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Osterhout v. Timms

United States District Court, E.D. Oklahoma

April 23, 2018

CHAD E. OSTERHOUT, Plaintiff,
v.
JASON TIMMS, et al., Defendants.

          ORDER

          Ronald A. White United States District Judge Eastern District of Oklahoma

         Before 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).

         The 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.[1]

         Defendants 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.

         Plaintiff 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.[2] As to the federal excessive force claim, Timms and Morgan have raised the defense of qualified immunity.[3] 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).

         Briefly 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.

         Regarding 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.

         Here, 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.

         Regarding 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.

         Plaintiff 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.[4] The court addresses these applications in turn.

         Plaintiff 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.[5]

         The 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.[6] 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.

         This court, accordingly, finds Scott dispositive. It is undisputed that plaintiff ran a stop sign and crossed all lanes of a highway during the pursuit.[7] 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.[8] 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.

         The 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, ...


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