Clerkley v. City of Oklahoma City, Oklahoma

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

LORENZO CLERKLEY, JR., )

)

Plaintiff, )

)

-vs- ) Case No. CIV-20-465-F

)

CITY OF OKLAHOMA CITY, )

OKLAHOMA, and KYLE )

HOLCOMB, )

)

Defendants. )

ORDER

This case arises out of the non-fatal shooting of plaintiff Lorenzo Clerkley, Jr.

(Clerkley) by defendant Kyle Holcomb (Holcomb), a sergeant with the Oklahoma

City Police Department (OCPD). Clerkley has sued Holcomb under 42 U.S.C.

§ 1983, alleging that Holcomb subjected him to excessive use of force in violation

of the Fourth and Fourteenth Amendments to the United States Constitution.1

Clerkley also seeks to hold defendant City of Oklahoma City, Oklahoma (City)

liable under § 1983 and under Oklahoma law for negligent use of excessive force.

Holcomb has moved for summary judgment on the § 1983 claim against him,

asserting the defense of qualified immunity.2 The City has moved for summary

1 Section 1983 of Title 42 of the United States Code provides that a person acting under color of

state law who “subjects, or causes to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured.” 42 U.S.C. § 1983.

2 “Individual defendants named in a § 1983 action may raise a defense of qualified immunity,

which shields public officials[.]” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014)

judgment on both claims alleged against it.3 Upon review of the parties’

submissions, the court makes its determination.

Background4

1. The Shooting

On the evening of March 10, 2019, Holcomb was working an approved

overtime shift as part of the OCPD’s VIPER program, which provides extra patrols

in areas with high rates of crime and violence.5 At approximately 5:43 p.m., a

woman called 911 to report that “a whole bunch of dudes just got out of a car with

guns” at a vacant house across the street from her house, and they had gone into the

house. Doc. no. 75-2. The caller’s house and the vacant house were in a

neighborhood recognized by the OCPD as an area with high crime and violence.

The woman advised 911 that she saw one subject with a gun, whom she

described as a black male with dreads, wearing jeans and a gray hoodie. Her

daughter saw at least two of the black males with guns. Although the woman told

911 that she was not sure if the guns were real or “play” guns, doc. no. 75-2, this

information was not conveyed by dispatch.

Holcomb heard over the radio that a “burg two [was] in progress” and that

“several black males” carrying guns went into the house across the street from the

(quotation marks and citations omitted). “Qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights.” Wilkins v. City of Tulsa, Oklahoma, 33 F.4th 1265, 1272 (10th Cir. 2022)

(quotation marks and citation omitted).

3 At the time of the non-fatal shooting and the filing of this action, Clerkley was a minor. As a

result, this case was commenced by Clerkley’s mother, Cherelle Lee, on behalf of her son. In

December of 2022, Clerkley turned 18 years old. After the filing of defendants’ summary

judgment motions, Clerkley moved for leave of court to be substituted as plaintiff, which was

granted by the court. See, doc. nos. 81 and 82.

4 For summary judgment purposes, the facts are construed in favor of Clerkley, as the non-moving

party. See, Arnold v. City of Olathe, Kansas, 35 F.4th 778, 785 n.1 (10th Cir. 2022).

5 Holcomb has been employed as an OCPD police officer since May 2009.

911 caller’s house. Doc. no. 75-1, ECF p. 11, l. 19; 1. 21. The call was classified

as a priority one call (danger to life or property) for second-degree burglary.

Holcomb did not know the ages of any of the individuals who went into the house.

They were all minors.

Holcomb and another police officer, Carlon Tschetter (Tschetter), arrived at

the scene at the same time. It was still daylight. They parked a distance away and

approached on foot. Both officers were in uniform and wearing a body camera.

Tschetter began walking toward a white car parked on the street, and Holcomb

directed Tschetter to the “green house.” Doc. no. 75-5. Tschetter then radioed the

tag of the parked white car. Holcomb radioed, “hey, they’re back there.” Id.

Hearing noises, Tschetter radioed “cap gun.” Id.; doc. no. 75-6. Holcomb replied,

“Huh?” Id. Tschetter, with his gun drawn, approached the front of the house,

shouting, “Hey! Police department! Come on out!” Id.

While Tschetter approached the front of the house, Holcomb went to the side

of the house. He began walking along a wooden fence. From the sounds he was

hearing, Holcomb radioed, “I think it’s a cap gun, but they are shooting something

off.” Doc. no. 75-5. Tschetter radioed that the noises “could be paint ball.” Doc.

no. 75-6. Tschetter then shouted again, “Hey, this is the police department! Come

out now!” Doc. no. 75-5; doc. no. 75-6.

Holcomb, with his gun drawn, stopped at a hole in the upper part of the

wooden fence where he could see the back corner of the house and part of the

backyard. The backyard contained overgrown dead foliage. Seconds later, Holcomb

saw a black male in a gray hoodie near the corner of the house walking in his

direction. Holcomb shouted, “Show me your hands! Drop it!” Doc. no. 75-5. He

immediately fired four shots in quick succession at the black male. Holcomb then

yelled, “Drop the gun!” Id. The black male disappeared from Holcomb’s sight.

Holcomb reported on his radio “Shots fired. Shots fired. Black male with a gray

hoodie had the gun.” Id. Holcomb then continued to walk around the exterior of the

fence, while another police officer took over Holcomb’s position at the opening of

the fence.

Holcomb had shot Clerkley in the right upper hip and left leg. Once he was

shot, Clerkley fell backwards, and one of his friends helped him into the house

through a broken window. Clerkley did not realize he had been shot until he was

back in the house. He involuntarily urinated on himself. Hearing police officers

shout for them to come out, Clerkley and his friend walked to the front of the house

with two other friends. Clerkley’s legs started to give out on him. He was the last

one to leave the house and, as ordered by Tschetter, laid down on the side of the

cement porch. Several times, Tschetter ordered Clerkley to crawl to him, but

Clerkley couldn’t. Tschetter dragged Clerkley by his hoodie off the porch and to the

ground beside him. Clerkley had cut his hand on shattered glass that was on the

porch. Clerkley was handcuffed by another officer and taken into custody.

Two other black males, who had been in the house with Clerkley and other

friends, had gone out the back window into the backyard. Holcomb and the officer

who took over Holcomb’s position at the opening of the fence ordered the

individuals to get on the ground and covered them with their guns until they were

taken into custody by other officers.

Tschetter asked if someone was down in the backyard. Doc. no. 75-5; doc. no.

75-6. Holcomb asked the individuals in the backyard if one of them had been hit.

One responded that his friend in the front had been hit. Clerkley, who overheard the

questioning, advised that he had been shot. Holcomb told Tschetter, “That looks

like the one I shot at. He was wearing a gray hoodie. He’s the one that had a gun.”

Doc. no. 75-5; doc. no. 75-6. Tschetter asked Clerkley if he had a gun. Clerkley

responded that he didn’t have the gun. Both Holcomb and Tschetter asked who had

the gun. Clerkley replied that he did not know. While Tschetter was checking to

see where Clerkley was shot, he asked Clerkley who had the gun and asked if it was

him, and he replied, “no, sir.” Doc. no. 75-6.

The individual in the backyard covered by Holcomb had dreads and was

wearing a gray hoodie and blue jeans. Holcomb advised another officer that the

individual matched the description given by the 911 caller, and said, “so I don’t

know.” Doc. no. 75-5. One of the officers, who helped take custody of the

individuals in the backyard, spotted a black gun on the ground in the backyard

outside the window. It was located near where the two individuals had been lying

in the backyard. The gun was later identified as a TDP 45 BB pistol.

While clearing the house for other individuals, officers observed three more

guns inside. All four guns found at the house were BB guns. Two of the guns found

inside the house were “Glock 19” BB pistols.

Holcomb radioed for medical assistance, and Clerkley was taken to the

hospital for treatment of his gunshot wounds. After being discharged from the

hospital later that night, Clerkley was interviewed by Oklahoma City police

detectives. He advised that he and his friends went into the abandoned house

because it was raining. The door to the house was open. While in the house, they

shot off BB guns only discharging CO2. Clerkley described the gun he had shot as

a “Glock.” Clerkley advised the police detectives that he held up his hands as

ordered by Holcomb and that he did not have the gun when he was shot. When they

asked what he was wearing, Clerkley advised that he was wearing blue jeans, two

shorts—one blue—underneath the jeans, Tommy Hilfiger draws, a black Polo shirt,

and a gray Polo jacket. According to Holcomb’s body camera footage, the other pair

of shorts Clerkley wore was black.

Clerkley testified at his deposition that he shot a BB gun inside the house and

set it down on the cabinet in the kitchen. He then walked around the house and went

into a room at the back of the house. He wanted to see what was in the backyard

and he went through a broken window with his right leg first and then his left leg.

When his left leg came out of the window, he turned right. He went two or three

steps, and heard, “Freeze, drop it, drop it,” and then gunshots. Doc. no. 83-1, ECF

p. 15, ll. 11-12. In response to a question of whether he was “certain” he didn’t have

a gun when he went out the window, he testified, “Yes, ma’am.” Id., ECF p. 28, ll.

18-21.

At his deposition, Holcomb testified that Clerkley had a gun in his hand and

when he told Clerkley to show him his hands and drop it, the gun was pointed at

Holcomb, and he fired his gun at Clerkley. Holcomb testified the gun looked like

his gun—a black handgun.

At his deposition, Holcomb answered, “No,” to the question, “You not once

told another officer when they asked you what had happened that somebody had

pointed a gun at you, did you?” Doc. no. 74-67, ECF p. 16, ll. 1-4.

2. Training, Investigation, and Other Alleged Excessive Force Incident

Upon employment, Holcomb received over six months of training from the

OCPD Training Academy. During the training academy, Holcomb received training

in the use of force, including the use of deadly force. After attending the training

academy, Holcomb received approximately four months of additional training with

a field training officer. In addition, Oklahoma law requires full-time police officers

to complete 25 hours of continuing law enforcement training every year. Prior to

the shooting, Holcomb had attended 251 hours of in-service training.

The OCPD has a police operations manual which includes its current policies,

procedures, and rules. Holcomb was issued a digital copy of the manual and directed

to be familiar with its contents and any updates. He received training instruction

from the manual. In addition to other policies, the manual contained a use of force

policy, which dealt with both the use of deadly and non-deadly force. That policy

provided that officers may use deadly force to protect themselves or others when

officers have probable cause to believe that they or others are in danger of death or

serious bodily harm and that the use of deadly force is reasonably necessary to

protect themselves or others. It also provided that, if feasible, a warning should be

given prior to the use of deadly force. It further emphasized that mere suspicion is

not sufficient to justify the use of deadly force.

In accordance with OCPD policies, an investigation of the shooting was

conducted by two investigators from the homicide division of the OCPD. One of

the investigators, in a supplement report, provided a summary of Holcomb’s body

camera footage. In that summary, the investigator did not mention Clerkley having

a gun or anything in his hands. He stated that Clerkley could be seen facing

Holcomb. From the footage, he captured screenshots of Clerkley appearing and

facing Holcomb. After the investigators presented to then-District Attorney David

Prater their investigation findings and evidence regarding the shooting, Mr. Prater

advised the police chief that he had determined Holcomb was justified in exercising

deadly force in the defense of himself and other officers present at the scene.

According to Mr. Prater, Holcomb had a reasonable belief that he was about to be

shot by Clerkley. Mr. Prater cleared Holcomb for duty as the police chief saw fit.

Subsequently, in accordance with OCPD policies, an administrative review

was conducted to determine whether Holcomb complied with the directives of the

OCPD. The administrative review was conducted by a lieutenant in the Office of

Professional Standards of the OCPD. In a memorandum to a captain in the Office

of Professional Standards, the lieutenant concluded that the totality of the

circumstances revealed that Holcomb fired his weapon to stop what he believed was

a deadly threat. Although he stated in his synopsis of the encounter that Clerkley

was holding what appeared to be a handgun, he also acknowledged in the

memorandum that Holcomb’s body-worn camera video did not clearly capture the

actions of Clerkley. According to the lieutenant, the best footage was documented

in a frame-by-frame photo from the camera that showed Clerkley facing Holcomb.

He then quoted from a statement given by Mr. Prater to The Oklahoman newspaper

that “‘[t]he suspect who exited the window had an object in his hand that appeared

to be a firearm. The suspect turned toward Sgt. Holcomb with the weapon in his

hand, and Holcomb shot the suspect in self-defense.’” Doc. no. 74-52, p. 3. The

lieutenant stated that while the firearm may have been a BB gun, Holcomb did not

know this and identified it as a real firearm. The lieutenant concluded that the

totality of circumstances revealed that Holcomb fired his weapon to stop what he

believed was a deadly threat.

Holcomb testified in deposition that he was told that his shooting of Clerkley

was justified, was within department policy, and was consistent with the way he had

been trained.

Holcomb and the City had previously been sued under § 1983 for Holcomb’s

alleged use of excessive force in Turner v. City of Oklahoma City, et al.,

CIV-16-08-W and CIV-18-796-JD.6 According to the complaint’s allegations in

CIV-18-796-JD, Holcomb approached a vehicle in which Negge Turner (Turner)

was seated and stated he had an arrest warrant for Alteric Turner. Turner provided

Holcomb with three separate forms of identification and explained that Alteric

Turner was his brother, and he did not know his whereabouts. Holcomb insisted that

Turner was Alteric Turner and forcibly extracted him from the vehicle. During the

extraction, Turner, who weighed approximately 103 pounds, informed Holcomb that

he was a 100% service-connected disabled veteran, and he was unable to raise his

hands over his head, but he would comply with Holcomb’s instructions. According

to Turner, Holcomb picked him up and threw him to the ground and placed his entire

6 According to court records, the parties filed a joint dismissal without prejudice of the original

case, CIV-16-08-W, in August of 2017. The case was refiled in August of 2018.

weight on his back of his neck. And according to Turner, Holcomb continued to

assault him after he was restrained in handcuffs. After arrest, Turner informed

Holcomb his left side had lost feeling and he had lost his ability to rotate his neck

from side to side. He said he needed medical attention and requested that he be

transported to the hospital. Turner alleged that Holcomb refused and transported

him to the Oklahoma County jail.

Holcomb and the City claimed that Turner matched the description of Alteric

Turner. While exiting the vehicle, Turner swung his fist at Holcomb, and Holcomb

took him to the ground. After a struggle in which Turner bit him, Holcomb

handcuffed and arrested Turner. Turner was charged with assault and battery on a

police officer and resisting arrest, but the criminal case was later dismissed.

According to court records, Turner’s action against Holcomb was dismissed,

upon motion, for failure to effect valid service of process. See, CIV-18-796-JD, doc.

no. 24. Turner’s action against the City was settled and a judgment was entered

without an admission of liability. See, id., doc. no. 49.

An investigation was conducted of Holcomb’s encounter with Turner by a

supervisor in accordance with the OCPD’s police operations manual. The report of

the investigation was issued approximately two weeks after the incident. It

concluded that the use of force was within department policies.

Legal Standard

Summary judgment is appropriate where “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), Fed. R. Civ. P. “A disputed fact is material if it might affect the outcome of

the suit under the governing law[.]” Palacios v. Fortuna, 61 F.4th 1248, 1256 (10th

Cir. 2023) (quotation marks and citation omitted). On summary judgment, the court

construes the facts in the light most favorable to the nonmovant and draws all

reasonable inferences in his favor. Id. In qualified immunity cases, this generally

means adopting the plaintiff’s version of the facts, unless the facts are contradicted

by objective evidence, such as video surveillance footage. Id.

As stated, both Holcomb and the City move for summary judgment. And

Holcomb moves for summary judgment asserting the defense of qualified immunity.

Holcomb’s “assertion of qualified immunity creates a presumption that [he is]

immune from suit.” Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016). To

overcome this presumption, the plaintiff must show “(1) a reasonable jury could find

facts supporting a violation of a constitutional right and (2) the right was clearly

established at the time of the violation.” Wilkins v. City of Tulsa, Oklahoma, 33

F.4th 1265, 1272 (10th Cir. 2022) (citations omitted).

“A clearly established right is one that is sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.”

Wilkins, 33 F.4th at 1272. “A Supreme Court or Tenth Circuit decision on point or

the weight of authority from other courts can clearly establish a right.” Id. “[A] case

directly on point is not necessary if existing precedent [has] placed the statutory or

constitutional question beyond debate.” Id.

Discussion

1. Qualified Immunity

a. Constitutional Violation

A claim that a law enforcement officer has “used excessive force—deadly or

not—in the course of arrest, investigatory stop, or other ‘seizure’ of a free citizen”

is “analyzed under the Fourth Amendment and its ‘reasonableness’ standard[.]”

Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis omitted). “To establish a

constitutional violation, the plaintiff must demonstrate the force used was

objectively unreasonable.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d

1255, 1259 (10th Cir. 2008). “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,” and 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

396-397.

The Fourth Amendment permits an officer to use deadly force7 “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 [himself] or to others.”

Larsen, 511 F.3d at 1260 (emphasis omitted). The court assesses “whether, from the

perspective of a reasonable officer on the scene, the totality of the circumstances

justified the use of force.” Id. 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.” Id.; see also, Tenorio v. Pitzer, 802 F.3d 1160, 1164

(10th Cir. 2015) (“The belief need not be correct—in retrospect the force may seem

unnecessary—as long as it is reasonable.”)

To assist in assessing whether the use of deadly force is reasonable, the Tenth

Circuit employs two frameworks. First, it considers three nonexclusive factors

identified by the Supreme Court in Graham v. Connor, supra. These factors, referred

to as the Graham factors, are “(1) ‘the severity of the crime at issue;’ (2) ‘whether

the suspect poses an immediate threat to the safety of the officers or others;’ and (3)

‘whether he is actively resisting arrest or attempting to evade arrest by flight.’”

Palacios, 61 F.4th at 1256 (quoting Graham, 490 U.S. at 396). With respect to the

second factor, which is “undoubtedly the ‘most important’ and fact intensive factor,”

7 “Deadly force is ‘force that the actor uses with the purpose of causing or that he knows to create

a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the

direction of another person . . . constitutes deadly force.’” Jiron v. City of Lakewood, 392 F.3d

410, 415 n. 2 (10th Cir. 2004) (quoting Ryder v. City of Topeka, 814 F.2d 1412, 1416 n. 11 (10th

Cir. 1987)).

Pauly v. White, 874 F.3d 1197, 1215-16 (10th Cir. 2017), the Tenth Circuit

enunciated four nonexclusive factors in the Estate of Larsen ex rel. Sturdivan v.

Murr, supra., for assessing the threat posed by a suspect. These factors, referred to

as the Larsen factors, are: “(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 suspect; and (4) the manifest intentions of the suspect.”

Larsen, 511 F.3d at 1260.

i. Graham and Larsen Factors

Severity of the Crime at Issue

The first Graham factor inquires as to the “severity of the crime at issue[.]”

Graham, 490 U.S. at 396. Under Tenth Circuit precedent, “[w]hen the crime at issue

is a felony, regardless of whether the felony is violent or nonviolent, the crime is

considered to have a high degree of severity which weighs against the plaintiff.”

Palacios, 61 F.4th at 1256. Here, Holcomb responded to a call classified priority one

for second-degree burglary. Under Oklahoma law, the crime of second-degree

burglary is a felony. See, 21 O.S. § 1436(2).8 As a result, the court finds that the

first Graham factor weighs against Clerkley as to a finding that use of deadly force

was objectively unreasonable.

Actively Resisting or Attempting to Evade Arrest by Flight

Turning to the third Graham factor, active resistance or evasion of arrest by

flight, the court finds that the factor weighs in favor of Clerkley. Although Holcomb

8 The court rejects Clerkley’s argument that at the moment Holcomb encountered him, he was

suspected of “either trespassing or, at worst, second degree burglary of an abandoned house, and

therefore was a nonviolent misdemeanant[.]” Doc. no. 83, ECF p. 16 (quotation marks and citation

omitted). Clerkley admits that Holcomb was responding to a call classified as priority one for

second-degree burglary. And Clerkley proffers no authority that second-degree burglary of an

abandoned house qualifies as a misdemeanor rather than a felony.

had responded to the call of a second-degree burglary in progress, the court finds no

evidence upon which a reasonable jury could conclude that when Holcomb

encountered Clerkley, he had probable cause to arrest Clerkley for the crime of

second-degree burglary or could have reasonably intended to arrest him. Holcomb

did not know then whether Clerkley’s actions were unlawful. Consequently,

Clerkley could not have been actively resisting arrest or attempting to evade arrest

by flight when he encountered Holcomb. See, Estate of Taylor v. Salt Lake City, 16

F.4th 744, 764 (10th Cir. 2021) (finding third Graham factor favors plaintiffs where,

at the time officers approached and interacted with the suspect and two companions,

they did not have probable cause to make an arrest, nor could they reasonably have

intended to make an arrest).

Immediacy of the Threat

“Although the first and third [Graham] factors can be particularly significant

in a specific case, the second factor—whether there is an immediate threat to

safety—‘is undoubtedly the most important . . . factor in determining the objective

reasonableness of an officer’s use of force.’” Estate of Valverde by & through

Padilla v. Dodge, 967 F.3d 1049, 1060-61 (10th Cir. 2020) (quoting Pauly, 874 F.3d

at 1216). The importance of the second Graham factor is “particularly true in a

deadly force case, because deadly force is justified only if a reasonable officer in the

officer’s position would have had probable cause to believe that there was a threat

of serious physical harm to himself or others.” Reavis Estate of Coale v. Frost, 967

F.3d 978, 985 (10th Cir. 2020) (quotation marks and citation omitted).

Here, if Clerkley’s version of events is believed, a reasonable jury could find

that he did not have a gun in his hand when he was shot by Holcomb and that there

was no threat of serious physical harm to Holcomb or others. Although Holcomb

contends and testified that Clerkley had a gun and pointed the gun at him, that is a

fact question for the jury. Holcomb’s body camera footage and the still-framed

photographs of Clerkley from the footage (doc. nos. 75-9, p. 2, and 75-10) do not

plainly contradict Clerkley’s evidence that he did not possess a gun during his initial

brief encounter with Holcomb. And the presence of a gun in the backyard near the

broken window where Clerkley exited does not suffice to eliminate the question of

fact. There were other black males apprehended in the backyard, one of whom

matched the 911 caller’s description of the individual possessing a gun, which

Holcomb acknowledged to another officer.

In his briefing, Holcomb argues that even if Clerkley has raised a genuine

dispute as to whether he was armed with a gun, the fact that Clerkley was unarmed

does not resolve whether Holcomb violated his Fourth Amendment rights. Citing

Estate of Taylor v. Salt Lake City, 16 F.4th at 765, Holcomb argues the salient

question is whether his “mistaken perception” that Clerkley was about to use a

firearm against him was reasonable. Holcomb contends that Clerkley has not

established a question of fact regarding whether he ‘‘could reasonably have believed

that [Clerkley] posed a mortal threat.’” Doc. no. 86 (quoting Taylor, 16 F.4th at 765).

The court turns to the Larsen factors which are designed to assist in evaluating

the degree of threat posed by Clerkley. As stated, these factors include: whether the

officer ordered the suspect to drop his weapon, and his compliance with police

commands; whether any hostile motions were made with the weapon towards the

officer; the distance separating the officer and the suspect; and the manifest

intentions of the suspect. Larsen, 511 F.3d at 1260.

First, Holcomb’s body camera footage shows that Holcomb shouted for

Clerkley to show his hands and drop “it” and then immediately fired shots at

Clerkley.9 The footage doesn’t show that Clerkley had ignored or deliberately

9 Holcomb did not order Clerkley to drop the gun until after he shot him. And the evidence shows

that after he was shot, Clerkley fell backwards and was helped into the broken window by a friend.

disobeyed Holcomb’s commands insofar as he could comply. He told the

investigators after the shooting that he held his hands up as ordered by Holcomb.

And the evidence, viewed in Clerkley’s favor, indicates that he did not have a gun

or anything in his hand. Therefore, he could not drop “it” if he did not have anything

in his hand. Further, the evidence, viewed in Clerkley’s favor, shows that Holcomb

shot Clerkley immediately after giving the commands. The court concludes that the

first Larsen factor favors Clerkley.

Second, while Holcomb responded to a call of a second-degree burglary in

progress, had been told that several black males had guns, and heard noises that

sounded like a cap gun but believed that they were shooting something off, and

Clerkley wore a gray hoodie and blue jeans partially matching the 911 caller’s

description of the individual with a gun, the body camera footage doesn’t show that

Clerkley made any hostile motions or threatening gestures with a weapon, or

anything else, toward the officer. Holcomb points out that the footage and the still-

framed photographs show that Clerkley was walking in his direction and that he had

something black in or near his hand. Although Holcomb admitted in deposition that

the still-framed photographs were not totally clear, he testified that his “eyes saw a

gun.” Doc. no. 75-1, ECF p. 6, l. 7. The court, however, concludes that a reasonable

jury could conclude that the footage and the still-framed photographs do not show

that Clerkley was holding something black in his hand. A reasonable jury could also

conclude that although he was walking in Holcomb’s direction, Clerkley was not

looking in his direction. And a reasonable jury could additionally conclude that

Holcomb, during the daylight hours and with Clerkley facing him, could observe

that Clerkley did not have a gun or anything his hand. This is true, in the court’s

view, despite the presence of dead foliage in the backyard. A reasonable jury could

find that a reasonable officer in Holcomb’s position would have recognized that

Clerkley did not have a gun or anything in his hand and that Clerkley was not making

any hostile motions or threatening gestures towards him. The court thus concludes

that the second Larsen factor favors Clerkley.

Third, although the evidence does not clearly indicate the distance between

Clerkley and Holcomb, the evidence establishes that Holcomb was not far away

from Clerkley. While Holcomb was behind a fence, the fence was wooden, and

Holcomb had been looking into the backyard through a hole in the upper portion of

the fence, the court concludes that no reasonable jury could conclude that Holcomb

was in a position of sufficient cover to avoid potential harm, if Clerkley possessed

and fired a gun at Holcomb. The court concludes that the third factor favors

Holcomb.

Fourth, the footage and the still-framed photographs do not show that Clerkley

manifested any hostile intentions towards Holcomb. In briefing, Holcomb argues

that Clerkley manifested intentions that were hostile by exiting the house through

the back window. Holcomb maintains that an individual crawling out the window

after an announcement that police are in the front of the house could reasonably be

perceived by a reasonable officer as hostile. However, there is no evidence in the

record to support that a reasonable officer, in Holcomb’s position, would have

known Clerkley had crawled or exited out of the back window. Holcomb’s camera

footage does not show Clerkley coming out of the back window. Viewing the

evidence in a light most favorable to Clerkley, the court concludes that a reasonable

jury could conclude that Clerkley did not manifest any intentions that were hostile

and malevolent towards Holcomb.

In sum, the first, second, and fourth Larsen factors weigh in Clerkley’s favor,

and the third favors of Holcomb.

Considering the Graham factors, the Larsen factors, and the totality of the

circumstances in a light most favorable to Clerkley, the court concludes that a

reasonable jury could conclude that Holcomb’s mistaken perceptions—that

Clerkley was pointing a gun at him at the precise moment he fired his gun and that

Clerkley posed a serious threat of physical harm to Holcomb or others—were not

reasonable.

The court recognizes that Holcomb’s encounter with Clerkley occurred under

circumstances that were “tense, uncertain and rapidly evolving[,]” which required

Holcomb to make a “split-second judgment[]” about the need for deadly force. In

addition, it recognizes that it can’t view the facts “with 20/20 vision of hindsight”

but instead must consider them “from the perspective of a reasonable officer on the

scene[.]” Graham, 490 U.S. at 396-397. However, viewing the facts and reasonable

inferences in a light most favorable to Clerkley, the court finds that a reasonable jury

could conclude that Holcomb fired his gun at Clerkley when he could see he did not

have a gun or anything in his hand. A reasonable jury could conclude that a

reasonable officer in Holcomb’s position would not have reasonably believed that

Clerkley posed a mortal threat to Holcomb or others. Therefore, a reasonable jury

could find that Holcomb’s use of deadly force was in violation of the Fourth

Amendment. (The court hastens to emphasize that this is a close question. And, of

course, the issues to be decided by the jury are not identical to the issues presented

by the present motions.)

b. Clearly Established Law

Having found that the evidence, viewed in Clerkley’s favor, demonstrates a

Fourth Amendment violation, the court must decide if Clerkley has shown that

Holcomb’s actions of using deadly force violated clearly established law. “‘To be

clearly established, a legal principle must have a sufficiently clear foundation in

then-existing precedent.’” Wise v. Caffey, 72 F.4th 1199, 1208 (10th Cir. 2023)

(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). However,

“‘[i]t is not enough that a rule be suggested by then-existing precedent; the rule’s

contours must be so well defined that it is clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.’” Id. (quoting City of

Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021). This is “especially important in the

Fourth Amendment context, where it is sometimes difficult for an officer to

determine how the relevant legal doctrine, here excessive force, will apply to the

factual situation the officer confronts.” Bond, 142 S. Ct. at 11-12 (quotation marks

and citation omitted). “[T]he salient question is whether the state of the law gave

the defendant[] fair warning that [his] alleged treatment of the plaintiff[] was

unconstitutional.” Wise, 72 F.4th at 1209 (quotation marks and citations omitted).

“The law was clearly established if it was sufficiently clear that every reasonable

officer would understand that what he is doing is unlawful.” Id. (quotation marks

and citations omitted).

Clerkley, in briefing, cites, among other cases, the Tenth Circuit’s decision in

Finch v. Rapp, 38 F.4th 1234 (10th Cir. 2022), in support of his position that

Holcomb’s actions of using deadly force violated clearly established law. That case,

decided after the shooting in this case, cannot itself establish that Holcomb’s use of

deadly force violated clearly established law. However, the shooting in Finch took

place on December 28, 2017, prior to the shooting in this case, and it relied upon

cases decided before December 28, 2017, to conclude that the officer’s shooting in

that case had violated clearly established law. Consequently, the court concludes

the Finch case is instructive. See, Finch, 38 F.4th at 1243.

In Finch, police officers rushed to Andrew Finch’s house, in response to a

“hoax emergency call” that led them to believe they were responding to a “deranged

man who had just killed his father and was holding the rest of his family hostage at

gunpoint.” Id. at 1237. “Finch had not committed any crime and had no way of

knowing why police were surrounding his home.” Id. As he exited the house,

“multiple officers yelled different commands.” Id. However, they did not identify

themselves as police. Finch “initially appeared to comply with the officer

commands, raising his hands up to about ear level.” Id. at 1239. Officers could see

he was not holding anything in his hands. “Finch then began to lower his hands,”

and there was conflicting testimony about what happened next. Id. “Some officers

testified Finch raised his hands and lowered them a second time while moving

towards the doorway threshold;” “one officer testified he “saw nothing indicating

Finch was a threat to the officers, but he lost sight of Finch once Finch backed up

into the doorway;” another officer testified that “Finch moved his hand towards the

small of his back and moved back into the doorway[,]” but he “was not sure whether

the movement was threatening;” and a third officer believed “Finch was reaching

for a weapon when he saw Finch put his hands back down.” Id. The defendant

officer testified that he “saw Finch grab the right side of his hoodie and lift it up,

making a motion that appeared as if he was drawing a firearm . . . and possibly was

armed.” Id. He testified that “he thought he saw a gun in Finch’s hand.” Id.

The Tenth Circuit affirmed the district court’s decision denying qualified

immunity to the defendant officer. The appellate court accepted the district court’s

factual determinations that “a reasonable jury could find that (1) [the officer] fired a

shot when he could see Finch’s hands were empty, (2) [the officer’s] assertion that

Finch made a threatening motion was false, and (3) [the officer] could not see

Finch’s movements clearly due to darkness and distance, along with numerous other

facts.” Id. at 1241. Thus, “a reasonable jury could also conclude that [the officer]

did not reasonably believe Finch posed a threat.” Id.

Accepting the district court’s factual determinations, the Tenth Circuit agreed

with the district court that as of December 28, 2017, Tenth Circuit law10 clearly

10 The four Tenth Circuit cases relied upon by the district court as determining clearly established

law, Zuchel v. Spinharney, 890 F.2d 273 (10th Cir. 1989); Zia Trust Co. ex rel. Causey v. Montoya,

597 F.3d 1150 (10th Cir. 2010); Walker v. City of Orem, 451 F.3d 1139, 1157 (10th Cir. 2006); and

King v. Hill, 615 Fed. Appx. 470 (10th Cir. 2015).

established that “an officer, even when responding to a dangerous reported situation,

may not shoot an unarmed and unthreatening suspect.” Id. at 1243. Because a “jury

could find [the officer] shot Finch even when a reasonable officer would have known

Finch was unarmed and posed no threat,” the Tenth Circuit found that the facts,

viewed in a light most favorable to Finch, violated “clearly established law.” Id. at

1243-44.

The court reaches the same conclusion here. Viewing the facts in a light most

favorable to Clerkley, a reasonable jury could conclude that Holcomb shot Clerkley

“even when a reasonable officer would have known [Clerkley] was unarmed and

posed no threat,” and thus, Holcomb “violated clearly established law.” Finch, 38

F.4th at 1243-44.

The record, viewed in Clerkley’s favor, discloses facts from which a

reasonable jury could find a violation of Clerkley’s Fourth Amendment rights by

Holcomb and that the right was clearly established at the time of the violation.

Consequently, the court concludes that Holcomb is not entitled to summary

judgment based on the defense of qualified immunity. Holcomb’s motion will

therefore be denied.

2. Municipal Liability

A municipality may not be held liable under § 1983 solely because its

employee inflicted injury on the plaintiff. Bryson v. City of Oklahoma City, 627

F.3d 784, 788 (10th Cir. 2010). Rather, to hold a municipality liable for the actions

of its employees, the plaintiff must show that the municipality had a policy or custom

that caused the plaintiff’s injury. Id. A municipal policy or custom may take the

form of a formal regulation or policy; a widespread, permanent, and well-settled

custom; a decision by an employee with final policymaking authority; a final

policymaker’s ratification of both an employee’s unconstitutional actions and the

basis for them; or the deliberately indifferent failure to adequately train or supervise

employees. Id. Here, Clerkley’s municipal liability claim is based upon failure to

adequately train Holcomb and ratification of Holcomb’s conduct. Doc. no. 84, ECF

p. 10.

“‘[T]o establish a municipality’s liability for inadequate training on the use of

force, a plaintiff must meet a four part test:’

A plaintiff must show (1) the officer[] exceeded constitutional

limitations on the use of force; (2) the use of force arose under

circumstances that constitute a usual and recurring situation with which

police officers must deal; (3) the inadequate training demonstrates a

deliberate indifference on the part of the city towards persons with

whom the police officers come into contact[;] and (4) there is a direct

causal link between the constitutional deprivation and the inadequate

training.”

Huff v. Reeves, 996 F.3d 1082, 1092 (10th Cir. 2021) (quoting Myers v. Oklahoma

Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1318 (10th Cir. 1998)).

Clerkley asserts that the City “[failed] to train OCPD officers with respect to

the use of force on suspects or detainees who are unarmed or otherwise pose no

threat of harm.” Doc. no. 84, ECF p. 11. However, it is undisputed by Clerkley that

OCPD officers, including Holcomb, were trained on the proper use of force,

including the use of deadly force. Officers were trained to use deadly force only

when necessary to defend themselves or others from imminent harm, either serious

bodily injury or death. In his papers, Clerkley has failed to identify what additional

training regarding unarmed suspects or suspects that pose no threat of harm would

have caused Holcomb not to fire his gun at Clerkley when he was unarmed and not

posing a threat. The Tenth Circuit has “repeatedly held that conclusory or

generalized failure-to-train allegations are insufficient.” Huff, 996 F.3d at 1093. A

plaintiff must identify a specific deficiency in the entity’s training program closely

related to his ultimate injury. Clerkley has not pointed to any training by the OCPD

that would have prevented his alleged constitutional violation. Because there is no

“direct causal link between the [alleged] constitutional deprivation and the [alleged]

inadequate training,” Huff, 996 F.3d at 1093, Clerkley’s failure to adequately train

claim against the City fails.

In his briefing, Clerkley argues out that Holcomb previously used excessive

force in arresting Turner, but he was not disciplined by the City. However, while

Holcomb and the City were previously sued by Turner for alleged use of excessive

force, Clerkley does not show that any finding was made that Holcomb subjected

Turner to the use of excessive force. Turner’s § 1983 action against Holcomb was

dismissed, and his § 1983 action against the City was settled and a judgment entered

without an admission of liability. Further, the alleged force used by Holcomb

against Turner did not involve shooting a firearm. The allegations regarding

Holcomb’s actions against Turner do not support a finding that the OCPD had a

specific deficiency in its training program with respect to the use of deadly force.

Nor are the allegations sufficient to demonstrate that the City had notice that its

training on the use of deadly force was inadequate.

Clerkley also argues that the City is liable under § 1983 because it ratified

Holcomb’s unconstitutional conduct by determining that it was within policy. He

points to the lieutenant’s investigation and findings after the shooting. However,

assuming without deciding that the evidence, viewed in Clerkley’s favor, is

sufficient to establish the City’s ratification of Holcomb’s conduct, the evidence is

not sufficient for a reasonable jury to find that the alleged ratification caused the

alleged constitutional violation. As explained by the Tenth Circuit, ratification

occurring after an alleged violation does not show that it caused the violation. See,

Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009) (“[B]asic princip[le]s of

linear time prevent us from seeing how conduct that occurs after the alleged violation

could have somehow caused that violation.”) (emphasis in original). Here, the

lieutenant’s investigation and findings regarding Holcomb’s conduct occurred after

Holcomb’s shooting of Clerkley. Consequently, the City’s alleged after-the-fact

ratification of Holcomb’s alleged misconduct conduct is insufficient to establish a

municipal liability claim against the City.11 Clerkley’s ratification theory therefore

fails.

Because Clerkley has failed to establish a municipal policy or custom that

caused his alleged injuries, the court concludes that the City is entitled to summary

judgment on the § 1983 municipal liability claim.

3. Negligent Use of Excessive Force

In his complaint, Clerkley has alleged a state law claim against the City for

Holcomb’s negligent use of excessive force. The City contends it cannot be held

liable on this claim.12 First, the City points out that, under the Governmental Tort

Claims Act (Act), 51 O.S. § 151, et seq., a political subdivision, like a municipality,

“shall be liable for loss resulting from . . . the torts of its employees acting within the

scope of their employment subject to the limitations and exceptions specified in the”

Act. 51 O.S. § 153 (emphasis added). The City asserts that one of the exceptions,

otherwise known as exemptions, specified in the Act, is that a municipality “shall

not be liable if a loss or claim results from . . . [a]ny claim which is limited or barred

by any other law[.]” 51 O.S. § 155(16). The City argues that under Oklahoma

statutes 21 O.S. § 732 and 21 O.S. § 1289.25(D), Holcomb was specifically

authorized to use deadly force since he believed Clerkley was armed, and he

reasonably feared for his safety and that of his fellow officers. However, the court

11 To the extent Clerkley relies upon Holcomb’s alleged use of excessive force in connection with

the arrest of Negge Turner to establish ratification, the court finds that such evidence is insufficient

to establish the claim. In addition to being five years prior to the shooting in this case, the incident

with Mr. Turner did not involve the use of firearm.

12 In his papers, Clerkley does not respond to the City’s arguments regarding the state law claim.

Although the court deems the City’s motion confessed as to the state law claim arguments, the

court, for the reasons stated, concludes that the City has failed to show that it is entitled to judgment

as a matter of law.

has previously found that a reasonable jury could find that Clerkley did not have a

gun or anything else in his hand, and that Holcomb’s mistaken perceptions with

respect to Clerkley being armed and posing a threat of serious physical harm to

Holcomb or others were unreasonable. Consequently, the court rejects the City’s

argument that it is exempt from liability under § 155(16) based upon the two cited

statutes.13

Next, the City argues that it cannot be held liable for the negligent use of

excessive force claim because the actions of Clerkley and his friends in unlawfully

entering the vacant house with guns constitute a supervening act for which

Holcomb’s negligence, if any, “is removed or wiped clean.” Doc. no. 74, ECF p.

32. According to the City, Holcomb’s and the other officers’ actions merely

furnished the condition that Clerkley might suffer injury and that their actions were

not the proximate cause of Clerkley’s injuries. The City maintains that Clerkley’s

injuries were the result of his own criminal acts.

In support of its argument, the City relies upon Felty v. City of Lawton, 578

P.2d 757 (Okla. 1977). There, plaintiffs sued the City of Lawton and a Lawton

police officer, alleging that the officer’s negligence, while acting as an agent for the

city, was the proximate cause of their daughter’s death in an automobile accident.

The liability of the city and the officer was based upon the negligence of the officer

in having left his marked police cruiser unattended with the keys in the ignition and

13 Further, the Oklahoma Supreme Court previously rejected a similar argument that a law which

arguably creates an affirmative defense to liability by the agency’s employee renders a

municipality immune from suit based on § 155(16). See, Morales v. City of Oklahoma ex rel.

Oklahoma City Police Dept., 230 P.3d 869, 877-78 (Okla. 2010) (“A police officer’s privilege to

use reasonable force in making an arrest, sometimes conceptualized as providing qualified

immunity, should not be confused with an immunity that bars a suit ab initio. The privilege merely

provides a defense to liability, the availability of which to City is by virtue of § 155(16)

commensurate with its availability to Officer McCoy. City is clearly not entitled to judgment of

exoneration based on § 155(16).”).

with the motor running. A thief stole the police car, driving it in a reckless and

careless manner, causing injury, and the daughter’s ultimate death. The question on

appeal was whether the officer’s negligence was the proximate cause of the

daughter’s injury. The Oklahoma Supreme Court found it was not. In so doing, it

followed the holding in Merchants Delivery Service, Inc. v. Joe Esco Tire Co., 533

P.2d 601 (Okla. 1975), that “the proximate cause of an injury must be the efficient

cause which sets in motion the chain of circumstances leading to the injury; if the

negligence complained of merely furnishes a condition by which the injury was

made possible and a subsequent independent act caused the injury, the existence of

such condition is not the proximate cause of the injury.” Felty, 578 P.2d at 760

(quotation marks omitted). The Oklahoma Supreme Court concluded that the

officer’s negligence merely furnished a condition by which the injury was made

possible but did not constitute the proximate cause of the daughter’s injury.

Here, the acts of Clerkley in entering the vacant house with guns were not a

subsequent independent, unforeseeable act which caused Clerkley’s injury. Further,

the facts, viewed in Clerkley’s favor, support that a finding that Holcomb shot

Clerkley when he was unarmed and did not pose a threat of serious physical harm to

Holcomb or others. As a result, Holcomb’s alleged negligence in shooting Clerkley

would be the proximate cause of Clerkley’s injuries rather than merely furnishing

the condition by which the injury was made possible. Further, despite the City’s

argument that the City should not be responsible because Clerkley had engaged in

criminal acts, the Oklahoma Supreme Court in Morales allowed a negligence claim

based on an officer’s alleged use of excessive force to proceed even though the force

occurred during the arrest of an individual.

In sum, the court concludes that the City is not entitled as a matter of law to

summary judgment on the state law claim of negligent use of excessive force.!*

Conclusion

The court again emphasizes that the conclusions it reaches in this order cannot

be taken to foreshadow a final outcome adverse to Officer Holcomb or the City. The

conclusions the court reaches here are, for the most part, driven by the existence of

serious fact issues—issues which could ultimately go either way. That said, for the

reasons stated, the Motion for Summary Judgment of Defendant Kyle Holcomb

(doc. no. 75) is DENIED. Defendant City’s Motion for Summary Judgment (doc.

no. 74) is GRANTED with respect to the 42 U.S.C. § 1983 municipal liability claim

and DENIED with respect to the state law negligent use of excessive force claim.

DATED this 14" day of August, 2023.

UNITED STATES DISTRICT JUDGE

20-0465p023.rev.docx

4 The City also challenges the negligent use of excessive force to the extent it is based on its

alleged inadequate training of Holcomb. However, it appears to the court from the allegations in

the complaint that Clerkley is not seeking to hold the City independently liable for negligence

based on inadequate training. The court thus need not address the City’s argument.

26