RENDERED: JULY 19, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0415-MR

JEREMY NETTLES APPELLANT 

v. 

APPEAL FROM SCOTT CIRCUIT COURT

HONORABLE MICHAEL DEAN, SPECIAL JUDGE

ACTION NO. 18-CI-00548

LISA K. WILLIAMS, AS 

ADMINISTRATRIX OF THE ESTATE 

OF KEITH G. BURNS, DECEASED APPELLEE 

AND

NO. 2023-CA-0416-MR

JON NOEL AND TOMMY ENRICCO APPELLANTS 

v. 

APPEAL FROM SCOTT CIRCUIT COURT

HONORABLE MICHAEL DEAN, SPECIAL JUDGE

ACTION NO. 18-CI-00548

LISA K. WILLIAMS, AS 

ADMINISTRATRIX OF THE ESTATE 

OF KEITH G. BURNS, DECEASED APPELLEE 
-2-

OPINION

REVERSING

**   **  **

BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.

LAMBERT, JUDGE: In these consolidated appeals, Jeremy Nettles, Scott County 

Sheriff’s Deputy (“Nettles”); former Lieutenant Jon Noel1(“Noel”) and former 

Officer Tommy Enricco2(“Enricco”), both of the Georgetown Police Department 

(“GPD”) argue the circuit court erred when it refused to grant them qualified 

official immunity in this tort action. After careful review, we reverse the Scott 

Circuit Court.

Factual and Procedural Background

On the evening of October 2, 2017, numerous calls came into the 

emergency dispatch service for both GPD and the Scott County Sheriff’s 

Department (“SCSD”). Callers stated that a driver in a dark blue or black pickup 

truck was driving erratically, including running drivers off the road, speeding, and 

driving on the wrong side of the road. Enricco spotted the suspected vehicle and 

initiated a traffic stop because the headlights were not illuminated and the driver 

1 Noel is now retired.

2 Enricco has since left GPD and started a career outside of law enforcement.
-3-

was driving at an inconsistent speed and was unable to maintain his lane. Keith 

Burns was driving the vehicle. 

Upon making contact, Enricco noticed that Burns would not make eye

contact. He also had a scab on his forehead that was bleeding and stated that it was 

from a fall earlier in the day. Enricco testified that Burns was unable to say why 

he was in Georgetown and was inconsistent in what he was saying. When asked 

by Enricco if he was on any type of medication, Burns stated he took blood 

pressure medication and blood thinners, but nothing that would impair his driving. 

He also stated he had recently been hospitalized due to a neurological disorder. 

Burns was unable to locate his driver’s license, registration, or proof of insurance

and was asked to step out of the vehicle. Enricco testified that, after Burns exited 

the truck, he began making eye contact and seemed more comfortable talking to 

him. Enricco did not notice any signs of intoxication (e.g., Burns’ speech was not 

slurred, there was no smell of alcohol or marijuana, he was steady on his feet, and 

his eyes were not bloodshot or glassy) and therefore did not suspect Burns of being 

under the influence of alcohol or drugs. 

Although Enricco did not request backup, at some point during the 

stop, Noel and Nettles arrived separately because they were both in the vicinity. 

While Enricco went to his police cruiser to work on a citation, Noel and Nettles 

continued to talk with Burns. During his deposition, Nettles testified that he 
-4-

remembered very little from the encounter, only that Burns thought he was in 

Richmond and seemed slightly confused. However, he did not think Burns was 

intoxicated or experiencing a medical need. Noel testified that Burns told him he 

was a diabetic and forgot to take his medication that day. In response, Noel called 

emergency medical services (“EMS”) to the scene to rule out any potential medical 

issues. Burns complained to EMS about a fall earlier in the day and a resulting 

headache. According to an affidavit from EMS worker Andrew Stratton, who 

treated Burns at the scene, Burns was able to answer all questions correctly and 

coherently. He scored the highest possible score on the Glasgow Coma Scale 

assessment,3and although his blood pressure was elevated, his blood sugar was 

within normal range. EMS did not believe Burns presented a danger to himself or 

others. Although they offered to transport Burns to the hospital for further 

evaluation, Burns signed a refusal of treatment, which was witnessed by Noel.4 

Noel also testified that Burns did not show any signs of intoxication.

Enricco ultimately cited Burns for improper registration, failure to 

maintain required insurance, no/expired registration plates, and failure to 

illuminate headlights. Because the truck lacked insurance and proper registration, 

3 According to Stratton’s affidavit, the assessment tests for alertness, as well as verbal and motor 

skills.

4 Throughout the record, counsel for Burns’ Estate argued both implicitly and explicitly that 

EMS stated Burns in fact needed further treatment, but he refused. This is refuted by the record.
-5-

Enricco called a tow truck and the vehicle was impounded. Noel asked Burns if he 

had any family that could pick him up, and Burns gave him the name and 

telephone number of his sister, Lisa Williams, who lives in London, Kentucky. 

Noel was able to speak with Lisa’s husband, Les, who stated he would make the 

drive from London to Georgetown to pick up Burns. Because Burns was not under 

arrest, he was free to leave the scene after receiving the citation. However, 

because he no longer had a vehicle, Enricco offered to drive him anywhere within 

the Georgetown city limits to wait for his family. Burns stated he would wait at 

McDonald’s, so Enricco dropped him off in the parking lot of a local McDonald’s. 

Enricco testified that he saw Burns open the door to the restaurant before he left to 

continue his duties.

Tragically, several hours later, Burns was struck and killed by a 

vehicle while walking down a road approximately two miles from the McDonald’s 

where Enricco had left him. Burns’ sister Lisa Williams, as administrator of his 

estate, initially filed a lawsuit in federal court that was ultimately dismissed. 

Williams then filed the underlying complaint in Scott Circuit Court against Scott 

County Sheriff Tony Hampton, Georgetown Police Chief Michael Bosse, the City 

of Georgetown, and Enricco, Noel, and Nettles.5 All defendants except the City of 

5 Williams also filed suit against the driver of the vehicle that struck Burns, as well as the owner 

of the vehicle. The claims against those defendants are ongoing and not part of this appeal.
-6-

Georgetown were sued only in their individual capacities. The lawsuit alleged, in 

relevant part, that Burns should have been taken into custody under KRS6

202A.041. After extensive discovery, all defendants filed motions for summary 

judgment based on various forms of immunity. The circuit court granted the 

motions of Sheriff Hampton, the City of Georgetown, and Chief Bosse. However, 

it determined that qualified official immunity did not apply to Noel, Enricco, and 

Nettles. This interlocutory appeal followed.7

Standard of Review

 The primary issue on appeal is whether a law enforcement official, 

when sued in their individual capacity, is afforded qualified official immunity 

when deciding whether to take a person into custody under KRS 202A.041. Our 

decision hinges on whether the statute confers ministerial or discretionary duties 

upon law enforcement. “The construction and application of statutes is a matter of 

law. Therefore, [appellate] Court[s] [review] statutes de novo without deference to 

the interpretations adopted by lower courts.” Commonwealth v. McBride, 281 

S.W.3d 799, 803 (Ky. 2009) (citation omitted). Qualified official immunity not 

only relieves an individual of liability but also provides relief from the burden of 

6 Kentucky Revised Statute.

7 Orders denying claims of immunity are subject to interlocutory appeal. Breathitt Cnty. Bd. of

Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009).
-7-

defending an action. Id. As a result, summary judgment can play an important 

role in this regard. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L.

Ed. 2d 411 (1985). Whether immunity is applicable to an individual is also a 

question of law that we review de novo. Rowan Cnty. v. Sloas, 201 S.W.3d 469, 

475 (Ky. 2006).

Analysis

 The application of qualified official immunity to an individual turns 

on whether the offending actions (in this case, the failure to arrest Burns pursuant 

to KRS 202A.041) were discretionary or ministerial. The Kentucky Supreme 

Court has differentiated between discretionary and ministerial acts thusly,

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. 63C Am. Jur. 2d, Public Officers and

Employees, § 309 (1997). Qualified official immunity 

applies to the negligent performance by a public officer 

or employee of (1) discretionary acts or functions, i.e.,

those involving the exercise of discretion and judgment, 

or personal deliberation, decision, and judgment, id. § 

322; (2) in good faith; and (3) within the scope of the 

employee’s authority. Id. § 309; Restatement (Second) 

Torts, supra, § 895D cmt. g. An act is not necessarily 

“discretionary” just because the officer performing it has 

some discretion with respect to the means or method to 

be employed. Franklin County v. Malone, [957 S.W.2d

195, 201 (Ky. 1997)] (quoting Upchurch v. Clinton

County, Ky., 330 S.W.2d 428, 430 (1959)).

. . . .
-8-

Conversely, an officer or employee is afforded no 

immunity from tort liability for the negligent 

performance of a ministerial act, i.e., one that requires 

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. Franklin County v. Malone,

supra, at 201. “That a necessity may exist for the 

ascertainment of those facts does not operate to convert 

the act into one discretionary in nature.” Upchurch v.

Clinton County, supra, at 430. See also Restatement 

(Second) Torts, supra, § 895D cmt. h; 63C Am. Jur.2d, 

Public Officers and Employees, §§ 324, 325 (1997).

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

 We now turn to the applicable statute. The version of KRS 202A.041

in effect on October 2, 2017, provides, in relevant part only, 

(1) Any peace officer who has reasonable grounds to 

believe that an individual is mentally ill and presents a 

danger or threat of danger to self, family, or others if not 

restrained shall take the individual into custody and 

transport the individual without unnecessary delay to a 

hospital or psychiatric facility designated by the cabinet 

for the purpose of an evaluation to be conducted by a 

qualified mental health professional. Upon transport of 

the person to the hospital or psychiatric facility, the peace 

officer shall provide written documentation which 

describes the behavior of the person which caused the 

peace officer to take the person into custody.

 “Mentally ill person” is defined in KRS 202A.011(9) as

a person with substantially impaired capacity to use selfcontrol, judgment, or discretion in the conduct of the 

person’s affairs and social relations, associated with 

maladaptive behavior or recognized emotional symptoms 

where impaired capacity, maladaptive behavior, or 
-9-

emotional symptoms can be related to physiological, 

psychological, or social factors[.]

 Whether KRS 202A.041 imposes ministerial or discretionary duties 

upon law enforcement is a matter of first impression. However, when the 

Kentucky Supreme Court was confronted with the question of whether KRS 

620.0308imposed discretionary or ministerial duties upon school officials, the 

Court looked carefully at the language of the statute and parsed it into both 

ministerial and discretionary functions. Ritchie v. Turner, 559 S.W.3d 822 (Ky. 

2018). We believe the same approach is applicable in this case.

 In the case at bar, numerous telephone calls came into emergency 

dispatch regarding Burns’ driving. It is undisputed that law enforcement had a 

ministerial duty to respond to the emergency calls. It is undisputed that, once 

Enricco saw Burns in the same truck believed to be the subject of the 911 calls 

driving without his headlights illuminated, failing to maintain lanes, and failing to 

maintain a consistent speed, Enricco had a ministerial duty to initiate a traffic stop. 

However, once the stop was made and Enricco, Noel, and Nettles began their 

investigations, the decision to take Burns into custody – or not – pursuant to KRS 

202A.041 was discretionary. It required personal judgment based on the facts 

available to them at the time, including their interactions with Burns and the result 

8 KRS 620.030 is Kentucky’s mandatory reporting statute for children believed to be dependent, 

neglected, or abused.
-10-

of the assessment by EMS. See Ritchie, 559 S.W.3d at 838. Had law enforcement 

reasonably believed that Burns was mentally ill and a danger to himself or others, 

then they would have had a ministerial duty to take him into custody under KRS 

202A.041,9 but the investigation leading up to that point is necessarily 

discretionary. Williams argues the number and content of the telephone calls to 

emergency services should have prompted law enforcement to arrest Burns, but 

this argument is unavailing. While the 911 calls may have created a ministerial 

duty to respond, the investigation that occurred during the stop is discretionary. In 

this instance, the content of the calls to dispatch did not match the driving 

witnessed by Enricco.10 

 The circuit court ruled that Enricco, Noel, and Nettles had a

duty to take Burns into custody and transport him to a 

hospital or psychiatric facility [that] was fixed and 

imperative, and therefore ministerial, at least to the extent 

that they had reasonable grounds to believe Burns was 

mentally ill. This Court believes that whether they had 

such reasonable grounds is a question of fact for the jury.

9 We note that the Kentucky General Assembly recently amended KRS 202A.041 to provide, in 

relevant part, that, “[a]ny peace officer who has reasonable grounds to believe that an individual 

is mentally ill and presents a danger or threat of danger to self, family, or others if not restrained 

may take the individual into custody . . . .” (Emphasis added.) This amended law goes into 

effect in July 2024.

10 See KRS 431.005, which details under which circumstances a law enforcement officer may 

arrest a citizen for a felony or misdemeanor without a warrant. 
-11-

 This approach is the equivalent of arrest now, ask questions later. We 

agree that the duty to transport Burns to a hospital or psychiatric facility under the 

statute is ministerial, but only if law enforcement had reasonable grounds to believe 

Burns was mentally ill and a danger to himself or others. The determination of 

whether reasonable grounds exist is discretionary and must be made on-the-spot, 

not later by a jury. “[I]t 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.” 

Meinhart v. Louisville Metro Gov’t, 627 S.W.3d 824, 835 (Ky. 2021).

11

 “Once the officer or employee has shown prima facie that the act was 

performed within the scope of 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.” Yanero, 65 S.W.3d at 523. In most cases, 

good faith is presumed in the absence of evidence of bad faith. Sloas, 201 S.W.3d 

at 475.

[I]n the context of qualified official immunity, “bad 

faith” can be predicated on a violation of a constitutional, 

11 Similarly, internal policies of GPD for dealing with persons of diminished capacity and those 

with mental illnesses require officers to “use reasonable judgment” to recognize behavior that 

could be a result of mental illness and that an individual should be taken into custody only when 

an officer “believes that the individual poses a substantial risk of harm to himself or others.” The 

SCSD’s policy regarding dealing with mentally ill citizens likewise instructs its officials to only 

arrest an individual believed to be mentally ill, but who has not committed a crime, when the 

officer “reasonably believes that the individual poses a substantial risk of harm to himself or 

others.”
-12-

statutory, or other clearly established right which a 

person in the public employee’s position presumptively 

would have known was afforded to a person in the 

plaintiff’s position, i.e., objective unreasonableness; or if 

the officer or employee willfully or maliciously intended 

to harm the plaintiff or acted with a corrupt motive. 

Yanero, 65 S.W.3d at 523. The latter requires a subjective analysis. Id. 

 The United States Court of Appeals for the Sixth Circuit disposed of 

any constitutional claims and those arguments are not repeated here. See Williams

v. City of Georgetown, Kentucky, 774 F. App’x 951 (6th Cir. 2019). Thus, we look 

to KRS 202A.041 to see if grounds exist for objective bad faith on the part of 

Enricco, Noel, and Nettles. There are no rights provided to citizens in the statute. 

Nor does the statute provide defined circumstances for when an individual is to be 

arrested. Accordingly, bad faith cannot be established through a violation of a 

statutory right under KRS 202A.041. 

 With regard to whether Enricco, Noel, and Nettles acted with willful or 

malicious intent, or a corrupt motive, in her response to the motion for summary 

judgment, Williams acknowledged that “[t]here is no evidence they intended that 

Burns suffer the fate he did.” (Emphasis in original.) We agree. 

 The record before us is devoid of any showing of willful or malicious 

intent or a corrupt motive by law enforcement. Although Williams attempts to 

argue that GPD and SCSD have a repeating pattern of failing to arrest individuals 

under KRS 202A.041, this is not supported by the record. Although law 
-13-

enforcement had concerns for Burns’ physical health due to his statements that he 

was diabetic, had recently fallen, had a headache, and mentioned a neurologic 

disorder, these concerns were allayed once Burns was evaluated by EMS. He also 

did not exhibit any signs of intoxication. Once Burns was free to go after the 

traffic stop, rather than leave him on the side of the road, Enricco offered to drive 

him anywhere within the City of Georgetown to wait for his family. Burns chose 

to go to a local McDonald’s, and Enricco dropped him off in the parking lot. 

Although Williams insists Burns should have been taken to the police station

instead of McDonald’s, she provides no support in the law for this argument. 

Burns was free to go and did not request to sit at the police station. In order for 

law enforcement to take Burns there against his will, Burns would have had to 

been in custody. By dropping Burns off at McDonald’s, as he requested, the 

officers did not place Burns in a situation that caused his injuries after he was 

released from custody. That he later decided to leave McDonald’s was not tied to 

any action of law enforcement. 

Conclusion

 The decision regarding whether to take Burns into custody under KRS 

202A.041 was discretionary and Williams failed to show Enricco, Noel, and 

Nettles acted in bad faith. The Appellants are entitled to qualified official 

immunity. Therefore, the order of the Scott Circuit Court is reversed.
-14-

ALL CONCUR.

BRIEFS FOR APPELLANT

JEREMY NETTLES:

D. Barry Stilz

Lynn Sowards Zellen

Lexington, Kentucky

BRIEFS OF APPELLANTS JON 

NOEL AND TOMMY ENRICCO:

L. Scott Miller

William D. Razor

Lexington, Kentucky

BRIEF FOR APPELLEE:

Gregory A. Belzley

Prospect, Kentucky

Jane Winkler Dyche

London, Kentucky