United States District Court, E.D. Oklahoma
CHAD E. OSTERHOUT, Plaintiff,
JASON TIMMS, et al., Defendants.
A. White United States District Judge Eastern District of
the court is the motion of the defendants for summary
judgment. Summary judgment is appropriate 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.” Rule 56(a) F.R.Cv.P. An issue is
genuine if there is sufficient evidence on each side so that
a rational trier of fact could resolve the issue either way.
An issue of fact is material if under the substantive law it
is essential to the proper disposition of the claim. J.V.
v. Albuquerque Public Schs., 813 F.3d 1289, 1296
(10th Cir.2016). When applying this standard, the
court views the evidence and draws reasonable inferences
therefrom in the light most favorable to the nonmoving party.
Wright v. Experian Info. Sols., Inc., 805
F.3d 1232, 1239 (10th Cir.2015).
parties diverge on the facts of the case. Therefore, the
court will first set out the different
“versions.” In the complaint (#2), slightly
modified by the present briefing, plaintiff alleges that on
or about June 27, 2015, he was riding a motorcycle in LeFlore
County, Oklahoma. Undersheriff Kendall Morgan
(“Morgan”) and Deputy Jason Timms
(“Timms”), both of the LeFlore County
Sheriff's Office, began to follow plaintiff in their
vehicle. Twice plaintiff pulled over to the side of the road,
but both times Timms and Morgan pulled their vehicle behind
him, but did not get out of their vehicle. Ultimately,
plaintiff came to a stop and the Sheriff's vehicle
(driven by Timms) hit the back tire of the motorcycle,
pushing plaintiff and the motorcycle off the road and into a
ditch, causing damage to the motorcycle and personal injury
to the plaintiff. Plaintiff stood with his hands up,
whereupon plaintiff was assaulted by Morgan with either fists
or a flashlight. Plaintiff was placed in handcuffs and Morgan
kicked or kneed plaintiff in the ribs.
contend that they observed plaintiff leaving a “known
drug house” at an excessive rate of speed and that he
was eluding the officers who had both lights and sirens
activated. Plaintiff then began throwing items away while
riding his motorcycle at a high rate of speed. He then ran a
stop sign and crossed four lanes of traffic before his tire
went flat and he attempted to elude the officers on foot. He
ignored verbal commands to stop and to show his hands.
Plaintiff then turned on Morgan in an aggressive manner and
Morgan struck Plaintiff in the face with an empty fist, not a
flashlight as plaintiff asserts. Plaintiff resisted the
application of handcuffs and Morgan applied two “knee
strikes, ” which gained compliance. Timms (who has
driving) did not “ram” the motorcycle with his
vehicle and applied no physical force to plaintiff at all.
brings a federal claim pursuant to 42 U.S.C. §1983 for
excessive force, and state law claims of assault and battery,
and negligent use of excessive force. As to the federal excessive
force claim, Timms and Morgan have raised the defense of
qualified immunity. The applicable law in regard to
allegations of excessive force and the assertion of qualified
immunity was recently rehearsed by the Tenth Circuit in
McCoy v. Meyers, 2018 WL 1721522 (10th
Cir. April 10, 2018).
stated, the court must engage in a two-pronged inquiry.
First, whether the facts, taken in the light most favorable
to the party asserting the injury, show the officer's
conduct violated a federal right. Second, whether the right
in question was clearly established at the time of the
violation. Id. at *6. Courts have discretion to
decide the order in which to engage the two qualified
immunity prongs. Id. at *7. Under either prong,
however, courts may not resolve genuine disputes of fact in
favor of the party seeking summary judgment. Id.
the first prong, the court must undertake a balancing test to
determine whether the use of force to effect a seizure is
unreasonable. Relevant factors include (1) the severity of
the crime at issue, (2) whether the suspect poses an
immediate threat to the safety of the officers or others, and
(3) whether the suspect is actively resisting arrest or
attempting to evade arrest by flight. Id.
after evidently being chased for speeding away from a
“drug house, ” plaintiff was charged with DUI,
eluding an officer and resisting arrest. He was released on
his own recognizance. The first factor weighs in favor of the
plaintiff. As will be discussed, the second factor cuts both
ways. The chase itself arguably posed a threat to the
officers and others. As to whether plaintiff possessed a
weapon or was reasonably perceived to pose a threat, the
facts are much in dispute. The third factor is also somewhat
in equipoise, as plaintiff contends (contrary to defendants)
that he did not actively resist arrest or seek to evade
arrest by flight.
the second prong, it is clearly established that specific
conduct violates a constitutional right when Tenth Circuit or
Supreme Court precedent would make it clear to every
reasonable officer that such conduct is prohibited.
Id. at *13. There may, however, be the rare obvious
case, where the unlawfulness of the officer's conduct is
sufficiently clear even though existing precedent does not
address similar circumstances. Id.
contends there are three applications of force in this case
which were violative of plaintiff's Fourth Amendment
rights: (1) Timms using the police cruiser to ram or bump
plaintiff off his motorcycle and into a ditch, when the
motorcycle was stopped or barely moving; (2) Morgan striking
plaintiff in the face with a closed fist and/or flashlight
when plaintiff's hands were up and he was not fleeing or
resisting; and (3) Morgan kicking or kneeing plaintiff in the
ribs when plaintiff was on the ground, subdued and
handcuffed. The court addresses these applications in
drops suggestions along the way that he considers the pursuit
improper ab initio for lack of reasonable suspicion,
but does not raise a claim in this regard. The court must
next determine when or if a “seizure” took place.
This is necessary because “[t]o prevail on a claim for
excessive force under the Fourth Amendment, a plaintiff must
show he or she was ‘seized' by a government
actor.” Arnold v. Curtis, 359 Fed.Appx. 43, 47
(10th Cir.2009). A police pursuit in attempting to
seize a person does not amount to a “seizure”
within the meaning of the Fourth Amendment. California v.
Hodari D., 499 U.S. 621, 626 (1991). Where a police
officer chases a suspect who has failed to yield to the
officer's show of authority (e.g., flashing lights and
continuing pursuit), no seizure has occurred until the
officer physically stops the defendant or the defendant
yields to the officer. See Id. at 629; Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 844 (1998). As
stated, plaintiff alleges excessive force took place when the
police car “ram[med] or “bump[ed]” his
motorcycle while it “was stopped or barely
moving.” Either way, it appears the chase had stopped
at that point, either through submission or physical force.
At that point, a seizure had taken place.
most pertinent authority (not cited by the parties) appears
to be Scott v. Harris, 550 U.S. 372 (2007), which
held that an officer did not violate the Fourth Amendment by
ramming the car of a fugitive whose reckless driving
“posed an actual and imminent threat to the lives of
any pedestrians who might have been present, to other
civilian motorists and to the officers involved in the
chase.” Id. at 384. Ultimately, the Court
held: “A police officer's attempt to terminate a
dangerous high-speed car chase that threatens the lives of
innocent bystanders does not violate the Fourth Amendment,
even when it places the fleeing motorist at risk of serious
injury or death.” Id. at 386. Plaintiff cites
Walker v. Davis, 649 F.3d 502 (6th
Cir.2011), in which plaintiff's “reconstruction
expert” testified that the officer had intentionally
rammed plaintiff's motorcycle while the chase was
ongoing. The Sixth Circuit distinguished the Scott
precedent on the basis that the motorcyclist “posed no
immediate threat to anyone as he rode his motorcycle across
an empty field in the middle of the night in rural
Kentucky.” Id. at 503. That is not the
situation in the case at bar.
court, accordingly, finds Scott dispositive. It is
undisputed that plaintiff ran a stop sign and crossed all
lanes of a highway during the pursuit. Therefore, the
chase posed a danger both to other drivers and the officers
themselves. Plaintiff contends that “Timms' intent
is an issue of fact for the jury” (#63 at page 11 of 30
in CM/ECF pagination), but Scott protects the
conduct even if it was intentional. Moreover, whether
intentional or accidental, the force of the collision (as
evidenced by the dent in plaintiff's motorcycle) was far
less than in Scott. Finally, even if Walker
were arguably applicable, it is a decision of the Sixth
Circuit. There is no Tenth Circuit authority clearly
establishing that delivering a “bump” to a
suspect's vehicle as a chase concludes is violative of a
constitutional right. Even viewing the record in the light
most favorable to plaintiff, summary judgment is appropriate
as to this portion of the §1983 claim, as to both prongs
of the qualified immunity test. In this regard, this is the
only claim directly alleging conduct of Timms. Therefore,
Timms is dismissed as a defendant. Liability may arise if an
officer failed to intervene to prevent the allegedly
excessive force. McCoy, at n.13. Plaintiff has not
alleged Timms' liability on this basis and the court
finds it inapplicable under the record.
court next turns to Morgan's striking of plaintiff.
Morgan testified that plaintiff began running and Morgan
commanded him to stop, but plaintiff continued. As Morgan
closed the distance between them, ...