NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0585n.06

No. 19-5397

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DUSTIN AYALA,

Plaintiff-Appellee,

v.

MICHAEL HOGSTEN, in his Individual and 

Official Capacities as Greenup County Deputy 

Sheriff; GREENUP COUNTY SHERIFF OFFICE,

Defendants-Appellants.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF KENTUCKY

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

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

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

civil-rights suit. We affirm.

I.

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

by video. See Scott v. Harris, 550 U.S. 372, 380–81 (2007). We have a video here. In May 2016, 

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

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

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

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

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

that time, Ayala was dressed. He stepped out onto his front porch and called out to Hogsten.
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Hogsten came back to the front of the home and handed Ayala the court order. The cell 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

denied their motion. This appeal followed.

We review de novo the denial of qualified immunity. Binay v. Bettendorf, 601 F.3d 640, 

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

constitutional right that was clearly established at the time. See Scott, 550 U.S. at 377–78.

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

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

belief” that a crime has been committed. United States v. Padro, 52 F.3d 120, 122–123 (6th Cir. 

2013). Hogsten says he had probable cause to arrest Ayala for “menacing,” which a person 
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commits “when he intentionally places another person in reasonable apprehension of imminent 

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

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

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

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

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

to arrest Ayala for menacing.

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

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

Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). Accordingly, an officer may not use pepper 

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

Grawey v. Drury, 567 F.3d 302, 314 (6th Cir. 2009). Here, the video shows that Hogsten peppersprayed Ayala at the same time Hogsten arrested him. Thus, Ayala lacked any opportunity to 

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

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

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

excessive.

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

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

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

United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009). And this is not the 

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

manifest injustice. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 615 (6th Cir. 2014).
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Finally, the Sheriff’s Office says that it has official immunity from Ayala’s state-law 

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

committed by their deputies. Ky. Rev. Stat. Ann. § 70.040; see Jones v. Cross, 260 S.W.3d 343, 

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

here.

The district court’s judgment is affirmed.