# Anthony v. City of Oklahoma City

> District Court, W.D. Oklahoma · August 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10390399

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** August 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390399. Public record. Not legal advice.