Anthony v. City of Oklahoma City

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

RICHARD ANTHONY, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-21-533-F

)

CITY OF OKLAHOMA CITY, )

OKLAHOMA, a political subdivision )

of the State of Oklahoma, et al., )

)

Defendants. )

ORDER

Defendants City of Oklahoma City and Caleb Gottschalk move for summary

judgment under Rule 56(a), Fed. R. Civ. P., as to the pending 42 U.S.C. § 1983 and

Oklahoma state law claims against them. See, doc. nos. 77 and 82. Plaintiff Richard

Anthony responded, objecting to the requested relief as to certain of those claims.

See, doc. nos. 92 and 93. Defendants have replied. See, doc. nos. 94 and 95. Upon

review of the parties’ submissions, the court makes its determination.

Background1

1. The Incident

On August 2, 2019, at approximately 10:48 p.m., a resident, who resided on

the second floor of an Oklahoma City apartment building, called 911 and reported a

man was pounding on a door trying to break into a first-floor apartment. The caller

described the man as white and wearing “Dockers.” See, doc. no. 82-1. He stated

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

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

that the man was trying to kick down the door to the apartment. The caller stated

that he was yelling, “let me in, let me in.” Id. He also indicated that the man may

be the actual tenant, but he did not know. Id. The fact that the individual may be an

actual tenant was not conveyed by dispatch. See, doc. no. 82-2.

Defendant Caleb Gottschalk (Gottschalk), a sergeant with the Oklahoma City

Police Department, was dispatched to respond to the call, which was classified as a

priority one call (danger to life or property) for first degree burglary. Gottschalk

arrived without using his vehicle’s lights or sirens. He parked away from the subject

apartment building and approached it on foot. He walked past vehicles parked under

a carport. The carport was lighted, but the outside of the apartment complex was

not. Gottschalk was in uniform and wore a body camera. As Gottschalk approached

the subject apartment building, he shined his flashlight toward the building. A

private security guard in uniform, later identified as Randy Rigsby, yelled, “hey,

officer.” See, doc. no. 82-4. Gottschalk walked under the lighted carport toward the

building. He observed and shined his flashlight on a white male, in khaki cargo

pants, who was later identified as plaintiff Richard Anthony (Anthony). Anthony

was standing on a sidewalk in front of a lighted breezeway of the apartment building.

Gottschalk observed Mr. Rigsby, as well as a female, later identified as Lisa Davis

(Davis). Mr. Rigsby stated to Gottschalk, “hey, he’s trying to kick in doors,”

referring to Anthony. Id. Gottschalk approached closer with his flashlight shining

directly on Anthony, who was holding a cellular telephone to his right ear and had

his left hand in the pocket of his pants. Without identifying himself as a police

officer, Gottschalk yelled to Anthony, “what are you doing, take your hand of your

pocket.” Id. As he approached closer, he asked for Anthony to take his hand out of

his pocket, and Anthony replied “no.” Id. Gottschalk ordered Anthony again to take

his hand out of his pocket, and then stated to Anthony, “I said take your hand out of

your pocket.” Id. Anthony replied, “I said no.” Id. Anthony testified at his

deposition that he thought the security guard, rather than a police officer, was

ordering him to show his hand because Gottschalk had not identified himself and

had shined the flashlight in his face and he did not see a police car or flashing lights.

After Anthony replied, “I said no,” Gottschalk sprayed Anthony’s face with

oleoresin capsicum (OC) spray, also known as pepper spray. Doc. no. 82-4.

Anthony bent over and put his cellular telephone in his right pocket. Anthony still

had his left hand in his left pocket. Gottschalk told Anthony several more times to

take his hand out of his pocket. Anthony said, “I haven’t done anything.” Id. Other

OCPD officers arrived at the scene. Gottschalk told Anthony twice to put his hands

behind his back and another OCPD officer told Anthony to do as Gottschalk

instructed. Gottschalk grabbed Anthony’s hands and handcuffed him. Anthony

continued to say that he hadn’t done anything. Gottschalk told Anthony he “wasn’t

following instructions” and he “was kicking doors.” Id. After he was handcuffed,

Anthony raised to a standing position but with his head down. Gottschalk, who

remained behind Anthony, began searching him. Anthony continued to say that he

hadn’t done anything. Davis asked Anthony if he wanted her to try to “wake her

up,” and Anthony replied “yeah.” Id. Subsequently, Anthony told Gottschalk there

were “absolutely no charges.” Id. Gottschalk said to Anthony that he was “not

following instructions” and “that’s resisting.” Id. Anthony claimed that he was not

resisting; he was at his own residence. Gottschalk told him that could have been

figured out if Anthony had taken his hand out of his pocket, but he didn’t want to do

that. Anthony told Gottschalk, “I had no idea who you are.” Id. Gottschalk asked,

“did you see the police department?” Id. Anthony stated, “no, man . . . police, you

ain’t police.” Id. Gottschalk questioned, “I’m not?” and stated, “I’m wearing an

Oklahoma City police uniform.” Id. Anthony said, “I can’t see that.” Id. Gottschalk

said, “you could, when I walked up.” Id. Anthony was still standing with his head

down and his eyes were closed. Turning his face to his right toward Gottschalk,

Anthony said, “hey, how about this, call Lieutenant Roof.” Id. Gottschalk, who was

searching Anthony’s right pant pocket, said, “he’s going to tell you the same thing I

am doing right now, I know Roof.” Id. Anthony then stated that “I can tell you this,

Mike Roof will tell you to back the fuck off.” Id.2 Gottschalk immediately grabbed

Anthony by the shirt and arm, turning him while stating “don’t freaking turn on me,

don’t turn on me” and, according to Anthony, then slammed Anthony against the

brick wall. Id.; see also, doc. no. 92-2, ECF p. 13, ll, 22-23; ECF p. 15, ll. 1-2.

According to Anthony, Gottschalk then either put his feet behind or in front of him,

tripping Anthony or putting him down some way with his legs, and then Gottschalk

fell on top of him. See, doc. no. 92-2, ECF p. 18, ll. 17-24; ECF p. 15, ll. 15-18.

During the incident, Anthony’s head struck the wall and his face had hit the “pointy

part of the brick.” Id., ECF p. 15, ll. 24-25. After the incident, Gottschalk continued

to search Anthony. Gottschalk told Anthony that he was publicly intoxicated.

Anthony replied that he was not; he was at his home. Gottschalk told Anthony he

was going to jail. Anthony said, “I ain’t done shit.” See, doc. no. 82-4. Gottschalk

told him he was resisting and was publicly intoxicated. Anthony said, “I’ve not done

shit.” Id. Gottschalk told Anthony to stand up, and he continued to search him.

Subsequently, Anthony said he was bleeding. Gottschalk acknowledged his face

was bleeding and requested that EMSA be called. While searching Anthony,

Gottschalk found a box knife in one of his pant pockets.3 Anthony testified at his

deposition that he used the knife to open boxes at work.

When EMSA arrived, Anthony did not want to take the ambulance. As a

result, he was transported to the hospital emergency room by Gottschalk.

2 At the time Anthony is making this statement, Gottschalk’s body camera only shows Anthony’s

shirt.

3 Anthony’s pants had seven pockets. Doc.no. 92-2, ECF p. 16, ll. 19-20; 22.

A physical exam showed Anthony was oriented but smelled strongly of

alcohol. Anthony’s ethanol level was 305.13mg/dL (31% w/v). A CT scan was

performed on his head, which showed no acute intracranial abnormalities. After the

doctor determined Anthony was stable, he was discharged. Although the medical

records stated that the discharge destination was “Jail,” they also stated Anthony was

discharged “to home,” with instructions to return to the hospital “for any new,

persistent, or worsening of symptoms (specifically any headache, nausea/vomiting,

or altered level of consciousness)” and to be awakened “from sleep every 2 hours

for the next 24 hours to check for appropriate mentation.” Doc. no. 83-1; ECF pp.

4, 7, and 11. Gottschalk transported Anthony to the Oklahoma County jail for

booking. According to Anthony, he was not awakened every 2 hours as instructed.

Anthony received follow-up diagnostic testing on August 12, 2019. The

results were normal and showed no defined soft tissue swelling. Two weeks after

the incident, Anthony became ill, specifically, vomiting, and having slurred speech,

while on vacation in Las Vegas. He sought medical treatment after he returned to

Oklahoma City. The doctor performed a neurological exam, which was normal, and

his speech was found to be normal.

2. Training and Investigation

Gottschalk was employed by the City as a police recruit on May 25, 2012.

Upon employment, Gottschalk received over six months of training from the OCPD

Training Academy. During the training academy, Gottschalk received training in

the use of force in effecting an arrest or detention. After attending the training

academy, Gottschalk 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 subject incident, Gottschalk had attended 578 hours of in-service training.

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

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

directed to be familiar with its contents and any updates. In addition to other

policies, the manual contained a use of force policy. That policy provided in part

that officers may use only the amount of force that is reasonably necessary to

“[e]ffect a lawful arrest[;]” “[p]revent the escape of a person lawfully arrested[;]”

“[a]pprehend a person who has escaped from lawful arrest[;]” and “[p]rotect

themselves or others from danger of death or bodily harm.” Doc. no. 77-23, ECF

p. 3. In addition, the manual contained a procedure, which stated that “[a]ll officers

will be trained in the use of OC Spray.” Doc. no. 93-4, ECF p. 1. The procedure

stated that “OC Spray is considered a use of force and shall be deployed in a manner

consistent with the [OCPD’s] written directives, Use of Force Options Matrix and

training guidelines.” Id. It further stated that “OC Spray may be used on a person

who is passively resisting, actively resists in a defense manner, is aggressively

offensive without a weapon, likely to harm others, or places life or limb in jeopardy

and when all other reasonable means to accomplish the desired action have been

exhausted or would likely be ineffective under the circumstances.” Id. Another

OCPD procedure defined a “passive resistor” as an “uncooperative subject who is

not controlled by the officer’s verbal direction but who does not resist an officer in

any physical way.” Id., ECF p. 2.

In accordance with an OCPD procedure, an OCPD lieutenant investigated

Gottschalk’s use of force on Anthony and issued a use of force report. The use of

force report included interview statements from Anthony, Mr. Rigsby and Ms.

Davis. The report attached documents, photographs, and footage from Gottschalk

and other officers’ body cameras. Only Gottschalk’s body camera showed the use

of force. After review, the lieutenant concluded that he had no issue with the use of

force. The report was forwarded to a captain and then a major in the OCPD who

likewise had no issues with the use of force. The Use of Force Screening Committee,

comprised of three majors with OCPD, determined the use of force by Gottschalk

was justified and that application of the force was appropriate.

3. Procedural History

Anthony filed this action against Gottschalk and the City seeking monetary

relief under 42 U.S.C. § 1983 and Oklahoma state law.4 In an amended complaint,

Anthony alleged Gottschalk subjected him to the use of excessive force in violation

of the Fourth and Fourteenth Amendments. Additionally, Anthony alleged that

Gottschalk acted with deliberate indifference to Anthony’s serious medical needs

and health and safety in violation of the Eighth Amendment. Anthony claimed

Gottschalk was liable under § 1983 in both his individual and official capacities.

Anthony also claimed that the City was liable under § 1983 because his injuries were

directly caused by municipal customs and practices.

In addition to the § 1983 claims, Anthony alleged state law claims against

Gottschalk and the City for negligence, assault, battery, wrongful arrest, and

intentional infliction of emotional distress.

Upon motion by Gottschalk pursuant to Rule 12(b)(6), Fed. R. Civ. P., the

court dismissed Anthony’s state law claims against Gottschalk, in his individual

capacity, for assault, battery, and wrongful arrest (the fifth, sixth and seventh claims

for relief). See, Order, doc. no. 27. It also dismissed all claims alleged against

Gottschalk in his official capacity, and any claim arguably alleged against him under

4 The action was originally filed in the District of Oklahoma County, State of Oklahoma. The City

removed the action to this court on the basis of the existence of original jurisdiction under 28

U.S.C. §§ 1331 and 1343. See, doc. no. 1. In addition to claims alleged against Gottschalk and

the City, Anthony alleged state law claims against Randy Rigsby, the security guard, and Rigsby’s

employer. Id. The claims against Rigsby and his employer were later dismissed pursuant to a

joint stipulation of dismissal with prejudice, see, doc. no. 65, leaving Gottschalk and the City as

the remaining defendants.

the Oklahoma Constitution.5 Further, the court deemed the § 1983 deliberate

indifference to medical needs claim to be brought under the Fourteenth Amendment,

rather than the Eighth Amendment. Id.

Gottschalk now moves for summary judgment, asserting the defense of

qualified immunity as to both § 1983 claims.6 He also challenges the remaining state

law claims against him—negligence and intentional infliction of emotional distress.

In addition, the City moves for summary judgment, arguing that Anthony cannot

establish municipal liability under § 1983 and cannot establish liability under the

Oklahoma Governmental Tort Claims Act (GTCA), 51 O.S. § 151, et seq., for the

state law claims—negligence, assault, battery, wrongful arrest, and intentional

infliction of emotional distress.

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.

5 The court also dismissed any claim arguably alleged against the City under the Oklahoma

Constitution.

6 “‘Persons sued under § 1983 in their individual capacity may invoke the defense of qualified

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

Duda v. Elder, 7 F.4th 899, 909 (10th Cir. 2021)). “Qualified immunity ‘protects government

officials from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights.” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)).

As stated, Gottschalk moves for summary judgment asserting the defense of

qualified immunity as to Anthony’s § 1983 claims. “When a defendant asserts

qualified immunity in a summary judgment motion, the plaintiff must show that (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, 33 F.4th

at 1272.

“‘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 (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “A

Supreme Court or Tenth Circuit decision on point or the weight of authority from

other courts can clearly establish a right.” Id. (quotation marks and citation omitted).

“‘[A] case directly on point’ is not necessary if ‘existing precedent [has] placed the

statutory or constitutional question beyond debate.’” Id. (quoting White v. Pauly,

580 U.S. 73, 79 (2017)).

Unaddressed Claims

Anthony, in response to Gottschalk’s motion, does not address the § 1983

claim for deliberate indifference to serious medical needs or the state law negligence

and intentional infliction of emotional distress claims. In its discretion, the court

deems Gottschalk’s motion as to the unaddressed claims confessed pursuant to

LCvR7.1(g). Upon independent review of the motion as to the unaddressed claims,

the court concludes that Anthony has failed to demonstrate a violation of a clearly

established right and Gottschalk is therefore entitled to qualified immunity on the

§ 1983 claim for deliberate indifference to serious medical needs. The court also

concludes that Gottschalk has sufficiently demonstrated that there are no genuine

issues of material fact and that he is entitled to judgment as a matter of law on the

state law claims for negligence and intentional infliction of emotional distress.

Anthony, in response to the City’s motion, does not address municipal liability

under § 1983 for deliberate indifference to serious medical needs or liability under

the GTCA for the state law claims for assault, battery, wrongful arrest, and

intentional infliction of emotional distress. The court deems the City’s motion as to

the unaddressed claims confessed pursuant to LCvR7.1(g). Upon independent

review of the motion as to the unaddressed claims, the court concludes that the City

has sufficiently demonstrated that there are no genuine issues of material fact and

that it is entitled to summary judgment as a matter of law on the municipal liability

claim under § 1983 for deliberate indifference to serious medical needs and on the

claims under the GTCA for assault, battery, wrongful arrest, and intentional

infliction of emotional distress.

With the above rulings, the remaining claim against Gottschalk is the § 1983

excessive use of force claim. The remaining claims against the City are municipal

liability under § 1983 for excessive use of force and liability under the GTCA for

negligence.

Discussion

1. Qualified Immunity

a. Constitutional Violation

“[A]ll claims that law enforcement officers have used excessive force—

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

citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard[.]” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis omitted).

Palacios, 61 F.4th at 1256 (quotation marks and citation omitted). Under this

standard, the court asks whether the officer’s actions were “objectively reasonable

in light of the facts and circumstances confronting [him], without regard to [his]

underlying intent or motivation.” Id. (quotation marks omitted). The court must

judge an officer’s use of force “from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight” and this “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. “Ultimately, ‘the inquiry is always

whether, from the perspective of a reasonable officer on the scene, the totality of the

circumstances justified the use of force.’” Pauly v. White, 874 F.3d 1197, 1215 (10th

Cir. 2017) (quoting Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260

(10th Cir. 2008)).

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

Circuit precedent considers three nonexclusive factors identified by the Supreme

Court in Graham v. Connor. These factors, referred to as the Graham factors, are

“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.” Wilkins, 33 F.4th at 1273 (quoting Graham,

490 U.S. at 396). The second factor—whether the suspect poses an immediate threat

to the safety of the officers or others—is “‘undoubtedly the most important and fact

intensive factor in determining the objective reasonableness of an officer’s use of

force.’” Wilkins, 33 F.4th at 1273 (quoting Pauly, 874 F.3d at 1215).

i. Pepper Spray

Anthony argues that Gottschalk used excessive force when he sprayed him

with OC spray, which the court now refers to as pepper spray. Applying the Graham

factors and considering the totality of the circumstances, the court concludes that a

reasonable jury could not find that Gottschalk’s use of pepper spray was objectively

unreasonable.

Graham Factors

Severity of the Crime

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.”

Palicios, 61 F.4th at 1256. Here, Gottschalk responded to a call classified as

first-degree burglary, which is a felony under Oklahoma law. See, 21 O.S.

§ 1436(1). When he arrived at the scene, Gottschalk observed Anthony standing on

the sidewalk. However, upon approach, he was informed by Rigsby, the security

guard, that Anthony was “trying to kick in doors.” See, doc. no. 82-4 (emphasis

added). Attempted first-degree burglary is also felony under Oklahoma law. See,

21 O.S. § 42(1); 21 O.S. § 1436(1). The same is true for attempted second-degree

burglary. See, 21 O.S. § 42(1); 21 O.S. § 1435(A); 21 O.S. § 1436(2). The court

concludes that the first Graham factor weighs against Anthony as to a finding that

the use of the pepper spray was objectively unreasonable.7

Actively Resisting or Attempting to Evade Arrest by Flight

Turning to the third Graham factor, whether Anthony actively resisted or

attempted to evade arrest, the court concludes that the factor slightly weighs in favor

of Anthony with respect to the use of pepper spray. Gottschalk’s body camera

footage shows that he ordered Anthony to take his hand out of his pocket four times.

Anthony said “no” on the second time, and on the fourth time, he responded, “I said

no.” Doc. no. 82-4. The Tenth Circuit has concluded that the failure to immediately

obey an officer’s orders is not considered actively resisting arrest. See, Jordan v.

7 In so concluding, the court rejects Anthony’s argument that he was “suspected of committing a

nonviolent misdemeanor” and “[a]t worst . . . could be accused of some sort of property crime for

allegedly kicking a door.” Doc. no. 92, ECF p. 17 and n. 1.

Jenkins, ___ F.4th ___, 2023 WL 4567769, *7 (10th Cir. July 18, 2023). Although

the plaintiff in Jordan only disobeyed one instruction, rather than four instructions,

like Anthony, the court notes that the four instructions were given to Anthony in

quick succession. As intoxicated persons sometimes do, Anthony only verbally

resisted Gottschalk’s commands; he did not attempt to resist them in any physical

way. And according to the OCPD’s police manual and Gottschalk’s deposition

testimony, the resistance exhibited by Anthony was passive, rather than active. See,

doc. no. 93-4, ECF p. 2; doc. no. 82-5, ECF p. 12, ll. 11-15. Further, there is no

evidence that Anthony was attempting to evade arrest when Gottschalk deployed the

pepper spray.

Immediacy of the Threat

The second Graham factor is the “most important” and requires the court to

look at “whether the officers or others were in danger at the precise moment that

they used force.” Wilkins, 33 F.4th at 1273 (quotation marks and citations omitted).

The court concludes that the second factor weighs in favor of Gottschalk, supporting

a finding that the use of pepper spray was not objectively unreasonable. Prior to

Gottschalk deploying the pepper spray, Gottschalk had ordered Anthony to take his

hand out of his pocket four times and Anthony had refused. And in response to the

last instruction, Anthony stated, “I said no.” Doc. no. 82-4. Anthony’s obstinate

refusal to comply would have indicated to a reasonable officer, in Gottschalk’s

position, that Anthony might be armed and dangerous. See, United States v. Harris,

313 F.3d 1228, 1236 (10th Cir. 2002) (officer reasonably justified in believing that

defendant might be armed and dangerous when he refused to comply with request

to take his hands out of his pockets). Gottschalk testified that everyone’s safety was

“his first objective.” Doc. no. 82-5, ECF p. 11, ll. 7-9. Gottschalk as well as Rigsby

and Davis were in close proximity to Anthony when Gottschalk gave the final

command. And Gottschalk, who was closest to Anthony, was without any cover.

When Anthony replied, “I said no,” Gottschalk could reasonably perceive from

Anthony’s hostile tone of voice that he had negative intentions toward him. The

court finds that, even viewing the facts in a light most favorable to Anthony, a

reasonable officer, in Gottschalk’s position, would reasonably perceive Anthony as

a potential threat to his and others’ safety, at the precise moment that Gottschalk

used the pepper spray.

In briefing, Anthony argues that he was not disobeying lawful orders because

he was unaware of police presence. Anthony points out that Gottschalk did not

identify himself as a police officer. And according to Anthony, he believed the

security guard was instructing him to take his hand out of his pocket. However,

under Tenth Circuit precedent, a police officer does not have to identify himself in

every situation. Palacios, 61 F.4th at 1258. The evidence, viewed in Anthony’s

favor, establishes that a reasonable officer, in Gottschalk’s position, could conclude

that Anthony knew that Gottschalk was a police officer. Id. at 1257 (“A suspect’s

subjective knowledge of whether he is encountering police is not relevant to the

inquiry, but rather the question is whether an objectively reasonab[e] officer could

conclude, based on the facts and circumstances surrounding the situation, that the

suspect knew that he was being pursued by the police.”) (quotation marks and

citation omitted; alteration in original). Although it was late at night and Gottschalk

shined a flashlight directly at Anthony, Rigsby had yelled out, “hey officer,” doc.

no. 82-4, as Gottschalk approached, and as Gottschalk came closer, he stated, “hey,

he is trying to kick in doors.” Id. Gottschalk was in full uniform, with his badge,

gun, and baton, and as he approached, he walked under a carport which was lighted.

Gottschalk gave instructions to Anthony that were consistent with law enforcement

instructions. See, Palacios, 61 F.4th at 1258 (showing hands instruction consistent

with law enforcement instruction). Further, when he gave his final instruction to

Anthony to take out his hand out of his pocket, Gottschalk was within a short

distance of Anthony.

In sum, the first and second Graham factors weigh in favor of Gottschalk’s

use of pepper spray. Considering the totality of circumstances, viewed in Anthony’s

favor, the court concludes a reasonable jury could not conclude that the use of pepper

spray was objectively unreasonable. At the time Gottschalk deployed the pepper

spray, Anthony had been suspected of committing a felony, was not complying with

verbal commands, and was reasonably perceived as a potential threat to the safety

of Gottschalk as well as Rigsby and Davis by refusing to take his hand out of his

pocket. Therefore, the court concludes that Anthony has failed to demonstrate that

Gottschalk violated his Fourth Amendment rights by spraying him with pepper

spray.

ii. Takedown Maneuver

Anthony additionally argues that Gottschalk used excessive force when he

performed a takedown maneuver while Anthony was handcuffed. Although

Gottschalk disputes that he performed a takedown maneuver on Anthony, the court

concludes that viewing the evidence in Anthony’s favor, a reasonable jury could

conclude that Gottschalk performed a takedown maneuver. The court also concludes

that applying the Graham factors and considering the totality of the circumstances,

a reasonable jury could conclude that the takedown maneuver was objectively

unreasonable.

Graham Factors

Severity of the Crime

Shortly before Gottschalk performed the takedown maneuver, Anthony told

Gottschalk he hadn’t done anything and that he was at his own residence. Davis also

asked Anthony if he wanted her to “try to wake her up,” and he said “yeah.” Doc.

no. 82-4. Subsequently, Anthony complained to Gottschalk that there were

absolutely no charges, and Gottschalk specifically told Anthony that he was not

following instructions and “that’s resisting.” Doc. no. 82-4. One of the charges for

which Anthony was arrested was interfering with official process – resisting an

arrest, a misdemeanor. Doc. no. 82-3. The Tenth Circuit has stated that “‘a minor

offense supports only the use of minimal force.’” Jordan, 2023 WL 4567769, at *7

(quoting Wilkins, 33 F.4th at 1273). Thus, the first Graham factor weighs against the

use of anything more than minimal force and favors Anthony on the issue of whether

the use of the takedown maneuver was objectively unreasonable. Wilkins, 33 F.4th

at 1274.

Actively Resisting or Attempting to Evade Arrest by Flight

The court concludes that the third Graham factor also weighs in favor of

Anthony in finding the takedown maneuver was objectively unreasonable. In Dixon

v. Richer, 922 F.2d 1456, 1462 (10th Cir. 1991), the Tenth Circuit ruled that a police

officer’s aggressive frisk of a plaintiff did not constitute excessive force because the

plaintiff’s “turning around and swearing” at the officer could reasonably be

interpreted as “an act of resistance.” However, the court concludes (again viewing

the evidence in Anthony’s favor) that a reasonable jury could conclude that Anthony,

while swearing at Gottschalk, was not turning around shortly before Gottschalk

performed the takedown maneuver. A reasonable jury could conclude that Anthony,

even though swearing at Gottschalk, was not engaging in physically aggressive

behavior toward Gottschalk. Thus, a reasonable jury could conclude that Anthony

was not actively resisting arrest. Further, there is no evidence that Anthony was

attempting to evade arrest by flight.

Immediacy of the Threat

Although Gottschalk suggested in deposition that Anthony posed a threat

because he could have tried to bite him, spit on him or headbutt him, the court

concludes that a reasonable jury could find that Anthony did not pose a threat when

Gottschalk performed the takedown maneuver, given that his hands were handcuffed

behind his back, he was under Gottschalk’s control, and other officers were nearby.

The court therefore concludes the second Graham factor also favors Anthony in

finding the takedown maneuver was objectively unreasonable.

In sum, the three Graham factors favor Anthony, and considering the totality

of the circumstances, the court concludes that a reasonable jury could conclude the

takedown maneuver was objectively unreasonable. The court concludes that a

reasonable jury could conclude that Gottschalk violated Anthony’s Fourth

Amendment rights by performing the takedown maneuver.

b. Clearly Established Law

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

Fourth Amendment violation with respect to the takedown maneuver, the court must

decide if Anthony has shown that Gottschalk’s conduct 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

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

and citations omitted).

The Tenth Circuit in Jordan v. Jenkins, supra., concluded that its decision in

Morris v. Noe, 672 F.3d 1185, 1190 (10th Cir. 2012), establishes that “a takedown

maneuver is unconstitutional when the arrestee poses no threat, puts up no resistance,

and does not attempt to flee.” Id., 2023 WL 4567769, at *8. Taking the facts in the

light most favorable to Anthony, a reasonable jury could conclude that he posed no

threat, put up no resistance, and did not attempt to flee. Consequently, it was clearly

established in August of 2019 that the takedown maneuver utilized by Gottschalk

was excessive and in violation of the Fourth Amendment.

The court therefore concludes that Gottschalk is not entitled to summary

judgment based on the defense of qualified immunity with respect the § 1983 claim

for use of excessive force based upon the takedown maneuver. Gottschalk’s motion

will therefore be denied with respect to the § 1983 excessive use of force claim based

on the takedown maneuver.

As to Gottschalk’s use of pepper spray, the court has previously concluded

that the use of pepper spray on Anthony was not objectively unreasonable and

therefore did not violate Anthony’s Fourth Amendment rights. But, aside from the

merits of that conclusion, the court also concludes that Anthony has failed to

establish that Gottschalk violated Anthony’s clearly established constitutional rights.

In his briefing, Anthony cites two cases involving pepper spray, Wilkins v. City of

Tulsa, supra., and Martinez v. New Mexico Dept. of Public Safety, 47 Fed. Appx.

513 (10th Cir. 2002). Although the latter case is unpublished, it “need not be ignored

in determining whether the law was clearly established[.]” McCoy v. Meyers, 887

F.3d 1034, 1049 n. 16 (10th Cir. 2018) (quotation marks and citations omitted).

Nonetheless, the court concludes that neither case gives fair warning that

Gottschalk’s conduct was unconstitutional. In both cases, mace or pepper spray was

used after the plaintiff was handcuffed and posed no threat to the officer. Further,

at the time of the use of force, the plaintiff was suspected of a misdemeanor offense.

The other cases cited by Anthony do not involve materially similar conduct to

that present in this case, and also do not, in the court’s view, apply with obvious

clarity to the conduct at issue. See, Irizarry v. Yehia, 38 F.4th 1282, 1294 (10th Cir.

2022) (“To determine whether the law is clearly established, the relevant precedent

is considered on point if it involves materially similar conduct or applies with

obvious clarity to the conduct at issue.”) (quotation marks and citation omitted;

emphasis in original). Consequently, the court concludes that Anthony has failed to

demonstrate that his right to be free from excessive force in the form of pepper

spraying was clearly established when this encounter unfolded in August of 2019.

The court therefore concludes that Gottschalk is entitled to summary judgment based

on the defense of qualified immunity with respect to the § 1983 excessive use of

force claim based on the use of pepper spray. Gottschalk’s motion will be granted

with respect to the § 1983 excessive use of force claim based on the use of pepper

spray.

2. Municipal Liability

“A § 1983 suit against a municipality for actions of its police officer[] requires

proof that (1) an officer committed a constitutional violation and (2) a municipal

policy was the moving force behind the constitutional deprivation that occurred.”

Estate of Larsen v. Murr, 511 F.3d 1255, 1264 (10th Cir. 2008). Here, the court has

found that Gottschalk did not commit a constitutional violation with respect to the

use of pepper spray, but he did commit a constitutional violation with respect to the

takedown maneuver. Therefore, the court addresses whether the City may be held

liable for Anthony’s alleged injuries resulting from the takedown maneuver.

Although Anthony claims that Gottschalk inflicted injury on him with use of

the takedown maneuver, the City may not be held liable under § 1983 solely because

of the inflicted injury by its employee. Bryson v. City of Oklahoma City, 627 F.3d

784, 788 (10th Cir. 2010). Rather, to hold the City liable for the actions of its

employee, Anthony must show that the municipality had a policy or custom that

caused his 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,

Anthony’s municipal liability claim with respect to the takedown maneuver appears

to be based upon failure to adequately train Gottschalk and ratification of

Gottschalk’s conduct. Doc. no. 93, ECF p. 11.

“‘[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)).

Anthony asserts that the City “[failed] to properly 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. 93, ECF p. 11.8 However, it is undisputed by

8 The court notes that while Anthony argues he was unarmed, Gottschalk found a box knife in one

of his pant pockets.

Anthony that OCPD officers, including Gottschalk, were trained on the proper use

of force. Officers were trained to use only the amount of force that is reasonably

necessary to “[e]ffect a lawful arrest[;]” “[p]revent the escape of a person lawfully

arrested[;]” “[a]pprehend a person who has escaped from lawful arrest[;]” and

“[p]rotect themselves or others from danger of death or bodily harm.” Doc. no.

77-23, ECF p. 3. In his papers, Anthony has failed to identify what additional

training by the City would have caused Gottschalk not to utilize the takedown

maneuver. 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. Anthony 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, Anthony’s failure to adequately train

claim against the City fails.9

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

Gottschalk’s unconstitutional conduct of using the takedown maneuver by

determining that it was within policy. However, assuming without deciding that

the evidence, viewed in Anthony’s favor, is sufficient to establish the City’s

ratification of Gottschalk’s conduct of utilizing a takedown maneuver, 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

9 The court also finds that Anthony has failed to proffer sufficient evidence to show the alleged

inadequate training amounted to deliberate indifference to the rights of persons with whom the

police come into contact.

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

alleged ratification of Gottschalk’s conduct occurred after the incident.

Consequently, the City’s alleged after-the-fact ratification of Gottschalk’s alleged

misconduct conduct is insufficient to establish a municipal liability claim against the

City. Anthony’s ratification theory therefore fails.

Because Anthony has failed to establish a constitutional violation with respect

to the use of pepper spray and has failed to establish that a municipal liability claim

with respect to the takedown maneuver, 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, Anthony has alleged a state law claim against the City for

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

liable on that claim. First, the City points out that, under the GTCA, 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. § 643 and 21 O.S.

§ 1289.25(D), Gottschalk was specifically authorized to use force since he

reasonably feared for his safety and others. However, the court has previously found

that a reasonable jury could conclude the takedown maneuver utilized by Gottschalk

was objectively unreasonable. Consequently, the court rejects the City’s argument

that it is exempt from liability under § 155(16) based upon the two cited statutes.10

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

excessive force claim because the actions of Anthony in attempting to break into an

apartment, as initially reported, constituted a supervening act for which Gottschalk’s

negligence, if any, “is removed or wiped clean.” Doc. no. 77, ECF p. 34. According

to the City, Gottschalk’s conduct merely furnished the condition that Anthony might

suffer injury and that his actions were not the proximate cause of Anthony’s injuries.

The City maintains that Anthony’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 city and officer’s liability was based upon the negligence of the officer in having

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

10 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 a 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).”).

(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 Anthony in “trying to kick in doors” or “interfering with

official process” were not a subsequent independent, unforeseeable act which caused

Anthony’s injury. Further, the facts, viewed in Anthony’s favor, support a finding

that Gottschalk utilized the takedown maneuver when Anthony did not pose a threat

of harm to Gottschalk or others and was not actively resisting arrest or attempting to

flee. As a result, Gottschalk’s alleged negligence in using the takedown maneuver

would be the proximate cause of Anthony’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 Anthony 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 negligence claim.11

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

its alleged inadequate training of Gottschalk. However, it appears to the court from the allegations

in the complaint that Anthony does not seek to hold the City independently liable for negligence

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

Conclusion

For the reasons stated, the Motion for Summary Judgment of Defendant Caleb

Gottschalk (doc. no. 82) is GRANTED with respect to (1) the § 1983 excessive use

of force claim based upon the use of pepper spray; (2) the § 1983 claim for deliberate

indifference to serious medical needs; (3) the state law claim for negligence; and (4)

the state law claim for intentional infliction of emotional distress; and DENIED with

respect to the § 1983 excessive use of force claim based upon the takedown

maneuver. Defendant City’s Motion for Summary Judgment (doc. no. 77) is

GRANTED with respect to the § 1983 municipal liability claims and the state law

claims for assault, battery, wrongful arrest, and intentional infliction of emotional

distress and DENIED with respect to the state law claim for negligence.

DATED this 14" day of August, 2023.

UNITED STATES DISTRICT JUDGE

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