Walker v. Anderson

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

JUSTIN WALKER, )

)

Plaintiff, )

)

v. ) Case No. 23-CV-0008-CVE-JFJ

)

JUSTIN ANDERSON, )

)

Defendant. )

OPINION AND ORDER

Before the Court is defendant Justin Anderson’s motion for summary judgment (Dkt. # 53)1,

plaintiff Justin Walker’s response (Dkt. # 49), and defendant’s reply (Dkt. # 58). This case arose out

of an incident that took place on November 25, 2021, in which plaintiff was arrested for obstructing

an officer. Defendant argues that he is entitled to qualified immunity because he used reasonable

force when detaining plaintiff and had probable cause to arrest plaintiff for obstructing an officer.

Plaintiff responds that defendant is not entitled to qualified immunity because he used excessive

force when performing a takedown maneuver and conducted an unlawful arrest in violation of

plaintiff’s Fourth and Fourteenth Amendment rights.

I.

On November 25, 2021, Thanksgiving Day, a 911 dispatcher received a call from a woman,

Cici, regarding a domestic disturbance.2 Dkt. # 53-5, Dkt. # 53-6. Cici reported that her sister-in-

1 Defendant’s originally filed motion for summary judgment (Dkt. # 46) contained improperly

hyperlinked exhibits. It was therefore stricken and he was directed to re-file his motion. See

Dkt. # 51. The Court cites exclusively to the re-filed motion at Dkt. # 53.

2 For a complete description of the events of November 25, 2021, the Court includes a

narrative description of the contents of the video recordings contained in the summary

judgment record.

law, Julie Walker, and Walker’s husband, plaintiff, were fighting at their3 house at 16842 West 41st

Street. Dkt. # 53-6, at 2.4 Cici reported that plaintiff “may have hit [Julie] on accident.” Id. Cici

explained that plaintiff and his wife had been fighting about getting a divorce and that plaintiff was

“saying that everybody’s treating him like crap.” Id. at 3. Cici noted multiple times that plaintiff

had been drinking and that alcohol had contributed to the altercation. Id. at 3, 6. The dispatcher

remained on the phone with Cici for approximately eight minutes. Toward the end of the call, Cici

reported that plaintiff was now physically separated from his wife, but that there was still hollering

and screaming occurring at the house and in the driveway. Id. at 5. The dispatcher advised Cici,

who was now sitting in her pickup truck at the end of the house’s driveway, to remain where she was

so she could speak to officers as an uninvolved party to the fight. Id. at 4, 7. The dispatcher started

a medical response because she was uncertain whether Julie needed medical attention. Id. at 4.

While on the phone with the 911 caller, dispatch assigned defendant,5 who was working his

regular patrol shift, to 16842 West 41st Street. Dkt. # 53, at 10; Dkt. # 49, at 8. The dispatcher

reported over the radio to defendant that a “domestic [is] in progress” and to “be advised that [Cici’s]

3 Cici reported to dispatch that plaintiff had told her to get off of “his” property. Dkt. # 53-6,

at 4. Dispatch asked whether it was his house and Cici responded “[i]t’s both of their house.

Id. Dispatch later asked Cici, “do you know if your sister-in-law, [Julie] will leave?” Cici

responded “it’s actually her house, so [plaintiff] would probably be the one that needs to

leave.” Dkt. # 53-6, at 5.

4 The Court reviewed the transcript of the 911 call and compared it to the audio recording, and

finds that it accurately transcribes the call. See Dkt. # 53-5; Dkt. # 53-6

5 Defendant is a certified law enforcement officer in Oklahoma, and has been a deputy with

the Tulsa County Sheriff’s Office since 2018. Dkt. # 53, at 9. He is also cross-deputized with

the Cherokee Nation and the Muskogee (Creek) Nation Light Horse Police Department. Id.

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sister and her husband are physically fighting at the moment.” Dkt. # 53-7, at 0:08-0:09; 0:14-0:17.

The incident run sheet recites:

Date Time Comment

11/25/2021 14:35:34 RP [reporting party] ADV HER SISTER AND HUSBAND ARE

PHYSICALLY FIGHTING

11/25/2021 14:36:00 HUSBAND IS JUSTIN WALKER IS HITTING HIS WIFE JULIE

WALKER

11/25/2021 14:36:10 JUSTIN HAS BEEN DRINKING

11/25/2021 14:36:36 RP ADV THEY ARE GETTING A DIVORCE AND ADV HE

BELIEVES EVERYONE IS TREATING HIM LIKE CRAP

11/25/2021 14:36:44 ALL ARE OUTSIDE... NO WEAPONS

11/25/2021 14:36:57 EVERYONE IS OUTSIDE TRYING TO BREAK IT UP

11/25/2021 14:37:03 B5 RUNNING CODE

11/25/2021 14:37:21 RP ADV JULIES DAD IS OUT THERE TRYING TO BREAK IT UP

11/25/2021 14:37:36 RP STATES SHE DOESNT KNOW IF WE NEED MEDICAL...

STARTING MEDICAL

11/25/2021 14:38:11 EMSA STAGING

11/25/2021 14:38:37 THEY ARE SEPARATED AT THE MOMENT... THEY ARE ALL

STILL 97

11/25/2021 14:39:19 RP STATES THEY ARE STILL ACTIVE JUST NOT PHYSICAL...

STILL SCREAMING ANO YELLING

11/25/2021 14:39:26 PER B10 EVERYONE DROP OUT OF CODE

11/25/2021 14:39:50 RP WILL BE ACROSS THE STREET IN A BLUE DODGE TRUCK...

SHE ADV JUSTIN IS TELLING EVERYONE THEY NEED TO

LEAVE

11/25/2021 14:40:30 SISTER IS NOT LEAVING SHE SAID... SHE WILL NOT LEAVE

HER PROPERTY

11/25/2021 14:41:19 SHE ADV SHE IS NOT LEAVING JUST BECAUSE HE WANTS

HER TO OR US

11/25/2021 14:41:35 STLL [sic] NOT PHYSICAL AT THIS TIME

11/25/2021 14:41:51 SHE DOES HAVE MARKINGS ON HER FACE

11/25/2021 14:42:20 JUSTIN DRIVES A BLACK CHEVY TRUCK 3500 BUT HAS NOT

LEFT BUT IF HE DID THAT WOULD BE THE VEH HE WOULD

LEAVE IN

11/25/2021 14:44:08 NO LONGER PS SINCE WE ARE 97

Dkt. # 49-6, at 2; Dkt. # 53, at 8.

Defendant arrived at the entrance to the long driveway of a property located in a rural area

in west Tulsa County. Dkt. # 53, at 10; Dkt. # 49, at 8. The parties dispute what occurred next.

Defendant claims that he spoke briefly to Cici, who provided a description that the

man-plaintiff—suspected of hitting his wife, was the person standing in the driveway in a western

shirt and ball cap. Dkt. # 53-2, at 16. Plaintiff denies that this conversation occurred because

defendant had not yet started his body-worn camera. Dkt. # 49, at 8. Plaintiff, however, has not

provided any evidence refuting that defendant obtained a description of plaintiff, confirming the 911

call.

Defendant, wearing his uniform, pulled into the driveway and activated his body-worn

camera and audio.6 Plaintiff and his stepson, Nathan, were standing outside in the middle of the

gravel driveway. Dkt. # 53-4, at 0:45. Defendant stepped out of his patrol car and approached them.

Id. Defendant told them that he had received a report that “somebody’s beating on somebody else”

and inquired into what was “going on.” Id. at 0:47-0:51. Plaintiff responded, “well, there ain’t

nothing, so you can get off my property and call it good,” and gestured away from the house. Id. at

0:51-0:54. Defendant responded, “okay, no, that’s not how this works,” and was interrupted by

plaintiff, gesturing again, “no, it does, because there ain’t nobody beat. Do you see anybody laying

bloody? I know how the law works. Get your shit, get in your truck.” Id. at 0:55-1:02. In his

deposition, defendant stated that “[plaintiff] was intoxicated.” Dkt. # 53-2, at 13.

Defendant explained why he and the other officers were there. Dkt. # 53-4 at 1:03-1:10.

Plaintiff questioned who told defendant that a woman had been hit, and defendant stated that he did

not have to show him that information. Id. at 1:11-1:13. Plaintiff argued that defendant had to show

him the dispatch call by law, and then pointed at defendant again and stated “get the fuck off my

property.” 1:14-1:17. Plaintiff then turned his back to defendant and began to walk away from him.

Id. at 1:18-1:20. Defendant instructed plaintiff multiple times to stop, and he did not. Id. at 1:20-

1:22. Defendant then instructed him to place his hands behind his back, and plaintiff continued to

6 The Court has compared the body-worn camera footage with the transcript of the video and

finds that the transcript is accurate. Dkt. # 53-4, Dkt. # 53-8.

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protest “no” and “you can’t arrest me.” Id. at 1:22-1:25. Defendant handcuffed plaintiff and told

him that he was not under arrest, just detained. Id. at 1:26-1:42

Plaintiff protested that defendant could not detain him, and yelled at Nathan to begin

recording the interaction on his phone. Id. Defendant again stated to plaintiff that he was being

detained. While plaintiff protested, defendant escorted him toward the patrol car and instructed

plaintiff to stand in front of the vehicle. Id. at 1:41-1:48. Plaintiff became increasingly agitated, and

stated, “I promise you, bud, [] with me fucking retiring from the fire department, I swear to God,

you’re not going to like the outcome of this . . . . All right, yeah, you can’t come on my property and

just fucking put me in cuffs. There ain’t nobody bleeding in my fucking drive or nothing else. I

don’t know where the fuck y’all got the call, I asked you for it. You cannot put me in cuffs! Y’all

know it. No, fuck you, dude, you guys get off my fucking property! . . . Fuck you!” Id. at 1:48-

2:11.7 Defendant began to search plaintiff’s pockets, and said to the other officer, “okay, we’ve got

his son right here, he’s wanting to record the thing” and plaintiff interrupted, yelling, “yeah, he is

recording it because this is all bullshit and you can’t fucking do it!” Id. at 2:11-2:13. He then yelled

out “hey Julie! They put me in cuffs because they said I hit a woman!” Id. at 2:11-2:22.

Plaintiff began pulling away from defendant, and yelled towards the house again, “hey, tell

them they cannot come on the property and fucking do this!” Id. at 2:22-2:23. Defendant grabbed

plaintiff’s arm and instructed him to “stop.” Dkt. # 12, at 0:53. At this point, defendant was

standing behind plaintiff and escorting him around the front of the patrol car. Id. Plaintiff responded

7 Plaintiff repeatedly interrupted defendant, who stated during plaintiff’s comments, “okay,

that’s fine” and “right now [] you don’t want to listen and I won’t . . . .” Dkt. # 53-4, at 1:48-

2:11.

5

“man, fuck you dude” and quickly arched his back and lunged forward, away from defendant.8 Id.

at 0:53-0:55. Defendant immediately wrapped his arms around plaintiff and pulled him down to the

grass area adjacent to the gravel driveway. Id. at 0:55-0:57. Defendant exclaimed “stop” and “do

not do this” while he pulled plaintiff down.9 Id. Plaintiff, then on his stomach in the grass, laughed

and said, “this was the best thing you could have done, I promise you.” Dkt. # 52-4, at 2:37.

Plaintiff alleges that he suffered fractured10 ribs as a result of the takedown maneuver.11

Defendant then checked plaintiff’s handcuffs and helped him back to his feet before leading

him into the patrol car. Id. at 2:40-3:08. Defendant arrested plaintiff for obstruction of an officer,

8 In the video, it appears that plaintiff attempted to hit defendant with his body as he jerked

away. Plaintiff claims that he jerked back as a reaction to the “pain he felt from [defendant]

wrenching his arm, causing the handcuffs to pinch.” Dkt. # 49, at 13. However, the video

does not support that defendant was wrenching plaintiff’s arm. Dkt. # 12, at 0:51-0:53.

9 The parties dispute how plaintiff was taken down, and the actual moment he is brought to

the ground is not fully visible on either the body-worn camera or Nathan’s recording.

Defendant claims that he used a “balance or weight displacement” technique, which he was

trained to do when someone actively resists arrest. Plaintiff claims defendant slammed him

to the ground, but does not dispute that he was brought down in a takedown maneuver.

Neither party disputes that defendant’s maneuver brought plaintiff to the ground on his

stomach, nor does either party dispute that plaintiff’s ribs were fractured as a result of the

maneuver.

10 Plaintiff has interchangeably claimed that he suffered broken ribs and fractured ribs from the

fall. See Dkt. # 49, at 7; Dkt. # 49, at 13; Dkt. # 49, at 24.

11 Plaintiff also includes an expert report, which he argues supports his contention that

defendant used excessive force when he performed the takedown maneuver. See Dkt. # 49-

8, at 2-15. However, this expert report does not present any genuine issue of material fact;

the expert simply analyzes the video and depositions and police practices and makes a

determination that defendant used excessive force. Medina v. Cram, 252 F.3d 1124, 1133

(10th Cir. 2001)(“The expert’s affidavit does not, however, highlight a disputed issue of fact;

rather, it simply contains the ultimate conclusion that the officers’ use of force did not

conform with accepted police guidelines and practices and was, therefore, excessive.”). The

Court has reviewed the expert report and finds that it is insufficient to highlight a disputed

issue of fact; it simply contains an ultimate conclusion similar to that in Medina.

6

pursuant to OKLA. STAT. tit. 21, § 540 (2021), and transported him to jail.12 Dkt. # 53, at 14; Dkt.

# 53-9, at 2. Defendant alleges that plaintiff continued to be defiant and noncompliant when

defendant booked plaintiff into jail and attempted to get him medical attention. Dkt. # 53, at 14.

Plaintiff denies that he acted defiantly at the jail.13

Due to plaintiff’s status as a Chickasaw Nation citizen, the case was referred to the Muskogee

(Creek) Nation. Id. Based on the summary judgment record, it is not clear with which crime

plaintiff was ultimately charged.14 On March 21, 2022, the prosecuting attorney filed a motion to

dismiss the case because the complaining witness did not want to move forward. Dkt. # 53-13, at

2. The case was dismissed.

On January 6, 2023, plaintiff filed a complaint against defendants Vic Regalado, in his

official capacity as Tulsa County Sheriff, and Justin Anderson, in his individual capacity as an

officer/employee of the Tulsa County Sheriff’s Office. Dkt. # 2. The complaint alleged six claims

for relief: a 42 U.S.C. § 1983 claim against Anderson for excessive force in violation of the Fourth

12 After plaintiff was arrested and placed in the back of the patrol car, officers spoke with others

on the property and confirmed that Julie Walker had no “marks” on her and that “nobody saw

anything [with regard to whether she was hit].” Dkt. # 53-8, at 12.

13 Plaintiff relies on a jail video documenting his interaction with defendant and other officers

to dispute defendant’s allegation. However, this video has no sound, so it is unclear what

either plaintiff or defendant stated. The interaction appears unremarkable except for one

instance where plaintiff kneels down and officers appear to instruct him to stand back up.

14 Defendant claims a prosecuting attorney of the Muskogee (Creek) Nation filed a criminal

complaint and information on January 31, 2022, charging plaintiff with domestic assault and

battery pursuant to MCNCA Title 6 § 3-301. Dkt. # 53, at 15. However, the criminal

complaint and information are not included as exhibits, and the motion to dismiss plaintiff’s

charges does not refer to the statute with which plaintiff was charged. See Dkt. # 53-13, at

2-3. Additionally, plaintiff denies that he was charged with domestic assault and battery.

Dkt. # 49, at 10.

7

Amendment to the United States Constitution (count one); a municipal liability claim against

Regalado arising from Anderson’s alleged actions (count two); a municipal liability claim against

Regalado for failure to train or supervise (count three); punitive damages against Anderson arising

from alleged excessive use of force (count four); an Oklahoma state law claim for negligence against

Regalado and Anderson (count five); and a 42 U.S.C. § 1983 claim against Anderson for unlawful

arrest in violation of the Fourth and Fourteenth Amendments to the United States Constitution (count

six). Dkt. # 2, at 3-9. Defendants Regalado and Anderson filed a motion to dismiss some of

plaintiff’s claims, and plaintiff filed a response along with a “notice of dismissal,” which dismissed

all claims against Regalado and the municipality and terminated Regalado as a party defendant. Dkt.

# 18, at 2. The Court entered an Opinon and Order (Dkt. # 18) mooting all claims against Regalado,

dismissing counts five and six against Anderson without prejudice, and dismissing count four for

failure to state a claim. Dkt. # 18, at 8. Count one was plaintiff’s sole remaining claim, but the

Court granted plaintiff leave to amend his complaint with additional facts in support of his unlawful

arrest claim. Id.

On May 18, 2023, plaintiff filed an amended complaint alleging three claims for relief: a

claim against Anderson for excessive force in violation of the Fourth Amendment (count one); a §

1983 claim against Anderson in his individual capacity for use of excessive force in violation of the

Fourth and Fourteenth Amendments (count two); and a claim for unlawful arrest in violation of the

Fourth and Fourteenth Amendments to the United States Constitution (count three). Dkt. # 25, at

4-7. Defendant filed a motion for summary judgment on July 2, 2024, based on the defense of

qualified immunity. Dkt. # 46; Dkt. # 53. Plaintiff filed a response (Dkt. # 49) and defendant filed

a reply (Dkt. # 58).

8

II.

Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of

Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored

procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed

to secure the just, speedy and inexpensive determination of every action.” Id. at 327 (internal

quotations omitted).

“When the moving party has carried its burden under Rule 56(c), its opponent must do more

than simply show that there is some metaphysical doubt as to the material facts. Where the record

taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

(1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiffs

position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find

for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Id. at 250. In its review, the Court

9

construes the record in the light most favorable to the party opposing summary judgment. Garratt

v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

III.

Defendant seeks summary judgment on plaintiff’s § 1983 claims as alleged in the amended

complaint.15 Defendant argues that he is protected by qualified immunity for both claims because

his use of a take down maneuver was objectively reasonable under the circumstances, and because

plaintiff has failed to establish that his constitutional rights were violated by defendant’s conduct.

He also asserts that the initial handcuffing was an investigatory detention, but that, regardless, he had

probable cause to effectuate the arrest for obstruction of an officer based on plaintiff’s conduct.

Plaintiff claims that defendant is not entitled to qualified immunity because his takedown maneuver

constituted excessive force that was unjustified under the circumstances. He also argues that

defendant had no independent basis to believe that a crime had occurred before arresting plaintiff.

Section 1983 provides a cause of action against any “person who, under color of statute,

ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any

15 The Court granted plaintiff leave to amend his complaint to provide additional facts for his

§ 1983 claim for unlawful arrest in violation of the Fourth and Fourteenth Amendments.

Thus, plaintiff’s amended claims should have been a § 1983 claim for excessive force in

violation of the Fourth Amendment, and a § 1983 claim for an unlawful arrest in violation

of the Fourth and Fourteenth Amendments. However, plaintiff’s amended complaint alleges

three claims for relief, and appears to improperly plead a standalone claim for a violation of

the Fourth Amendment for excessive force (count one), along with a § 1983 claim for an

excessive force violation of the Fourth and Fourteenth Amendments (count two). The Court

will construe these two counts as one § 1983 claim for excessive force in violation of the

Fourth Amendment, since plaintiff was not granted leave to amend this claim, and the

Fourteenth Amendment does not apply to the facts here. See Est. of Booker v. Gomez, 745

F.3d 405, 421 (10th Cir. 2014) (“Accordingly, we hold the Fourteenth Amendment standard

governs excessive force claims arising from post-arrest and pre-conviction treatment if the

arrestee has been taken into custody pursuant to a warrant supported by probable cause.”)

10

citizen of the United States . . . the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws” of the United States. “The purpose of § 1983 is to deter state actors from

using the badge of authority to deprive individuals of their federally guaranteed rights and to provide

relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). The Supreme

Court has held that “government officials performing discretionary functions generally are shielded

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

or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).

Qualified immunity shields public officials from facing the burdens of litigation and is an

immunity from suit, not simply a defense to a plaintiff’s claims. Serna v. Colorado Dept. of

Corrections, 455 F.3d 1146, 1150 (10th Cir. 2006). The Tenth Circuit requires the plaintiff to meet

a two-step burden to demonstrate that the defendant is not entitled to qualified immunity. Burke v.

Regalado, 935 F.3d 960, 1002 (10th Cir. 2019). A plaintiff must show that the defendant’s actions

violated a specific constitutional right, and, if the plaintiff has shown that a constitutional violation

occurred, the plaintiff must show that the constitutional right was clearly established when the

conduct occurred. Toevs v. Reid, 685 F.3d 903, 909 (10th Cir. 2012). Plaintiff bears the burden to

prove that his constitutional rights were violated and that the law giving rise to his claims was clearly

established at the time the acts occurred. Cox v. Glanz, 800 F.3d 1231, 1246 (10th Cir. 2015);

Medina, 252 F.3d at 1128.

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A. Plaintiff’s § 1983 claim for excessive force in violation of the Fourth

Amendment

Plaintiff argues that defendant is not entitled to qualified immunity because his takedown

maneuver violated clearly established law. Plaintiff entirely fails to address the first prong of

whether defendant violated plaintiff’s constitutional rights by the use of excessive force. Despite

the fact that it is plaintiff’s burden to establish that defendant’s conduct violated plaintiff’s

constitutional rights, the Court will nevertheless address both prongs of the two-step approach to

facilitate a fair disposition of the case. See Pearson v. Callahan, 555 U.S. 223, 242 (2009) (“Because

the two-step Saucier procedure is often, but not always, advantageous, the judges of the district

courts and the courts of appeals are in the best position to determine the order of decisionmaking that

will best facilitate the fair and efficient disposition of each case.”) (citing Saucier v. Katz, 533 U.S.

194 (2001)). The Court will first address whether defendant used excessive force in violation of the

Fourth Amendment.

1. Whether defendant violated plaintiff’s Fourth Amendment rights by use of

excessive force

The Fourth Amendment governs claims concerning the use of force for a warrantless arrest

before a probable cause hearing has been held. Gomez, 745 F.3d at 419. In Graham v. Connor, 490

U.S. 386 (1989), the Supreme Court set out the standards governing excessive force claims under

the Fourth Amendment, and as a general matter explained that the reasonableness of the force used

requires a “balancing of the nature and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396

(internal quotations omitted). The reasonableness of the use of force “must be judged from the

perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight,” and not

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“every push or shove . . . violates the Fourth Amendment.” Id. The Court must consider factors

such as 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.” Estate of Ceballos v. Husk, 919 F.3d 1204, 1213 (10th Cir. 2019). The

reasonableness inquiry is wholly objective and “an officer’s evil intentions will not make a Fourth

Amendment violation out of an objectively reasonable use of force . . . .” McCoy v. Meyers, 887

F.3d 1034, 1045 (10th Cir. 2018). The use of force may become unreasonable, even if the use of

force is initially appropriate, if the person being detained is no longer a threat to the safety of police

officers. Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991).

a. Severity of the crime

The Tenth Circuit has established that a crime is considered severe when that crime is a

felony or if it involves violent conduct. Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1170

(10th Cir. 2021) (“But our binding precedent indicates the first Graham factor weighs against the

plaintiff when the crime at issue is a felony, irrespective of whether that felony is violent or

nonviolent”); Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *10 (10th Cir. Oct. 20, 2023) (“A

felony or violent conduct justifies more force.”).16 When defendant was dispatched to plaintiff’s

house, he was told that there was an ongoing domestic violence incident.17 “Under Oklahoma law,

16 This and other cited unpublished decisions are not precedential, but may be cited for their

persuasive value. 10th Cir. R. 32.1(A).

17 Plaintiff did not assess the Graham factors in his response, and therefore failed to advance

an argument that the crime at issue could be obstruction of an officer rather than domestic

violence. Regardless, the Tenth Circuit has recently held that even when parties concede that

the crime of obstructing an officer is the relevant crime for this first prong, courts cannot

disregard the crime that the officers were initially investigating. Andersen v. DelCore, 79

F.4th 1153, 1164 (10th Cir. 2023) (finding that the severity of crime factor weighed in

13

domestic abuse may be a misdemeanor or a felony, depending on the circumstances.”18 Huntley v.

City of Owasso, 497 F. App’x 826, 830 (10th Cir. 2012) (citing OKLA. STAT. tit. 21, § 644 (2023)19).

While the incident run sheet recites that there were no weapons involved and that plaintiff and his

wife had been separated, defendant was also informed that plaintiff was drunk, that his wife had

markings on her face, and that a medical unit had been dispatched. DelCore, 79 F.4th at 1164 (“As

part of [the first factor] inquiry, we may properly consider whether exigent circumstances supported

the need for prompt action by law enforcement.”). Faced with a complaint of domestic violence,

coupled with the report that a medical unit was on its way, the severity of the crime factor weighs

in favor of defendant.

b. Level of threat

If a suspect poses “an immediate threat to the safety of the officers or others,” increased force

is appropriate. Mglej v. Gardner, 974 F.3d 1151, 1168 (10th Cir. 2020). “Under the second factor,

an officer may use increased force when a suspect is armed, repeatedly ignores police commands,

or makes hostile motions towards the officer or others.” Donahue v. Wihongi, 948 F.3d 1177, 1196

(10th Cir. 2020). The Tenth Circuit has also considered factors such as whether the suspect is

intoxicated and the nature of the crime officers are investigating. See Huntley, 497 F. App’x at 830

(“In their training, the officers had been told that ‘domestic violence calls are among the most

officer’s favor since he was investigating the crime of child abuse, despite that the

misdemeanor crime of obstructing an officer is the crime for which the suspect was arrested).

18 Because defendant responded as an officer of the Tulsa County Sheriff’s Office, and was

unaware of plaintiff’s status as a Chickasaw citizen at the time of the incident, the Oklahoma

domestic abuse statute is applicable.

19 This statute has since been amended. See 2024 Okla. Sess. Law Serv. Ch. 38 (S.B. 1211)

(West). However, it was in effect at the time of the incident.

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dangerous for officers to handle because of the emotionally unstable condition of the participants and

the unpredictability of their behavior.’’”°); Novitsky v. City Of Aurora, 491 F.3d 1244, 1255 (10th

Cir. 2007) (“Because individuals who are intoxicated are often unpredictable, [the officer] was

confronted with an additional layer of uncertainty.”). When evaluating this second factor, courts

must consider the level of threat posed at the precise time the officer used increased force. See

Vette, 989 F.3d at 1171. The Court will rely on the video evidence and not either party’s

characterization of the events in assessing the level of threat. See Fields v. City of Tulsa, Oklahoma,

No. 21-CV-0179, 2022 WL 17486846, at *4 (N.D. Okla. Dec. 7, 2022), aff'd, No. 23-5001, 2023

WL 8643188 (10th Cir. Dec. 14, 2023).

The video evidence shows that, from the outset of their interaction, plaintiff was intoxicated,

hostile, refused to answer questions, and gestured aggressively at defendant. Despite that, defendant

placed plaintiff in handcuffs—without using any increased force—to temporarily detain plaintiff and

investigate whether Julie Walker was injured. Plaintiffindeed posed less ofa threat towards officers,

and others in the house, once he was handcuffed. However, it was not until plaintiff jerked quickly

at and away from defendant—while yelling expletives directed at defendant—that defendant used a

takedown maneuver to bring plaintiff back under control. See DelCore, 79 F.4th at 1165 (finding that

an officer’s use of force by grabbing a suspect’s wrist “was relatively small and consistent with his

right to take reasonable measures to effect an arrest”). Defendant’s use of force corresponded to the

level of threat imposed by plaintiff in that precise moment. By not analyzing the Graham factors,

plaintiff has failed to advance any other arguments that contravene that he posed a threat to officers.

* Defendant has similarly provided evidence that officers face increased risk when responding

to domestic violence calls. See Dkt. # 53-3, at 5

15

He vaguely declares that defendant admitted in his deposition that he was not threatened by plaintiff.

Dkt. # 49, at 20. However, that is not supported by the evidence in the record. Defendant stated in

his deposition that he was threatened by plaintiff due to his intoxicated state and refusal to comply

with the officer’s directions. Dkt. # 53-2, at 22-24. Because the maneuver corresponded with the

level of threat imposed by plaintiff, the Court find this factor narrowly weighs in favor of defendant.

c. Flight risk and evading arrest

The final factor considers whether the suspect is actively resisting arrest or attempting to

evade arrest by flight. Husk, 919 F.3d at 1213. “Like the second factor, when evaluating the third

factor we consider whether the plaintiff was fleeing or actively resisting at the precise moment the

officer employed the challenged use of force.” Vette, 989 F.3d at 1171 (internal quotations omitted).

We have found this third factor to weigh in favor of ‘some degree of physical coercion or threat,’

when an individual refuses to obey an officer’s lawful orders[.]” DelCore, 79 F.4th at 1165 (quoting

Graham, 490 U.S. at 396). Defendant gave plaintiff numerous opportunities to speak with him about

the allegations, or at least allow the officers to investigate the call. Instead, plaintiff’s attitude

towards the officers was dismissive, and he became increasingly hostile as the interaction continued.

He turned his back on the officers and walked away, he protested aggressively when defendant

placed him in handcuffs, and then he jerked away using force while defendant commanded him to

stop. A reasonable officer in the same circumstances would interpret plaintiff’s last action, along

with the expletives accompanying his action, as an attempt to evade arrest. Defendant’s use of force

also followed the precise moment plaintiff resisted arrest. The use of force and the amount of force

used was reasonable under the circumstances, and plaintiff has not shown that defendant acted

unreasonably in light of plaintiff’s actions.

16

2. Whether defendant violated clearly established law when using the takedown

maneuver

Even if the Court concluded the facts precluded summary judgment on the excessive force

claim, that right was not clearly established. Plaintiff bears the burden of demonstrating that “the

contours of the right [are] sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). “He must

point to a Supreme Court or Tenth Circuit opinion—or ‘the clearly established weight of authority

from other courts’—holding that use of force is excessive in analogous circumstances.” Fields, 2023

WL 8643188, at *4 (citing Kaven, at 1183).

Plaintiff relies on two cases to argue that defendant’s use of the takedown maneuver violated

his clearly established Fourth Amendment rights. First, he cites McCoy v. Meyers, 887 F.3d 1034

(10th Cir. 2018), for the proposition that “the use of force on effectively subdued individuals violates

the Fourth Amendment.” The facts in that case are entirely inapposite to the facts here. In McCoy,

after the suspect was already lying face-down on the ground with his hands behind his back, officers

performed a carotid restraint which rendered the suspect unconscious. Id. at 1040. Officers then

handcuffed the suspect’s hands behind his back, zip-tied his feet together, and performed a revival

technique. Id. Once he regained consciousness, officers struck him more than ten times on his head,

shoulder, back, and arms. Id. Officers then placed the suspect in a second carotid restraint until he

was rendered unconscious again. Id. The Tenth Circuit found that the defendants’ use of force after

the suspect’s hands and feet were bound was unreasonable because he was effectively subdued, and

held that hitting him over the head multiple times violated clearly established law. Id. at 1051. A

reasonable officer would not consider the facts in McCoy analogous to the circumstances here. The

17

court in McCoy found that the suspect was subdued because he was on the floor, bound at the hands

and feet, and had been previously rendered unconscious by a carotid restraint; the Tenth Circuit in

no way equated getting handcuffed as being “subdued.” Id. In fact, the Circuit reiterated that

“[w]hether an individual has been subdued from the perspective of a reasonable officer depends on

the officer having enough time to recognize that the individual no longer poses a threat and react to

the changed circumstances.” Id. at 1058. McCoy does not establish that a reasonable officer would

know that using a takedown maneuver against a suspect who is handcuffed, standing, swearing, and

resisting arrest, constitutes an excessive use of force.

Plaintiff s reliance on Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016), presents a similar issue.

In Perea, officers drove after a suspect who was biking on the street, pushed the suspect off of his

bicycle, did not tell the suspect why they had been following him, and never asked him to halt or

stop. Id. at 1201. Officers threw the suspect off of his bike and reached for his hands in an attempt

to detain him, but the suspect struggled and shouted. Id. Officers then used a taser against him, and

tasered him a total of ten times. Id. The suspect stopped breathing and turned grey. Id. Officers

performed CPR and the suspect began to breathe, but then he stopped breathing again and his pulse

stopped. Id. He was transported to the hospital and pronounced dead. Id. The Tenth Circuit found

that tasering the suspect ten times—in addition to two officers kneeling on top of him—“effectively

subdued” the suspect, and that it is clearly established that continuing to taser a suspect after he had

been subdued violated the Fourth Amendment. Id. The circumstances in Perea are not equivalent

to the circumstances here, and no reasonable officer could interpret that case to clearly establish that

performing a takedown maneuver when a defendant is handcuffed violates this clearly established

18

law.”! Plaintiff has failed to demonstrate that either of these cases clearly establishes that using force

after an individual has been handcuffed automatically violates the Fourth Amendment.” The Court

therefore finds that defendant is entitled to qualified immunity for plaintiffs § 1983 claim for

excessive force in violation of the Fourth Amendment.

al The Circuit even conceded that “some force would be justified to get [the suspect] under the

officers’ control.” Perea, 817 F.3d at 1203.

The parties also discuss the recent Tenth Circuit decision in Surat v, Klamser, 52 F.4th 1261

(10th Cir. 2022). There, two officers were dispatched to a bar in response to a reported

disturbance involving the plaintiff's boyfriend. Id. at 1267. When officers arrived, the

plaintiff attempted to exit the bar and lightly bumped the officer as she walked past him. Id.

She attempted to leave with her boyfriend, and officers yelled that her boyfriend was not free

to go. Id. A different officer began interviewing her boyfriend and the plaintiff again

attempted to leave the bar. Id. The officer placed the plaintiff under arrest and held her by

her wrist. Id. She attempted to pry his fingers off of her arm and he threw her to the ground

to subdue her. Id. She sustained a concussion, cervical spine strain, contusions to her face,

and bruising on her arms, wrists, knees, and legs. Id.

The Tenth Circuit held “that the use of the takedown maneuver to slam to the ground a

nonviolent misdemeanant who poses no immediate threat to the officer or others based on

minimal resistance to arrest is unreasonable and constitutes excessive force under the Fourth

Amendment.” Id. at 1276. However, the Circuit held that at the time the incident occurred

in 2017, “a reasonable officer would not have known that using a takedown maneuver to

throw [a suspect] to the ground while she was resisting arrest for a nonviolent misdemeanor

and not posing an immediate danger to [the officer] would violate the Fourth Amendment.”

Additionally, in Surat, the Circuit found that officers fell short on two Graham factors, and

that plaintiff's misdemeanor offenses, minimal resistence, and non-threatening interaction

with officers did not justify the officer’s use of excessive force. Here, plaintiff □□□ suspected

of committing a felonious offense, posed a higher threat to officers, and more forcefully

resisted arrest. More importantly, Surat was not decided until a year after the incident, and

therefore was not clearly established law.

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B. Plaintiff’s § 1983 claim for unlawful arrest under the Fourth and Fourteenth23

Amendments

Plaintiff argues that defendant unlawfully arrested plaintiff in violation of the Fourth

Amendment, and is not entitled to qualified immunity. Defendant attests that the initial handcuffing

of plaintiff was an investigatory detention supported by reasonable suspicion, and that regardless,

he had probable cause to arrest plaintiff for obstructing an officer. Defendant also asserts that

plaintiff has not demonstrated that defendant violated clearly established law.

1. Whether defendant unlawfully arrested plaintiff in violation of the Fourth

Amendment

The Fourth Amendment protects the “right of the people to be secure ... against unreasonable

searches and seizures ....” U.S. CONST. amend. IV. “In addressing the constitutionality of an

investigative stop, the inquiry is twofold. First, the officer’s action must be ‘justified at its

inception[;] [s]econd, the officer’s action must be reasonably related in scope to the circumstances

which justified the interference in the first place.” United States v. Neff, 300 F.3d 1217, 1220 (10th

Cir. 2002). “An officer can stop and briefly detain a person for investigative purposes if the officer

has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even

23 Plaintiff alleges he was unlawfully arrest under the Fourth and Fourteenth Amendments in

his amended complaint, but has alleged no facts supporting a substantive or procedural due

process claim. Both parties fail to address the Fourteenth Amendment aspect of plaintiff’s

unlawful arrest claim in their summary judgment briefings. Regardless, it is the Fourth

Amendment–rather than the due process protections of the Fourteenth Amendment–that

govern plaintiff’s claim for unlawful arrest, since he has failed to allege harm to his liberty

beyond freedom from restraint. See Shimomura v. Carlson, 811 F.3d 349, 361 (10th Cir.

2015); Champion v. McCalister, No. 23-6141, 2024 WL 3272239, at *3 (10th Cir. July 2,

2024) (“[H]is only reference to the Fifth and Fourteenth Amendments is in connection with

his specific allegations implicating his Fourth Amendment rights. Accordingly, his Fifth and

Fourteenth Amendment claims were properly dismissed.”) Additionally, because the Court

has found that defendant had probable cause to arrest plaintiff, any claim under the

Fourteenth Amendment necessarily fails.

20

if the officer lacks probable cause.” Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007).

“Although [investigatory] stops are normally non-intrusive, we have indicated that law enforcement

may (1) display some force, (2) place suspects on the ground, (3) use handcuffs, or (4) detain

suspects in law enforcement vehicles, even in the absence of probable cause.” Id. at 1130. However,

“[i]f a police-citizen encounter exceeds the limits of a [investigatory] stop, the detention becomes

an arrest that must be supported by probable cause.” Neff, at 1220. “Instead of ‘rigid criteria,’

‘common sense and ordinary human experience’ guide our analysis of the reasonableness of

[investigatory] stops.” Ellsworth v. City of Broken Arrow, Oklahoma, 850 F. App’x 619, 624 (10th

Cir. 2021).

The initial handcuffing of plaintiff was an investigatory detention; it was only when plaintiff

jerked away and defendant used a takedown maneuver that the seizure transformed into an arrest.

See Plascencia v. Taylor, 514 F. App’x 711, 716 (10th Cir. 2013) (“Moreover, we are not alone

among our sibling circuits in considering the use of force a factor in determining whether an

investigatory stop becomes an arrest requiring probable cause.”). The Tenth Circuit has permitted

the use of handcuffs during an investigative detention when officers can demonstrate ““‘that the facts

available to the officer would warrant a man of reasonable caution in the belief that the action taken

was appropriate.’” United States v. Albert, 579 F.3d 1188, 1193 (10th Cir. 2009) (quoting U.S. v.

Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994)). Officers were called to plaintiff's house

due to a reported domestic incident, and when they arrived plaintiff appeared intoxicated, refused

to allow officers to investigate the call, and then turned his back to walk towards the house where

the presumed domestic incident took place. Cf. Cortez, 478 F.3d at 1123 (“No facts suggest [] that

the [d]efendants or anyone else was somehow endangered by [the suspect].”). Defendant instructed

21

plaintiff multiple times to stop, and when he handcuffed plaintiff, he instructed plaintiff that he was

being detained, not arrested. Defendant had reason for caution in the early stages of the

investigation, and plaintiff’s behavior only escalated suspicion that criminal activity was afoot.

Defendant’s initial handcuffing of plaintiff was an investigative detention amply supported by

reasonable suspicion.

Even if handcuffing plaintiff transformed the investigative stop to an arrest, the Court finds

that defendant had probable cause to arrest plaintiff for obstruction of an officer. In the context of

a false arrest claim, “an arrestee’s constitutional rights were violated if the arresting officer acted in

the absence of probable cause that the person had committed a crime.” Kaufman v. Higgs, 697 F.3d

1297, 1300 (10th Cir. 2012). Probable cause exists when a police officer has sufficient information

“to warrant a prudent man in believing that the [suspect] had committed or was committing an

offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). This is an objective standard and a court must

consider the totality of the circumstances to determine whether a reasonable officer would have

believed there was probable cause to make an arrest. Koch v. City of Del City, 660 F.3d 1228, 1239

(10th Cir. 2011). Probable cause “is measured at the moment the arrest occurs and must derive from

facts and circumstances based on reasonably trustworthy information.” Cortez, 478 F.3d at 1121.

Once probable cause is established, a police officer is not required to search for exculpatory evidence

before arresting a suspect. Id. A defendant is entitled to qualified immunity from a false arrest claim

if there was “arguable probable cause” to make an arrest. Kaufman, 697 F.3d at 1300. “Arguable

probable cause is another way of saying that the officers’ conclusions rest on an objectively

reasonable, even if mistaken, belief that probable cause exists.” Stonecipher v. Valles, 759 F.3d

1134, 1141 (10th Cir. 2014). “The proper inquiry in a § 1983 claim based on false arrest is not

22

whether the person arrested actually committed an offense, but whether the arresting officer had

probable cause to believe that he had.” Buck v. Rhoades, No. 21-CV-0295, 2023 WL 6221437, at

*8 (N.D. Okla. Sept. 25, 2023) (quoting Crawford ex. rel. Crawford v. Kansas City, Kansas, 952 F.

Supp. 1467, 1474 (D. Kan. 1997)).

The offense of obstructing an officer under Oklahoma law simply requires that a person delay

or obstruct a public official in the performance of his or her duties, and plaintiff plainly delayed an

ongoing investigation into a domestic violence incident by yelling at defendant and walking away

from him and other officers. Under § 540, “[e]very person who willfully delays or obstructs any

public officer in the discharge or attempt to discharge any duty of his or her office” is guilty of a

misdemeanor. There is no requirement that a person use physical force against a police officer in

order to commit an offense under this statute. Marsh v. State, 761 P2d 915, 916 (Okla. Crim. App.

1988). “[W]ords alone may suffice to support a conviction for Obstructing an Officer.” Trent v.

State, 777 P.2d 401, 402 (Okla. Crim. App. 1989). The Tenth Circuit has found that a person’s

actions constituting potential flight or the failure to comply with an order to halt qualifies as a

violation of § 540. United States v. Sanchez, 555 F.3d 910, 919 (10th Cir. 2009). Conduct that

delays or impedes a police officer’s investigation of a domestic violence offense can provide a

sufficient basis for an arrest under § 540. Tucker v. City of Oklahoma City, 2013 WL 5303730

(W.D. Okla. Sep. 20, 2013). Even though plaintiff was not ultimately charged with a domestic

violence offense, Cici’s report and plaintiff’s conduct provided a sufficient basis for police to

conduct an investigation at the scene. At a minimum, police officers had reasonable suspicion to

briefly detain plaintiff while they investigated a possible domestic violence offense, and plaintiff’s

conduct during defendant’s investigation gave rise to probable cause for plaintiff’s arrest for

23

obstructing an officer. Fields, 2023 WL 8643188, at *3 (“[The suspect] knew that he was the target

of an investigation, and disobeyed orders to remain in the store. In addition, [his] presence in the

parking lot, coupled with his demonstrated refusal to abide the officers’ instructions, could have

disrupted the questioning of [another suspect].[] The officers were justified in conducting an

investigative detention and warrantless arrest.”)

Plaintiff’s argument in opposition to summary judgment on this claim is essentially that he

had a right to walk away from officers on his own property, and that defendant’s deposition

testimony establishes that he was not in fear of his safety when he detained plaintiff. However, the

inquiry is whether there was probable cause to arrest plaintiff for obstructing an officer. The Court

must consider how a reasonable police officer would have viewed the facts and circumstances at the

time plaintiff was arrested, and plaintiff’s claims concerning defendant’s subjective beliefs or

intentions do not detract from the existence of probable cause in this case. Defendant had an

objectively reasonable belief that he had sufficient facts to warrant an investigation into a possible

domestic violence incident, even if Julie subsequently changed or clarified her allegations.

Plaintiff’s failure to comply with defendant’s commands, not the validity of Julie’s allegations,

ultimately gave rise to his arrest for obstructing an officer, and defendant has established that he had

probable cause to arrest plaintiff for this offense. Plaintiff has failed to establish the existence of a

constitutional violation, supporting the finding that defendant has qualified immunity from plaintiff’s

unlawful arrest claim.

2. Whether placing plaintiff in handcuffs violated clearly established law

Even if the Court were to conclude the facts precluded summary judgment on the unlawful

arrest claim, that right was not clearly established. Plaintiff bears the burden of demonstrating that

24

“the contours of the right [are] sufficiently clear that a reasonable official would understand that what

he doing violates that right.” Kaven, 765 F.3d at 1194. “‘In order for the law to be clearly

established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly

established weight of authority from other courts must have found the law to be as the plaintiff

maintains.’” Reavis estate of Coale v. Frost, 967 F.3d 978, 992 (10th Cir. 2020) (quoting Halley v.

Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018))

Plaintiff vaguely asserts that defendant violated clearly established law when he placed

plaintiff in handcuffs, by arguing, “there is no law establishing that an officer responding to

purported allegations is permitted to handcuff and arrest someone based solely on those vague

allegations. Instead, the Neff and Melendez cases require a higher standard that there must be

extenuating circumstances such as the fear of the person being armed.” Dkt. # 49, at 21. This

perfunctory argument fails to establish that defendant’s conduct violated plaintiffs clearly

established constitutional rights.

First, the cases that plaintiff refer to do not support his proposition. In U.S. v. Neff, 300 F.3d

1217 (10th Cir. 2002), the court specifically noted that “a Terry stop does not become unreasonable

just because police officers use handcuffs on a subject or place him on the ground.” Id. at 1220. The

court reiterated that police officers should not take unnecessary risks in performing their duties, and

can even take reasonable steps to protect their personal safety. While it is true that the plaintiff in

Neff was suspected of being armed, the court noted that the “use of handcuffs was appropriate as

long as there was a reasonable, articulable ground for fearing danger from the suspects.” Id. at 1221.

In U.S. v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994), the Circuit found that handcuffing was

unreasonable because officers had no “reason to believe that these particular suspects had guns or

25

were violent or that the circumstances of this particular encounter warranted the unusual

intrusiveness of handcuffing the defendants... .” Id. at 1053-53. The Tenth Circuit reiterated that

in some circumstances, methods such as handcuffing and pointing firearms may be warranted. Id.

In Melendez-Garcia, beyond being initially suspected of trafficking drugs, the suspects did not

engage in any violent behavior or otherwise impede the officers’ investigation. These cases support

the idea that some measures—such as handcuffs—are appropriate to ensure officer safety and perform

an investigation, so long as they are proportional to the risk facing officers.

Plaintiff does not rely on any other cases to demonstrate that being placed in handcuffs

violated a clearly established right, or that arresting him for the charge of obstructing an officer was

unlawful. In fact, a more recent Tenth Circuit case supports the opposite inference. In Culver v.

Armstrong, 832 F.3d 1213 (10th Cir. 2016), an officer witnessed a driver and passenger in a pickup

truck turn off its headlights and drive over a sidewalk. Id. at 1215. The officer followed the vehicle

in his patrol car for a few blocks and then pulled in front of the pickup truck, where he saw only the

driver sitting inside. Id. at 1216. The officer exited the patrol car and asked the driver of the pickup

where the other person was located. Id. The driver was evasive and admitted he had been drinking,

so the officer instructed him to sit on the patrol car with his hands on the hood. Id. While this was

occurring, the plaintiff appeared out of the dark, walking north on the sidewalk. Id. The plaintiff

asked the officer what was going on, and the officer asked him if he had been in the car with the

driver. Id. Plaintiff was evasive and continually asked “why?” and “I was just walking by man,

leave me the fuck alone.” Id. Plaintiff and the officer entered into an increasingly tense exchange,

at which point the officer told plaintiff that if he was not in the truck, he should keep walking. Id.

Plaintiff ignored the officer so the officer commanded the plaintiff to come toward him, at which

26

point the plaintiff began swearing and shouted, “I’m not fuckin’ doin’ nothing!” Id. The officer

seized the plaintiff as he continued to protest, so the officer arrested him for public intoxication. Id.

at 1217. The judge dismissed the charge, and plaintiff sued the officer for unlawful arrest. Id. The

Tenth Circuit found that the officer had qualified immunity because he had probable cause to arrest

plaintiff based on the fact that plaintiff verbally interfered with an investigation, and under Wyoming

state precedent, verbal interference was sufficient to support a charge of interference with an

officer.24 Id. at 1218-19. The Circuit concluded that the plaintiff had failed to illustrate that the

“unlawfulness” of defendant’s conduct was clearly established, because defendant had probable

cause to arrest plaintiff under Tenth Circuit and Wyoming precedent. Id. at 1219. As noted above,

Oklahoma law similarly establishes that words alone can support an obstruction offense. Trent, 777

P.2d at 402. Accordingly, the law was not clearly established in plaintiff’s favor, such that a

reasonable officer would have known that seizing plaintiff was against the law. The Court therefore

finds that defendant is entitled to qualified immunity for plaintiff’s § 1983 claim for unlawful arrest

in violation of the Fourth and Fourteenth Amendments.

IV.

IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Dkt. #

53) is granted. A separate judgment is entered herewith.

24 The court noted “that [d]efendant cited plaintiff for public intoxication alone is

inconsequential. We measure probable cause against an objective standard. That an officer

may not have subjectively believed probable cause existed to arrest a suspect for a certain

crime does not preclude the Government from justifying the suspect’s arrest based on any

crime an officer could objectively and reasonably have believed the suspect committed.”

Culver, 832 F.3d at 1218.

27

IT IS FURTHER ORDERED that defendant’s motion in limine to strike/exclude plaintiff s

expert witness (Dkt. #59), and unopposed motion to strike hearings/deadlines (Dkt. # 60), are moot.

DATED this 22nd day of August, 2024.

Chia Le

BP eee

CLAIRE V.EAGAN \_

UNITED STATES DISTRICT JUDGE

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