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Burke v. Glanz

United States District Court, N.D. Oklahoma

November 9, 2017

ROBBIE EMERY BURKE, Plaintiff,
v.
STANLEY GLANZ, et al. Defendants.

          OPINION AND ORDER

          JOHN E. DOWDELL UNITED STATES DISTRICT JUDGE.

         Before the Court are dismissal motions by the defendants, Stanley Glanz (Doc. 10), Michael Huckeby, Joseph Byars, and Ricardo Vaca (Doc. 11), Tulsa County Sheriff Vic Regalado (Doc. 12), and Robert C. Bates (Doc. 24). Sheriff Regalado is sued in his official capacity, while all other defendants are sued in their individual capacities.

         I. The Complaint

         The following is a summary of plaintiff's factual allegations, which are contained in the plaintiff's Complaint (Doc. 2) and must be taken as true at the dismissal stage.

         Plaintiff brings this action as the Special Administratrix of the Estate of Eric Harris. Mr. Harris died on April 2, 2015 as a proximate result of the use of deadly force by former Tulsa County Sheriff's Office (TCSO) Reserve Deputy Robert C. Bates. Defendant Bates shot Mr. Harris in the back during the course of an ostensibly dangerous undercover sting operation conducted by the TCSO's Violent Crimes Task Force. An undercover officer had arranged to purchase a firearm from Harris in the parking lot of a store in Tulsa. The first part of the sting was captured on a covert camera, inside a truck. Harris indicated that he had brought a gun in a backpack to sell to the undercover officer, and he indicated that it was the only firearm in his possession. Harris pulled the handgun out of the backpack and handed it to the undercover deputy. After the gun was handed to the deputy, an unmarked car sped into the parking lot and stopped next to the truck. Harris exited the truck and ran north up a sidewalk and into the street. Another TCSO Deputy, defendant Ricardo Vaca, pursued Harris. Vaca was wearing covert video recorder glasses, which recorded part of the scene. Harris, who was wearing a t-shirt and gym shorts, ran for a short time, until he was tackled by Vaca and quickly brought to the ground.

         Bates had driven to the location of the store parking lot where the sting was to occur, after he heard that the arrest team was moving in. Bates claimed that he saw Vaca pursuing Harris, Bates then “grabbed [his] pepper ball launcher” and got out of his vehicle, “[n]ot knowing whether the suspect would be caught by Vaca.” Before Bates walked up to the location where Vaca had tackled Harris and taken him to the ground, four other deputies - Michael Huckeby, Byars, Foster, and Layman - had already arrived to assist. At least two, and as many as four, of the deputies were physically holding Harris down on the pavement. Deputy Foster was standing on Harris's legs, making it impossible for him to flee or actively resist. Bates then used his personal Smith & Wesson .357 revolver to shoot Harris, in the back, at close range, while Harris was unarmed, not fleeing arrest, and had been subdued by two to four other deputies.

         Following the shooting, Bates asserted in a written statement that, when he arrived at the scene, he “drew what [he] thought was [his] TASER” with the intent of discharging it into Harris's right shoulder. Plaintiff alleges that this is either a lie or an objectively unreasonable belief, in light of the fact that his bright fluorescent yellow Taser remained securely fastened to the front upper-left side of his protective vest, while his dark grey, metallic firearm was on his right hip toward the back, and the weapons have different grips.

         From a video recording of the incident, after Harris was shot, he can be heard repeatedly telling the deputies he had been shot, and blood trickled down his right arm. Bates also stated that he had shot Harris. Harris then reported that he was “losing [his] breath, ” to which Deputy Byars replied, “Fuck your breath.” Defendant Michael Huckeby is shown in the video kneeling on Harris's head with all of his weight, as another deputy yells at Harris, “You shouldn't have ran” [sic] and “Shut the fuck up.” According to plaintiff, the force used by Michael Huckeby in kneeling on Mr. Harris's head, after he had been subdued and shot in the back, was objectively unreasonable and excessive. Bates, Vaca, Michael Huckeby, and Byars wasted valuable time in getting Harris emergency medical treatment he obviously needed after being shot. Rather than assure that Harris received timely medical attention for his life-threatening injuries, Byars screamed and cursed at Harris, and Huckeby forcefully grinded his head into the concrete. Plaintiff asserts that this conduct and the delay in medical treatment constituted deliberate indifference to Harris's obvious, known, and serious medical needs. Harris was subsequently pronounced dead.

         Plaintiff further alleges that: Harris died as the proximate result of Bates's unreasonable and excessive use of force and Glanz's failure to train and supervise Bates; Harris was injured as a proximate result of Michael Huckeby's unreasonable and excessive use of force and Glanz's failure to train and supervise him; and Harris suffered injuries as a result of deliberate indifference of Bates, Vaca, Huckeby and Byars to Harris's obvious, known, and serious medical needs.

         Bates was a 73-year-old insurance executive moonlighting as a Reserve Deputy. He lacked the requisite training, by hundreds of hours, to participate in such a field operation, and he was not certified to carry the .357 revolver, which was his personal firearm, as his service weapon. TCSO officials permitted Bates to wear and utilize firearms not approved for use by the TCSO, notwithstanding policy to the contrary.

         Bates is a longtime friend and financial supporter of defendant Stanley Glanz, who is the former Sheriff. Long before Harris was killed, Glanz knew that Bates did not have the necessary training or certifications to engage in TCSO's field operations and that Bates was not proficient with a firearm and posed a significant risk to the public. Plaintiff further alleges that Glanz ignored those dangers in order to allow his friend and financial benefactor to “play cop” in Tulsa County, and Harris died as a direct consequence.

         During Glanz's tenure as Sheriff, TCSO maintained a Reserve Deputy Program, which the TCSO described in part as “provid[ing] trained civilian volunteers to augment the manpower of the Sheriff's Office.” The Reserve Deputy Program was to be governed by TCSO policies, which required among other things that Reserve Deputies: adhere to all TCSO policies, local, state, and federal laws; subordinate themselves to the supervision of the TCSO; meet the same selection criteria as full-time deputies; complete the CLEET Reserve Law Enforcement Training Academy consisting of 240 hours; carry the same equipment as the regular deputies; complete 23 hours of CLEET training and 2 hours of mental health training each year; be tested for firearms proficiency at least annually; and abide by the same code of ethics and rules and regulations as regular deputies. In addition, only Reserve Deputies who were also in the Advanced Classification were authorized to perform normal field duties by themselves and without the direct supervision of a certified deputy, and Reserve Deputies in that category were required to complete 480 hours of the TCSO Field Training Officer program. Plaintiff alleges that these policies, which were designed to protect the public, were routinely and knowingly violated by Glanz and TCSO for the benefit of Mr. Bates, constituting deliberate indifference to the Fourth Amendment rights of the public, including Mr. Harris.

         Following a decades-long personal relationship with Glanz, Bates became a Reserve Deputy in 2008. Glanz and Bates took vacations and trips together, Glanz visited Bates's Florida home, and the two frequently fished together. Bates served as Chairman of Glanz's 2012 Re- Election Committee and donated $2500 to the campaign. Between 2009 and 2012, Bates also donated several automobiles, a $5000 forensic camera and lens kit, multiple pistols, covert video recorders, and a pepper ball gun to the TCSO. Bates also gave expensive gifts to the former Undersheriff and Chief Deputy Tim Albin and former TCSO Major Tom Huckeby. Huckeby was the supervisor of Bates on the Violent Crimes Task Force. In 2010, TCSO accepted a Ford F-150 and a Chevy Tahoe from Bates, and Bates donated a hand-held radio for surveillance work in the drug unit.

         From the beginning of Bates's tenure as a Reserve Deputy, it was clear that, contrary to TCSO policies, Bates was given highly preferential treatment and would not be required to adhere to TCSO policies. Years before the shooting of Harris, an internal affairs investigation was conducted at TCSO concerning whether Bates was treated differently from other Reserve Deputies. The internal affairs investigator documented several serious problems with respect to Bates in an August 12, 2009 Report. Those problems related to the following:

. “policy has been violated and continues to be violated by both Capt. Tom Huckeby and Chief Deputy Tim Albin with regard to special treatment shown to Reserve Deputy Robert Bates with regard to field training” and Albin created “an atmosphere in which employees were intimidated to fail to adhere to policies in a manner which benefits Reserve Deputy Bates”;
. TCSO Reserve Deputy Coordinator, Randy Chapman, expressed several concerns about Bates, including the following: (1) Bates was admitted to the Reserve Deputy program without the Coordinator's knowledge, (2) Bates was driving a personally owned car with police equipment prior to achieving the necessary position to do so, which had been the subject of a memo from Chapman characterizing TSCO's favoritism toward Bates as “deliberate indifference, ” (3) Bates was performing traffic stops and operating in the field without direct supervision, in violation of policy, because Bates had not completed the requisite 480 hours of field training, and (4) When Chapman informed Bates that he could not make stops prior to completing the training, Bates replied, “Well I can do it and if you don't like it you can talk to Tim Albin or Sheriff Glanz because I'm going to do it.”
. Chapman had not received any documentation of Bates's field training, and at least two other deputies had advised Chapman that Bates's field operations were “a little scary.”
. After Chapman reported his concerns to Undersheriff Albin, Albin responded, “This is a shit sandwich and you'll just have to eat it but not acquire a taste for it.” Chapman was also directed to cease all communications with Bates, and Chapman was removed from supervising him.
. Chapman met directly with Glanz to bring the concerns about Bates to Glanz's attention. Despite the meeting, no corrective action was taken. Instead, Chapman was assigned a work of week on the midnight shift in retaliation for reporting his concerns about Bates. Chapman was later removed entirely from the Reserve Deputy program and transferred to Special Services, and he was informed that the reason for the transfer was that he was not to have contact with Bates ...

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