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Burke v. City of Tahlequah

United States District Court, E.D. Oklahoma

September 25, 2019

ROBBIE EMERY BURKE, as Special Administrator of the ESTATE OF DOMINIC F. ROLLICE, Deceased. Plaintiff,



         Before the court is the motion of the defendants Brandon Vick and Josh Girdner 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. Sidlo v. Millercoors, LLC, 718 Fed.Appx. 718, 725 (10th Cir.2018). When applying this standard, the court views the evidence and draws reasonable inferences therefrom in the light most favorable to the nonmoving party. Doe v. City of Albuquerque, 667 F.3d 1111, 1122 (10thCir.2012).

         On August 12, 2016, defendants Vick and Girdner (officers with the Tahlequah Police Department) shot and killed Dominic Rollice in Rollice’s garage. Plaintiff brings a single claim pursuant to 42 U.S.C. §1983 for excessive force against all defendants.[1] Section 1983 does not create substantive rights but provides a vehicle for their enforcement. See Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir.2016). When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures. Johnson v. City of Roswell, 752 Fed.Appx. 646, 650 (10thCir.2018).

         To succeed under section 1983 on an excessive force theory, the plaintiff must show the officers used greater force than would have been reasonably necessary to effect a lawful arrest. Lynch v. Bd. of County Commissioners of Muskogee County, 2019 WL 423382, *3 (10th Cir.2019). This is an objective inquiry and courts consider the totality of the circumstances when making it. Id.

         Here, the individual officers seek summary judgment based on qualified immunity. Public officials enjoy qualified immunity in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties. McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir.2018). They are entitled to qualified immunity if their conduct does not violate clearly established statutory or constitutional rights. Id.

         In the face of a qualified immunity defense, the plaintiff must carry a heavy burden to show that: (1) defendant’s actions violated a constitutional right, and, if so, (2) the right was clearly established at the time of defendant’s unlawful conduct. Crittenden v. City of Tahlequah, 2019 WL 4238106, *4 (10th Cir.2019).[2] Despite this burden-shifting, the court still views the facts in the light most favorable to the nonmoving party and resolves all factual disputes and reasonable inferences in its favor. Estate v. Booker v. Gomez, 745 F.3d 405, 411 (10th Cir.2014).[3]

         Much of the conduct is largely undisputed, as the incident was captured on police “body cam” video (#47-8 & #56-7), which the court has reviewed. The application of the facts to applicable legal principles is, however, very much contested. On August 12, 2016, Rollice’s ex-wife called 911 to complain that her ex-husband was in the garage and was drunk. Girdner was the lead officer and Reed was his backing officer, although both arrived separately. Vick also arrived separately. Girdner encountered Rollice in the entry of the garage. Based on Rollice’s “fidgety” conduct, Girdner asked him if Girdner could pat him down for weapons.

         Rollice backed up and then turned and walked away from Girdner to the back of the garage. All three officers followed Rollice into the garage. The video is silent, but the officers aver that Girdner ordered Rollice to stop but Rollice ignored the command. At the back of the garage, Rollice reached up and grabbed a hammer hanging on the wall over the work bench. At this point, the video is no longer silent and the officers can be heard yelling at Rollice to drop the hammer.[4] Rollice initially grasped the hammer with both hands, but then shifted to his right hand and held the hammer aloft. The officers drew their firearms. At one point, Reed holstered his gun and drew his Taser.

         Rollice moved to his right and had an unobstructed path to Girdner. Girdner estimates that there were about 8 to 10 feet between himself and Rollice after Rollice moved to his right. (#47-3 at ¶13). Ultimately, Rollice raised the hammer still higher as if he might be preparing to throw it, or alternatively, charge the officers. At that moment, Girdner and Vick fired their weapons.[5] Rollice went down in a kneeling position, but still held the hammer. Reed fired his Taser but missed. While kneeling, Rollice raised the hammer again and Girdner fired again.[6] Rollice dropped the hammer and fell backwards onto the floor of the garage.

         The court now addresses the two prongs of the qualified immunity test. First, was there a violation of a constitutional right? “Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989). The proper application of the Fourth Amendment’s reasonableness test requires careful attention to the facts and circumstances of each particular case, including (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. Id.

         The first and third factors are somewhat difficult to apply, because it is undisputed that the officers approached without the intent to arrest Rollice. (#47-5 at ¶9). In Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057-1058 (9th Cir.2003), the court said there was a “less-than-overwhelming” government interest where there was no underlying crime at issue – a neighbor called police because the plaintiff was acting in an emotionally disturbed manner. In the case at bar, the situation evolved from a non-arrest to a use of deadly force. “[W]ithout a seizure, there can be no claim for excessive use of force.” Jones v. Norton, 809 F.3d 564, 575 (10th Cir.2015). Here, the “seizure” required for Fourth Amendment applicability may have taken place when Girdner asked to pat down Rollice for weapons, or it may not have taken place until the actual shooting. See Pauly v. White, 874 F.3d 1197, 1215 (10th Cir.2017)(“Officer White . . . is the one who actually ‘seized’ Samuel Pauly by shooting him”). As to the first factor, Rollice may have committed a crime under Oklahoma law when he threatened law enforcement officers with the hammer, but that intertwines with the issue of officer conduct (to be discussed). Viewing the record in the light most favorable to the non-movant, the court finds the first and third factors favor plaintiff.

         The second Graham factor, however, is “undoubtedly the ‘most important’ and fact-intensive factor in determining the objective reasonableness of an officer’s use of force.” Pauly, 874 F.3d at 1215-1216. The use of deadly force is only justified if the officer had probable cause to believe that there was a threat of serious physical harm to himself or others. Id. at 1216. This factor itself is analyzed by means of a four-component test: (1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect. Id. Even viewing the record in the light most favorable to plaintiff, the court finds all four components (and therefore the second Graham factor) strongly favor defendants.[7]

         The court must also address additional theories raised by plaintiff. The Tenth Circuit holds that the reasonableness of the use of force depends not only on whether the officers were in danger at the precise moment that they used force, but also on whether the officers’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force. Pauly, 874 F.3d at 1219.[8] Plaintiff argues that the officers’ conduct toward Rollice “inflamed the tensions” and created the need to use such force. The court’s review of the record finds no issue for a reasonable jury in this regard.

         Plaintiff also points to the fact that Reed holstered his firearm and was prepared to use a Taser, while the two defendants did not. A similar argument was rejected in Rucinski v. County of Oakland, 2015 WL 3874482, *7 (E.D.Mich.2015), aff’d,655 Fed.Appx. 338 (6thCir.2016). See Wilcoxson v. Painter, 2016 WL 866327, *8 (E.D. N.C. 2016)(“Under the correct standard, defendant Painter’s decision to use her gun instead of her Taser was well within the realm of an objectively reasonable response to a perceived threat of immediate harm”). See also Plakas v. Drinski,19 F.3d 1143, 1148 (7th ...

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