The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ROBBIE EMERY BURKE, as Special )
Administrator of the ESTATE OF )
DOMINIC F. ROLLICE, Deceased. )
)
Plaintiff, )
)
v. ) Case No. CIV-18-257-RAW
)
CITY OF TAHLEQUAH, OKLAHOMA, )
BRANDON VICK, and )
JOSH GIRDNER, )
)
Defendants. )
ORDER
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 (10th
Cir.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 (10th
Cir.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
1At one point Officer Chase Reed was named as a defendant, but he is not a named
defendant in the second amended complaint. His name does appear in a caption. (#28 at
7).
2
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
2Defendants “notif[ied]” this court of the Crittenden decision by supplement (#67)
to their motions. This was unnecessary, inasmuch as the decision is an appeal from the
undersigned. The defendants argue that the facts in Crittenden are “comparable” (#67 at
2) to the case at bar, but this court finds this to be accurate only at a high level of
generality. For example, the suspect in Crittenden was believed to have a firearm and
was hiding from the police. In short, Crittenden is distinguishable.
3If the plaintiff satisfies this two-part test, the defendant bears the usual burden of a party
moving for summary judgment to show that there are no genuine issues of material fact and that
he or she is entitled to judgment as a matter of law. Pauly v. White, 874 F.3d 1197, 1214 (10th
Cir.2017).
3
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
4In their affidavits, all three officers assert that, upon grabbing the hammer, Rollice
said “One of us is going to fucking die tonight.” (#47-3 at ¶10);(#47-5 at ¶13);(#47-6 at
¶8). This statement is not audible on the video, and plaintiff argues that it should not be
considered for summary judgment purposes. The Tenth Circuit has not spoken, but
“[e]very circuit to have confronted this situation” (i.e., the witness most likely to
contradict the officer’s story is dead) has directed particular care in evaluation. Flythe v.
District of Columbia, 791 F.3d 13, 19 (D.C.Cir.2015). This court finds the alleged
statement is not essential to the present analysis and does not rely on it.
5Plaintiff asserts that Girdner and Vick fired six shots, striking Rollice four times. (#56
at 2).
6It is impossible to ascertain from the video who fired at Rollice while he was in
the kneeling position, but it appears to be undisputed that it was Girdner. (See #47-3 at
¶16). Vick refers to “another gunshot” (#47-6 at ¶16), while Reed says he “heard several
4
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
more gunshots.” (#47-5 at ¶22). To the court’s ear, it sounds like a single gunshot.
5
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
7“Ultimately, however, the totality-of-the-circumstances test is holistic and open-
ended.” Crittenden, 2019 WL 4238106, *4 (10th Cir.2019).
6
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 (6th
Cir.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 Cir.1994)(where an officer’s use
of deadly force is justified under the Constitution, there is no constitutional duty to use non-
deadly force).9
8Defendants appear to argue that this principle no longer applies in light of County
of Los Angeles v. Mendez, 137 S.Ct. 1539 (2017). The Tenth Circuit disagrees. See
Estate of Ceballos v. Husk, 919 F.3d 1204 n.2 (10th Cir.2019).
9The Tenth Circuit has held that an officer who tases an arrestee uses excessive
force when “a lesser degree of force would have exacted compliance and . . . this use of
force was disproportionate to the need.” Booker, 745 F.3d at 424. This was referring to a
suspect already restrained, which was not the situation in the case at bar. The use of
deadly force when the suspect poses an immediate threat is distinct. See Jiron v. City of
Lakewood, 392 F.3d 410,414 (10th Cir.2004).
7
The court addresses another aspect. The Tenth Circuit does not appear to disapprove
of taking a “segmented” view of such incidents (i.e., analyzing multiple shots separately if
the circumstances so warrant.) See Fancher v. Barrientos, 723 F.3d 1191, 1199-1200 (10th
Cir.2013). At the time of Girdner’s final shot, Rollice was already wounded and in a
kneeling position. While Rollice still held the hammer, his ability to inflict damage with it
may (or may not) have been negligible. Still, this court must allow for the fact that “police
officers are often forced to make split-second judgments – in circumstances that are tense,
uncertain, and rapidly evolving – about the amount of force that is necessary in a particular
situation.” Plumhoff v. Rickard, 572 U.S. 765, 775 (2014).10 “What may later appear to be
unnecessary when reviewed from the comfort of a judge’s chambers may nonetheless be
reasonable under the circumstances presented to the officer at the time.” Phillips v. James,
422 F.3d 1075, 1080 (10th Cir.2005). In the end, “the inquiry is always whether, from the
perspective of a reasonable officer on the scene, the totality of the circumstances justified the
use of force.” Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir.2008). For the
reasons stated, while this shooting was undeniably tragic, the court concludes plaintiff’s
burden of demonstrating that a reasonable jury could find facts supporting a violation of a
constitutional right has not been met.
In the interest of thoroughness, the court will proceed to address the second prong of
10Fourth Amendment excessive force claims are judged from the perspective of a
reasonable officer on the scene, rather than with 20/20 vision of hindsight. Pauly, 874
F.3d at 1215.
8
the test. “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, 138 S.Ct. 1148, 1152 (2018). As stated, the incident under
review took place in August, 2016. Ordinarily, in order for the law to be clearly established,
there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established
weight of authority from other courts must have found the law to be as the plaintiff
maintains. Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir.2018). Clearly established law
should not be defined at a high level of generality. See Milner v. Mares, 754 Fed.Appx. 777,
779 (10th Cir.2019). Instead, the clearly established law must be “particularized” to the facts
of the case. Id. Although there need not be a case directly on point for a right to be clearly
established, existing precedent must have placed the statutory or constitutional question
beyond debate. Id.11
Plaintiff cites as “strikingly similar to the case at bar” (#56 at 14) the Tenth Circuit
decision in Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir.2019). There, the deceased
was in his driveway with a baseball bat, acting erratically. An officer shot Ceballos within
one minute of arrival “after approaching Ceballos quickly and screaming at him to drop the
bat, and refusing to give ground as Ceballos approached the officers. The officer was
between 12 and 20 feet from Ceballos when he shot the bat-wielding man.” Gonzales v.
11There can be the “rare obvious case,” where the unlawfulness of the officer’s
conduct is sufficiently clear even though existing precedent does not address
similar circumstances. Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir.2019).
9
Adson, 2019 WL 1795937 n.7 (N.D.Okla.2019).
The Tenth Circuit, in denying qualified immunity, held that the clearly established
right is that “an officer violates the Fourth Amendment when his or her reckless or deliberate
conduct results in the need for lethal force or when the officers rely on lethal force
unreasonably as a first resort in confronting an irrational suspect who is armed only with a
weapon of short-range lethality and who has been confined on his own property.” Ceballos,
919 F.3d at 1219.
This court has already rejected the argument that the officers’ conduct in the case at
bar created the need for lethal force. So far as the record reflects, the officers only began
yelling at Rollice after Rollice picked up the hammer. To be sure, there is a rough
equivalence between a hammer and a baseball bat, in that both are weapons of “short-range
lethality.” Nevertheless, the court does not find the plaintiff’s “danger creation” theory (#56
at 12) applicable here.
The second portion of the statement in Ceballos (an officer using deadly force as a
first resort when confronted with a baseball bat, or as here a hammer) might present a closer
question but also implicates another fundamental issue. The Ceballos decision was issued
on March 26, 2019, while the litigated events herein took place in August, 2016. The
Ceballos decision itself notes that “our focus in deciding whether a constitutional right was
clearly established is . . . at the time the challenged conduct occurred.” Id. Therefore,
Ceballos will not serve as “clearly established law” in the case at bar, unless the right existed
in Tenth Circuit precedent preceding this incident.
10
The court in Ceballos found that there was a Tenth Circuit decision “closely
analogous” for purposes of its analysis – Allen v. Muskogee, 119 F.3d 837 (10th Cir.1997).
In Allen, the suspect sat in a car with a gun in his hand. The officers ran to the car yelling
and tried to take the gun away from the suspect. In the struggle, the suspect pointed the gun
at the officers, and the officers shot him. The Tenth Circuit held that a reasonable jury could
have found a Fourth Amendment violation.
The argument (from plaintiff’s perspective) would be that Allen was “existing
precedent” in 2016 and the Tenth Circuit’s interpretation of Allen rendered by the Ceballos
court in 2019 makes manifest that this interpretation of Allen was “clearly established law”
in August, 2016. In other words, this court could find the right recognized in Ceballos was
present in embryo in Allen. The court is not persuaded this is correct. The right was not
“clearly established” until the Ceballos decision. Moreover, this interpretation was not
unanimous, even within Ceballos. Judge Bacharach dissented, and concluded: “Nor did
Allen clearly establish a constitutional violation from Officer Husk’s conduct.” Id. at 1227.
Judicial disagreement indicates the “clearly established law” hurdle has not been cleared.
See Van De Weghe v. Chambers, 569 Fed.Appx. 617, 620 (10th Cir.2014). This court finds
plaintiff has not met the second prong of the qualified immunity analysis either.
Accordingly, summary judgment is appropriate.12
12Plaintiff also seeks to rely on an expert report (#56-8) of Dennis Waller, who
opines that the officers ignored nationally accepted procedures of police training and
practice, engaged in “reckless” conduct, and used excessive force. Expert witnesses may
testify about ultimate issues of fact, but an expert may not state legal conclusions drawn
11
Engaging in a dispassionate discussion of a tragic death (particularly after viewing it
on video) is an unavoidable task for a court. This court must follow the law as best it can,
and the present regime of qualified immunity does not permit the case to proceed further.
It is the order of the court that the motion for summary judgment of defendants Vick
and Girdner (#47) is hereby granted.
IT IS SO ORDERED this 25th day of SEPTEMBER, 2019.
by applying the law to the facts. United States v. Richter, 796 F.3d 1173, 1195 (10th
Cir.2015). The line between a permissible opinion on an ultimate issue and an
impermissible legal conclusion is not always easy to discern. Id. “[B]y permitting
opinion testimony as to an ultimate issue, Rule 704(a) does not authorize opinions that
merely tell the trier of fact what result to reach in the case.” 29 Wright & Gold, Federal
Practice and Procedure, §6284 at 468-69 (2016 ed.). This court concludes the expert
report will not be considered. See Lippe v. Howard, 287 F.Supp.3d 1271, 1285
(W.D.Okla.2018); “It is well established that ‘so long as a reasonable officer could have
believed his conduct was justified, a plaintiff cannot avoid summary judgment by simply
producing an expert’s report that an officer’s behavior leading up to the deadly
confrontation was imprudent, inappropriate or even reckless.’” Clark v. Colbert, 2017
WL 3049523, *6 (E.D.Okla.2017), aff’d, 895 F.3d 1258 (10th Cir.2018)(quoting City and
County of San Francisco v. Sheehan, 135 S.Ct. 1765, 1777 (2015)). Even if the report
were to be considered, it is only pertinent to the first prong of the qualified immunity test,
not the “clearly established” prong.
12