United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
matter comes before the court on the Motion to Dismiss [Doc.
No. 16] of defendant City of Bartlesville. For the reasons
set forth herein, the motion is granted in part and denied in
Allegations of the First Amended Complaint
First Amended Complaint (“Amended Complaint”)-the
operative pleading in this matter-alleges the following
facts. On or around October 26, 2016, City of
Bartlesville Police Department officers responded to a
domestic disturbance reported at Trina Brown's residence.
[Doc. No. 4, ¶ 8]. Upon arriving at Brown's
residence, the officers learned that William Cole,
Brown's boyfriend, had physically battered Brown in the
residence but fled the scene prior to the officers'
arrival. [Id. ¶ 9]. When the officers could not
locate Cole, the officers left Brown's residence.
[Id. ¶ 10]. After the officers departed, Cole
returned to Brown's residence. [Id. ¶ 11].
A neighbor observed Cole approaching Brown's residence
and contacted the Bartlesville Police Department.
[Id.]. Bartlesville police officer Corey Boyd and a
second officer, Officer Ward, responded, and secured the
perimeter of Brown's residence. [Id. ¶ 12].
seeing the officers, Brown stepped onto her front porch to
make contact with the officers, one of whom had drawn his
gun. [Id. ¶ 13]. While Brown stood on the
porch, Cole burst through the front door and tackled Brown
from behind, causing her to tumble forward into her front
yard. [Id. ¶ 14]. Cole then stood over
Brown's body and struck Brown's head and shoulders
with his closed fists as she lay on the ground. [Id.
¶ 15]. As Cole struck Brown, Ward deployed his Taser on
Cole, but the prongs from the Taser lodged in Cole's
jacket and caused no effect. [Id. ¶ 16]. Boyd
then moved forward to attempt to push Cole off of Brown but,
as Boyd approached, Cole punched Boyd in the face.
[Id. ¶ 17]. Boyd then drew and discharged his
firearm “in the general direction of Mr. Cole and Ms.
Brown.” [Id. ¶ 18]. Tragically, but
perhaps foreseeably, one of the bullets fired by Boyd struck
Brown in the head behind her left ear, traveling down her
neck and across her back before lodging near her lower spine.
[Id. ¶ 19].
alleges that the incident is consistent with a pattern of
excessive force, rising to the level of a policy or custom,
used by Bartlesville police officers in situations police
routinely encounter-specifically domestic violence calls.
[Id. ¶¶ 21-22 and 24]. Bartlesville failed
to train, re-train, or otherwise address the use of
appropriate force. [Id. ¶¶ 23 and 26].
Bartlesville's conduct constitutes a violation of
Brown's Fourth Amendment and Fourteenth Amendment
constitutional rights to be free from an unreasonable search
and seizure and to be free from excessive force.
[Id. ¶¶ 27-28].
on these allegations, the Amended Complaint asserts three (3)
causes of action against the City of Bartlesville and Boyd:
(1) a claim pursuant to 42 U.S.C. § 1983, the federal
civil rights statute, based on violation of Brown's
constitutional rights under the Fourth and Fourteenth
Amendments; (2) negligence in violation of the Oklahoma
Governmental Tort Claims Act, 51 Okla. Stat. § 151
et seq. (“OGTCA”); and (3) excessive
force pursuant to Okla. Const. art. 2 § 30 and Bosh
v. Cherokee County Building Authority, 305 P.3d 994
(Okla. 2013). Bartlesville moves to dismiss the entirety of
Brown's claims against it. [Doc. No. 16].
Motion to Dismiss Standard
considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
a court must determine whether the plaintiff has stated a
claim upon which relief can be granted. A complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plausibility
requirement “does not impose a probability requirement
at the pleading stage; it simply calls for enough fact to
raise a reasonable expectation that discovery will reveal
evidence” of the conduct necessary to make out the
claim. Id. at 556. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
court “must determine whether the complaint
sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the
legal theory proposed.” Lane v. Simon, 495
F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest
Guardians v. Forsgren, 149');">478 F.3d 1149, 1160 (10th Cir.
stated above, Brown asserts three claims against
Bartlesville: (1) a section 1983 claim for violation of
Brown's Fourth and Fourteenth Amendment rights; (2) an
OGTCA negligence claim; and (3) a Bosh claim. The
court will separately consider each claim.
Section 1983 Claim
order to state a claim for municipal liability under §
1983 for the actions of one of its employees, a party must
allege sufficient facts to demonstrate that it is plausible
(1) that a municipal employee committed a constitutional
violation; and (2) that a municipal policy or custom was the
moving force behind the constitutional deprivation.”
Asten v. City of Boulder, 652 F.Supp.2d 1188, 1207
(D. Colo. 2009). As previously stated, Brown premises her
section 1983 claim on two alleged constitutional violations:
(1) violation of her Fourth Amendment right to be free from
unreasonable searches and seizures, as well as excessive
force, and (2) violation of her Fourteenth Amendment right to
be free from excessive force. The court will consider each
alleged violation separately.
argues Brown fails to allege an unconstitutional seizure as a
matter of law and therefore Brown cannot plausibly state a
section 1983 claim based on the Fourth
order to state a plausible Fourth Amendment claim for
unlawful seizure or excessive force under the Fourth
Amendment, plaintiff must allege a “seizure which
invokes the protections of the Fourth Amendment.”
Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015);
see also Id. at 575 (“Without a seizure, there
can be no violation of the Fourth Amendment . . . .
Additionally, without a seizure, there can be no claim for
excessive use of force in effectuating that seizure.”).
It is well-established that an unlawful seizure in
“[v]iolation of the Fourth Amendment requires an
intentional acquisition of physical control.”
Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989).
seizure occurs even when an unintended person or thing is the
object of the detention or taking, but the detention or
taking itself must be willful.” Id. (internal
citations omitted). Thus,
a Fourth Amendment seizure does not occur whenever there is a
governmentally caused termination of an individual's
freedom of movement (the innocent passerby), nor
even whenever there is a governmentally caused and
governmentally desired termination of an individual's
freedom of movement (the fleeing felon), but only when there
is a governmental termination of freedom of movement through
means intentionally applied.
Id. at 596-97 (emphasis altered from original).
urges the court to adopt the “impli[cit]”
reasoning of the Third Circuit in Davenport v.
Borough of Homestead, 870 F.3d 273 (3d Cir. 2017), and
conclude that a Fourth Amendment “seizure” can
exist when force is deployed and there is not an immediate
danger or threat to the public. However, Davenport
did not so hold. Rather, with regard to the
“seizure” requirement, the Third Circuit relied
on the Supreme Court's decision in Brendlin v.
California, 551 U.S. 249 (2007), which held that,
“in intentionally stopping a vehicle, an officer
subjects not only the driver, but also the vehicle's
passengers to a Fourth Amendment seizure.”
Davenport, 870 F.3d at 279 (citing
Brendlin, 551 U.S. at 254-56). Thus, because
Davenport was shot by a police officer to effectuate an end
to a vehicular pursuit, a Fourth Amendment
“seizure' occurred. Id. Here, Boyd did not
shoot Brown during the course of a vehicular stop or pursuit,
and Davenport is not persuasive.
this court is persuaded that this case is factually analogous
to so-called “innocent bystander” cases.
[T]he Fourth Amendment “reasonableness” standard
does not apply to section 1983 claims which seek remuneration
for physical injuries inadvertently inflicted upon
an innocent third party by police officers' use
of force while attempting to seize a perpetrator, because the
authorities could not ‘seize' any person other than
one who was a deliberate object of their exertion of force.
Rather, constitutional tort claims asserted by persons
collaterally injured by police conduct who were not intended
targets of an attempted official “seizure” are
adjudged according to substantive due process norms.
Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.
2000) (internal citations omitted) (emphasis added); see
also Clark v. Edmunds,513 F.3d 1219, 1222 (10th Cir.
2008); Childress v. City ofArapaho, 210
F.3d 1154, 1157 (10th Cir. 2000); York v. Julian,
No. 97-CV-0651, 2000 WL 33710899, at *4 (D. Utah Aug. 2,
2000) (where plaintiff was not intended target of shots
fired, no Fourth Amendment violation). Thus, “[i]t is
intervention directed at a specific individual that
furnishes the basis for a ...