United States District Court, W.D. Oklahoma
ROGER T. MAHER, as Personal Representative of the ESTATE OF DAVID MAHER, Plaintiff,
STATE OF OKLAHOMA ex rel. OKLAHOMA TOURISM & RECREATION DEPARTMENT, et al., Defendants.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion for Summary Judgment
[Doc. No. 60], filed pursuant to Fed.R.Civ.P. 56. Defendant
Justin Young, the sole remaining defendant, seeks summary
judgment on all claims pending against him. Plaintiff has
timely opposed the Motion [Doc. No. 76], and Defendant has
replied [Doc. No. 83]. Thus, the Motion is fully briefed and at
action concerns Defendant's conduct as a park ranger
employed by the Oklahoma Tourism and Recreation Department
(“OTRD”) while on duty in McGee Creek State Park
in Atoka County, Oklahoma. Plaintiff Roger Maher, personal
representative of the Estate of David Maher, seeks to recover
damages resulting from a confrontation between Defendant and
David Maher (hereafter, “David”), a park patron,
on May 4, 2013; Defendant first used pepper spray and later
shot David through the window of a car he was driving,
causing his death. Plaintiff alleges that Defendant lacked
any factual basis to detain David, who was not suspected of
any criminal activity in the park, or to use deadly force
against him. Plaintiff asserts a claim under 42 U.S.C. §
1983 based on Defendant's alleged uses of excessive force
in violation of the Fourth Amendment (see Compl.
[Doc. No. 1-2], ¶¶ 21-23), and a negligence claim
that allegedly is not subject to the Governmental Tort Claims
Act (“GTCA”), Okla. Stat. tit. 51, §§
151-72, because Defendant “was acting outside the scope
of his employment” with OTRD (id. ¶
seeks summary judgment on Plaintiff's claims due to an
alleged failure of proof and the defense of qualified
immunity. When a defendant raises qualified immunity in a
motion for summary judgment, “the plaintiff carries a
two-part burden to show: (1) that the defendant's actions
violated a federal constitutional or statutory right, and, if
so, (2) that the right was clearly established at the time of
the defendant's unlawful conduct.” T.D. v.
Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal
quotation omitted). “If the plaintiff fails to satisfy
either part of the inquiry, the court must grant qualified
immunity.” Carabajal v. City of Cheyenne, 847
F.3d 1203, 1208 (10th Cir. 2017).
plaintiff may show clearly established law by pointing to
either a Supreme Court or Tenth Circuit decision, or the
weight of authority from other courts, existing at the time
of the alleged violation.” Id.; accord
Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016).
“‘We do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.'”
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting
al-Kidd, 563 U.S. at 741); accord White v.
Pauly, 137 S.Ct. 548, 551 (2017) (per curiam). “A
clearly established right is one that is ‘sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.'”
Mullenix, 137 S.Ct. at 308. (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012) (internal quotation
omitted)). “In other words, immunity protects all but
the plainly incompetent or those who knowingly violate the
law.” White, 137 S.Ct. at 551 (internal
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A material fact is one that “might
affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is genuine if the evidence is
such that a reasonable jury could return a verdict for either
party. Id. at 255. All facts and reasonable
inferences must be viewed in the light most favorable to the
nonmovant. Id. If a party who would bear the burden
of proof at trial lacks sufficient evidence on an essential
element of its claim or defense, all other factual issues
concerning the claim or defense become immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
movant bears the burden of demonstrating the absence of a
dispute of material fact warranting summary judgment.
Celotex, 477 U.S. at 322-23. If the movant carries
this burden, the nonmovant must then go beyond the pleadings
and “set forth specific facts” that would be
admissible in evidence and that show a genuine issue for
trial. See Anderson, 477 U.S. at 248;
Celotex, 477 U.S. at 324; Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).
“To accomplish this, the facts must be identified by
reference to affidavits, deposition transcripts, or specific
exhibits incorporated therein.” Adler, 144
F.3d at 671; see also Fed. R. Civ. P. 56(c)(1)(A).
“The court need consider only the cited materials, but
may consider other materials in the record.”
See Fed. R. Civ. P. 56(c)(3). The Court's
inquiry is whether the facts and evidence identified by the
parties present “a sufficient disagreement to require
submission to a jury or whether it is so onesided that one
party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52.
objects generally to Defendant's exhibits obtained from
law enforcement agencies as improper summary judgment
evidence, primarily on the ground that they constitute or
contain inadmissible hearsay. See Pl.'s Resp.
Br. [Doc. No. 76] at 8 n.1. Plaintiff asserts this objection
specifically in response to certain paragraphs of
Defendant's statement of facts, stating that the
documents on which Defendant relies are hearsay. Defendant
makes no response to Plaintiff's evidentiary objection in
his reply brief.
Rule 56 allows the use of materials that are not usually
admitted at trial, such as affidavits and depositions,
“[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” See Fed. R.
Civ. P. 56(c)(2). Under this rule, “the form
of evidence produced . . . at summary judgment may not need
to be admissible at trial, [but] ‘the content or
substance of the evidence must be
admissible.'” Johnson v. Weld Cty., 594
F.3d 1202, 1210 (10th Cir. 2010) (quoting Thomas v.
Int'l Bus. Mach., 48 F.3d 478, 485 (10th Cir. 1995))
(emphasis added in Johnson). Thus, in ruling on
summary judgment, courts must disregard a hearsay statement
if “there is a proper objection to its use and the
proponent of the testimony can direct us to no applicable
exception to the hearsay rule.” Montes v. Vail
Clinic, 497 F.3d 1160, 1176 (10th Cir. 2007); see
Johnson, 594 F.3d at 1209.
respect to some defense exhibits in this case, Plaintiff
makes a valid objection. Defendant has submitted under seal
interview reports and other documents prepared during an
investigation by the Oklahoma State Bureau of Investigation
(“OSBI”); the reports summarize interviews of key
witnesses. See Def.'s Ex. 9 [Doc. No. 61-1], Ex.
14 [Doc. No. 61-3], Ex. 17 [Doc. No. 61-4], Ex. 20 [Doc. No.
61-6], Ex. 24 [Doc. No. 61-7], Ex. 25 [Doc. No. 61-8].
Defendant relies on the substance of the witnesses'
reported statements to establish facts relevant to
Plaintiff's claims, particularly what occurred between
Defendant and David. Assuming the OSBI reports fall within a
hearsay exception, the witnesses' statements to the OSBI
agent would still constitute hearsay. See,
e.g., Walker v. City of Okla. City, No.
98-6457, 2000 WL 135166, *8 (10th Cir. Feb. 7, 2000)
(unpublished) (“It is well established that entries in
a police report which result from the officer's own
observations and knowledge may be admitted but that
statements made by third persons with no business duty to
report may not.”) (internal quotation omitted); see
also Moore v. Indehar, 514 F.3d 756 (8th Cir. 2008)
(district court ruling on summary judgment properly did not
consider statements in police report that constituted
hearsay); Tranter v. Orick, 460 F. App'x 513,
515 (6th Cir. 2012) (same).
as “the proponent of hearsay evidence bears the burden
of establishing the applicability of a hearsay
exception.” See United States v. Irvin, 682
F.3d 1254, 1262 (10th Cir. 2012). Because Defendant makes no
effort to satisfy this burden, facts stated in his brief that
are supported only by OSBI reports of witnesses'
statements - and to which Plaintiff objects - will not be
considered. As a practical matter, however, this
ruling has little impact on the discussion infra.
The same eyewitnesses who were interviewed by OSBI agents
have provided affidavits (Alicia Thompson and Teresa Werner)
or deposition testimony (Loretta Swank), and/or gave
voluntary statements to the Atoka County Sheriff's Office
on the date of the shooting, stating their own accounts of
what happened. See Def.'s Ex. 18 [Doc. No. 61-5]
(Teresa Werner), Ex. 19 [Doc. No. 60-19] (Danny Fritcher),
Ex. 22 [Doc. No. 60-22] (Alicia Thompson), Ex. 26 [Doc. No.
61-9] (Matt Thompson). Each voluntary statement is a signed,
handwritten document and was provided to law enforcement
authorities during an investigation. The Court finds this
form of evidence substantially complies with the requirements
of Rule 56(c)(4) regarding affidavits or declarations, and
may be considered.
Civil Rights Claim Under Section 1983
claims that two separate uses of excessive force by Defendant
against David violated the Fourth Amendment: 1) a use of
pepper spray during either a consensual encounter or an
investigatory detention or Terry stop; and 2) a use of
deadly force after David fled in response to the assault.
Plaintiff contends the use of pepper spray constituted
excessive force because Defendant attempted to detain David
without reasonable suspicion of criminal activity, and
Defendant's use of deadly force under the circumstances
violated the well-established constitutional standards of
Graham v. Connor, 490 U.S. 386 (1989), and
Tennessee v. Garner, 471 U.S. 1 (1985). The Court
finds it useful in the analysis of these similar but
disparate claims to separately address each incident and the
facts relevant to each under the arguments presented by the
Use of Pepper Spray
events of May 4, 2013, began in the office of McGee Creek
State Park, where Defendant was present when David came to
pay a camping fee. When asked for his name, David gave the
name on the credit card used to pay the fee, Loretta Swank.
Defendant has testified that he considered this “odd,
” and when combined with a New York vehicle license
plate, it gave him a “bad feeling.” See
Young Dep. 87:19-88:6, 90:1-18. The park employee who
received the payment has testified that she considered
David's behavior “a little weird.”
See Mansell Dep. 17:2-12.
that day, Defendant was approached in the evening by visitors
to the park, Teresa Werner and Danny Fritcher, who expressed
concern about a couple who had entered the campsite of Ms.
Werner's niece, Alicia Thompson, and her family. The
couple, later identified as David and Ms. Swank, parked their
vehicle after nightfall in a parking lot near the campsite
occupied by the Thompson family, and walked into the campsite
uninvited. When Ms. Thompson asked who they were, David said
they were “just some people.” See
Thompson Aff. [Doc. No. 60-10], ¶ 6. The couple
approached the campfire, and the Thompsons offered them a
soda or beer. David accepted a beer.
Werner and Mr. Fritcher were visiting the Thompson family
when the couple arrived, but soon left to go home. After
leaving the campsite, Ms. Werner and Mr. Fritcher attempted
to find the unidentified couple's campsite because they
viewed the couple's behavior as odd, and had a “bad
feeling” about the couple. See Werner Aff.
[Doc. No. 60-21], ¶ 8. While looking for the campsite,
Ms. Werner encountered Defendant and reported her concerns
about the couple. Specifically, Ms. Werner told Defendant
“about where the couple had parked their car, and how
they came into Thompsons' campsite without
invitation” and that she and Mr. Fritcher were going
back to the campsite. Id. ¶¶ 12-13.
Defendant followed Ms. Werner and Mr. Fritcher to the camping
located the couple's car in the parking lot, approached
it in his vehicle, and activated his emergency lights. It was
clear that Defendant was a law enforcement officer. Defendant
was approached by a woman, later determined to be Ms. Swank,
who told him everything was fine. When he asked who was with
her, Ms. Swank “made up some girl's name.”
See Swank Dep. 133:6-10. Defendant has testified
that he knew then “something was wrong” because
Ms. Swank had a male companion. See Young Dep.
approached the Thompsons' campsite and identified himself
as a park ranger. When he entered the campsite, Defendant saw
David standing with a beer in one hand and the other hand in
his pocket. Defendant has testified that he was apprehensive
because David had a knife in a scabbard on his belt and
seemed to be attempting to hide his identity. Defendant
immediately directed David to show his hands, and David did
not comply. Defendant asked David for identification, and
David did not answer. Defendant has testified that
David's lack of response added to his apprehension.
Defendant drew a pepper spray canister from a holder on his
belt, and twice directed David to show his hands or be pepper
sprayed. David again refused to comply, and Defendant
deployed the pepper spray. David dropped his beer can and ran
away from the campsite.
evidence does not permit a determination that Defendant's
effort to pepper spray David was successful, that is, that
the spray reached David or had any effect. In a statement
written the morning after the incident, Defendant stated he
“deployed pepper spray to the suspect[']s
face.” See Def.'s Ex. 31 [Doc. No. 60-31]
at 1. The parties cite no deposition testimony
by Defendant on this issue. An OSBI report of an interview of
Defendant states that he “attempted” to pepper
spray David. See Def.'s Ex. 14 [Doc. No. 61-3]
at 4. Ms. Swank has testified that she does not
know whether Defendant sprayed David or missed him; her
testimony is that “David turned” and
“attempted to evade the pepper spray” and
“took off running.” See Swank Dep.
141:24-142:13, 143:5-8. Ms. Thompson has stated that
“[Defendant] tried to pepper spray [David], but [he]
ran into the woods.” See Thompson Aff. [Doc.
No. 60-10] ¶ 32. In voluntary statements given to the
Atoka County Sheriff's Office, Ms. Werner stated that
Defendant “started to spray [David] and he took off
running” (Def.'s Ex. 18 [Doc. No. 61-5] at 2), and
Mr. Fritcher stated that Defendant “sprayed toward
[David] and he turned his head and took off running.”
See Def.'s Ex. 19 [Doc. No. 60-19] at 2. The
medical examiner's autopsy report is silent concerning
the presence of pepper spray on David's body or clothes,
but there is no indication the medical examiner was asked to
test for pepper spray.
Fourth Amendment claim of excessive force is governed by
“a standard of objective reasonableness, judged from
the perspective of a reasonable officer on the scene.”
Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th Cir.
2015); see Scott v. Harris, 550 U.S. 372, 381
(2007). Plaintiff's theory of liability with respect to
Defendant's use of pepper spray is unclear. Plaintiff
seems to argue alternatively that Defendant's initial
contact with David was a consensual encounter and so using
any force at all violated the Fourth Amendment, or it was an
invalid Terry stop (lacking reasonable suspicion of
criminal activity) for which the use of pepper spray violated
the Fourth Amendment. See Pl.'s Resp. Br. [Doc.