Simpson v. Little

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

TIFFANY SIMPSON,

Personal Representative of the Estate of

Logan Wayne Simpson,

Plaintiff,

v. Case No. 18-CV-491-GKF-FHM

JON LITTLE, in his individual capacity,

IKE SHIRLEY,

CITY OF BIXBY, OKLAHOMA,

JANE DOE, and

JOHN DOE,

Defendants.

OPINION AND ORDER

Before the court is the Motion to Dismiss of defendant Jon Little. [Doc. 28]. For the

reasons set forth below, the motion is denied.

I. Relevant Allegations

On July 22, 2018, sixteen-year-old Logan Simpson and his brother, Kyle Simpson, were

sitting outside their family’s home with Deante Strickland in the early morning hours. [Doc. 26,

p. 3 ¶ 12]. At some point, Mr. Strickland became violent and attacked Logan, then Kyle, with an

ax. [Id.]. While Mr. Strickland was attacking his brother, Logan ran inside the house for help.

[Id., ¶ 13]. Logan woke up his sleeping parents, telling them Kyle was being attacked. [Id.].

Logan’s father went outside, separated Mr. Strickland from Kyle, and restrained Mr. Strickland

until police arrived. [Id., pp. 3-4 ¶¶ 14, 17]. Logan’s mother called 9-1-1. [Id., p. 3 ¶ 14].

At some point during the chaos, Logan got in his white sports utility vehicle (“SUV”) and

left the scene. [Id., p. 4 ¶ 16]. Noticing Logan’s SUV was missing from the driveway and

suspecting foul play, Logan’s mother asked Mr. Strickland who took the vehicle. [Id., ¶ 17]. Mr.

Strickland responded “[m]y homeboy took it.” [Id.]. Taking that to mean the SUV was stolen,

Logan’s mother called 9-1-1 again and reported the assumed theft. [Id., ¶ 18].

Police Officer Jon Little was responding to the initial call at the Simpson home when he

heard the stolen vehicle report over the radio. [Id., p. 5 ¶ 22]. Officer Little passed a vehicle

matching the description of Logan’s SUV on Highway 64 and turned around to follow it. [Id., ¶

23]. Officer Little followed the vehicle, which was in fact Logan’s SUV driven by Logan himself,

for some time. [Id., ¶ 24]. Logan was not speeding or driving erratically. [Id., ¶ 25].

Officer Little eventually turned on his lights and siren to initiate a stop of the SUV. [Id., ¶

26]. Logan did not pull over, but instead proceeded on East 176th Street in Bixby, Oklahoma until

he came to a dead end near South 89th Street East Avenue. [Id., ¶ 27; Doc. 26-3, p. 2]. At the

dead end, Logan left the roadway to turn around in a yard. [Id., ¶ 28]. While Logan was

completing his turn, Office Little parked his patrol vehicle across the nearby driveway. [Id., ¶ 28].

After Logan completed his turn, he was facing East 176th Street behind a gap created by two

parked vehicles. [Id., p. 6 ¶ 33]. Officer Little exited his vehicle, drew his firearm, and ran to the

side of the SUV shouting “Get on the ground!” and “Show me your hands!” [Id., ¶ 32]. Officer

Little made eye contact with Logan and stepped into the gap between the two parked vehicles.

[Id., ¶ 33]. As Logan pulled slowly forward, Officer Little stepped out of the SUV’s path and

continued to shout “Get on the ground!” and “Show me your hands!” [Id., ¶ 34]. Officer Little

continued to hold his firearm in firing position. [Id.]. Officer Little knew that Logan was unarmed.

[Id., pp. 6-7 ¶¶ 33, 44].

As Logan drove past Officer Little, the officer began firing. [Id., p. 6 ¶ 36]. Officer Little

continued to fire as Logan drove past him and down the street, even running after the SUV while

continuing to fire. [Id.]. A total of ten shots struck the SUV, starting at the driver’s side door and

continuing down the side to the rear of the vehicle. [Id., ¶ 37]. Two of Officer Little’s shots

pierced the driver’s side door and entered Logan’s body through his left hip. [Id., p. 7 ¶ 38]. Logan

continued down East 176th Street for approximately three blocks before his injuries caused him to

lose control of the SUV and drive off the road. [Id., pp 7-8 ¶ 45]. Approximately fifteen minutes

later, other Bixby police officers found Logan’s SUV in high grass near South 92nd East Avenue

and East 176th Street. [Id., p. 8 ¶¶ 46-47].

Logan passed away later that day from the gunshot wounds inflicted by Officer Little. [Id.,

p. 9 ¶ 53]. Logan’s mother brings this lawsuit pursuant to 42 U.S.C. § 1982 as the personal

representative of her son’s estate for violation of Logan’s Fourth and Fourteenth Amendment

rights. [Id., p. 1 ¶ 1; pp. 9-10 ¶¶ 54-63]. Officer Little moves to dismiss on the grounds that he is

entitled to qualified immunity. [Doc. 28].

II. Legal Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Cummings v. Dean, 913

F.3d 1227, 1238 (10th Cir. 2019) (quoting Emps.’ Ret. Sys. of R.I. v. Williams Cos., Inc., 889 F.3d

1153, 1161 (10th Cir. 2018)). In making this assessment, the court “accept[s] the facts alleged in

the complaint as true and view[s] them in the light most favorable to the plaintiff.” Mayfield v.

Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). “When a defendant raises the qualified-immunity

defense, the ‘onus is on the plaintiff to demonstrate (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the challenged

conduct.’” Cummings, 913 F.3d at 1239 (emphasis omitted) (quoting Quinn v. Young, 780 F.3d

998, 1004 (10th Cir. 2015)).

A. Did the Use of Force Constitute a Constitutional Violation?

The plaintiff alleges “Logan Simpson had a clearly established right, pursuant to the Fourth

and Fourteenth Amendments to the Constitution of [the] United States of America to be free from

the use of excessive force by a police officer.” [Doc. 26, p. 9 ¶ 55]. The Supreme Court has held

that “all claims that law enforcement officers have used excessive force—deadly or not—in the

course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under

the Fourth Amendment and its ‘reasonableness’ standard, rather than a ‘substantive due process’

approach.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis original). “To state an

excessive force claim ‘under the Fourth Amendment, plaintiffs must show both that a seizure

occurred and that the seizure was unreasonable.’” Thomas v. Durastanti, 607 F.3d 655, 663 (10th

Cir. 2010) (quoting Childress v. City of Arapaho, 210 F.3d 1154, 1156 (10th Cir. 2000)).

First, the plaintiff has alleged sufficient facts to show Officer Little’s shots constituted a

“seizure.” “While it is not always clear just when minimal police interference becomes a seizure,

there can be no question that apprehension by the use of deadly force is a seizure subject to the

reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985)

(internal citation omitted). Here, Logan’s freedom of movement was terminated by Officer Little’s

intentional shots. See Brower v. County of Inyo, 489 U.S. 593, 597 (1989) (A “seizure” occurs

“when there is a governmental termination of freedom of movement through means intentionally

applied.” (emphasis original)); cf. Brooks v. Gaenzle, 614 F.3d 1213, 1224 (10th Cir. 2010) (officer

did not effect “seizure” of fleeing suspect when his shot did not terminate the suspect’s movement).

Officer Little struck Logan’s SUV with ten rounds, two of which hit Logan himself and ultimately

resulted in his death. [Doc. 26, pp. 6-7, 9 ¶¶ 37-38, 53]. Due to his injuries, Logan lost control of

his SUV, went off the road, and was stopped in high grass a few blocks from where he was shot.

[Id., p. 7-8 ¶¶ 45-46]. A Fourth Amendment “seizure” occurred.

Second, the plaintiff has alleged sufficient facts to show Officer Little’s use of deadly force

was unreasonable. The reasonableness of the seizure is “judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.

at 396. Proper application of the Fourth Amendment “requires careful attention to the facts and

circumstances of each particular case, including 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. (citing Garner, 471 U.S. at 8-9).

The “severity of the crime” and “flight” factors described in Graham, 490 U.S. at 396,

weigh in Officer Little’s favor. Officer Little was responding to a call about a stolen SUV, a felony

under Oklahoma law.1 [Doc. 26, p. 5 ¶ 22]; see also 47 O.S. § 4-102. Officer Little “passed a

white SUV” matching the description of the stolen vehicle and followed it “for a ways without

turning on his lights and siren.” [Doc. 26, p. 5 ¶¶ 23-24]. When Officer Little turned on his lights

and siren to initiate a traffic stop, Logan did not pull over. [Id., ¶ 27]. Thus, the crime at issue was

a felony and, as far as Officer Little knew, Logan was attempting to evade arrest by flight. 2 See

Henry v. Storey, 658 F.3d 1235, 1239 (10th Cir. 2011) (Where the officer “had probable cause to

believe [the suspect] had stolen a vehicle, a felony,” the officer could “reasonably conclude that

1 Viewing the facts in the light most favorable to the plaintiff, the court does not read the complaint

to indicate Officer Little knew the reported violent assault and stolen vehicle were connected. [See

Doc. 26, p. 4 ¶ 19 (“Jane Doe put a call out over the radio about a stolen white Toyota SUV.”);

id., p. 5 ¶ 22 (“Officer Little . . . was in route to the Simpson home . . . when he heard the stolen

vehicle description go out over the radio.”)]. The crime at issue for purposes of this analysis is

theft of a motor vehicle, not assault with a deadly weapon.

2 While plaintiff alleges that Officer Little knew Logan was unarmed [see Doc. 26, pp. 6-7 ¶¶ 33,

44], which generally weighs in favor of the plaintiff, the relevant “weapon” for purposes of this

analysis is the SUV. See Thomas v. Durastanti, 607 F.3d at 664 (“Thus, if threatened by a weapon

(which may include a vehicle attempting to run over an officer), an officer may use deadly force.”).

the driver posed an immediate threat to the safety of the officers and the public—a driver caught

with a stolen vehicle has a strong incentive to evade arrest, given the seriousness of the crime.”).

The circumstances here, as alleged in the complaint, are nonetheless sufficient to constitute

a Fourth Amendment violation. “The use of deadly force is justified under the Fourth Amendment

if a reasonable officer in the Defendant’s position would have had probable cause to believe that

there was a threat of serious physical harm to themselves or others.” Zia Trust Co. ex rel. Causey

v. Montoya, 597 F.3d 1150, 1154 (10th Cir. 2010) (quoting Walker v. City of Orem, 451 F.3d 1139,

1159 (10th Cir. 2006)). “[B]ut that statement must not be read too broadly. It does not mean that

any risk of physical harm to others, no matter how slight, would justify any application of force,

no matter how certain to cause death.” Cordova v. Aragon, 569 F.3d 1183, 1190 (10th Cir. 2009).

The court cannot say, viewing the facts in the light most favorable to the plaintiff, that

Officer Little could have reasonably believed he was in danger at the moment he began shooting.

Plaintiff alleges that Officer Little was not in the path of the SUV when he began firing his weapon.

[Doc. 26, p. 6 ¶¶ 34, 36]. Officer Little did not fire until Logan was driving past him and

“continued firing as Logan continued past him and down the street.” [Id., ¶ 36]. Officer Little

“ran after Logan’s SUV, continuing to fire.” [Id.]. Of the ten bullets that struck Logan’s SUV,

none hit the front of the SUV, thereby indicating Officer Little was not in front of the SUV when

he fired his weapon. [See id., ¶ 37]. Further, Logan “pulled forward slowly” and completed a

three-point turn to turn around at a dead end after driving normally and without speeding. [Id., pp.

5-6 ¶¶ 25, 32, 34]. Insofar as Officer Little was not in the path of the SUV, was some distance

away, and Logan was driving the SUV slowly, probable cause did not exist to believe Logan posed

a threat of serious physical harm to Officer Little or anyone else. See Zia Trust Co., 597 F.3d at

1155 (finding a constitutional violation on summary judgment where officer shot driver of van and

“it [was] not clear that [the driver] manifested an intent to harm [the officer] or anyone else at the

scene.”); Godawa v. Byrd, 798 F.3d 457, 464 (6th Cir. 2015) (“[A]s a general matter, an officer

may not use deadly force once the car moves away, leaving the officer and bystanders in a position

of safety.”); Vaughan v. Cox, 343 F.3d 1323, 1330 (11th Cir. 2003) (finding a constitutional

violation where officer did not face immediate threat of serious harm by suspects evading arrest in

a vehicle when he used deadly force). Plaintiff has alleged sufficient facts to show a constitutional

violation.

B. Was the Constitutional Right Clearly Established?

Having determined the existence of a constitutional violation for purposes of the motion to

dismiss, the court must consider whether the law was clearly established at the time of the

violation. Peterson v. Jensen, 371 F.3d 1199, 1202 (10th Cir. 2004). “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.” Zia Trust Co., 597 F.3d at 1155 (quoting Cruz v. City of Laramie, 239 F.3d

1183, 1187 (10th Cir. 2001)). The Supreme Court has cautioned courts “not to define clearly

established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per

curiam) (quoting City and County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015).

“Use of excessive force is an area of the law ‘in which the result depends very much on the facts

of each case,’ and thus police officers are entitled to qualified immunity unless existing precedent

‘squarely governs’ the specific facts at issue.” Id. at 1153 (quoting Mullenix v. Luna, 136 S. Ct.

305, 309 (2015)). “Precedent involving similar facts can help move a case beyond the otherwise

‘hazy border between excessive and acceptable force’ and thereby provide an officer notice that a

specific use of force is unlawful.” Id. (quoting Mullenix, 136 S. Ct. at 312).

Defendant argues that “existing Tenth Circuit case law forecloses Plaintiff’s claim that

Defendant Little’s conduct was unreasonable or in violation of existing law.” [Doc. 28, p. 13].

Defendant points to Thomas v. Durastanti, 607 F.3d 655 (10th Cir. 2010) and Carabajal v. City of

Cheyenne, Wyoming, 847 F.3d 1203 (10th Cir. 2017). However, both of those cases were decided

on summary judgment and involved suspects driving towards officers placing them in immediate

danger of harm. See Thomas, 607 F.3d at 665 (“In the process, the driver was advancing toward

[the officer] placing him in harm’s way.”); Carabajal, 847 F.3d at 1210 (“[T]he scene involved

close quarters. The video evidence further demonstrates that the vehicle was moving in [the

officer’s] direction, and a reasonable officer could have perceived that Mr. Carabajal’s driving was

deliberate.”). Because Officer Little allegedly shot Logan from a place of safety, Thomas and

Carabajal are not persuasive.

Tenth Circuit precedent and the great weight of authority from other courts illustrate that

the use of deadly force in similar situations where a suspect, fleeing in a vehicle, poses no

immediate threat to the officer or others is a violation of clearly established law.

In Zia Trust Co., an officer responding to a domestic violence call ordered a suspect to get

out of the van he was driving. 597 F.3d at 1153. The officer was standing in front of the van

when—although allegedly stuck on a pile of rocks—the van jumped forward about a foot. Id. The

officer fired a single shot into the vehicle in response, fatally wounding the driver. Id. The court

held that the officer was not entitled to qualified immunity on summary judgment because the

officer “did not have probable cause to believe that there was a serious threat of serious physical

harm to himself or others.” Id. at 1155 (internal quotation marks and citation omitted). “As such,

[the officer] violated clearly established law when he used deadly force.” Id. Similarly here, under

the facts alleged, Officer Little did not have probable cause to believe Logan posed a serious threat

to himself as the SUV moved past him and down the street.

In Cordova v. Aragon, 569 F.3d 1183 (10th Cir. 2009), police attempted to pull over a

vehicle, but the driver did not comply and attempted to evade arrest. The officer was not in

immediate danger and no innocent bystanders were in the vicinity. Id. at 1187. The Tenth Circuit

held that the other dangers posed by a potential car chase were not enough to justify shooting the

driver, even where the suspect was “towing a large piece of machinery down the wrong way of a

highway in the dark, and employing evasive maneuvers such as running red lights, driving off the

road, and attempting to ram police cars.” Id. at 1189. The Tenth Circuit held “simply that a distant

risk to hypothetical motorists posed by a suspect’s reckless driving alone does not justify shooting

that suspect.” Id. at 1195. The court explained “[c]ar chases inherently risk injury to persons who

might happen along their course, and if that risk alone could justify shooting the suspect, every

chase would end much more quickly with a swiftly-fired bullet.” Id. at 1190. Cordova established

what was not clear before: When an officer, like Officer Little is alleged to have done here, uses

a “level of force nearly certain to cause . . . death, though without any immediate threat to himself

or others” he violates the Constitution. Id. at 1195.

Other circuits have also concluded that “an officer may not use deadly force once the car

moves away, leaving the officer and bystanders in a position of safety.” Godawa, 798 F.3d at 457;

see also Vaughan v. Cox, 343 F.3d at 1330 (officers were not entitled to qualified immunity where

“[g]enuine issues of material fact remain as to whether [the suspects’] flight presented an

immediate threat of serious harm to [the officer] or others at the time [the officer] fired the shot

that struck [the suspect].”). In Lytle v. Bexar County, Tex., 560 F.3d 404 (5th Cir. 2009), the Fifth

Circuit explained:

It has long been clearly established that, absent any other justification for the use

of force, it is unreasonable for a police officer to use deadly force against a fleeing

felon who does not pose a sufficient threat of harm to the officer or others. This

holds as a general matter and in the more specific context of shooting a suspect

fleeing in a motor vehicle.

Id. at 417-18 (internal citations omitted). Accordingly, the “clearly established weight of authority

from other courts” supports a denial of qualified immunity to Officer Little under the facts alleged.

See Cummings, 913 F.3d at 1239 (To satisfy the clearly-established standard, plaintiffs may point

to Supreme Court and Tenth Circuit opinions on point or “alternatively, the clearly established

weight of authority from other courts must have found the law to be as the plaintiff maintains.”

(internal quotation marks omitted)).

Zia Trust Co. illustrates that an officer’s use of deadly force without probable cause to

believe that a suspect, while driving a vehicle, presents a serious threat of physical harm to himself

or others is a violation of clearly established law. Cordova further illustrates that the use of deadly

force is not justified where a suspect poses a general threat to hypothetical motorists in a potential

car chase. Other circuits have reached similar conclusions. Plaintiff’s factual allegations and

related inferences—namely, that Officer Little shot Logan Simpson from a place of safety as Logan

drove slowly away—show the violation of a clearly established constitutional right.3

III. Conclusion

WHEREFORE, defendant’s Motion to Dismiss [Doc. 28] is DENIED.

IT IS SO ORDERED this 30th day of October, 2019.

3 The court emphasizes that this analysis only accounts for the plaintiff’s version of events, a

version which later evidence may later contradict or a jury may reject. See Zia Trust Co., 597 F.3d

at 1155.