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Clark v. Colbert

United States District Court, E.D. Oklahoma

July 18, 2017

(1) GARY CLARK, Plaintiff,
(2) ROBERT COLBERT, in his official and individual capacity as Sheriff of Wagoner County, Okla., et al., Defendants.


          James H. Payne United States District Judge.

         Now before the Court is the Defendant Board of County Commissioners of the County of Wagoner's (“Board”) Motion for Summary Judgment [Dkt. 95]. After consideration of the pleadings, affidavits, and briefs, the Court grants the Board's motion.


         Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Summary judgment is not a disfavored procedural shortcut, but an integral part of the federal rules as a whole. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

         In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court held that “there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” The Court further held that “if the evidence is merely colorable, or not significantly probative, summary judgment may be granted.” Id. In addition, the Anderson Court stated that “the mere existence of a scintilla of evidence in support of a plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff.” Id. A movant's summary judgment burden may properly be met by reference to the lack of evidence in support of plaintiff's position. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex, 477 U.S. at 325).

         Furthermore, as described by the court in Cone v. Longmont United Hosp. Ass'n., 26');">14 F.3d 526 (10th Cir. 1994), “Even though all doubts must be resolved in (the nonmovant's) favor, allegations alone will not defeat summary judgment.” Cone at 530 (citing Celotex, 477 U.S. at 324). See also Hall v. Bellmon, 110');">1106');">935 F.2d 110');">1106, 1111 (10th Cir. 1991); Roemer v. Pub. Serv. Co. of Colo., 911 F.Supp. 464, 469 (D. Colo. 1996). Moreover, “(i)n response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).


         After review of the evidentiary material submitted by the parties, the Court finds that there are no material disputes as to the following facts:

         On Monday, August 18, 2014, at approximately 3:34 p.m., Larry Clark called the Wagoner County Sheriff's Office (“WCSO”) and advised the dispatcher that he needed to have an officer dispatched to his residence at 9501 S. Hillcrest Dr., Broken Arrow, Oklahoma, because he had been assaulted by his brother, Plaintiff Gary Clark. Mr. Clark advised the dispatcher that Plaintiff lived in small cottage on his property, that there was a dog in the cottage, that Plaintiff was a schizophrenic patient and was off his medications, and that Plaintiff had lunged at him with a knife and tried to stick him. Plaintiff had, in fact, cut Larry on his right side with the knife.

         Wagoner County Deputy Robbie Lively arrived on the scene at approximately 3:58 p.m. - about 30 seconds before Wagoner County Deputy Jason Hathcoat. They met with Larry Clark who told them that Plaintiff had assaulted him with a knife. Deputies Hathcoat and Lively walked around to the north side of the residence, where they observed Plaintiff standing on the front porch of the cottage holding a large black-handled kitchen knife, approximately 10 inches in length. Deputies Hathcoat and Lively tried to talk to Plaintiff, but he would not respond to them verbally. They asked him numerous times to drop the knife, but he would not respond to their commands. Plaintiff used his hand to wave at the deputies to come and get him, flipped off the deputies, clinched his fist and stuck his finger out and his thumb up and acted as though he were shooting a gun toward the deputies, and rubbed his open hand back and forth along the knife. Deputies Hathcoat and Lively then backed away from Plaintiff and called for back-up, while keeping Plaintiff in sight.

         Defendant Wagoner County Major Dustin Dorr arrived at the scene at approximately 4:08 p.m. After being briefed on the situation, Dorr, Hathcoat, and Lively approached Plaintiff and again attempted to get him to put down the knife. Plaintiff remained silent, but continued to make the same sort of hand gestures. Plaintiff would also hold the knife to his own throat at times. Defendant Dorr advised Deputy Hathcoat to have dispatch contact the Broken Arrow Police Department (“BAPD”) for their assistance and for the use of less-lethal resources. Defendant Dorr continued to try and communicate with Plaintiff for approximately 10-12 minutes and coax him to put down the knife. Plaintiff did not respond with anything other than the same sort of hand gestures. He did not put down the knife.

         BAPD patrol units began arriving at the scene at approximately 4:21 p.m. Defendant Dorr was contacted by Wagoner County Major Handley and told to hold his position until Handley and Wagoner County Sheriff Robert Colbert got there. Broken Arrow Captain Patrick DuFriend arrived at the scene at approximately 4:30 p.m. and was briefed on the situation by BAPD Officer Wylie and Defendant Dorr.

         Wagoner County Major Handley and Sheriff Colbert arrived at the scene at approximately 4:38 p.m., and Defendant Dorr briefed Sheriff Colbert on the facts. Sheriff Colbert then tried to speak to Plaintiff, but Plaintiff did not respond, aside from making the same sorts of hand gestures. Sheriff Colbert then turned to Broken Arrow Captain DuFriend and gave him command of the operation. From that point on, Captain DuFriend took command of the scene and issued all directives.

         Captain DuFriend made a tactical plan to take Plaintiff into custody with BAPD officers using less-lethal force in the form of a pepperball launcher, tasers, and a ballistic shield, and Wagoner County personnel who had first responded to the scene providing lethal back-up with their firearms. Defendant Dorr was tasked with detaining Plaintiff after he had been disarmed. The plan was to use pepperballs to try and subdue the Plaintiff, get him to drop the knife, and detain him. Tasers were available to utilize if he charged at the officers. Captain DuFriend made the decision not to attempt to wait Plaintiff out any further as officers had been on the scene for nearly an hour and had made no progress in communicating with Plaintiff or convincing him to surrender the knife.

         Captain DuFriend directed the officers to get into a “half-horseshoe” formation in front of the cottage. The formation consisted of Deputies Hathcoat and Lively, Defendant Dorr, and the BAPD officers that were present. Broken Arrow Captain DuFriend carried a ballistic shield. The Sheriff and Wagoner County Major Handley were not part of the formation. They were by the side of the house 15-20 feet behind the other officers. BAPD Officer Smith was armed with a rifle and positioned on Larry Clark's back porch. BAPD also had a K9 officer with a police dog positioned nearby.

         Defendant Dorr then told Plaintiff that he was under arrest for assaulting his brother. Plaintiff remained silent and did not drop the knife. Members of the Broken Arrow Police Department also told Plaintiff that he was under arrest and commanded him to drop the knife. Plaintiff did not respond to their commands, but continued to make hand gestures toward the officers. While Plaintiff was still standing on his porch, the group moved forward a little and Captain DuFriend directed Broken Arrow Sergeant Blevins to deploy the pepperballs. Blevins fired a volley of pepperballs at Plaintiff. Some hit the cottage building, some hit the ground around Plaintiff, and some hit Plaintiff. The pepperballs had no apparent effect on Plaintiff. Captain DuFriend directed Blevins to fire a second volley of pepperballs. Again, some of the pepperballs hit the cottage building, some hit the ground around Plaintiff, and some hit Plaintiff, with no apparent effect on Plaintiff. Further verbal commands to drop the knife were given during this process, but Plaintiff did not comply. He continued making hand gestures to the officers.

         As the pepperballs had no apparent effect on Plaintiff, Captain DuFriend directed the group to move back to its original position. Plaintiff then stepped off the porch, knife still in hand, and started to charge the group of officers with the knife extended out in front of him. He did not appear to be moving blindly, but rather purposefully toward the officers. The group continued to move back, but Plaintiff was quickly gaining on them. When Plaintiff was about twenty or twenty-five feet from the group, Broken Arrow Officers Wylie and Gibson fired their Tasers at Plaintiff. This had no effect on Plaintiff and he continued to charge the group. When Plaintiff was about ten feet from the group, someone gave the instruction to fire. Deputies Hathcoat and Lively, and Broken Arrow Officer Smith fired their weapons at Plaintiff. Deputy Lively fired his weapon three or four times. Plaintiff was hit and fell to the ground, still clutching the knife.

         After a few seconds, Plaintiff attempted to get up, but Officer Gibson, who still had Taser probes attached to Plaintiff, re-energized the Taser and Plaintiff experienced another shock at the direction of Captain DuFriend. At this point, Plaintiff let go of the knife and it was secured. Defendant Dorr then moved in and placed handcuffs on the Plaintiff. Broken Arrow EMS was summoned and Plaintiff was transported to the hospital.

         After the incident, Larry Clark prepared a Voluntary Statement which described Plaintiff as presenting “a danger to himself and others.” Defendant Dorr considered Plaintiff to be a threat to officers on the scene, himself, and others in the vicinity while he had the knife in his possession. Dorr was concerned that Plaintiff could have left the porch at any moment which would have created a more dangerous situation. Deputy Lively viewed Plaintiff as a danger to himself and to the officers on the scene. He could have quickly gotten to any of the officers with the knife, or he could have easily harmed himself with it. He was also just two steps away from the cottage and could have gotten into the cottage before officers could have gotten to him. The officers had no idea what was inside the cottage. Deputy Hathcoat believed that Plaintiff was a threat. Captain DuFriend also believed that Plaintiff was a direct threat to officers on the scene and others in the vicinity.

         The WCSO did not have a crisis intervention team at the time of the incident. The BAPD also does not have a crisis intervention team. At the time of the incident, BAPD had a few officers who had received additional training in dealing with individuals with mental health issues. Captain DuFriend did not advise the Sheriff or any other WCSO personnel of the existence or availability of such officers. Captain DuFriend did not think there was a need for a crisis intervention team, or that calling out such a team or officers trained in crisis intervention would have made any difference in this situation.

         Plaintiff's mental health status was not a primary concern of Deputies Hathcoat and Lively and Defendant Dorr in their interactions with Plaintiff at the scene. Rather, they were faced with an immediate threat situation where it had been reported that the suspect had assaulted his brother with a knife, where he had a knife, and where he would not comply with orders to drop the knife. In that specific scenario, the officers' primary concern was disarming the suspect and detaining him in order to eliminate the immediate threat he posed. In that regard, the officers did not treat Plaintiff differently than any other similarly situated suspect without a mental disability. Likewise, Captain DuFriend testified that Plaintiff's mental health status was not a significant ...

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