Delaney v. City of Tulsa, Oklahoma

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

MICHAEL DELANEY,

Plaintiff,

v. Case No. 21-CV-544-GAG-SH

CITY OF TULSA, OKLAHOMA, et al.,

Defendants.

OPINION AND ORDER

GUSTAVO A. GELPÍ, Circuit Judge.1

Before this Court are the following four motions: (1) Defendant City of Tulsa, Oklahoma's

("Defendant Tulsa") motion for summary judgment (Dkt. No. 56); (2) Defendant Aaron Russell

("Defendant Russell") motion for summary judgment (Dkt. No. 61); (3) Defendant Russell's

motion in limine (Dkt. No. 67); and (4) Defendant Tulsa's motion in limine (Dkt. No. 68). For the

reasons set forth herein, both motions for summary judgment are DENIED, Defendant Russell's

motion in limine is DENIED, and Defendant Tulsa's motion in limine is GRANTED IN PART

AND DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the March 21, 2020 shooting of Plaintiff Michael Delaney

("Plaintiff") by Defendant Russell, an officer at Tulsa Police Department ("TPD"). (Dkt. No. 56

at 7-8; Dkt. No. 61 at 8-9, 11-13; Dkt. No. 71 at 6-8; Dkt. No. 72 at 2-4.)

1 The Honorable Gustavo A. Gelpí, Circuit Judge, United States Court of Appeals for the First

Circuit, sitting by designation.

A. The Events of March 21, 2020

At approximately 1:15 a.m. on March 21, 2020, Coy Brown called 9-1-1 to report that a

red and white GMC Yukon had been stopped—for a long time and with its lights on—in the street

in front of the home at which Brown was located. (Dkt. No. 56 at 7; Dkt. No. 61 at 9; Dkt. No. 71

at 6; Dkt. No. 72 at 2-3.) Defendant Russell was the first officer to arrive at the scene, followed

shortly thereafter by Officers Andrew St. John ("Officer St. John") and Kevin Pentecost ("Officer

Pentecost"). (Id.) After having parked his patrol vehicle behind the vehicle that matched the

caller's description, Defendant Russell approached the driver's side of the suspect vehicle. (Id.)

Plaintiff, a Black male, was sleeping inside the vehicle. (Dkt. No. 56 at 8; Dkt. No. 61 at 10; Dkt.

No. 71 at 6; Dkt. No. 72 at 2.)

What occurred next is largely disputed by the parties. For its part, Defendant Tulsa

contends that, Defendant Russell shined his flashlight into the vehicle and observed various

disorganized tools and household items—a sign to him that crime was afoot. (Dkt. No. 56 at 7.)

After Defendant Russell reached the driver's side window, Defendant Tulsa says, he turned the

flashlight on Plaintiff and asked him to roll down the window. (Dkt. No. 56 at 8.) Plaintiff partially

opened the window. (Id.) From Defendant Russell's vantage point, Plaintiff appeared disoriented:

he had watery and bloodshot eyes, and his responses to Defendant Russell's questions appeared

slurred and incoherent. (Id.) At some point during the exchange, Defendant Russell was joined

at the driver's side window by Officer Pentecost. (Id. at 9.)

As Defendant Russell scanned the rest of the vehicle with his flashlight, Defendant Tulsa

contends, he noticed what he thought was a pistol grip and trigger of a handgun. (Id.) Although

Defendant Russell had no reason to believe that Delaney wrongfully possessed the firearm (which

was later identified as a pellet gun), he reacted by shouting "gun!"; drawing his weapon; and

ordering Plaintiff out of the car. (Id. at 8.) Because Plaintiff did not comply with that order,

Defendant Russell attempted to physically remove him. (Id.) Defendant Tulsa asserts that Plaintiff

resisted Defendant Russell by leaning away, putting the vehicle in drive, closing the door, and

driving off. (Id.) It is undisputed that Defendant Russell responded to Plaintiff's flight by

discharging his firearm, firing five rounds at the vehicle and striking Plaintiff's shoulder. (Id.)

Defendant Tulsa admits, Officer Pentecost was not in the way of Plaintiff's vehicle; instead, he

was approximately three feet away from it on the driver's side. (Id. at 9.)

Defendant Russell recounts the events differently. He contends that he responded to the

9-1-1 call because of his concerns about Officer Pentecost—the primary officer dispatched to the

scene. (Dkt. No. 61 at 9.) Defendant Russell asserts that Officer St. John shared his concerns

about Officer Pentecost, pointing to Officer St. John's testimony that Officer Pentecost was

"sloppy," lackadaisical," and someone who did "not tak[e] things very seriously." (Id. at 9.) And

Officer Pentecost, Defendant Russell asserts, acted in accordance with his low expectations during

the encounter with Plaintiff. (Id. at 11-12.) Defendant Russell indicates that Officer Pentecost

approached Plaintiff's vehicle with his hands tucked into his protective vest—an allegedly

"unsound tactical position"—and stood next to Defendant Russell but in front of the open driver's

side door. (Id.) So, as Plaintiff began to flee, Defendant Russell says, he thought—albeit

mistakenly—that Officer Pentecost was in danger of being hit by the vehicle. (Id. at 20.)

Defendant Russell further recalls that he could not see Officer St. John, which led him to believe

that Officer St. John, too, could be in danger. (Id.)

Plaintiff's perspective is, of course, distinct from that of both Defendants. Plaintiff asserts

that, at the beginning of the encounter, he did not know whether the men who approached his

vehicle were police officers. (Dkt. No. 71 at 6; Dkt. No. 72 at 5.) Moreover, he contends,

Defendant Russell's bright flashlight was disorienting and temporarily blinding. (Dkt. No. 71 at

7; Dkt. No. 72 at 6.) That confusion and disorientation, Plaintiff posits, is crucial context. He

asserts that he complied at first when he heard Defendant Russell draw his gun, yelling "Hands

up! Hands up!" (Id.) However, moments later, Defendant Russell ordered Plaintiff to "[g]et out

of the fucking car," and from Plaintiff's view, Defendant Russell lunged toward him. (Id.) Plaintiff

then said, "you going to shoot." Disoriented and believing that Defendant Russell was going to

kill him, Plaintiff began to flee. (Id.) He was then struck in the shoulder by one of Defendant

Russell's bullets.

B. Investigation and Charges

Following the events of March 21, 2020, Lieutenant Brandon Watkins of the Homicide

Unit conducted an investigation. (Dkt. No. 56 at 9.) After viewing the body-warn camera footage,

Lt. Watkins determined that there was no evidence to support a charge against Plaintiff for assault

and battery with a deadly weapon. (Id.)

Defendant Russell was also investigated. Following grand-jury proceedings, Defendant

Russell was indicted on a misdemeanor charge of Reckless Conduct with a Firearm, in violation

of 21 O.S. § 1289.11. (Dkt. No. 56 at 9; Dkt. No. 72 at 4.) Defendant Russell entered a plea of

no contest, admitting that the witnesses and evidence against him could prove the charge. (Dkt.

No. 56 at 10; Dkt. No. 72 at 4.) TPD's Internal Affairs division—specifically, its Deadly Force

Review Board—also reviewed the events of March 21, 2020. Finding Defendant Russell's conduct

to be out of compliance with TPD policy, TPD terminated Defendant Russell's employment. (Id.)

C. Procedural History

On December 17, 2021, Plaintiff filed a complaint in this Court, alleging claims under 42

U.S.C. § 1983 and the Oklahoma Governmental Tort Claims Act against both Defendants. (Dkt.

No. 2.) Following discovery, Defendants moved each moved for summary judgment and filed

motions in limine.

This Court turns first to the motions for summary judgment.

II. SUMMARY JUDGMENT MOTIONS

A. Standard of Review

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(a). The "mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A

fact is only "material" for purposes of summary judgment if a dispute over that fact "might affect

the outcome of the suit under the governing law." Id. at 248. A dispute is "genuine" if "the

evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The

dispute is not genuine if it merely involves "some metaphysical doubt as to the material facts."

Matsuhita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In applying this

standard, we view the evidence and the reasonable inferences to be drawn from the evidence in the

light most favorable to the nonmoving party." Wise v. Caffey, 72 F.4th 1199, 1205 (10th Cir. 2023)

(quoting Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016)).

B. Defendant Russell's Motion for Summary Judgment

Defendant Russell moves for summary judgment on one ground: qualified immunity. "[A]

defendant's assertion of qualified immunity from suit under 42 U.S.C. § 1983 results in a

presumption of immunity." Est. of Taylor v. Salt Lake City, 16 F.4th 744, 757 (10th Cir. 2021)

(quoting Bond v. City of Tahlequah, 981 F.3d 808, 814 (10th Cir. 2020), rev'd on other grounds,

595 U.S. 9 (2021) (per curiam)). To overcome this presumption, a plaintiff must show that: "(1)

the officer['s] alleged conduct violated a constitutional right, and (2) it was clearly established at

the time of the violation, such that every reasonable official would have understood, that such

conduct constituted a violation of that right." Id. (internal quotation marks and citations omitted).

Plaintiff asserts that Defendant Russell violated his Fourth Amendment right to be free

from unreasonable seizure. U.S. Const. amend. IV; see Andersen v. DelCore, 79 F.4th 1153, 1163

(10th Cir. 2023) ("Excessive force claims arising out of a law enforcement investigation implicate

the Fourth Amendment and its protections against unreasonable seizures." (citation omitted)). "As

with all seizures, '[t]o establish a constitutional violation, the plaintiff must demonstrate the force

used was objectively unreasonable." Andersen, 79 F.4th at 1163 (quoting Est. of Taylor, 16 F.4th

at 759). To assess the reasonableness of an officer's use of force, courts employ a balancing test,

weighing the three nonexclusive factors originally propounded by the Supreme Court in Graham

v. Connor, 490 U.S. 386 (1989): "[1] the severity of the crime at issue, [2] whether the suspect

poses an immediate threat to the safety of the officers or others, and [3] whether he is actively

resisting arrest or attempting to evade arrest by flight." Andersen, 79 F.4th at 1163 (quoting

Graham, 490 U.S. at 396). Courts must "assess the reasonableness of 'a particular use of force'

from 'the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight." Id. (quoting Graham, 490 U.S. at 396-97). In qualified immunity cases, however,

courts typically resolve factual disputes in favor of the plaintiff, which "usually means

adopting . . . the plaintiff's version of the facts." Wise, 72 F.4th at 1205 (quoting Scott v. Harris,

550 U.S. 372, 378 (2007)).

Here, genuine issues of material fact preclude this Court from finding that Defendant

Russell's use of force was reasonable. For instance, the body-warn camera footage does not resolve

any of the issues in Defendant Russell's favor, i.e., it does not conclusively demonstrate that

Defendant Russell reasonably feared that his or his fellow officers' lives were at risk. What is

more, the record evidence seems to suggest that Officer Pentecost was, in fact, not in imminent

danger from Plaintiff's flight. In any event, even if this Court were to give credence to Defendant

Russell's belief that either Officer Pentecost or Officer St. John was in harm's way, it would seem

counterintuitive to discharge his firearm five times in the direction where he believed his fellow

officer to be standing. In short, it is better left to a jury to decide whether Defendant Russell's use

of force was reasonable.

The inquiry does not stop there, however; the plaintiff must also "show that 'the

constitutional or statutory rights the defendant allegedly violated were clearly established at the

time of the conduct at issue.'" Id. at 1208 (quoting Nelson v. McMullen, 207 F.3d 1202, 1206 (10th

Cir. 2000)). "To be clearly established, a legal principle must have a sufficiently clear foundation

in then-existing precedent." District of Columbia v. Wesby, 583 U.S. 48, 589 (2018). The rule

must be firmly settled, i.e., "[t]he plaintiff must show there is a 'Supreme Court or Tenth Circuit

decision no point, or the clearly established weight of authority from other courts must have found

the law to be as the plaintiff maintains.'" Wise, 72 F.4th at 1208-09 (quoting Doe v. Woodard, 912

F.3d 1278. 1289 (10th Cir. 2019)). The precedent need not be "directly on point"; it need only

"involve[] 'materially similar conduct' or appl[y] 'with obvious clarity' to the conduct at issue."

Vogt v. McIntosh Cnty., Okla., Bd. of Cnty. Com'rs, 98 F.4th 1013, 1018 (10th Cir. 2024) (first

quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018); and then quoting Apodaca v. Raemisch, 864

F.3d 1071, 1076 (10th Cir. 2017)).

Here, Plaintiff has provided such clearly established precedent. The Tenth Circuit has held

that an officer's "use of deadly force to stop a fleeing vehicle is unreasonable unless there is an

immediate threat of harm to himself or others." Reavis Est. of Coale v. Frost, 967 F.3d 978, 995

(10th Cir. 2020). There are material factual disputes as to whether there was an immediate threat

of harm to Defendant Russell or his fellow officers. Indeed, the record evidence suggests that

neither Russell nor his fellow officers were in front of the moving vehicle. And, again, Defendant

Russell's decision to shoot in the direction of the vehicle—where, he claims, he believed his fellow

officers to be—undermines his position. This issue is best left to the jury to resolve.

Therefore, Defendant Russell's motion for summary judgment (Dkt. No. 61) is denied.

C. Defendant Tulsa's Motion for Summary Judgment

Defendant Tulsa moves for summary judgment, arguing (1) that Plaintiff's Monell claim

must fail because he cannot prove that a constitutional violation resulted from a city policy,

custom, or practice; and (2) that Plaintiff's negligence claim falters, too, because Defendant Russell

acted beyond the scope of his employment. This Court addresses each contention in turn and finds

them unpersuasive.

i. Monell Claim

To prevail on claim of municipal liability under 42 U.S.C. § 1983—i.e., a Monell claim—

a plaintiff must establish: (1) the existence of a municipal policy, practice, or custom by which the

plaintiff was denied a constitutional right, and (2) that said policy, practice, or custom was the

moving force behind the constitutional violation (i.e., "whether there is a direct causal link between

a municipal policy or custom and the alleged constitutional deprivation"). City of Canton v.

Harris, 489 U.S. 378, 385, 389 (1989). The Tenth Circuit has delineated several types of actions

that may constitute a municipal policy, practice, or custom:

(1) "a formal regulation or policy state"; (2) an informal custom

"amoun[ting] to 'a widespread practice that, although not authorized

by written law or express municipal policy, is so permanent and well

settled as to constitute a custom or usage with the force of law'"; (3)

"the decisions of employees with final policymaking authority"; (4)

"the ratification by such final policymakers of the decisions—and

the basis for them—of subordinates to whom authority was

delegated subject to these policymakers' review and approval"; or

(5) the "failure to adequately train or supervise employees, so long

as that failure results from 'deliberate indifference' to the injuries

that may be caused."

Bryson v. City of Oklahoma City, 627 F.3d 784 (10th Cir. 2010) (quoting Brammer-Hoelter v.

Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)).

Plaintiff pursues only a failure-to-train theory.2 Although the record is thin in support of

Plaintiff's position, this Court will permit the failure-to-train claim to proceed to trial.

To establish a failure-to-train claim under Monell, a plaintiff must put forth evidence of

three elements: (1) "the existence of a county policy or custom involving deficient training"; (2)

"the policy or custom's causation of an injury"; and (3) "the county's adoption of a policy or custom

with deliberate indifference." Lance v. Morris, 985 F.3d 787, 800 (10th Cir. 2021) (citing Waller

v. City & Cnty of Denver, 932 F.3d 1277, 1283-84 (10th Cir. 2019)).

Here, Plaintiff has put forth sufficient proof for a reasonable juror to find in his favor. First,

the extent to which TPD trained Defendant Russell on when it is appropriate to approach and go

"hands-on" during vehicle stops—as opposed to retreat and wait for backup—is disputed. Indeed,

Defendant Russell that he was not adequately trained on how to approach this encounter. Thus, it

is best left for a jury to decide whether the training policies were, in fact, deficient. Second, the

record suggests that Defendant Russell's decision to grab hold of Plaintiff during the vehicle

extraction resulted in Plaintiff's flight, the risk to Defendant Russell's fellow officers, and in turn,

the shooting of Plaintiff. Third, although Plaintiff does not establish Defendant Tulsa's notice by

pointing to a pattern of similar misconduct, he does so by reference to his constitutional injury

which, he contends, is "highly predictable or plainly obvious consequence of a municipality's

action or inaction." Hinkle v. Beckham Cnty. Bd. of Cnty. Com'rs, 962 F.3d 1204, 1241 (10th Cir.

2020) (quoting Waller, 932 F.3d at 1284). Put differently, police officers routinely conduct stops

of vehicles, and decisions to approach or to retreat and call for back up are highly likely to recur.

2 As such, Plaintiff has abandoned any claim based on the other policy or custom theories of Monell

liability. See Barre v. Ramsey, 601 F. Supp. 3d 1038, 1064 (N.D. Okla. 2022) (holding that

plaintiff's failing to oppose motion for summary judgment with respect to a claim resulted in

abandonment of said claim).

Inadequate training in that context could very well lead to highly predictable constitutional

violations. As such, given the factual disputes as to the extent of training TPD provided its officers

in approaching vehicles and conducting extractions, this Court finds the question is better left to a

jury. See Lance, 985 F.3d at 802-03 (holding that the three-part test of deliberate indifference is a

"workable" means for a factfinder "to determine whether a particular problem is likely to recur

enough to alert [policymakers] to an obvious deficiency in the training").

ii. Negligence Claim

Defendant Tulsa moves for summary judgment, too, on Plaintiff's negligence claim.

Defendant Tulsa's only argument is that it cannot be held liable for Defendant Russell's actions

committed beyond the scope of his employment.3 This argument is unpersuasive.

Oklahoma law employs the following test to determine whether a law enforcement officer

acted within the scope of employment: "'liability exists for acts of officers that can be described as

abuses of lawful power' but not for 'an unlawful usurpation of power the officer did not rightfully

possess.'" Barnes v. United States, 707 F. App'x 512, 517 (10th Cir. 2017) (unpublished) (quoting

DeCorte v. Robinson, 969 P.2d 358, 361-62 (Okla. 1998)). "[C]onduct may be within the scope

of employment, even if it is unauthorized, if it is of the same general nature as that authorized or

is incidental to the conduct authorized." Id. at 518 (citation omitted). Importantly, an officer who

uses excessive force, although unauthorized to do so, may still be acting within the scope of

employment. See id. (explaining that under test adopted by Oklahoma courts, an officer who uses

3 Defendant Tulsa, a city, does not enjoy Eleventh Amendment immunity. See Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280-81 (1977) (explaining that Eleventh

Amendment immunity from suit in federal courts does not extend to counties or cities); see also

Mascheroni v. Bd. of Regents of Univ. of Cal., 28 F.3d 1554, 1559 (10th Cir. 1994), abrogated on

other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ("[A]rms of the state

enjoy Eleventh Amendment immunity, whereas political subdivisions such as counties and cities

do not." (citations omitted)).

excessive force may still be acting within scope of employment).

Here, there is no dispute that Defendant Russell was acting within the scope of his

employment when he initially responded to the 9-1-1 call and began investigating the stopped

vehicle. Nor do Defendants seem to dispute that all of Defendant Russell's acts before firing his

weapon were conducted within the scope of his employment, even if contrary to policy. In

addition, Defendant Russell testified in his deposition that he acted in accordance with Defendant

Tulsa's policies during the encounter with Plaintiff. Given this record, this Court cannot say that

Defendant Russell's discharging his firearm during the course of performing his duties was beyond

the scope of his employment. See Tuffy's, Inc. v. City of Oklahoma City, 212 P.3d 1158, (Okla.

2009) ("Whether a police officer's actions were taken within the scope of employment is a jury

question unless only one reasonable conclusion can be drawn from the facts alleged."); cf. O'Shea

v. Welch, 350 F.3d 1101, 1107 (10th Cir. 2003) (citing a "volume of authority" for the proposition

that "scope of employment is generally a jury question").

III. MOTIONS IN LIMINE

"The purpose of the motion in limine is to aid the trial process by enabling the Court to rule

in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely

set for trial, without lengthy argument at, or interruption of, the trial." Mendelsohn v. Sprint United

Mgmt. Co., 587 F. Supp. 2d 1201, 1208 (D. Kan. 2008), aff'd, 402 F. App'x 337 (10th Cir. 2010)

(internal quotation marks omitted). To be sure, such motions can streamline the trial process;

however, "a court is almost always better situated during the actual trial to determine the probative

value of evidence. For this reason, some courts defer making in limine rulings unless the 'evidence

is clearly inadmissible on all potential grounds.'" Id. (quoting Hawthorne Partners v. AT & T

Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993)). This Court is guided by those familiar

principles in ruling on the motions below.

A. Defendant Tulsa's MIL

Defendant Tulsa seeks to exclude three pieces of evidence: (1) testimony suggesting that

Defendant Russell pleaded guilty to a charge of reckless use of a firearm only because the Chief

of Police promised him that he would keep his job; (2) testimony suggesting that terminating

Defendant Russell's employment was irrelevant; and (3) testimony or other documentary evidence

about unrelated lawsuits or claims against the City of Tulsa.

Plaintiff concedes the first two points, so this Court will grant Defendant Tulsa's motion in

limine in that respect. As to the evidence about other lawsuits or claims against the Defendant

Tulsa, this Court denies the motion without prejudice. Such evidence may be permissible at trial.

Plaintiff shall have until March 1, 2025, to file with this Court a brief list explaining, specifically,

the lawsuits he would like to address at trial, their relevance, and the legal bases for admitting the

lawsuits as evidence.

B. Defendant Russell's MIL

Defendant Russell's motion in limine requests exclusion of the following evidence: (1) any

evidence related to the criminal case; and (2) evidence of policy violations, which, he contends,

are not sufficient grounds for liability under 42 U.S.C. § 1983. This Court will likewise deny the

motion without prejudice. Defendant Tulsa and Plaintiff both oppose Defendant Russell's motion

and rightly observe that there are permissible purposes for the admission of the evidence that

Defendant Russell wishes to exclude. This Court will consider timely objections to the use of that

evidence at trial.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that both motions for

summary judgment (Dkt. Nos. 56, 61) are DENIED, Defendant Russell's motion in limine (Dkt.

No. 67) is DENIED, and Defendant Tulsa's motion in limine (Dkt. No. 68) is GRANTED IN

PART AND DENIED IN PART; and

IT IS FURTHER ORDERED that Defendants Russell and Tulsa may renew their

evidentiary objections when appropriate at trial, and this Court will consider such objections that

are timely raised; and

IT IS FURTHER ORDERED that Plaintiff has until March 1, 2025, to file with this Court

a brief list explaining, specifically, the lawsuits he would like to address at trial, their relevance to

his claims, and the legal bases for their admissibility as evidence.

SO ORDERED.

DATED: February 11, 2025

s/ Gustavo A. Gelpí

GUSTAVO A. GELPÍ

United States Circuit Judge, Sitting by Designation