United States District Court, E.D. Oklahoma
OPINION AND ORDER
P. SHREDER UNITED STATES MAGISTRATE JUDGE.
case arises out of an encounter between Jeriel Edwards and
police officers with the City of Muskogee Police Department.
The Plaintiff sued a number of individuals and entities,
including the remaining four Defendants in the case: Steven
Harmon, Bobby Lee, Greg Foreman, and Dillon Swaim. The claims
against these Defendants are made pursuant to 42 U.S.C.
§ 1983, and the Defendants have filed a summary judgment
motion asserting qualified immunity. For the reasons set
forth below, the Court finds that Defendants Steve Harmon,
Bobby Lee, Greg Foreman and Dillon Swaim's Brief in
Support of their Motion for Summary Judgment [Docket No. 54]
should be GRANTED.
October 23, 2018, the Plaintiff filed the present case in
this Court. In his Second Amended Complaint, Plaintiff
alleged two causes of action against the various Defendants,
but only the first implicates these four
defendants. The Plaintiff's First Cause of Action
is raised pursuant to 42 U.S.C. § 1983 as to all four
Defendants, alleging unconstitutional use of excessive and
judgment is appropriate if the record 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). A genuine issue of material fact exists
when “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The moving party must show the absence
of a genuine issue of material fact, see Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986), with the evidence
taken in the light most favorable to the non-moving party,
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). However, “a party asserting that a fact cannot
be or is genuinely disputed must support the assertion by . .
. citing to particular parts of materials in the record . . .
or . . . showing that the materials cited do not establish
the absence or presence of a genuine dispute[.]”
undisputed facts reflect that on October 25, 2016, City of
Muskogee Police Officer Greg Foreman was flagged down by a
citizen who asked him to check out a vehicle in the driveway
behind a Wendy's restaurant in Muskogee, Oklahoma.
Defendant Foreman pulled into the restaurant parking lot,
located the vehicle in the driveway behind the restaurant,
and got out of his patrol car to approach the vehicle.
Defendant Foreman believed that Mr. Edwards was under the
influence of alcohol, drugs, or both, and that it was likely
PCP. Video footage of the encounter from Defendant
Foreman's body camera reflects that when Defendant
Foreman approached the vehicle, he asked Mr. Edwards several
questions that produced no response, prompting Defendant
Foreman to ask, “Can you talk?” Starting at the
2:43 mark on the video, Defendant Foreman instructed Mr.
Edwards to put his car in park at least four times before he
complied, also once asking how much he had had to smoke,
while Mr. Edwards repeatedly moved his hands in and out of
his pockets. Defendant Foreman asked Mr. Edwards for
identification, but it was not until the 3:54 mark that Mr.
Edwards was able to retrieve his wallet from his pocket. The
parties agree that Mr. Edwards seemed confused, had trouble
understanding what was happening, and kept putting his hands
in his pockets. For nearly a minute after retrieving his
wallet, Defendant Foreman instructed Mr. Edwards to keep his
hands out of his pockets and put his wallet down on the
console of his car before he complied. The Plaintiff
nonetheless asserts that Mr. Edwards responded immediately to
all attempts to engage and obeyed all commands. Defendant
Foreman, believing Mr. Edwards to be under the influence of
PCP, thought it best to remove Mr. Edwards from the car and
place him under arrest and in handcuffs.
Edwards was getting out of the vehicle, Defendant Foreman
instructed Mr. Edwards to turn around and put his hands
behind his back. Defendant Harmon arrived around this time
and also began instructing Mr. Edwards to comply with
Defendant Foreman's instructions to put his hands behind
his back. Defendants asserts that Mr. Edwards did not comply
with this instruction, while Mr. Edwards contends that the
officers prevented him from complying. Defendant Foreman then
reached for Mr. Edwards's right hand to attempt to
handcuff him, and also radioed for help with Mr. Edwards.
Defendant Harmon then pushed Mr. Edwards back into the space
between the car door and the car, and Defendant Foreman
ordered Mr. Edwards to get on the ground, a safety tactic
officers use to subdue a suspect actively resisting arrest.
Defendants Harmon and Foreman then forced Mr. Edwards to the
ground, which Plaintiff asserts they did without waiting for
Mr. Edwards to comply.
the next four minutes, officers attempted to handcuff Mr.
Edwards. On the video, officers can repeatedly be heard
instructing him to put his hands behind his back while they
struggled and appeared to be grappling with the
Plaintiff's hands and arms, and Mr. Edwards can be heard
asking, “Why are you punching me, sir?” During
this time, it is undisputed that Defendant Harmon delivered
three punches to Mr. Edwards's ribs, a technique taught
for use when a subject is resisting being handcuffed. Footage
is grainy and not clearly trained on Mr. Edwards as
Defendants Foreman and Harmon struggled with Mr. Edwards.
Defendants assert that they could not control Mr.
Edwards's hands and arms and that he was extremely
strong, but Mr. Edwards contends that they did have
control of his hands and arms and were preventing him from
complying with their commands.
the struggle, Defendant Foreman smelled an odor he associated
with persons under the influence of PCP, and Plaintiff does
not dispute his knowledge that such substance could cause
suspects to fight officers and be at a higher risk of excited
delirium, which could result in death. At the 6:24 mark on
the body cam footage, Defendant Foreman deployed his Taser in
an effort to get Mr. Edwards into custody. Defendant Foreman
first deployed the Taser into Mr. Edwards's back then
immediately moved the connecting wires to his calf to obtain
neuromuscular incapacitation, a technique referred to as
“stapling.” Defendants assert the Taser had no
effect on Mr. Edwards, while he contends that it had a
“debilitating” effect on him and that he never
resisted arrest. After deploying the Taser, the video shows
Mr. Edwards attempting to sit up on his right side, with his
right arm propping him up and his left arm stretched in front
of him. Defendant Foreman again instructed Mr. Edwards to put
his hands behind his back, and Mr. Edwards responded that
they were, although they were not. Around the 6:45 minute
mark, Mr. Edwards appeared to attempt to stand up, and what
followed was a struggle among all parties on the video.
Another officer appears on the video at the 7:09 mark to
assist Defendants Foreman and Harmon, and Mr. Edwards shortly
thereafter can be seen in a partially seated position near
his vehicle while officers continued to attempt to get him in
handcuffs and instruct him to stop resisting. He can be heard
stating, “I'm not resisting, ” and “Let
go of me.”
after the 8:00 mark on the video, Defendant Lee began
applying a lateral vascular neck restraint to Mr. Edwards,
although Plaintiff asserts it was not properly applied and
that Defendant Lee did so immediately upon his arrival and
without reason. A number of officers seem to have arrived
within this time frame, as the Plaintiff is surrounded by
them at this point. At the 8:23 mark, officers were then able
to get the first handcuff on Mr. Edwards's right arm. The
neck restraint was discontinued as officers attempted to move
Mr. Edwards to a facedown position and attach the second
handcuff. Video footage is unsteady but shows at least six
officers attempting to attach the second handcuff to his left
arm, which is done at the 9:03 mark. Defendant Swaim had
arrived during this time and assisted in placing the second
handcuff; he also later removed the Taser prongs from Mr.
Edwards's back. At the 9:10 mark an officer announces
that Mr. Edwards has been handcuffed. The officers
surrounding Mr. Edwards then stepped away, and Mr. Edwards
can be seen lying partially face down, with more weight on
his left side, while one officer keeps hands on his right arm
and back. Another officer then places a knee over Mr.
Edwards's right shoulder while all the officers discuss
calling EMS for Mr. Edwards. Defendants assert, and Plaintiff
does not dispute, that after he was secured by the handcuffs
no additional force was used on him. This means that all
allegations of excessive force apply to the time period prior
to the handcuffs being secured on Mr. Edwards.
the incident, Mr. Edwards was charged in Muskogee County
District Court in Case No. CF-2016-1198 with: (i) DUI Drugs -
felony, (ii) possession of a controlled dangerous substance
(PCP) - felony, (iii) resisting an officer - misdemeanor, and
(iv) possession of a controlled dangerous substance (Xanax) -
felony. See Docket No. 54, Ex. 10, p. 3-4. The form
on which Mr. Edwards entered a plea is a form for entering a
plea of guilty, but the word “guilty” is stricken
out and the word “no contest” was handwritten as
to the heading and all questions concerning the type of plea
he was entering. Id. at p. 16-21. The Judge signed a
document which states that “The Defendant's plea(s)
of no contest is/are knowingly and voluntarily
entered and accepted by the Court, ” where “no
contest” was handwritten. Id. at 23. The
notice of the right to appeal likewise has the word