|NlPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DES|GNATED “NOT TO BE PUBL|SHED."
PURSUANT TO THE RULES OF ClVlL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS B|ND|NG PRECEDENT lN ANY OTHER
CASE lN ANY COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONS|DERAT|ON BY THE COURT lF THERE lS NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE
BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
DEC|SION IN THE FlLED DOCUMENT AND A COPY OF THE
ENTIRE DEC|S|ON SHALL BE TENDERED ALONG WlTH THE
DOCUMENT TO THE COURT AND ALL PART|ES TO THE
ACT|ON.

RENDERED: DECEMBER 15, 2016

§upreme Tnuri of BenEMKL

2016-SC-000288-MR
DATE'/€/W /J..~`. :&Jmm ,Dc

JASON PALMER, INDIVIDUALLY, APPELLANT
AND IN HIS OFFICIAL CAPACITY

AS A KENTUCKY STATE POLICE

OFFICER

ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2016-CA-000285
FAYE'I`TE CIRCUIT COURT NO. 08-C1-02413

HON. PAMELA GOODWINE, JUDGE APPELLEE
FAYETTE CIRCUIT COURT

AND
PAUL CARTER, SR. REAL PARTY IN INTEREST

MEMORANDUM OPINION OF THE COURT

AFFIRMING AND DENYING WRIT OF PROHIBITION

Around 1 a.m. on October 14, 2006_, Appellant, Kentucky State Trooper
Jason Palmer, pulled over a vehicle driven by Paul Carter. When Appellant n
approached the car, he saw Carter put something in his mouth. Soon
thereafter, Carter said that he “didn’t mean to swerve in front of [Appellant].”
Appellant informed Carter of his Miranda rights. While searching Carter’s

vehicle, Appellant discovered marijuana roaches, which are remnants of

marijuana cigarettes, used to smoke the drug. Carter acknowledged that he
was aware of their presence in the vehicle and also stated that he placed
marijuana roaches in his mouth at the beginning of the traffic stop.

Kentucky Vehicle Enforcement Officer Michael Mayes arrived at the
scene and performed sobriety tests on Carter. Officer Mayes had been trained
in detecting drug intoxication. Mayes advised Appellant that he believed Carter
was intoxicated As such, Appellant transported Carter to the Fayette County
Detention Center where he was thoroughly searched, revealing marijuana and
cocaine concealed in his underwear.

Appellant issued an arrest citation including the following offenses: two
counts of possession of marijuana; first-degree possession of a controlled
substance (cocaine); tampering with physical evidence; possession of drug
paraphernalia; first-degree promoting contraband; and driving under the
influence. Carter was subsequently indicted by a Fayette County grand jury on
December 27, 2006. There is no recording of that proceeding

Sometime around March 28, 2007, a suppression hearing was held in
which Carter argued that he had been unlawfully detained by Appellant during
the traffic stop. Appellant testified at the hearing that there was no video
recording of the traffic stop. However, Carter’s counsel subsequently procured
such a recording. On May 16, 2007, the parties presented an agreed order
dismissing all charges with prejudice, which the court entered.

Carter initiated a civil action against Appellant and others in Fayette

Circuit Court alleging numerous constitutional and tort violations, including

malicious prosecution claims under federal and state law. That action was
successfully removed to federal court where it was subsequently referred to
U.S. Magistrate Judge Robert Wier for disposition. Judge Wier granted
summary judgment in favor of Appellant and the other civil defendants
concluding, inter alia, that there was probable cause to prosecute Carter. The
court dismissed all claims with the exception of the state law malicious
prosecution claim, which the court remanded to the state court for disposition.

On remand in Fayette Circuit Court, Appellant and the other defendants
moved for summary judgment, which was granted. In support, the court
erroneously determined that state and federal malicious prosecutions claims
are identical. Compare Martin v. O’Daniel, __ S.W.3d _, 2016 WL 5244518
(Ky. Sept. 22, 2016) (requiring malice for malicious prosecution claims brought
under Kentucky law); and Sykes v. Anderson, 625 F.3d. 294, 309 (6th Cir.
2010) (“This circuit has never required that a plaintiff demonstrate ‘malice’ in
order to prevail on a Fourth Amendment claim for malicious prosecution . . .
.”).

However, the Fayette Circuit Court reconsidered and reversed its initial
ruling stating that “this Court cannot in good conscience agree with Judge
Wier’s malicious prosecution analysis, which concludes that there was, in fact,
a finding of probable cause.” Accordingly, the court vacated its previous order
granting summary judgment which had been entered in Appellant’s favor.

Appellant filed an interlocutory appeal with the Court of Appeals which

affirmed the trial court in part, reversed in part, and remanded. The court

3

held, inter alia, that Appellant’s testimony in the underlying judicial
proceedings could not provide a basis for a malicious prosecution claim. The
court further explained:

[that] is not to say that the entirety of Carter’s suit should be

dismissed on grounds of absolute testimonial immunity, however.

Carter’s complaint and other pleadings indicate that his suit is also

based upon a non-testimonial, pretrial act, namely, [Appellant’s]

authoring of a citation charging him with offenses which-

according to Carter and his interpretation of the stop and arrest

video_[Appellant] knew were baseless.

On remand in Fayette Circuit Court, Appellant filed a motion in limine to
prohibit any reference to Appellant’s testimony during the criminal proceedings
wherein he claimed that a video of the traffic stop and arrest did not exist.
Carter also filed a motion in limine to exclude evidence of his criminal history
and the criminal charges filed against him. The court denied Appellant’s
motion and granted Carter’s motion. Appellant then filed an original action
with the Court of Appeals requesting an order prohibiting the trial court from
enforcing its order denying Appellant’s motion in limine and granting Carter’s
motion in limine.

The Court of Appeals denied the writ request and Appellant appealed to
this Court, Having reviewed the facts and the law, we affirm the Court of
Appeals’ decision.

Analysis
An appellate court has discretion to grant a writ where a trial court is

proceeding within its jurisdiction upon a showing that the court is: 1) acting or

is about to act erroneously; 2) there exists no adequate remedy by appeal or

4

otherwise, and 3) great injustice and irreparable injury will result if the petition
is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

“The usual requirement that a petitioner show great and irreparable
injury, however, ‘is not an absolute prerequisite’ to the issuance of a writ.”
Independent Order of Foresters v. Chaul)in, 175 S.W.3d 610, 616 (Ky. 2005)
(citing Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961)). As stated in Bender'.

[I]n certain special cases this Court will entertain a petition

for prohibition in the absence of a showing of specific great and

irreparable injury to the petitioner, provided a substantial

miscarriage of justice will result if the lower court is proceeding

erroneously, and correction of the error is necessary and

appropriate in the interest of orderly judicial administration.

Bender, 343 S.W.2d at 801.

We review the Court of Appeals’ determination under an abuse of discretion
standard. Sowders 1). Lewis, 241 S.W.3d 319, 322 (Ky. 2007).

We have previously held that “violation of a privilege satisfies both the
requirement of no adequate remedy by appeal, ‘because privileged information
cannot be recalled once it has been disclosed,’ and the substitute requirement
in ‘special cases’ that the administration of justice would suffer.” Collins v.
Braden, 384 S.W.3d 154, 158 (Ky. 2012) (citing St. Luke Hospitals, Inc. v.
Kopowski, 160 S.W.3d 771, 775 (Ky. 2005)). However, the issue here is
immunity, not privilege. Any analogy that may be drawn between the two is
insufficient to satisfy our “special case” exception for writ review.

Lastly, Appellant has failed to demonstrate that the trial court’s order

granting Carter’s motion in limine to exclude evidence is writ worthy. More

specifically, Appellant has failed to indicate that he has no adequate remedy on
appeal or that the court’s evidentiary ruling would result in irreparable injury if
relief is not granted.
Conclusion
For the foregoing reasons, we affirm the Court of Appeals’ order denying
Appellant’s request for a writ of prohibition.

All sitting. All concur.

COUNSEL FOR APPELLANT:

William E. Johnson

APPELLEE:

Hon. Pamela Goodwine
Judge, Fayette Circuit Court

COUNSEL FOR REAL PARTY IN INTEREST:

Gayle Elizabeth Slaughter

