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Davis v. City of Tulsa

United States District Court, N.D. Oklahoma

March 31, 2019

VANESTA DAVIS, et al., Plaintiffs,
v.
CITY OF TULSA, OKLAHOMA, et al., Defendants.

          OPINION AND ORDER

          JOHN E. DOWDELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         I. Background

         The plaintiffs are surviving relatives and personal representatives of the Estate of Deandre Lloyd Armstrong-Starks. Mr. Starks, who was unarmed, was shot in the back by defendant Mark Wollmershauser, Jr., a police sergeant with the Tulsa Police Department (TPD), in the course of execution of a search warrant on a home in Tulsa on March 25, 2014.[1] The plaintiffs brought this action asserting claims against Sgt. Wollmershauser and the City of Tulsa under 42 U.S.C. § 1983. (See Doc. 20, First, Second, and Third Claims for Relief). The § 1983 claims are premised upon allegations that Sgt. Wollmershauser used excessive force in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiffs also assert a state negligence claim under the Oklahoma Governmental Tort Claims Act (OGTCA) against the City (Fifth Claim for Relief).

         Mr. Starks was not a target of the search warrant, which named two other individuals and authorized the officers to search the premises for “cocaine and other controlled dangerous substances, ” “monies or unexplained wealth, records and financial records in physical, digital, or electronic form, proof of residency, cellular phones, keys, safes, surveillance equipment, [and] firearms.” (Doc. 33-7 at 4).[2] Officers discussed in advance a plan for execution of the warrant, which included briefing on the routes of approach, individual officer assignments, contingency plans for fleeing suspects, shots fired on approach or entry, failed breach, evidence destruction, officer down procedures, evacuation procedures, and transport to hospital. An EMSA unit was staged a few blocks away from the premises to be searched.

         Three officers were assigned to outside containment, while two additional officers were to cover the bathroom window on the east side of the residence to monitor for potential evidence destruction. Eight additional officers made up the “entry team.” Sgt. Wollmershauser was part of the entry team, and he was to be the Emergency Radio Operator on the scene. Upon approaching the front porch, officers believed that they had been “compromised, ” indicating that the occupants had seen them and recognized them as police. Wollmershauser provided an affidavit attesting that another officer yelled, “Tulsa Police, search warrant; Tulsa police, search warrant” before making entry (see Doc. 33-1 at 6). However, the affidavit of Dominique Jones, who was present at the home during police entry, indicates that the TPD officers “entered the house unannounced and without knocking.” (Doc. 36-7 at 2). The evidence establishes very fast-moving events and chaos in the house immediately upon the officers' entry.

         There are significant, material factual discrepancies as to what happened immediately before Sgt. Wollmershauser shot Mr. Starks in the back. Wollmershauser asserts that he heard “Officer Kirby and one other female voice yelling commands such as ‘show me your hands.'” (Doc. 33-1 at 7). Wollmershauser states that he was positioned just to the left and slight rear of Officer Kirby, who was standing just to the left of Officer Criner. Criner was standing at the right side of the large unobstructed doorway that led from the living room to the dining room inside the house. (Id.). Wollmershauser contends that he saw a black male, whom he later learned was identified as Mr. Starks. Starks was kneeling in the corner of the dining room, with his back to the officers. Sergeant Wollmershauser alleges that he could not see Mr. Starks's hands but could see his arms moving, and Wollmershauser believed Starks's hands were located near the front waistband of his pants. (Id.). Wollmershauser asserts that “Starks did not comply with the repeated commands to show his hands” and “continued looking down toward his front waistband while kneeling and just kept fumbling with his hands.” (Id.). At that point, Wollmershauser says he told Starks to “show me your hands. Show me your fucking hands, ” and then fired one shot at Starks, hitting him in the “mid-right side of his back.” (See id.). Mr. Starks died later that day. It is undisputed that he was not armed with a gun or other weapon, although the officers allege that, before he was shot, they believed he may have been attempting to retrieve a gun from the waistband of his pants. (See, e.g., Doc. 33 at 9; Doc. 34 at 9, Doc. 34-4 at 8).

         Dominique Jones asserts that he was in the home and “personally witnessed the shooting of [Mr. Starks].” (Doc. 36-7 at 2). In stark contrast to the affidavit of Sgt. Wollmershauser and the testimony of other officers, Mr. Jones maintains that Mr. Starks “had his hands in the air” at the time of the shooting. (Id.). Jones also states that he never heard anyone say “show me your hands, ” and he instead heard someone yelling “get on the ground” (id.), which is contrary to Sgt. Wollmershauser's assertions. Mr. Jones also alleges that “[t]here were no guns in the house until the Tulsa Police Department showed up with theirs.” (Id.).

         The defendants seek summary judgment on the plaintiffs' claims. (Doc. 33 and 34). Plaintiffs have responded (Doc. 36, 37), and Sgt. Wollmershauser filed a reply (Doc. 40).

         II. Summary Judgment Standard

         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.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The courts thus determine “whether the evidence presents 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.” Id. at 251-52. The non-movant's evidence is taken as true, and all justifiable and reasonable inferences are to be drawn in the non-movant's favor. Id. at 255.

         It is reversible error for a court to weigh the evidence or resolve any disputed factual issues in favor of the moving party. See Tolan v. Cotton, 572 U.S. 650, 656-660 (2014) (per curiam). A district court may not credit the evidence of the party seeking summary judgment and ignore evidence offered by the non-movant. See Id. Thus, importing factual inferences that conflict with the non-movant's evidence is contrary to the “fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.” Id. at 660. The reason for this long-standing principle is that “witnesses on both sides come to [the] case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system.” Id.

         III. Discussion

         A. Claims Against Sgt. Wollmershauser

         1. Underlying Basis for § 1983 Claim

         In his motion, Sgt. Wollmershauser first argues that the plaintiffs' § 1983 excessive force claims must be brought under the Fourth Amendment and that such claims should be dismissed with prejudice for failing to “allege any constitutional provision underlying their § 1983 claims.” (Doc. 33 at 23-24). However, plaintiffs allege in their Amended Complaint that they seek “to redress deprivations of rights secured by the Fourth Amendment and Fourteenth Amendment to the United States Constitution as enforced by 42 U.S.C. § 1983.” (Doc. 20 at 2, ¶ 10). The factual allegations of the Amended Complaint state a plausible excessive force claim under the Fourth Amendment. These allegations are sufficient to avoid dismissal on the first ground asserted by Wollmershauser.[3]

         2. Qualified Immunity

         Sergeant Wollmershauser asserts that he is entitled to qualified immunity. The general summary judgment standards apply to motions for summary judgment based on qualified immunity, and courts accordingly must still draw the evidence and reasonable inferences in favor of the non-moving party. See Tolan, 572 U.S. at. 656-60; Scott v. Harris, 550 U.S. 372, 377 (2007). In resolving questions of § 1983 qualified immunity at the summary judgment stage, courts engage in a two-pronged inquiry. The first prong “asks whether the facts, ‘[t]aken in the light most favorable to the party asserting the injury, . . . show the officer's conduct violated a [federal] right.'” Tolan, 572 U.S. at 655-56 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)); see also York v. City of Las Cruces, 523 F.3d 1205, 1209 (10th Cir. 2008). “When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures.” Tolan, 572 U.S. at 656 (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). The second prong asks “whether the federal right was clearly established at the time of the violation.” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

         Government officials are shielded from liability if their actions did not violate clearly established federal rights “of which a reasonable person would have known.” Id. (quoting Hope, 536 U.S. at 739). “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Kisela v. Hughes, ___ U.S. ___, 138 S.Ct. 1148, 1152 (2018) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

         The courts have discretion to determine “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). “But under either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan, 572 U.S. at 656 (emphasis added). “This is not a rule specific to qualified immunity; it is simply an application of the more general rule that a ‘judge's function' at summary judgment is not ...


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