IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY – Lexington Division

JOSHUA MUSICK :
c/o Christopher Wiest, Esq.
25 Town Center Blvd, Ste. 104 :
Crestview Hills, KY 41017
:
Plaintiff
:
v.
:
ROBERT WARD, in his individual
capacity :
212 Chestnut Street
Berea, KY 40403 :

and :

CODY JONES, in his individual capacity :

212 Chestnut Street
Berea, KY 40403 :

Defendants :

PLAINTIFF’S VERIFIED COMPLAINT WITH JURY DEMAND ENDORSED

HEREON

Plaintiff, by and through counsel, for his Complaint, alleges as follows:

Introduction

1. There are few rights as clearly established as those at issue in this case: the right to lodge

criticism (and insult) at law enforcement, and the right, as a restrained and handcuffed

suspect who is not actively resisting, to not have gratuitous force (pepper spray) used

against them, because the law enforcement officer was offended or insulted. Yet here we

are.

PARTIES

1
2. At all relevant times herein, Plaintiff, Joshua Musick, was a resident of London, Laurel

County, Kentucky.

3. Defendant Robert Ward, was, at all times relevant hereto, a sworn law enforcement

officer, in the grade of Sergeant, with the City of Berea Police Department, who was

acting under color of state law, and pursuant to the authority given to him thereunder.

4. Defendant Cody Jones, was, at all times relevant hereto, a sworn law enforcement officer,

in the grade of patrol officer, with the City of Berea Police Department, who was acting

under color of state law, and pursuant to the authority given to him thereunder.

JURISDICTION AND VENUE

5. Subject matter jurisdiction over the claims and causes of action asserted by Plaintiffs in

this case is conferred on this Court pursuant to 42 U.S.C. §1983, 42 U.S.C. § 1988, 28

U.S.C. §1331, 28 U.S.C. §§ 2201 and 2202, and other applicable law.

6. Venue in this district is proper pursuant to 28 U.S.C. §1391 and other applicable law.

7. Venue in this division is appropriate, since all of the deprivations of Plaintiff’s

Constitutional Rights occurred in Madison County, and a Defendant resides in this

District and Division.

FACTS COMMON TO ALL CLAIMS

8. On December 30, 2021, Mr. Musick was having a non-violent dispute with his ex-

girlfriend, and, in the course of that, he telephoned 911 to call to arrange for a police

officer to be present, so that he could retrieve his belongings from her home.

9. In the same vein, she likewise called 911, articulating that she would like for an officer to

be present so that he could receive his property from her residence, and so that she did

not need to be there.

2
10. Two City of Berean Police Officers responded, Sergeant Robert Ward and Officer Cody

Jones.

11. Body worn camera captured the entire incident between Mr. Musick and both officers.

12. Mr. Musick was verbally argumentative in that interaction.

13. Ultimately, officers decided to arrest him for disorderly conduct and alcoholic

intoxication.

14. Though there is substantial evidence that Mr. Musick had committed neither offense, he

succumbed to the arrest, and was not actively or physically resistant.

15. Mr. Musick was then placed in handcuffs (with his hands behind his back).

16. Mr. Musick was not pleased by these interactions, and hurled verbal insults at the

officers. There was the use of profanity by both Mr. Musick and the officers.

17. Mr. Musick was not, however, actively or physically resisting: he was not attempting to

physically resist the officers, and he did not even fail to comply with any instructions

given to him.

18. Officer Jones had his hands on Mr. Musick at this time, and again, Mr. Musick was not

physically resistive.

19. Mr. Musick then called Sergeant Robert Ward a “fat fuck.”

20. Angered, Sergeant Robert Ward pulled out his pepper spray.

21. Then, and rather than stopping him or protesting the actions or de-escalating the situation,

all of which Officer Cody Jones had the opportunity to do, and further recognizing that

Sergeant Ward was about to use force, specifically the application of pepper spray on a

non-resisting, handcuffed suspect, Officer Jones stepped away to permit Sergeant Robert

Ward to pepper spray a handcuffed, non-resisting suspect.

3
22. Sergeant Robert Ward, in retaliation for, and because he was angry about Mr. Musick’s

speech, then pepper sprayed Mr. Musick.

23. As a consequence, Mr. Musick was left in agony as he was transported to the jail, and

remained in that condition overnight, as the jail did not decontaminate him or otherwise

permit him to shower off the pepper spray.

24. Mr. Musick was released the next morning, and proceeded home and showered, which re-

activated the spray. Ultimately the effects dissipated.

25. The charges in question were dismissed by the County Attorney, in exchange for a

stipulation of probable cause by Mr. Musick. As such, we do not in this action challenge

the arrest itself, only the excessive force.

COUNT I – Violation of the First Amendment (42 USC § 1983)

26. Plaintiff reincorporates the preceding paragraphs as if fully written herein.

27. The First Amendment protects among other things, the people’s right to be free from

governmental action that “abrid[es] the freedom of speech.”

28. Plaintiff engaged in protected First Amendment speech, as set forth in paragraphs 16 and

19, which was protected speech. This was clearly established law as set forth in Houston

v. Hill, 482 U.S. 451, 462 (1986). In fact, "[t]he freedom of individuals verbally to

oppose or challenge police action without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation from a police state." Id. at 462-63.

29. Officers retaliated against this protected speech by pepper spraying Mr. Musick, and both

officers personally participated in this, with Sergeant Ward conducting the praying, and

Officer Jones facilitating the spraying by moving out of the way to permit it to occur, all

of which constituted an impermissible and unconstitutional violation of the First

4
 Amendment and retaliation for First Amendment speech, under clearly established case

law set forth in Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998).

30. Defendants, acting under color of any statute, ordinance, regulation, custom, or usage, of

the Commonwealth of Kentucky, subjected the Plaintiff, a citizen of the United States, to

be deprived of his rights, privileges, or immunities secured by the Constitution, and thus

are liable to the party injured under 42 U.S.C. §1983.

31. Furthermore, as a consequence and the proximate and actual cause of the foregoing and

the actions of Defendants, Plaintiff has suffered various damages, including, without

limitation, physical injury, pain and suffering, humiliation, and other damages, such as

will be proven at trial, which exceeds $5,000.

32. Plaintiff further seeks punitive damages against Defendants, in their individual capacities,

since the actions complained of were motivated by evil motive or intent, and/or involved

reckless or callous indifference to the federally protected rights of Plaintiff. Plaintiff

demands judgment on these punitive damages against Defendants, in their individual

capacities, in an amount to be determined at trial, but not less than $5,000.00, exclusive

of interest and costs.

33. Plaintiff further seeks his reasonable attorney fees and costs under 42 U.S.C. § 1988 for

these violations.

COUNT II – Violation of the Fourth Amendment (42 USC § 1983)

34. Plaintiff reincorporates the preceding paragraphs as if fully written herein.

35. The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.”

5
36. The gratuitous use of force, especially after a suspect has been restrained, has

consistently been held to be excessive. See, e.g., Morrison v. Bd. Of Trs. of Green Twp.,

583 F.3d 394, 407 (6th Cir. 2009). And verbal insults, no matter how mad it may make

an officer, is not resistance and does not warrant the use of force and the application of

pepper spray. Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009); Lawler v. City of Taylor,

268 F. App'x 384, 387 (6th Cir. 2008) (denying qualified immunity where video footage

"would permit a jury to conclude that [an officer]'s use of force in throwing [a suspect] to

the floor [of the booking room of a police station] was disproportionate," where the

suspect had merely insulted an officer, refused to comply with orders, and continually

raised his hand); Shumate v. City of Adrian, 44 F.4th 427, 446 (6th Cir. 2022); Meirthew

v. Amore, 417 F. App'x 494, 497-98 (6th Cir. 2011).

37. Further, in addition to his facilitation and participation, as described herein, Officer Jones

is liable under a failure to intervene theory because he observed or had reason to know

that excessive force would be or was being used, and he had both the opportunity and the

means to prevent the harm from occurring, by simply not moving out of the way and

asking Sergeant Ward to holster his pepper spray and calm down, but he decided not to

do so and instead facilitated the spraying, in contravention of clearly established law set

forth in Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008).

38. Defendants, acting under color of any statute, ordinance, regulation, custom, or usage, of

the Commonwealth of Kentucky, subjected the Plaintiff, a citizen of the United States, to

be deprived of his rights, privileges, or immunities secured by the Constitution, and thus

are liable to the party injured under 42 U.S.C. §1983.

6
39. Furthermore, as a consequence and the proximate and actual cause of the foregoing and

the actions of Defendants, Plaintiff has suffered various damages, including, without

limitation, physical injury, pain and suffering, humiliation, and other damages, such as

will be proven at trial, which exceeds $5,000.

40. Plaintiff further seeks punitive damages against Defendants, in their individual capacities,

since the actions complained of were motivated by evil motive or intent, and/or involved

reckless or callous indifference to the federally protected rights of Plaintiff. Plaintiff

demands judgment on these punitive damages against Defendants, in their individual

capacities, in an amount to be determined at trial, but not less than $5,000.00, exclusive

of interest and costs.

41. Plaintiff further seeks his reasonable attorney fees and costs under 42 U.S.C. § 1988 for

these violations.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment against Defendants as prayed for, including:

A. That Plaintiffs be awarded money damages, including both compensatory and punitive

damages against the individual capacity Defendants, in an amount to be proven at trial,

and exceeding $10,000.00, exclusive of interest and costs;

B. That trial by jury be had on all issues so triable;

C. That Plaintiffs be awarded his costs in this action, including reasonable attorney fees

under 42 U.S.C. § 1988; and

D. Such other relief as this Court shall deem just and proper.

7
 Respectfully submitted,

/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
513/257-1895 (v)
859/495-0803 (f)
chris@cwiestlaw.com
Attorney for Plaintiff

JURY DEMAND

Pursuant to FRCP 38 and other applicable law, Plaintiffs demands trial by jury on all causes so
triable.
/s/ Christopher Wiest___________
Christopher Wiest (KBA 90725)

8
 VERIFICATION

Pursuant to 28 U.S.C. 1746, I, Joshua Musick, declare under penalty of perjury that I have read
the foregoing Verified Complaint, that I am competent to testify in this matter, that the facts
contained therein are true and correct, and are based information personally known and observed
by me

Executed on __________________.
12/9/2022

___________________________
Joshua Musick