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Bond v. City of Tahlequah.

No. 19-7056. E.D.Okla. Judge McHugh. 42 USC § 1983 Excessive Force Claim—Qualified Immunity—Fourth Amendment—Reasonable Force.

November 30, 2020

Rollice’s ex-wife called 911 to request police assistance because her ex-husband was drunk and in her garage. The three responding officers found an intoxicated and fidgety Rollice at the side entrance to his ex-wife’s garage. After Rollice refused a pat-down, officers turned on bodycam video. The video shows that one of the officers stepped toward Rollice, and Rollice retreated to the back of the garage and grabbed a hammer. The officers then backed up and drew their guns, leaving about eight to 10 feet between the parties. Rollice refused to drop the hammer. One of the officers replaced his gun with a taser. When Rollice pulled the hammer behind his head, the other two officers fired multiple shots, causing Rollice to double over from injuries. One officer then fired again. Rollice was transported to the hospital, where he was pronounced dead.

Rollice’s estate brought a 42 USC § 1983 claim against the two officers who fired the shots, alleging they used excessive force against Rollice in violation of his Fourth Amendment rights, and a claim against the City of Tahlequah (City). The officers and the City filed motions for summary judgment based on qualified immunity, which the district court granted.

The estate appealed the grant of summary judgment to the officers, arguing that the two officers who fired shots were liable because Rollice’s movements were defensive, the final shot was unjustified, and even if deadly force was justified, the officers recklessly and deliberately created the circumstances necessitating deadly force. Qualified immunity shields officers from civil liability as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The assertion of qualified immunity from suit under 42 USC § 1983 results in a presumption of immunity, which a plaintiff can overcome by showing that the officers’ alleged conduct violated a constitutional right that was clearly established at the time of the violation, such that every reasonable official would have understood such conduct to constitute a violation of that right.

When an excessive force claim is based on conduct before arrest, the Fourth Amendment applies. To state an excessive force claim under the Fourth Amendment, plaintiffs must show that an unreasonable seizure occurred. In considering the totality of the circumstances, the court considers (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the officers’ safety, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.

Here, it was largely undisputed that the alleged crime at issue was at most misdemeanor trespassing, and Rollice was not actively resisting arrest because the officers were not initially intending to arrest him. In evaluating whether the level of force was reasonable, the facts to be considered include any immediately connected actions by the officers that escalated a non-lethal situation into a lethal one. A reasonable jury could view the video and find that the officers recklessly created a lethal situation by driving Rollice into the garage and cornering him with tools within his reach. In addition, when Rollice grabbed the hammer, the officers drew firearms and began shouting, so a reasonable jury could further find that the officers’ reckless conduct unreasonably created the situation that ended Rollice’s life. Therefore, the district court erred in not viewing the video evidence in the light most favorable to the estate, and viewing the facts in the proper light, a reasonable jury could find that the officers violated Rollice’s Fourth Amendment right to be free from unreasonable seizure.

Further, the constitutional right violated was clearly established by Tenth Circuit precedent. A reasonable officer faced with the circumstances of this case and presumptively aware of this precedent would have known that cornering Rollice in the garage might deliberately or recklessly escalate the situation such that an officer’s use of deadly force would be unconstitutional.

The grant of summary judgment to the two officers was reversed and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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