursue that question, Unruh should have filed suit within 12 months of the contested application of force. See K.S.A. 60-514(b). Substance prevails over form when a court decides a limitations period. The district court and panel properly concluded Unruh's cause of action was for battery.

FACTUAL AND PROCEDURAL BACKGROUND

Wichita police attempted a traffic stop as Unruh drove down city streets in a rainstorm. He did not stop when police activated their overhead lights. He ran a red light and tried to elude police. Multiple police cars gave chase. Dispatch advised the pursuing officers that Unruh was known to be a drug dealer and at times armed. His car ran through other red lights and on occasion crossed the center line. He lost control of his vehicle twice. The first time, the car spun out on the wet pavement and struck a tree broadside smashing the driver's side door. Unruh ignored officers' commands to "show your hands" and "put your hands up" and drove away. Resuming the chase, officers saw Unruh throwing handfuls of what appeared to be methamphetamine out the driver's side window.

Several minutes later, Unruh's car spun out again. This time, he drove over another curb and came to a stop straddling a public sidewalk edged by commercial landscaping. He climbed out the driver's side window holding a bag of methamphetamine and fell to the ground—again ignoring officers' commands to stop and put up his hands. Officer Daniel Weidner testified when he approached, he noticed Unruh on the ground, holding something as he reached under the car. This caused Weidner to fear Unruh might have a gun. Unruh now says he was only trying to gather up the drugs that spilled onto the wet sidewalk.

Weidner's police dog attacked Unruh as the officers arrived, although it is unclear whether Weidner directed the dog to do so. At any rate, Weidner commanded the canine to stop and took control of his collar before Unruh could be handcuffed. Unruh claims Weidner kicked him in the shoulder and in the head as other officers tried to subdue him. Unruh also alleges Officer Brett Pearce punched him in the face and struck him in the back as officers rolled him face down to be handcuffed. The entire incident took about 30 seconds from when Unruh's car finally stopped until he was handcuffed.

A search of Unruh's vehicle found drugs, a digital scale, and $19,178 cash. Unruh was charged in federal court with possession with intent to distribute methamphetamine. He pled guilty to that charge.

Unruh later sued Weidner, Pearce, Wichita Police Chief Gordon Ramsay, and the City of Wichita for personal injuries. Among his claims, Unruh alleged Weidner and Pearce negligently used excessive force without a reasonable objective basis to believe he posed a threat of serious physical injury or death to them or others. He also claimed the officers violated the department's use-of-force policies and procedures. The defendants moved to dismiss, arguing the one-year statute of limitations for civil battery barred his claims because he waited to file his lawsuit until nearly 23 months after the incident. The district court denied the motion, stating "at this stage in the proceedings" the petition asserted valid claims for relief. The court noted Unruh alleged the officers violated "specific WPD regulations and norms," adding, "this is a bit of a gray area of the law in Kansas."

The statute of limitations issue returned when the defendants moved for summary judgment. This time the district court concluded Unruh's lawsuit sounded in common-law civil battery and was time barred. The court relied on Estate of Randolph v. City of Wichita , 57 Kan. App. 2d 686, 459 P.3d 802 (2020), to conclude the officers' intentional use of force could not be framed as negligence. It acknowledged the Randolph decision said a person injured by police officers' use of force might claim negligence in some cases, but concluded Unruh's allegations did not present those circumstances. It dismissed the remaining defendants, holding the same one-year limitations period barred his derivative claims against the police chief and the city.

Unruh appealed to the Court of Appeals, but the panel rejected his challenge. Unruh , 2022 WL 2392657, at *2-11. In doing so, the panel remarked, "Kansas courts should not recognize a tort of negligent use of excessive force." 2022 WL 2392657, at *8. Unruh then asked this court for review, stating his only issue as, "Does Kansas law recognize a claim of negligent use of force by a police officer?" The problem with this less-than-precise issue framing, of course, is that facts and their context typically alter the legal questions that need answering, so it is not as simple as Unruh portrays it.

We also note Unruh fails in his appellate briefing to identify specific Wichita police department policies he claims created a duty owed to him that the arresting officers violated. This shortcoming creates problems because it is not for us to connect those dots. See In re Adoption of T.M.M.H. , 307 Kan. 902, 912, 416 P.3d 999 (2018) ("Where the appellant fails to brief an issue, that issue is waived or abandoned."). Similarly, Unruh gives us no explanation about contradictory references in his briefing on whether officers deployed the canine, or it engaged without prompt. Again, this is not for us to figure out, so we are left with his assertion that a police officer owes a legally recognized duty that is actionable in negligence anytime there is an "affirmative act" by the officer causing injury.

Our jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

Unruh must...