Black v. Simmons

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

KENNETH BLACK, )

)

Plaintiff, )

)

v. ) Case No. CIV-19-101-KEW

)

DYLAN SIMMONS, JAMES HAMLIN, )

DILLON SWAIM, BRYAN WILKINS, )

and JARAD FORBES, )

)

Defendants. )

OPINION AND ORDER

This matter comes before the Court on Defendants Dylan

Simmons, James Hamlin, Dillon Swaim, Bryan Wilkins, and Jarad

Forbes’ Motion for Summary Judgment and Brief in Support (Docket

Entry #39). Upon review and consideration of the filings of the

parties, this Court renders the following ruling.

On April 2, 2017, at about 2:20 a.m., the Muskogee Police

Department received a complaint about loud music being played in

the area of 1000 Lowrey Street. The caller thought the music was

coming from the nearby residence of Plaintiff Kenneth Black.

Officer Galin Shultz was assigned the call, and Officer Hamlin was

assigned as the backing officer. When Officers Hamlin and Shultz

arrived at Plaintiff’s residence, they activated their body-worn

cameras. Officer Hamlin activated the overhead lights of his patrol

car and briefly turned on his siren to get the attention of

whomever was at Plaintiff’s property playing loud music. When there

was no response, the dispatcher contacted Plaintiff by telephone.

The music was turned down, and shortly thereafter, Officers Hamlin

and Shultz heard a gunshot fired from the direction of Plaintiff’s

property. A gunshot is audible on the video footage from Officer

Hamlin’s body camera. After hearing the shot, Officer Hamlin

advised the dispatcher over his hand-held radio that shots had

been fired. Officers Hamlin and Shultz took cover behind a patrol

car.

Approximately three minutes later, at 2:39 a.m., Plaintiff

exited his residence. He walked into view near the east side of

two large vehicles parked on his property. The video reveals that

Officer Hamlin immediately commanded Plaintiff to “put your hands

up,” to “turn around and walk backwards,” and to “stop right where

you’re at!” Plaintiff shined his flashlight toward the officers

and began walking away from them. Officer Hamlin again told

Plaintiff to “Stop!” and identified that he was with the police

department. Defendants contend Plaintiff did not follow any of the

commands, instead continuing to walk away, in and out of sight.

Plaintiff disputes that he did not follow commands.

Additional officers arrived at Plaintiff’s residence by 2:42

a.m., including Officers Simmons, Forbes, Swaim, and Wilkins.

Officer Forbes, field supervisor for the graveyard shift, took

cover behind a patrol car, and as captured by video from his body

camera, he asked the dispatcher to “start county,” meaning start

more officers from the County Sheriff’s Department. He also asked

if anyone had a long gun as he was concerned about an active

shooter situation. Per affidavits from both officers, undisputed

by Plaintiff, between the two of them, Officers Hamlin and Forbes

had been to Plaintiff’s property on several occasions in the past,

Plaintiff had been argumentative and hostile to police, and he was

known to have possessed firearms and threatened police.

Plaintiff continued to appear in and out of sight, and the

officers on the scene continued to tell him to “show me your hands”

and “put your hands up!” Officer Hamlin could see Plaintiff had

something in his hands, but he could not immediately tell what it

was. Video from both Officer Hamlin and Forbes shows the officers

continued telling Plaintiff to drop what was in his hands and to

let them see his hands. The officers determined Plaintiff had a

flashlight in one hand and what looked like a shiny cane in his

other hand.

In order to secure Plaintiff so the officers could investigate

whether someone shot at the police or if someone on the property

had been shot, Officer Forbes decided to utilize a contact team of

officers to approach Plaintiff and take him into custody. The

contact team included Officers Forbes, Simmons, Swaim, and Hamlin.

The contact team began moving toward Plaintiff. Plaintiff shined

his light at the officers, briefly obscuring their view of him and

resulting in Officer Forbes stopping the contact team’s advance.

On the video of Forbes, he again advised Plaintiff to drop

whatever was in his hands. Plaintiff told the officers to “Stop

the hollering!” After several additional commands to drop whatever

was in his hands, Plaintiff put the flashlight on the ground. When

told to drop his cane, he responded that he could not drop his

cane. Officers are heard repeatedly telling Plaintiff to “keep

your hands up,” and Plaintiff can be heard telling the officers,

that “I ain’t got a weapon,” followed by “Knock it off!” and

repeating, “Knock it the fuck off!”

Officer Forbes confirmed with Officer Simmons that he had

his “less lethal” taser device. The contact team again moved toward

Plaintiff. When within range, Officer Forbes directed Officer

Simmons to deploy his taser. Officer Simmons deployed his taser,

but it was not completely effective on Plaintiff, as he remained

standing. Video from Forbes reveals he immediately alerted

Plaintiff to the taser and told him repeatedly to “get down on the

ground now.” When Plaintiff did not comply, Officer Forbes tackled

Plaintiff around his shoulders and brought him to the ground.

Officer Forbes tackled Plaintiff because he perceived him as a

potential threat based upon the shot fired, his continual non-

compliance with commands, his prior history of possessing

firearms, and because Plaintiff had not yet been patted down for

weapons.

Once Plaintiff was on the ground, video shows that the

officers struggled to handcuff Plaintiff. Officer Forbes was on

Plaintiff’s back, Officer Hamlin was on his lower legs, Officers

Simmons and Swaim were near Plaintiff’s head and shoulders, and

Officer Wilkins was on his way from the street to assist taking

Plaintiff into custody. During this time, Officer Forbes contends

he attempted to handcuff Plaintiff by reaching under Plaintiff to

pull out one of his arms. When he did so, Plaintiff grabbed Officer

Forbes’ arm and hand and started pulling. Officer Forbes then

struck Plaintiff in the head with the heel of his hand several

times.

Officer Simmons can then be heard twice, stating, “Don’t

fucking bite me,” and another time saying, “Don’t bite me.” It is

undisputed that Officer Simmons used a closed fist to strike the

side of Plaintiff’s face several times. Immediately after Officer

Simmons is heard yelling at Plaintiff to stop biting him, Officer

Wilkins, who was located near the area of Plaintiff’s head, began

hitting Plaintiff in the face with his flashlight with several

quick strikes to get Plaintiff to stop biting Officer Simmons.

Still unsuccessful in handcuffing Plaintiff, Officer Forbes

used his taser on Plaintiff and utilized a technique called

“stapling.” He deployed his taser into Plaintiff’s back, then

immediately “drive stunned” him on his left thigh to obtain

neuromuscular incapacitation. The “stapling” technique allowed for

Officer Swaim to handcuff Plaintiff’s wrists. Plaintiff does not

contend that any additional force was used against him once he was

handcuffed.

After Plaintiff was in custody, he was searched, and other

than a pocket knife, no weapons were found. Emergency Management

Services were called because of bleeding from Plaintiff’s face,

and Plaintiff was later transported to the hospital.

Following the incident, Plaintiff was charged with felony

Assault and Battery on a Police Officer for biting Defendant

Simmons, and with misdemeanor Obstruction of a Police Officer.

After a preliminary hearing on June 27, 2017, Plaintiff was bound

over on both charges. On February 26, 2019, Plaintiff pleaded “no

contest” to the assault and battery charge and the obstruction

charge was dismissed. He received a one-year deferred sentence for

the assault and battery charge.

Plaintiff initiated this action on March 28, 2019, alleging

the Defendants violated his constitutional rights under the Fourth

Amendment as enforced through 42 U.S.C. § 1983 by conducting an

unreasonable seizure without probable cause, warrant, or exigent

circumstance and by employing an unreasonable use of force.

Defendants filed the subject Motion asserting (1) Plaintiff is

estopped from litigating his claim for unlawful seizure/false

arrest, or in the alternative, Defendants are entitled to qualified

immunity for any unlawful seizure; and (2) Defendants are entitled

to qualified immunity for Plaintiff’s excessive force claim

because no violation of the Fourth Amendment occurred and the

Defendants did not violate any clearly established law.

Contemporaneous with the filing of Plaintiff’s response to

Defendants’ Motion, the parties filed a Joint Stipulation of

Partial Dismissal of Certain Claims with Prejudice Against

Defendants. See Docket Entry #45. Therein, the parties stipulated

to the dismissal of Plaintiff’s Fourth Amendment claim that

Defendants violated his constitutional rights by arresting him

without a warrant, probable cause, or exigent circumstance. This

claim is deemed dismissed with prejudice based upon the joint

stipulation of the parties. See Fed. R. Civ. P. 41(a)(1)(A)(ii).

However, Plaintiff’s Fourth Amendment claim that Defendants

violated his constitutional right to be free from excessive force

while seizing him remains. Id.

Under Rule 56(c) of the Federal Rules of Civil Procedure,

summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as a matter of law.” Universal Money Centers v. A.T. & T., 22 F.3d

1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052 (1994). The

moving party bears the initial burden of showing that there is an

absence of any issues of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). 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). In determining whether a

genuine issue of a material fact exists, the evidence is to be

taken in the light most favorable to the nonmoving party. Adickes

v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving

party has met its burden, the opposing party must come forward

with specific evidence, not mere allegations or denials of the

pleadings, which demonstrates that there is a genuine issue for

trial. Applied Genetics v. First Affiliated Securities, Inc., 912

F.2d 1238, 1241 (10th Cir. 1990); Posey v. Skyline Corp., 702 F.2d

102, 105 (7th Cir. 1983).

Defendants assert qualified immunity and, in doing so, first

assert that no violation of the Fourth Amendment occurred.

“Individual defendants named in a § 1983 action may raise a defense

of qualified immunity,” Cillo v. City of Greenwood Village, 739

F.3d 451, 459 (10th Cir. 2013), which “shields public officials

... from damages actions unless their conduct was unreasonable in

light of clearly established law,” Gann v. Cline, 519 F.3d 1090,

1092 (10th Cir. 2008)(quotations omitted). Generally, “when a

defendant asserts qualified immunity, the plaintiff carries a

two-part burden to show: (1) that the defendant's actions violated

a federal constitutional or statutory right, and, if so, (2) that

the right was clearly established at the time of the defendant's

unlawful conduct.” Cillo, 739 F.3d at 460. If a plaintiff fails to

make either showing, then a court must recognize the defendant’s

qualified immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.

2001).

Plaintiffs must also “do more than show that their rights

‘were violated’ or that ‘defendants,’ as a collective and

undifferentiated whole, were responsible for those violations.

They must identify specific actions taken by particular defendants

. . . that violated their clearly established rights.” Pahls v.

Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013) (internal citations

omitted). “[T]he complaint must ‘isolate the allegedly

unconstitutional acts of each defendant’; otherwise the complaint

does not ‘provide adequate notice as to the nature of the claims

against each’ and fails for this reason.” Matthews v. Bergdorf,

889 F.3d 1136, 1144 (10th Cir. 2018), quoting Robbins v. Oklahoma,

519 F.3d 1242, 1250 (10th Cir. 2008).

Defendants assert Plaintiff has failed to “distinguish which

conduct is attributable to which Defendant” in the Complaint. They

argue Plaintiff’s reference conduct by Defendants as a “collective

whole” which “does not suffice to show personal involvement by any

individual defendant and cannot overcome Defendants’ qualified

immunity.” Defendants’ Reply, p. 6 (Docket Entry #50). However,

while the facts as alleged by Plaintiff in the Complaint refer to

Defendants as a “collective whole,” the undisputed facts establish

the force alleged to be excessive and the defendant officer who

engaged in such conduct. Specifically, the undisputed facts

establish that: 1) Defendant Simmons deployed his taser on

Plaintiff; 2) Defendant Forbes tackled Plaintiff; 3) Defendant

Forbes struck Plaintiff in the face and head with his hand; 4)

Defendant Simmons struck Plaintiff in the face and head with his

fist; 5) Defendant Wilkins struck Plaintiff in the face with a

flashlight; and 6) Defendant Forbes used his taser in a “stapling”

technique on Plaintiff to handcuff him. Plaintiff identifies all

of these actions as applications of excessive force in his

briefing.1

The Fourth Amendment to the Constitution precludes an illegal

“seizure” of a citizen through the use of excessive force.

U.S.C.A. Const. Amend. IV. The question to be answered in a

qualified immunity context on excessive force claims is “whether

the officers’ actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them, without regard to their

1 Plaintiff asserts there are six instances in this case when

Defendants’ use of force was in violation of his rights under the Fourth

Amendment: “1) [t]he initial use of the taser on Plaintiff, 2) tackling

the Plaintiff, 3) punching the Plaintiff in the head and face in order

to secure his hands, 4) punching the Plaintiff in the head and face in

response to Plaintiff ‘biting’ Defendant Simmons’ forearm, 5) striking

the Plaintiff in the face and head with a metal flashlight in response

to Plaintiff ‘biting’ Defendant Simmons’ forearm, [and 6]) the use of

the taser on Plaintiff’s back and thigh after he was face down with

Defendants controlling both hands.” Plaintiff’s Response to Defendants’

Motion for Summary Judgment, p. 7 (Docket Entry #46).

underlying intent or motivation.” Graham v. Connor, 490 U.S. 386,

397 (1989). “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Id. at

396. The Fourth Amendment “do[es] not require [officers] to use

the least intrusive means in the course of a detention, only

reasonable ones.” United States v. Melendez-Garcia, 28 F.3d 1046,

1052 (10th Cir. 1994). “If an officer reasonably, but mistakenly,

believed that a suspect was likely to fight back . . . the officer

would be justified in using more force than in fact was needed.”

Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004),

quoting Saucier v. Katz, 533 U.S.194, 205 (2001); see also Estate

of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th

Cir. 2008) (“A reasonable officer need not await the ‘glint of

steel’ before taking a self-protective action; by then, it is often

. . . too late to take safety precautions.’”).

The evaluation of “reasonableness” is based on the totality

of the circumstances, “requir[ing] careful attention to the facts

and circumstances of each particular case.” Graham, 490 U.S. at

396. Under this approach, the court is required to consider a

balance of the factors of “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id.

Applying the first Graham factor to this case, the officers

initially went to Plaintiff’s property on a loud music complaint,2

which is a minor offense. However, once Officers Hamlin and Schultz

arrived at Plaintiff’s residence, the situation they faced changed

from a minor noise complaint to a slightly more serious situation

when the officers heard a gunshot coming from the direction of

Plaintiff’s property. Officer Forbes testified Plaintiff was under

investigation regarding the discharging of a firearm, and his non-

compliance with commands resulted in his obstructing that

investigation. Obstruction of justice is a misdemeanor. See Lee v.

Tucker, 904 F.3d 1145, 1149 (10th Cir. 2018) (“[W]e have held that

the first Graham factor may weigh against the use of significant

force if the crime at issue is a misdemeanor.”). Thus, the Court

finds the first Graham factor weighs slightly in Plaintiff’s favor.

The second and third Graham factors overlap in this case and

will be addressed together. Whether Plaintiff posed an immediate

threat to the safety of the officers or others “is undoubtedly the

most important and fact intensive factor in the objective

2 Plaintiff denies there was “loud” music coming from his

property. He claims to have been sleeping when called, and he told the

caller he would have to get dressed and would exit his house with a

flashlight and a walking cane in a few minutes. He asserts no loud music

can be heard on any of the video footage from the officers’ body cameras.

Although Officer Hamlin admitted in his deposition testimony that the

music is not audible on the video, and he agreed it was not loud enough

to be picked up by the camera’s microphone, he did not admit there was

no loud music. In any event, the Court concludes this issue is irrelevant

because it weighs this factor in Plaintiff’s favor.

reasonableness of an officer’s use of force.” Pauly v. White, 874

F.3d 1197, 1215-16 (10th Cir. 2017) (internal citations and

quotations omitted). A court considers facts and circumstances at

the moment force is used as well as the events leading up to the

moment. See Jiron, 392 F.3d at 415. “The calculus of reasonableness

must embody allowance 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.” Graham, 490 U.S. at

396-97.

Here, regardless of the reason for the initial contact with

Plaintiff, Officers Hamlin and Schultz arrived at Plaintiff’s

residence late at night and heard a gunshot from the direction of

Plaintiff’s property.3 Officer Forbes and the other officers

arrived at Plaintiff’s residence. Officers Forbes and Hamlin were

familiar with Plaintiff and were aware of instances when Plaintiff

was argumentative and hostile to police and that Plaintiff had

possessed firearms. For example, Officer Hamlin participated when

3 It is disputed by Plaintiff that he fired the gunshot;

however, a gunshot is audible on the video from the body cameras of

Officers Hamlin and Shultz. Officer Hamlin believed the gunshot

originated from the direction of Plaintiff’s property. In evaluating

whether force was “objectively reasonable,” the Court considers the

perspective of a reasonable officer, not that of the suspect. See Graham,

490 U.S. at 396 (“The ‘reasonableness’ of a particular use of force must

be judged from the perspective of a reasonable officer on the scene[.]”).

Under the circumstances, the Court finds it was reasonable for the

officers to believe the gunshot came from Plaintiff’s property.

the Muskogee Special Operations team responded to Plaintiff’s

property, and Plaintiff had barricaded himself, had a gun, and

threatened to shoot an officer. Officer Forbes was aware of the

incident. Additionally, Officer Forbes had been a backer on a

traffic stop when Plaintiff refused to get out of his car following

an order from an officer. He also was concerned there could be an

active shooter situation, or there could be someone on the property

who had been shot. Moreover, Officer Forbes viewed Plaintiff’s

property as unique because it was the only house for some distance.

There was nothing north or west of it for several hundred yards

and to the south there was a wooded area. Officer Forbes believed

he and his officers were in a bad position tactically because the

street was lit up and they only had police vehicles to take cover

behind. Plaintiff’s property was dark, giving Plaintiff plenty of

places to hide or take cover.

Plaintiff does not dispute his past interactions with the

police, the officers’ knowledge of it, or Officer Forbes’ depiction

of his property. Such information could cause a reasonable officer

to approach the situation with heightened caution. See Tanner v.

San Juan County Sheriff’s Office, 864 F.Supp.2d 1090, 1135 (D.

N.M. 2012) (“Courts generally give officers more leniency in the

excessive force context when they have specific information

available to them indicating that a suspect has engaged in violent

behavior in the past.”).4

Taking the alleged applications of force in the order they

occurred, the Court addresses the second and third Graham factors.

Plaintiff first contends that Officer Simmons’ use of his taser on

Plaintiff constituted excessive force. The undisputed facts show

that Officer Forbes instructed Officer Simmons to deploy his “less

lethal” taser on Plaintiff only after Plaintiff failed to comply

with numerous officer commands. Although Plaintiff maintains he

complied with commands and was not resisting arrest, his actions

on the videos from the officer body cameras show otherwise.5 Based

on the gunshot, the uncertainty surrounding the situation, Officer

4 Plaintiff asserts that after he was arrested, no gun was ever

located. This is of no consequence to the excessive force analysis,

however, as again, the Court considers the perspective of a reasonable

officer, and it was reasonable for the officers to believe Plaintiff

could have a gun based on the gunshot and their prior knowledge that

Plaintiff had a history of hostile interactions with law enforcement and

possession of firearms.

5 Plaintiff offers several reasons for his noncompliance. For

example, he asserts that when he initially exited his house, he

immediately focused on securing his dogs for their protection and the

protection of the officers. Although he could hear the officers shouting,

he was not sure who they were shouting at or what they wanted. He also

contends he shined his flashlight toward the officers so they would know

he did not have a weapon. Plaintiff further maintains that he refused

to drop his cane because he used it for mobility and balance and was

afraid of falling. He also was afraid his dog would approach officers,

and he needed his cane for support so he could use his free hand to grab

his dog’s collar. However, Plaintiff’s explanations for his failure to

comply with officer commands are irrelevant to the Court’s analysis

because Plaintiff’s intentions were not known to the officers. From an

officers’ perspective, all they observed was Plaintiff’s failure to

comply with their commands. See Reeves v. Churchich, 484 F.3d 1244, 1253

(10th Cir. 2007) (“Thus, just as we objectively examine a police

officer’s conduct under the Fourth Amendment, the Reeves’ subjective

motives behind their failure to submit are irrelevant.”).

Forbes’ prior knowledge of Plaintiff’s history with the police,

Plaintiff’s failure to comply with numerous officer commands, and

the fact that Plaintiff had not been patted down, the Court finds

the second and third Graham factors weigh in favor of Defendants,

and Officer Simmons’ use of his taser on Plaintiff was objectively

reasonable under the totality of the circumstances.

Plaintiff next contends that Officer Forbes used excessive

force when he tackled Plaintiff. However, the taser proved

ineffective on Plaintiff, and he continued to ignore additional

commands from Officer Forbes to get down on the ground. See Fisher

v. City of Las Cruces, 584 F.3d 888, 896 (10th Cir. 2009) (holding

the failure to comply with officer’s lawful orders to get on the

ground can be seen as a “form of resisting arrest”). The

circumstances remained the same as before Officer Simmons deployed

his taser. Thus, the Court finds the second and third Graham

factors weigh in favor of Defendants, and Officer Forbes’ tackling

of Plaintiff was objectively reasonable under the totality of the

circumstances.

Plaintiff also asserts Officer Forbes used excessive force

when he hit Plaintiff several times in the head and face with his

fist after he had tackled Plaintiff and he was on the ground.

Plaintiff contends he was not resisting arrest, but instead, his

hands were trapped under the weight of his body and the weight of

the officers. Although the video from Officer Shultz’s body camera

suggests the arrangement of officers complicated the process of

handcuffing Plaintiff - “We’re on top of his arm, we can’t get

it.” - the video also demonstrates that even though Plaintiff

contends he was not resisting - “I’m not resisting” – he was

resisting and was repeatedly told to “quit resisting.” It is

unclear from the video whether Plaintiff grabbed Forbes’ hand or

arm, but it is clear the officers still struggled to handcuff

Plaintiff, and he was still resisting. Moreover, Plaintiff still

was not completely restrained and had not been patted down for a

weapon. See McCoy v. Myers, 887 F.3d 1034, 1048 (10th Cir. 2018)

(distinguishing between pre-restraint and post-restraint force and

finding that “[e]ven if Mr. McCoy was, as he maintains, lying face

down with his hands behind his back and with several officers

pinning him, . . . a reasonable officer could conclude that he was

not subdued when the allegedly excessive force occurred.”); see

also Weigel v. Broad, 544 F.3d 1143, 1152 (10th Cir. 2008) (holding

that defendant officer’s alleged use of force became excessive

“once Mr. Weigel was handcuffed and his legs were bound”); Lynch

v. Board of County Comm’rs of Muskogee County, Okla., 786 F. App’x

774, 782 (10th Cir. 2019) (“First, the officers successfully

shackled Cody’s hands and legs while he was laying on his stomach.

Second, after Cody’s legs were shackled, Apple stood on the chain

connecting Cody’s ankles. Cody was subdued at that point[.]”).

Based on the totality of the circumstances, the force Officer

Forbes used against Plaintiff was objectively reasonable.

Plaintiff maintains that Officer Simmons used excessive force

when he hit Plaintiff in the head and face with his fist after

Plaintiff allegedly bit his left forearm. Plaintiff asserts he did

not bite Officer Simmons and that Officer Simmons started yelling

at Plaintiff to justify punching Plaintiff in the face. Defendant

argues that Plaintiff is precluded from claiming he did not bite

Officer Simmons because he was bound over at a preliminary hearing

for Assault and Battery on a Police Officer, directly related to

the biting incident with Officer Simmons, and he was convicted.

Plaintiff entered a plea of “no contest” to the charge and

received a deferred sentence. The Tenth Circuit has stated that

“[t]here is a proscription on the use of nolo contendere pleas in

subsequent civil proceedings, but it applies only to ‘offensive’

use . . . to establish the criminal defendant’s subsequent

potential civil liability, not to . . . ‘defensive’ use . . . in

a case where the criminal defendant [has] sought to recover damages

for an alleged unlawful arrest.” Jackson v. Loftis, 189 F. App’x

775, 779 (10th Cir. 2006) (internal citations and quotations

omitted). However, “a plea of nolo contendere has the same legal

effect as a guilty plea, [but] it is not a factual admission to

the underlying crime.” Rose v. Uniroyal Goodrich Tire Co., 219

F.3d 1216 (10th Cir. 2000) (emphasis in original), citing Olsen v.

Correiro, 189 F.3d 52, 59 (1st Cir. 1999). Thus, Plaintiff’s plea

of “no contest” to assault and battery is not a factual admission

and does not preclude him from asserting that an officer’s force

was excessive when compared to the threat that was imposed on the

officer.

In any event, Plaintiff’s contention that Officer Simmons

began shouting “don’t bite me” to justify punching Plaintiff in

the face is nothing more than conjecture and speculation. McCoy,

887 F.3d at 1039 (“But for ‘dispositive issues on which [Mr. McCoy]

will bear the burden of proof at trial,’ the record must contain

evidence that is ‘based on more than mere speculation, conjecture,

or surmise.’”), quoting Cardoso v. Calbone, 490 F.3d 1194, 1197

(10th Cir. 2007) (quotations omitted). It is clear from the officer

body camera videos that Officer Simmons believed Plaintiff was

biting him. Based on the totality of the circumstances, including

that Plaintiff continued to resist arrest and the officers

continued to struggle to handcuff Plaintiff, Officer Simmons’

response was objectively reasonable.

Plaintiff further contends that Officer Wilkins used

excessive force on Plaintiff when he struck Plaintiff several times

in the head and face with a metal flashlight. Officer Wilkins

contends he struck Plaintiff’s face with several quick strikes of

his flashlight because he was biting Officer Simmons. Plaintiff

contends that on the videos, Officer Forbes can be heard saying,

“Ease up – ease up with the flashlight.” Plaintiff asserts Officer

Forbes’ statement was made because he knew hitting Plaintiff in

the face with a flashlight was excessive.

The reasonableness of Officer Wilkins’ use of force against

Plaintiff may not be judged “with the 20/20 vision of hindsight[,]”

but instead must be judged “from the perspective of a reasonable

officer on the scene[.]” Graham, 490 U.S. at 396. The Court must

take into account the immediate threat at the time the force was

used, but must also 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.” Id. at 396-

97. Here, the officers’ attempt to take Plaintiff into custody

lasted less than two minutes from when Officer Simmons initially

tased Plaintiff. Officer Wilkins was not part of the contact team

and joined the other officers to assist later in the confrontation.

Officer Wilkins heard Officer Simmons warning Plaintiff not to

bite him. This Court will not “second-guess [the force used by

Officer Wilkins] using the 20/20 hindsight found in the comfort of

a judge’s chambers.” Phillip v. James, 422 F.3d 1075, 1084 (10th

Cir. 2005). Based on Officer Simmons’ proclamation, Plaintiff’s

resistance to being taken into custody, and the fact that Plaintiff

remained unrestrained, Officer Wilkins made several quick strikes

on Plaintiff’s face with his flashlight. The Court finds this was

reasonable under the totality of the circumstances.

Lastly, Plaintiff asserts Officer Forbes used excessive force

when he used his taser to perform a “stapling” technique on

Plaintiff in order to handcuff him. Plaintiff asserts this was

unnecessary because he was not resisting the officers, and they

had control of both of his arms. The video shows that although

Plaintiff’s arms were not underneath him, the officers did not yet

have both of Plaintiff’s arms behind his back to handcuff him.

Based on the totality of the circumstances, Officer Forbes acted

reasonably in using the “stapling” technique to complete and

successfully handcuff Plaintiff.

The second and third Graham factors weigh in favor of

Defendants. The Court finds that under the totality of the

circumstances, the actions of Officers Simmons, Hamlin, Swaim,

Wilkins, and Forbes were objectively reasonable. Thus, Plaintiff

has failed to show the force used by the officers violated his

federal constitutional rights, and the officers are entitled to

qualified immunity.6

6 The Court would note that none of the applications of force

alleged to be excessive by Plaintiff specifically involve actions by

Officers Hamlin or Swaim. Both officers were part of the contact team,

but the only force applied by Officer Hamlin was holding onto Plaintiff’s

legs once he was on the ground. The only force applied by Officer Swaim

was that he pulled out Plaintiff’s left arm and applied handcuffs to his

wrists. Plaintiff does not contend that either of these actions

constituted excessive force. Moreover, he does not allege liability on

Even though the officers’ actions were objectively

reasonable, Plaintiff must also satisfy the second prong of

qualified immunity that the officers’ actions violated a clearly

established constitutional right. The law must have been clearly

established at the time of the incident. In evaluating whether the

right was clearly established, the court considers whether the

right was sufficiently clear that a reasonable government employee

in the defendant's shoes would understand that he or she violated

that right. Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323,

1327 (10th Cir. 2007). “A clearly established right is generally

defined as a right so thoroughly developed and consistently

recognized under the law of the jurisdiction as to be

‘indisputable’ and ‘unquestioned.’” Lobozzo v. Colo. Dept. of

Corr., 429 F. App’x 707, 710 (10th Cir. 2011). “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.” Currier v. Doran, 242

F.3d 905, 923 (10th Cir. 2001); see also Medina, 960 F.2d at 1498.

On the other hand, the Supreme Court has observed that it is

generally not necessary to find a controlling decision declaring

the “very action in question . . . unlawful.” Anderson v.

the basis of failure to intervene. Thus, Officers Hamlin and Swaim are

entitled to qualified immunity on this basis as well.

Creighton, 483 U.S. 635, 640 (1987). “In determining whether the

right was ‘clearly established,’ the court assesses the objective

legal reasonableness of the action at the time of the alleged

violation and asks whether ‘the contours of the right [were]

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.’” Holland ex rel.

Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001). A

court should inquire “whether the law put officials on fair notice

that the described conduct was unconstitutional” rather than

engage in “a scavenger hunt for cases with precisely the same

facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

Plaintiff relies on two cases to show clearly established

law, Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th

Cir. 2007) and Cavanaugh v. Wood Cross City, 625 F.3d 661 (10th

Cir. 2010). In Casey, the plaintiff was tackled, tasered, and beat

with no warning after he left the courthouse with a court file,

which was a misdemeanor, to obtain money from his truck. The

plaintiff was stopped by officers as he tried to reenter the

courthouse, and without explaining anything to him, the officers

tackled him to the ground, tasered and handcuffed him, and then

beat his head into the ground. 887 F.3d at 1279-80. Although the

court determined the officers used excessive force, the decision

turned on the minor crime, that the plaintiff did not pose an

immediate threat to anyone’s safety, and he was not violent and

did not try to flee. Id. at 1282. However, in this matter, the

officers were on heightened alert because of the gunshot and based

on their prior dealings with Plaintiff. Moreover, when given

specific commands by officers, Plaintiff failed to follow them.

Casey does not clearly establish to Defendants that their conduct

would violate the law.

Moreover, Plaintiff’s reliance on Cavanaugh is misplaced. In

Cavanaugh, prior to approaching the suspect woman, police were

called by her husband who indicated she had stormed off after a

fight, had been drinking, had taken medication, attempted to put

him in a closet, and left with a kitchen knife. When an officer

arrived at the residence, he found the woman outside the house.

Her hands were empty, but the officer tased the woman in the back

without any warning. 625 F.3d at 662-63. The court determined the

law was clearly established that an officer could not use a taser

“against a non-violent misdemeanant who appeared to pose no threat

and who was given no warning or chance to comply with the officer’s

demands.” Id. at 667. Again, the factors in Cavanaugh are different

from this case. Here, Plaintiff was given several opportunities to

submit to the officers’ commands, and he failed to comply. Also,

Plaintiff had objects in his hands and was told several times to

drop the objects. Casey does not clearly establish to Defendants

that their conduct would violate the law.

The Court therefore finds Plaintiff has failed to establish

either prong of the qualified immunity test. He has failed to

establish a violation of his constitutional rights by any of the

officers, and the law is not clearly established that the officers’

actions violated the existing law. Accordingly, Defendants

Simmons, Hamlin, Swaim, Wilkins, and Forbes are entitled to

qualified immunity on Plaintiff’s claims of excessive force.

IT IS THEREFORE ORDERED that Defendants Dylan Simmons, James

Hamlin, Dillion Swaim, Bryan Wilkins, and Jarad Forbes’ Motion for

Summary Judgment and Brief in Support (Docket Entry #39) is hereby

GRANTED. Judgment will be entered for Defendants accordingly.

IT IS SO ORDERED this 30th day of September, 2020.