RENDERED: JANUARY 13, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0126-MR

CLEVELAND ASKEW, JR. APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE

ACTION NO. 16-CI-000661

TROOPER EDWARD WHITWORTH APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, CETRULO, AND DIXON, JUDGES.

DIXON, JUDGE: Cleveland “Stewart” Askew, Jr., appeals from the order 

granting Trooper Edward “Eddie” Whitworth summary judgment on immunity 

grounds, entered by the Jefferson Circuit Court on January 3, 2022. Following a 

careful review of the record, briefs, and law, we affirm.
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BACKGROUND FACTS AND PROCEDURAL HISTORY

Stewart was very close to his pet dog. While Stewart worked, his dog 

stayed at his parents’ house in Shelby County, where his sister and her son also 

lived. Unfortunately, Stewart’s dog went through an open gate, into traffic, and 

was killed. Upon learning of his dog’s death, Stewart sought “retribution” by

strangling his parents’ cat, shooting at his sister’s dog three times inside the house 

in the presence of family, and threatening his family. Stewart’s mom contacted the 

police who filed a complaint and obtained an arrest warrant. Stewart’s family 

stayed at a hotel, fearing what Stewart might do.

After an unsuccessful attempt to execute the arrest warrant by local 

law enforcement, Kentucky State Police (KSP) Troopers Brian Miller and Eddie 

Whitworth were dispatched to arrest Stewart. They arrived at Stewart’s apartment 

complex in Jefferson County at approximately 11:30 p.m. Trooper Miller stood 

sentry by an exterior window of the building while Trooper Whitworth knocked on 

the door and rang the doorbell. Trooper Whitworth did not otherwise announce 

himself and backed away from the door and slightly down the dimly lit hallway so 

as not to be seen through the peephole. 

Stewart, who had been asleep on his couch, opened the door and

looked down the hallway1 with a gun at his side. Trooper Whitworth – armed with 

1

 It is disputed exactly how far Stewart emerged from his doorway. 
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a flashlight and gun and seeing Stewart’s gun – announced, “State Police” and 

demanded Stewart drop his weapon.2 Trooper Whitworth recognized Stewart and 

observed he had a “crazy” look in his eyes. Stewart did not comply with the 

directive to drop his weapon and appeared to “lunge”3toward Trooper Whitworth, 

who again announced, “State Police” and demanded Stewart drop his gun.4 Due to 

Stewart’s noncompliance and Trooper Whitworth’s fear for his life, Trooper 

Whitworth fired three shots, two of which struck Stewart while one became lodged 

in the apartment. After being shot, Stewart came to rest inside his apartment. An

ambulance was called, and Stewart was treated for injuries to his ear, neck, 

shoulder, and back5at a local hospital. 

One year later, Stewart filed this lawsuit against Trooper Whitworth, 

Trooper Miller, the KSP, the KSP Commissioner, and a KSP captain. Significant 

discovery was conducted, including depositions and expert witness reports, and 

transcript testimony from a four-day criminal jury trial in Jefferson County and 

2

 Stewart claims Trooper Whitworth did not speak prior to shooting. Stewart interviewed other 

residents who were in their apartments that night and asserts they did not hear Trooper 

Whitworth’s voice prior to shots being fired. However, a witness who was outside the apartment 

complex that night, as well as Trooper Miller, testified they heard these commands.

3

 Stewart denies “lunging” toward Trooper Whitworth.

4

 Again, Stewart alleges Trooper Whitworth did not say anything prior to shooting him.

5

 One bullet appears to have grazed Stewart’s ear, one bullet appears to have entered Stewart’s 

shoulder and exited through his back, and one bullet entered Stewart’s neck and came to rest 

near his spine. 
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another criminal trial in Shelby County was submitted into the record. Defendants 

moved the trial court for summary judgment on various grounds, including 

sovereign and qualified immunity. The trial court ultimately granted summary 

judgment on behalf of Defendants. This appeal followed. 

STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, depositions, 

answers to interrogatories, stipulations, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” CR6 56.03. An 

appellate court’s role in reviewing a summary judgment is to determine whether 

the trial court erred in finding no genuine issue of material fact exists and the 

moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 

S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de 

novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.

Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12 

S.W.3d 698 (Ky. App. 2000)).

ANALYSIS

On appeal, Stewart contends the trial court erred in finding Trooper 

Whitworth entitled to qualified immunity. Sovereign immunity is broad, 

6 Kentucky Rules of Civil Procedure. 
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protecting the state not only from the imposition of money damages but also from 

the burden of defending a lawsuit. Meinhart v. Louisville Metro Gov’t, 627 

S.W.3d 824, 830 (Ky. 2021); Lexington-Fayette Urban Cnty. Gov’t v. Smolcic, 142 

S.W.3d 128, 135 (Ky. 2004) (“Immunity from suit includes protection against the 

‘cost[s] of trial’ and the ‘burdens of broad-reaching discovery’ that ‘are peculiarly 

disruptive of effective government.’”) (quoting Harlow v. Fitzgerald, 457 U.S. 

800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). The doctrine of 

sovereign immunity also covers departments, boards, and agencies that are integral 

parts of state government, such as police departments and their employees. See 

Bryant v. Louisville Metro Hous. Auth., 568 S.W.3d 839, 846 (Ky. 2019). The 

immunity of governmental and quasi-governmental agencies is referred to as 

“governmental” as opposed to “sovereign” immunity; although this delineation in 

terminology is a distinction without a difference. Id. The immunity that extends to 

governmental employees in their individual capacities is commonly referred to as 

“qualified” immunity. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).

Whether qualified immunity extends to an individual turns on whether 

their actions – or inactions – were discretionary or ministerial. Id. “Generally, a 

governmental employee can be held personally liable for negligently failing to 

perform or negligently performing a ministerial act.” Marson v. Thomason, 438 

S.W.3d 292, 296 (Ky. 2014). By contrast, such employees are immune when 
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performing discretionary acts, so long as they act in good faith. Thus, qualified 

immunity “rests not on the status or title of the officer or employee, but on the 

function performed.” Yanero, 65 S.W.3d at 521. 

In the case herein, Trooper Whitworth’s actions in executing the arrest 

warrant were clearly discretionary in nature and within the scope of his authority. 

Thus, the key question in this case is whether Trooper Whitworth acted in good 

faith. 

Concerning good and bad faith, the Supreme Court of Kentucky has 

held:

The good faith qualification has both an objective 

and a subjective component. Objectively, a court must 

ask whether the behavior demonstrates a presumptive 

knowledge of and respect for basic, unquestioned 

constitutional rights. Subjectively, the court’s inquiry is 

whether the official has behaved with permissible 

intentions. However, . . . most case law addresses these 

elements by stating when the qualified immunity is not 

available, or when the public official is acting in bad 

faith. Thus, bad faith can be predicated on a violation of 

a constitutional, statutory, or other clearly established 

right which a person in the public employee’s position 

presumptively would have known was afforded a person 

in the plaintiff’s position, i.e., objective 

unreasonableness. Acting in the face of such knowledge 

makes the action objectively unreasonable. Or, bad faith 

can be predicated on whether the public employee 

willfully or maliciously intended to harm the plaintiff or 

acted with a corrupt motive, which requires a subjective 

analysis.
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Bryant v. Pulaski Cnty. Det. Ctr., 330 S.W.3d 461, 466 (Ky. 2011) (internal 

quotation marks and citations omitted). The burden of proof is on Stewart to show 

that Trooper Whitworth’s actions were not performed in good faith. Id. at 466-67.

A trial court’s grant of summary judgment concerning immunity can 

sometimes differ from other grants of summary judgment. Even so, 

the qualified-immunity defense does not change the 

normal summary-judgment rules. So when deciding 

whether force was excessive or whether our precedent 

clearly established that result, we must view genuine 

factual disagreements in the light most favorable to the 

plaintiff. If a reasonable jury could credit the 

plaintiff’s version of events and if that version clearly 

shows the excessive nature of the defendants’ force, we 

cannot grant the officers summary judgment.

Gambrel v. Knox Cnty., Kentucky, 25 F.4th 391, 400 (6th Cir. 2022) (emphasis 

added) (citations omitted). Ordinarily, the existence of material disputed facts acts 

as a prohibition to a trial court’s ability to grant summary judgment; however, that 

is not always the case on the question of immunity. Meinhart, 627 S.W.3d at 829. 

In such cases, discovery need not be completed nor must all disputed facts be 

resolved by a jury before a trial court can rule on the issue of qualified official 

immunity. Id. Otherwise, the fundamental purposes of immunity would be 

eviscerated. Id. The Supreme Court of Kentucky has recognized that “trial courts 

must make certain factual findings when deciding a party’s entitlement to qualified 

official immunity[.]” Id. Such factual findings include whether actions are 
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performed in good faith. In the case herein, the trial court found that Trooper 

Whitworth acted in good faith. 

Stewart argues the trial court erred in finding Trooper Whitworth 

acted in good faith because, taking Stewart’s allegations as true, Trooper 

Whitworth’s actions were not objectively reasonable when he shot Stewart 

immediately after he opened the door without saying anything or giving any 

warning whatsoever. It is well-established:

The Fourth Amendment protects citizens from excessive 

force during an arrest, investigatory stop, or other 

seizure. Excessive force claims hinge on whether the 

officers’ actions were objectively reasonable in light of 

the facts and circumstances confronting them, without 

regard to their underlying intent or motivation. The 

inquiry draws from the totality of the circumstances and 

must be judged from the perspective of a reasonable 

officer on the scene, rather than with the 20/20 vision of 

hindsight. Three non-dispositive and non-exclusive 

factors guide the inquiry: (1) the severity of the crime at 

issue, (2) whether the suspect posed an immediate threat 

to the safety of the officers or others, and (3) whether the 

suspect was actively resisting arrest or attempting to 

evade arrest by flight.

Crowe v. Steward, 5:20-CV-203-REW, 2022 WL 4291331, at *4 (E.D. Ky. Sept. 

16, 2022) (emphasis added) (internal quotation marks, brackets, and citations

omitted). 

In the case herein, from the perspective of a reasonable officer on the 

scene, Trooper Whitworth was attempting to arrest Stewart who, earlier in the day,
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had threatened his own family, strangled a cat, and fired his gun at his sister’s dog 

in the presence of family. When Stewart answered the door, he had a gun in his 

hand and a “crazy” look in his eyes; he did not drop his gun after being 

commanded to do so; and he moved in what was perceived to be an aggressive

manner toward Trooper Whitworth, making him fear for his life. Trooper 

Whitworth’s commands were loud enough to be heard by Trooper Miller down the 

hallway and another resident who happened to be outside at the time. Conversely, 

“[n]o reasonable juror could adopt the interpretations Plaintiff offers” that Trooper 

Whitworth said absolutely nothing prior to shooting Stewart. Crowe, 2022 WL 

4291331, at *6.

7

 Thus, Trooper Whitworth’s actions were objectively reasonable 

considering the facts and circumstances confronting him. 

7

 This case is distinguishable from King v. Taylor, 694 F.3d 650 (6th Cir. 2012), because in that 

case “a jury could find, based upon the forensic evidence, expert testimony, and common sense, 

that King did not threaten the officers by pointing a gun at them just before he was shot.” Id. at 

662. Here, whether Stewart pointed his gun at Trooper Whitworth prior to being shot is not a 

genuine issue of material fact that would preclude summary judgment; neither does whether 

Trooper Whitworth is entitled to qualified immunity hinge on that fact. 

Similarly, this case is also distinguishable from Brandenburg v. Cureton, 882 F.2d 211 (6th Cir. 

1989). In that case: 

Though detective Sharp claims that Mr. Brandenburg had 

pointed his weapon “directly at us,” presumably proving that he or 

any officer would have a subjective belief in a threat of serious 

physical harm, there are facts which might indicate otherwise. 

Appellants’ own expert testified that the position of the body after 

death indicated that the right hand was not grasping the trigger and 

that the position of the left arm could not prove that Mr. 

Brandenburg was aiming his weapon at the officers. Furthermore, 

the jury might reasonably consider why the two other officers did 
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Because Stewart failed to put forward any evidence that Trooper 

Whitworth acted in bad faith, either subjectively or objectively, the trial court did 

not err in finding Trooper Whitworth entitled to qualified immunity as a matter of 

law. We further echo the sentiments of the Supreme Court of Kentucky: 

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. Such discretion is no discretion at all. There is 

considerable discretion inherent in law enforcement’s 

response to an infinite array of situations implicating 

public safety on a daily basis. . . .

Finally, we pause to note immunity is intended to 

act as a shield, not just from liability, but also the burdens 

of a suit.

Meinhart, 627 S.W.3d at 835-36. Accordingly, the trial court was well within its 

authority to find Trooper Whitworth immune and to dismiss Stewart’s claims.

not fire shots if it was quite obvious that they were being 

threatened with imminent bodily harm.

Although this court intimates no view regarding the weight 

of the evidence, we recognize that a reasonable person might 

believe that detective Sharp acted unreasonably in firing the shot 

that killed Mr. Brandenburg.

Id. at 215. Once again, in this case, whether Stewart pointed his gun at Trooper Whitworth prior 

to being shot is not a genuine issue of material fact that would preclude summary judgment, nor 

does Trooper Whitworth’s entitlement to qualified immunity hinge on that fact. 
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CONCLUSION

Therefore, and for the foregoing reasons, the order entered by the 

Jefferson Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Adrian Mendiondo

Lexington, Kentucky 

BRIEF FOR APPELLEE:

Jason M. Nemes

Robert J. Nemes

Louisville, Kentucky