United States District Court, W.D. Oklahoma
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.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
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.
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 have sued the City and Howard.
The Court will take up the City's Motion for Summary
Judgment [Doc. No. 93] separately.
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.
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).
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).
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.
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. 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.
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.
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
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.
Lippe, on the other hand, maintains that she tried to drive
away from Howard because he was acting hostile and had a
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.”
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.
Mrs. Lippe's § 1983 Claim for Unlawful Seizure and
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.
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
Was Mrs. Lippe subjected to a seizure?
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).
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 ...