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Lippe v. Howard

United States District Court, W.D. Oklahoma

January 25, 2018

VIELKA M. LIPPE and CHRISTOPHER LIPPE, individually, and as husband and wife, Plaintiffs,
CHRISTOPHER HOWARD, an individual and in his official capacity as a Police Officer for the City of Oklahoma City; and THE CITY OF OKLAHOMA CITY, a municipal corporation Defendants.



         Before the Court is Defendant Christopher Howard's Motion for Summary Judgment [Doc. No. 98], filed pursuant to Fed.R.Civ.P. 56. Plaintiffs (hereinafter “the Lippes”) responded in opposition [Doc. No. 106], and Defendant Howard replied [Doc. No. 110]. The matter is fully briefed and at issue.


         Mr. and Mrs. Lippe bring suit under § 1983 and state law for injuries allegedly suffered from Mrs. Lippe's encounter with Defendant Christopher Howard (“Howard”), a police officer for the City of Oklahoma City (the “City”). The Lippes[1] have sued the City and Howard. The Court will take up the City's Motion for Summary Judgment [Doc. No. 93] separately.

         Howard's encounter with Mrs. Lippe began when he approached her with his gun drawn and told her to get out of her car on February 1, 2014. The Lippes claim Howard conducted an unreasonable seizure in violation of the Fourth Amendment because he lacked reasonable suspicion or probable cause that Mrs. Lippe had committed any crime. See First Am. Compl. [Doc. No. 13 at ¶¶ 43-46]. The Lippes also claim that Howard used excessive force in effecting the seizure. Id. at ¶ 45. The First Amended Complaint asserts four claims against Howard individually: 1) a § 1983 claim for unlawful seizure and excessive use of force; 2) intentional infliction of emotional distress; 3) intentional violations of the Lippes' state constitutional protections; and 4) negligence.


         Summary judgment is appropriate when “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.” Hiatt v. Colorado Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting Fed. R. Civ. P. 56(a)). A dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, ” and it is material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). At the summary judgment stage, the Court views the facts and all reasonable inferences in the light most favorable to the nonmoving party. Williams v. FedEx Corporate Services, 849 F.3d 889, 896 (10th Cir. 2017).

         “The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-671 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the movant meets that burden, the nonmovant must “go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671; see also Fed. R. Civ. P. 56(c)(1)(A). To accomplish this, the nonmovant must identify facts by reference to the pleadings, depositions, other discovery materials, exhibits or affidavits. See Id. The Court is not limited to the cited materials, but rather may consider other materials in the record. Fed.R.Civ.P. 56(c)(3). The Court's inquiry is whether the facts and evidence of record present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). Unsupported conclusory allegations are not sufficient to defeat summary judgment. Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242, 1247 (10th Cir. 1999).


         On February 1, 2014, the Lippes and Howard lived in the Talavera neighborhood in southwest Oklahoma City. Prior to that date, they had not met. Lindsey Wren lived on the same street as Howard and his wife, Tiffany Howard. Mrs. Wren also knew the Lippes. Mrs. Lippe called Mrs. Wren on the evening of February 1, 2014, and asked to borrow a humidifier. That same evening, Mrs. Wren sent a Facebook message to Tiffany Howard. Mrs. Wren stated in the message that she believed someone had attempted to enter her home that morning at 9:00 a.m. by using the garage door opener in the Wren's truck. Mrs. Wren's home was not burglarized, nothing was stolen, no one was arrested and the garage door opener was left in the truck. Mrs. Wren also stated that the day before her dog barked when a tall black man wearing a black shirt and hat came to the door.

         At about 10:30 p.m., Tiffany Howard either showed or told Howard about the Facebook message and asked him to get his garage door opener from his truck. Howard, who was wearing black basketball shorts, got out of bed and put on a hooded sweatshirt and flip-flops. He also grabbed his Springfield XD-40 handgun.[3] Howard was not wearing anything that would have identified him as a police officer. He went out the front door to his truck, which was parked in the driveway, at about 10:45 p.m.

         At the same time, Mrs. Lippe left her house to pick up the humidifier at Mrs. Wren's house. Mrs. Lippe was not certain which house was the Wren's house as she had only been to their house once before. She drove back and forth on Toledo Drive and 172nd Street before parking in the wrong direction in front of the Wren's house. As soon as Howard stepped outside, he saw the vehicle driven by Mrs. Lippe. He saw an individual in a hooded sweatshirt get out of the car, walk up to the Wren's house, and then quickly walk back to the vehicle carrying a large, bulky item.

         Based on these observations, Howard suspected he was witnessing a crime and began walking toward the car to “see what was going on.” Howard's expert, Joe Callanan, testified it was reasonable under the circumstances for Howard to initiate an investigation. Howard approached the car with his gun drawn. Mrs. Lippe heard him say something about being a “cop, ” but she did not believe that he was a police officer because he was not in uniform or wearing a police badge.

         It is undisputed that at some point Howard's hand holding the firearm entered the open driver's side window of Mrs. Lippe's car. However, the sequence of events is disputed. Howard maintains that Mrs. Lippe placed her foot on the accelerator, and the driver's side quarter panel and side mirror of the car struck hi m w h i l e t h e c a r w a s i n m o t i o n . He asserts that the car spun him around and his right hand holding the firearm went into the open driver's side window of Mrs. Lippe's car. He disputes that he struck Mrs. Lippe in the head with his firearm.

         Mrs. Lippe, on the other hand, maintains that she tried to drive away from Howard because he was acting hostile and had a gun.[4] She maintains that he stuck his hand with the loaded firearm through the open driver's side window of the car and hit her on the head with the gun while yelling, “I am going to kill you.”[5]

         Both parties agree that the vehicle came to a stop when it hit a curb. The parties dispute whether Mrs. Lippe suffered injuries from the altercation. Mr. Lippe was not present when the incident occurred. He arrived later in response to a telephone call from Mrs. Lippe.


         A. Mrs. Lippe's § 1983 Claim for Unlawful Seizure and Excessive Force

         Howard asserts that he is entitled to summary judgment on Mrs. Lippe's § 1983 claim based on qualified immunity. When a § 1983 defendant raises the defense of qualified immunity on summary judgment, the burden is on the plaintiff to show that 1) the defendant “violated a constitutional or statutory right”; and (2) that the right was “clearly established at the time of defendant's unlawful conduct.” Serna v. Colo. Dep't of Corrections, 455 F.3d 1146, 1150 (10th Cir. 2006) (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). If the plaintiff satisfies this two-pronged test, the burden shifts back to the defendant, who must prove that “no genuine issues of material fact” exist and that the defendant “is entitled to judgment as a matter of law.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002). “When the record shows an unresolved dispute of historical fact relevant to this immunity analysis, a motion for summary judgment based on qualified immunity should be ‘properly denied.'” Id. (quoting Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. 1991)).

         Thus, the Court's “threshold inquiry in the qualified immunity analysis is whether, taking [Mrs. Lippe's] allegations as true, [Howard] violated [her] Fourth Amendment right to be free from unreasonable seizures.” Mecham v. Frazier, 500 F.3d 1200, 1204 (10th Cir. 2007) (quoting Jones v. Hunt, 410 F.3d 1221, 1225 (10th Cir. 2005)). The Tenth Circuit analyzes claims of excessive force under the objective reasonableness standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989); Mecham, 500 F.3d at 1204. The Court must balance “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotations omitted). Further, the reasonableness of an officer's conduct must be assessed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. The Fourth Amendment standard requires inquiry into the factual circumstances confronting the officer, without regard to the officer's underlying intent or motivation. Id. Relevant factors “include the crime's severity, the potential threat posed by the suspect to the officer's and others' safety, and the suspect's attempts to resist or evade arrest.” Mecham, 500 F.3d at 1204.

         1) Was Mrs. Lippe subjected to a seizure?

         “[W]ithout a seizure, there can be no claim for excessive use of force.” Jones v. Norton, 809 F.3d 564, 575 (10th Cir. 2015). Thus, the first issue presented by Mrs. Lippe's § 1983 claim is whether a seizure occurred. This is a legal question based on “the totality of the circumstances - the whole picture.” United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010).

         “When an officer does not apply physical force to restrain a suspect, a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen ‘submits to the assertion of authority.'” Salazar, 609 F.3d at 1064 (quoting California v. Hodari D., 499 U.S. 621, 625-626 (1991)). In Hodari D., Hodari fled when he saw police officers approaching. Hodari D., 499 U.S. at 622-623. As he ran, he tossed away what turned out to be a small amount of crack cocaine. Id. at 623. He moved to suppress the evidence as fruit of an unlawful seizure. Id. The Supreme Court, however, held that ...

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