McKee v. City of Skiatook, Oklahoma

Qnited States District Court

for the Sorthern District of Oklahoma

Case No. 23-cv-209-JDR-MTS

TAMMY MCKEE, individually and as personal representative of the Estate of

Michael Wade McKee,

Plaintiff,

versus

CITY OF SKIATOOK, OKLAHOMA; LEIANNE RICHARDS,

Defendants.

OPINION AND ORDER

On May 29, 2022, City of Skiatook Police Officer Leianne Richards

pursued a speeding motorcyclist from Skiatook, Oklahoma to Tulsa, Okla-

homa. The chase ended tragically: Officer Richards’s patrol car collided with

the motorcycle, causing the death of its rider, Michael Wade McKee. Plaintiff

Tammy McKee, acting on her own behalf and as representative of Mr.

McKee’s estate, sued Officer Richards and the City of Skiatook for violations

of state and federal law. Dkt. 2. The Court previously dismissed Plaintiff’s

state-law claims against the City [Dkt. 22], and Defendants have moved for

summary judgment on Plaintiff’s remaining claims. Dkts. 62, 63. For the rea-

sons set forth below, their motions are granted.

Ui

Officer Leianne Richards of the Skiatook Police Department was driv-

ing her marked patrol vehicle through a residential neighborhood when an

' The facts set forth in this section are undisputed unless otherwise noted.

No. 23-cv-209

individual flagged her down and notified her that a motorcycle or dirt bike had

recently sped through the area. Dkt. 62 at 11 (statements of fact nos. 3, 5).”

Officer Richards patrolled the area and, soon afterward, encountered a mo-

torcyclist who was later identified as Michael Wade McKee. According to Of-

ficer Richards’s radar, Mr. McKee was driving sixty-eight miles per hour—

well over the residential area’s twenty-five miles per hour limit. /d. (statement

of fact no. 7).? Officer Richards activated her lights and siren, but Mr. McKee

did not pull over. Instead, he sped away, running several stop signs in the pro-

cess. Officer Richards pursued. /d. at 12 (statements of fact nos. 8, 9).

Mr. McKee turned onto Highway 11, and Officer Richards continued

to pursue him. /d. (statement of fact no. 9). She followed Mr. McKee out of

Skiatook, through Sperry, and into Tulsa where Highway 11 transitions into a

four-lane street known as Peoria Avenue. /d. (statement of fact no. 13); Dkts.

62-8 at 7, 62-10 at 4 (discussing change from Highway 11 to Peoria Avenue).*

Traffic was “light” during the pursuit. /d. (statement of fact no. 10). Although

Mr. McKee reached speeds of more than 100 miles per hour during the eight-

een-mile chase, there were no collisions or near-collisions with vehicles or

pedestrians until the pursuit’s sudden and deadly end. Jd. (statement of fact

no. 14).

* All citations utilize CMECF pagination.

Plaintiff denies that Mr. McKee was speeding but provides no evidence to dispute

that fact. Dkt. 77 at 12 (response to statement of fact no. 7). Accordingly, the Court accepts

this fact as true for purposes of Defendants’ motions. See N.D. Okla. Civ. R. 56-1 (“All

material facts set forth in the statement of the material facts of the movant shall be deemed

admitted for the purpose of summary judgment unless specifically controverted by the

statement of material facts of the opposing party, using the procedures set forth in this

rule.”),

* Plaintiff objects to Defendants’ contention that Mr. McKee was “fleeing” but

does not otherwise object to statement of fact no. 13. Dkt. 77 at 12 (response to statement

of fact no. 13). The distinction is immaterial to the Court’s opinion.

No. 23-cv-209

Officer Richards maintained radio contact with her supervisor, Ser-

geant Mark Dressler, for the duration of the chase. Dkt. 62 at 12 (statements

of fact nos. 8, 11).° Sgt. Dressler instructed Officer Richards to end the pursuit

if she did not catch Mr. McKee by the time she reached Highway 64. Jd. at 13

(statement of fact no. 19). Officer Richards did not acknowledge the com-

mand, nor did she stop the pursuit when she crossed Highway 64. Jd. (state-

ment of fact no. 21).° Instead, she continued to follow Mr. McKee south-

bound on Peoria Avenue through downtown Tulsa and into a residential area,

crossing several lighted intersections in the process. Dkt. 62 at 14 (statement

of fact no. 26); Dkt. 77 at 24, 38 (asserting that the chase continued into the

“heart of residential Tulsa,” passing a synagogue and church prior to the col-

lision).

Unbeknownst to Mr. McKee and Officer Richards, a bridge just south

of the intersection of 31st Street and Peoria Avenue was undergoing construc-

tion, and a portion of Peoria Avenue was therefore closed. Dkt. 62 at 14 (state-

ment of fact no. 28). Mr. McKee and Officer Richards drove into the con-

struction zone. To do so, they passed several type III barricades with flashing

lights, crossed into the northbound lane (the only lane not blocked by a barri-

cade), and passed signs indicating that the road was closed, the bridge was

out, and traffic should use alternate routes. /d. at 14-15 (statements of fact nos.

28-34).

At this point, the parties’ stories diverge: Officer Richards asserts that,

when she drove into the construction zone, she saw a semi-trailer parked in

the northbound lane and lost sight of Mr. McKee. She applied her brakes and

* Plaintiff does not admit or deny Officer Richards’s statement of fact no. 11. Dkt.

77 at 12. The Court accepts that statement as true. See N.D. Okla. Civ. R. 56-1.

° According to Officer Richards, she was unaware that she had passed Highway 64,

which crosses underneath Highway 11/Peoria Avenue. Peoria Avenue does not have any

on-ramps or off-ramps onto Highway 64, and there are no signs posted to indicate that Pe-

oria Avenue crosses over the highway. Dkt. 62 at 13-14 (statements of fact nos. 22-24).

No. 23-cv-209

swerved to avoid hitting the trailer, but she sideswiped it before striking Mr.

McKee’s motorcycle. /d. at 14-16, 18 (statements of fact nos. 35, 40, 45). Of-

ficer Richards asserts that she did not intend to hit Mr. McKee and that she

was focused solely on avoiding the trailer when she collided with his motor-

cycle. See Dkt. 62 at 18 (statement of fact no. 45); Dkt. 62-3 at 94 (testifying

that she “lost sight” of Mr. McKee just after he went through the barriers).

Plaintiff, however, argues that Officer Richards intentionally struck Mr.

McKee to prevent his escape.’

Both parties agree that Officer Richards’s vehicle collided with Mr.

McKee’s motorcycle while he was still on it. Dkt. 62 at 16 (statement of fact

no 39); Dkt. 77 at 13.° They also agree Mr. McKee “had either stopped his

motorcycle or slowed down to a pace less than [Officer Richards] was travel-

ing” at the time of the collision. Dkt. 62 at 16 (statement of fact no 39); Dkt.

77 at 12.° When Officer Richards’s vehicle struck the motorcycle, Mr. McKee

“Tn support of her position, Plaintiff points to evidence that Officer Richards was

accelerating and gaining ground on Mr. McKee prior to the collision; that no skid marks

were found at the scene; that Officer Richards struck Mr. McKee from behind while he was

in an upright, seated position; and that Officer Richards has taken inconsistent positions as

to whether she hit Mr. McKee with her police vehicle. Dkt. 77 at 15-16 (plaintiff’s state-

ments of fact nos. 1, 6-8); zd. at 11-12.

* Officer Richards goes on to state that Mr. McKee’s decision to slow down is what

“caus[ed] her to run into the back of his motorcycle.” Dkt. 62 at 16 (statement of fact no.

39). Plaintiff does not dispute this portion of Officer Richards’s statement. See Dkt. 77 at

12. But Plaintiff does dispute Officer Richards’s claim that the collision was an accident,

and she provides evidentiary support for her claim that Officer Richards acted intentionally.

See Dkt. 77 at 13 (response to statement of fact no. 42); éd. at 14 (additional statements of

fact nos. 1, 6-8). The Court will treat the second half of statement of fact no. 39 as disputed.

° The Court has found no evidence in the record to support the conclusion that Mr.

McKee’s vehicle was stopped. The evidence cited by Plaintiff demonstrates only that Mr.

McKee must have been travelling at a minimum of five miles per hour to remain upright.

The distinction is immaterial to the Court’s analysis. Even if Mr. McKee had stopped,

Plaintiff has not argued, and there is no evidence from which a jury could find, that Officer

Richards could have known that he was stopped or in the process of stopping in time to

modify her behavior.

No. 23-cv-209

was thrown from it. He sustained fatal injuries and died at the scene. Dkt. 62

at 18 (statement of fact no. 47).

The City required its officers to undergo specific training, including

mandatory basic academy training and certification by the Oklahoma Counsel

on Law Enforcement Education and Training. Dkt. 63 at 9 (statement of fact

no. 1). Officers were required to read, understand, and comply with the City’s

policies and procedures (which included policies governing the use of force

and vehicle pursuits) and complete daily training bulletins relevant to those

policies and procedures. /d. (statements of fact nos. 1, 2);'? Dkt. 63-1. In the

five years prior to the accident at issue, City police officers had been involved

in sixteen or fewer high-speed pursuits outside the city limits. Dkt. 63 at 11

(statement of fact no. 5); Dkt. 89 at 10-11. Of those, six were terminated by

the involved officer, three resulted in the driver being apprehended after the

driver’s vehicle became stuck or disabled, and one ended when the Oklahoma

Highway Patrol used stop sticks to disable a vehicle. Dkt. 63 at 11 (statement

of fact no. 5)."

Plaintiff, on behalf of herself and Mr. McKee’s estate, sued Officer

Richards and the City. In her complaint, Plaintiff alleges that (1) both Officer

Richards and the City are liable under 42 U.S.C. § 1983 for unlawful arrest

and excessive use of force in violation of Mr. McKee’s Fourth Amendment

rights; (2) the City caused the Fourth Amendment violations by failing to

train and supervise Officer Richards; and (3) Officer Richards is liable for the

assault and battery of Mr. McKee. Dkt. 2.” Plaintiff also argues in her

Plaintiff claims she cannot admit or deny these statements of fact. Dkt. 89 at 12.

Because she does not provide any evidence to dispute these factual assertions, the Court

accepts them as true. See N.D. Okla. Civ. R. 56-1.

4 Plaintiff does not admit these facts. Dkt. 89 at 14. Because she provides no con-

trary evidence, the Court accepts the City’s facts as true. See N.D. Okla. Civ. R. 56-1.

” Plaintiff originally asserted state-law claims against the City, but those claims

have since been dismissed. See Dkt. 22.

No. 23-cv-209

response that Officer Richards was deliberately indifferent to Mr. McKee’s

health and safety in violation of the Fourteenth Amendment. See Dkt. 77 at

35-36. Defendants argue that the evidence is insufficient to permit a jury to

find in Plaintiff’s favor with respect to any of these claims, and that Officer

Richards is entitled to qualified immunity on Plaintiff’s constitutional claims.

II

Summary judgment may only be entered if the moving party can show

that there is no genuine dispute as to any material fact and that it is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). To meet this burden, the

moving party cannot rely on mere allegations but must point to evidence of

record supporting its claim that there are no genuine material factual dis-

putes. Fed. R. Civ. P. 56(c)(1). See Donahue v. Wihongi, 948 F.3d 1177, 1187

(10th Cir. 2020) (citing Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019))

(acknowledging that the moving party cannot rely on allegations but must es-

tablish facts that would allow a jury to find in its favor). If the moving party

satisfies this obligation, the non-moving party must then point to evidence of

record establishing the existence of a material disputed fact for trial. Fed. R.

Civ. P. 56(c)(1).

When a defendant moves for summary judgment on qualified immun-

ity grounds, as Officer Richards does here, the Court applies the standard

above while considering the “substantive burden|] on the underlying issue[]”

of qualified immunity. Rife v. Oklahoma Dep’t of Pub. Safety, 854 F.3d 637, 643

(10th Cir. 2017). Once qualified immunity is asserted, the plaintiff bears the

burden of “demonstrat[ing] that a reasonable factfinder could find facts sup-

porting the violation of a constitutional right that had been clearly established

at the time of the violation.” Jd. (citing Estate of Booker v. Gomez, 745 F.3d

405, 411 (10th Cir. 2014)) (footnote omitted). Once “this burden is met, the

defendant must show that (1) there are no genuine issues of material fact and

(2) the defendant is entitled to judgment as a matter of law.” Id. (citing Koch

vy. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011)).

No. 23-cv-209

Regardless of the legal grounds underlying a summary-judgment mo-

tion, the reviewing court must view all facts and draw all reasonable infer-

ences in favor of the non-moving party. Léndsey, 918 F.3d at 1113. Summary

judgment is appropriate only if, when the evidence is viewed and construed

in this way, there are no material factual disputes that would permit a jury to

rule in the non-moving party’s favor and the moving party is entitled to judg-

ment as a matter of law. Jd.

III

The Court begins with Plaintiff’s federal claims against Officer Rich-

ards. Officer Richards has invoked the affirmative defense of qualified im-

munity. See Dkt. 14 at 3-4. Plaintiff therefore bears the initial burden of point-

ing to facts that, if true, would (1) demonstrate that Officer Richards violated

Mr. McKee’s federal constitutional or statutory rights, and (2) it was clearly

established at the time of the incident that Officer Richards’s conduct was

unlawful. See D.C. v. Wesby, 583 U.S. 48, 62-63 (2018); Sawyers v. Norton, 962

F.3d 1270, 1282 (10th Cir. 2020). This Court “may address either prong of

the inquiry first and need not address both if one is dispositive.” Heard v.

Dulayev, 29 F.4th 1195, 1203 (10th Cir. 2022) (citing Pearson v. Callahan, 555

US. 223, 236 (2009)).

The Court turns first to Plaintiff’s claim that Officer Richards illegally

arrested Mr. McKee. This claim appears to be, in large part, duplicative of

Plaintiff’s excessive-force claim.’ But there is at least some suggestion in

Plaintiffs’ complaint and brief that Officer Richards violated Mr. McKee’s

federal rights by arresting him without authority or probable cause to do so.

'3 See Dkt. 2 at JJ 16, 18 (alleging that the high-speed pursuit and decision to hit

Mr. McKee to effect his arrest constituted an unreasonable use of deadly force); Dkt. 77 at

22, 25, 32 (arguing that the use of deadly force was not reasonable under the circumstances).

No. 23-cv-209

See Dkt. 2 at 16; Dkt. 77 at 34-35." To the extent Plaintiff’s complaint sets

forth an illegal-arrest claim that is distinct from her use-of-force claim, De-

fendants are entitled to summary judgment on that claim.

It was Plaintiff’s burden to point to facts that, if true, would demon-

strate that Mr. McKee was arrested in violation of his federal constitutional

or statutory rights. Sawyers, 962 F.3d at 1282. But Plaintiff has failed to point

to any facts suggesting that Officer Richards lacked probable cause to arrest

Mr. McKee. See generally Dkt. 77. She has likewise failed to point to any facts

suggesting that the arrest itself (independent of the use of force) violated Mr.

McKee’s federal rights. /d. And the facts of record establish that Officer Rich-

ards observed Mr. McKee speeding in a residential area, confirmed with her

radar that he was speeding, and signaled for Mr. McKee to pull over before

pursuing him for failing to do so. See Dkt. 62 at 11-12. These facts would pre-

clude a jury from finding that Officer Richards lacked probable cause to stop

Mr. McKee as a general matter. See United States v. Morgan, 855 F.3d 1122,

1123 (10th Cir. 2017) (“A traffic stop is a seizure but is ‘reasonable where the

police have probable cause to believe that a traffic violation has occurred.’”

(quoting Whren v. United States, 517 U.S. 806, 809-10 (1996))).

Plaintiff also bore the burden of pointing to case law clearly establish-

ing that, at the time of the incident, Officer Richards was on notice that the

arrest itself (independent of the force used to effect it) violated Mr. McKee’s

federal rights. Sawyers, 962 F.3d at 1282. Plaintiff failed to meet this

“The question of whether Officer Richards intentionally “arrested” Mr. McKee is

disputed. The Court addresses that dispute in Section III(B), ¢fra, and assumes for pur-

poses of this claim that Officer Richards intentionally arrested Mr. McKee.

'S When responding to Officer Richards’s arguments on the illegal-arrest claim,

Plaintiff focuses primarily on the nature and extent of the force used, rather than the legality

of the arrest independent of that use of force. F.g., Dkt. 77 at 34-35 (responding to Officer

Richards’s arguments that she had authority to take Mr. McKee into custody by stating that

Officer Richards “d]id] not have the right to inflict the death penalty on a traffic offender”);

id. at 41 (arguing about “deadly force” in response to illegal arrest claim).

No. 23-cv-209

obligation. At most, Plaintiff argues that a police officer’s authority generally

“cannot extend beyond his jurisdiction.” Dkt. 77 at 35. But she cites only a

single Oklahoma case, Graham v. State, in support of this premise. Jd. Even if

Graham stood for the proposition that Plaintiff claims it stands for (and it does

not),!° a state-court opinion cannot “clearly establish” that an officer’s con-

duct violated federal constitutional or statutory rights. See Callahan v. Unified

Govt of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015) (“In this circuit,

to show that a right is clearly established, the plaintiff must point to a Su-

preme 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.” (citation and quotation marks omitted)). Because Plain-

tiff has failed to point to any case law demonstrating that Officer Richards

violated clearly established law by arresting Mr. McKee, Officer Richards is

entitled to summary judgment on Plaintiff’s illegal-arrest claim. E.g., Rojas v.

Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013) (affirming summary judg-

ment based on the “sparsity of [the plaintiff’s] argument and his failure to

point to any authority to support his claims”).

The Court now turns to Plaintiff’s claim that Officer Richards used

excessive force against Mr. McKee. An excessive-force claim is, in effect, a

challenge to the reasonableness of an arrest or seizure. See Thomas ».

‘6 Plaintiff cites Graham ». State for the proposition that, in general, “a police of-

ficer’s authority cannot extend beyond his jurisdiction.” Dkt. 77 at 35 (citing Graham ».

State, 1977 OK CR 1, J J 13-14, 560 P.2d 200). But Graham says something else: “There

are, of course, exceptions to the general rule that a police officer’s authority cannot extend

beyond his jurisdiction. [f a police officer is in hot pursuit of a person who has committed an

unlawful act within his jurisdiction, then such police officer is, of necessity, permitted to go outside

his jurisdiction to apprehend such person.” Graham, 1977 OK CR 1, 714, 560 P.2d at 203

(emphasis added) (quoting United States v. Braggs, 189 F.2d 367 (10th Cir. 1951)). Graham

does not establish that Officer Richards—who pursued Mr. McKee into another jurisdic-

tion after he committed an unlawful act in Skiatook—violated Mr. McKee’s federal rights

by doing so.

No. 23-cv-209

Durastanti, 607 F.3d 655, 663 (10th Cir. 2010). The use of even deadly force

“is not unlawful if a reasonable officer would have had probable cause to be-

lieve that there was a threat of serious physical harm to himself or others.”

Id. at 664. The reasonableness of force used by an officer must be judged from

the perspective of a reasonable officer standing in that officer’s place. Jd. Be-

cause Officer Richards has asserted the defense of qualified immunity, Plain-

tiff bears the preliminary burden of establishing that Officer Richards’s use

of force was not objectively reasonable, and that she was on notice of that fact

at the time of the accident. The Court will address both requirements.

]

To establish that an officer’s use of force violated the Fourth Amend-

ment, a plaintiff must first show that a seizure occurred. Thomas, 607 F.3d at

663 (noting that a plaintiff “must show oth that a ‘seizure’ occurred and that

the seizure was ‘unreasonable’” (quoting Childress v. City of Arapaho, 210

F.3d 1154, 1156 (10th Cir. 2000)) (internal citation omitted)). Officer Rich-

ards argues that she did not “unreasonably seize” Mr. McKee because she

did not “seize” him at all; according to Officer Richards, the collision was an

accident, nothing more, and that accidental conduct cannot give rise to a

Fourth Amendment violation.

“Violation of the Fourth Amendment requires an intentional acquisi-

tion of physical control.” See Brower ». Cnty. of Inyo, 489 U.S. 593, 596,

(1989).’” If, as Officer Richards claims, there is no evidence that she intended

to seize, arrest, or use force against Mr. McKee, then Plaintiff cannot prevail

on her Fourth Amendment claim as a matter of law. Cuty. of Sacramento v.

Lewis, 523 U.S. 833, 844 (1998) (“We illustrated the point by saying that no

” See also Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019) (treating excessive

force claim as a “seizure” subject to the Fourth Amendment’s reasonableness requirement

and recognizing that a seizure is “a governmental termination of freedom of movement

through means intentionally applied” (quoting Estate of Larsen ex rel Sturdivan v. Murr, 511

F.3d 1255, 1259 (10th Cir. 2008))).

No. 23-cv-209

Fourth Amendment seizure would take place where a ‘pursuing police car

sought to stop the suspect only by [a] show of authority . . .” but accidentally

stopped the suspect by crashing into him. That is exactly this case.” (quoting

Brower, 489 U.S. at 597))."* If, however, the evidence could permit a jury to

find that Officer Richards acted intentionally, then the Court must evaluate

the reasonableness of her conduct in light of Fourth-Amendment jurispru-

dence. E.g., Osborn v. Meitzen, No. CIV-20-96-SPS, 2021 WL 5495179, at *3

(E.D. Okla. Nov. 23, 2021), aff’d, No. 21-7069, 2022 WL 17428958 (10th Cir.

Dec. 6, 2022).

Officer Richards argues there is no evidence that would permit a jury

to find she intentionally hit Mr. McKee. See Dkt. 62 at 24, 25-30. In support

of this position, she points to her own testimony that she did everything she

could to avoid an accident, her post-collision statements describing the colli-

sion as an “accident” rather than a tactical decision, and data collected from

the airbag control module on her vehicle, which indicates that Officer Rich-

ards applied her brakes and steered to the right, left, and back to the right in

the moments prior to the accident.’? Dkt. 62-6 at 21; Dkt. 62-8 at 8; Dkt. 62-

11 at 18-19. Plaintiff, in response, argues that the evidence of Officer Rich-

ards’s speed, acceleration, and position prior to the crash, the physical evi-

dence at the scene of the collision, and Officer Richards’s own statements

Plaintiff does not dispute that intent is a necessary element of her Fourth Amend-

ment claim for which she bears the burden of proof. See Dkt. 77 at 11 (arguing that, to sur-

vive summary judgment, she need only show that Officer Richards intended to hit, seize, or

act on Mr. McKee through means intentionally applied).

' An airbag control module records data for the five seconds prior to the event that

causes the airbag to deploy (or, in some cases, nearly deploy). It is not clear from the record

whether the first collision with the trailer or the second collision with Mr. McKee is the

“event” that corresponds to the recorded data. See Dkt. 62-11 at 18 (noting that the module

“had one saved event record”). The Court, construing the facts and drawing all inferences

in favor of Mr. McKee, assumes that the “event” recorded is the collision with Mr.

McKee’s motorcycle.

No. 23-cv-209

could permit a jury to conclude that Officer Richards deliberately hit Mr. □

McKee to end the pursuit.

Although this is a close case, the Court agrees with Plaintiff. Officer

Richards’s testimony shows that, for most of the pursuit, she followed three

or four car lengths behind Mr. McKee. See Dkt. 62-3 at 10-12, 14, 21, 28, 32-

33, 51). She closed that gap just prior to the collision, following approximately

one car length behind Mr. McKee as she passed the barriers and entered the

construction site. /d. at 59-60. There is evidence that Officer Richards was

accelerating three-to-five seconds prior to striking Mr. McKee. Dkt. 62-11 at

18-19. And although the brake switch was activated one-and-a-half seconds

prior to the collision, there is no evidence as to how much braking percentage

was used by Officer Richards, nor is there evidence that officers investigating

the collision found any skid marks indicative of sudden braking. Jd. at 19; Dkt.

62-3 at 61. This evidence could be consistent with Officer Richards’s claim

that she suddenly and accidentally collided with Mr. McKee while trying to

avoid a parked trailer; but it could also be consistent with Plaintiff’s claim

that Officer Richards made a tactical decision to forcibly end the chase once

Mr. McKee entered the construction zone.

Officer Richards argues that her statements after the collision show

that she did not intend to strike Mr. McKee. See Dkt. 62 at 26-29. But a jury

could decide not to credit Officer Richards’s statements based on the evi-

dence discussed above. And as the Tenth Circuit has recognized, courts rul-

ing on motions for summary judgment should exercise caution when consid-

ering the potentially self-serving statements of officers, particularly when the

witness most likely to contradict the officer is dead and unable to testify. E.g.,

Pauly v. White, 874 F.3d 1197, 1218 (10th Cir. 2017) (concluding that the evi-

dence could support the conclusion that the victim did not fire his weapon at

the officer, despite the officer’s statement to the contrary).

No. 23-cv-209

Officer Richards also argues that there is no evidence that she dis-

cussed the possibility of using a tactical maneuver to end the chase prior to

the collision. This supports Officer Richards’s position, but it does not dis-

prove Plaintiff’s claim. Nor do Officer Richards’s statements following the

collision preclude a finding of intent. Although some of those statements sug-

gest the collision was accidental, at least one statement could indicate that

Officer Richards intended to “hit” Mr. McKee. Dkt. 62-8 (“I’ve been in-

volved in an accident. Putting on brakes and finally [hit him. He hit me.” (em-

phasis added)). And as Plaintiff notes, Officer Richards has made contradic-

tory statements regarding the sequence of events giving rise to the accident.”

After considering all the evidence, the Court concludes that a question

of fact remains as to Officer Richards’s intent at the time of the accident. Ac-

cordingly, the Court declines to hold as a matter of law that no Fourth-

Amendment seizure took place. The Court assumes, for purposes of this

opinion, that Officer Richards intentionally struck Mr. McKee’s motorcycle

as he was slowing down to prevent him from fleeing further. The limited fac-

tual record and the critical question of Officer Richards’s intent makes fur-

ther analysis of the first prong of the qualified-immunity analysis difficult. Ac-

cordingly, the Court moves to the second step of the qualified-immunity in-

quiry: Whether Officer Richards’s conduct violated Mr. McKee’s clearly es-

tablished federal rights. Cf Osborn, 2021 WL 5495179, at *3 (resolving sum-

mary judgment under the second prong of the qualified-immunity analysis

because the critical question of the officer’s intent remained a question for

the jury, and prevented the court from determining “whether the seizure, if

it occurred, was reasonable”).

*0 Although some of these contradictions could be explained away as innocent (and

understandable) confusion following a traumatic event, the Court cannot draw inferences

in favor of Officer Richards. Only a jury can do that. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

No. 23-cv-209

Even if Officer Richards intentionally struck Mr. McKee’s motorcycle

to stop him from fleeing, the defense of qualified immunity will shield her

from liability unless her conduct was “unreasonable in light of clearly estab-

lished law.” Henderson v. Glanz, 813 F.3d 938, 951 (10th Cir. 2015) (citation

and quotation marks omitted). To show that Officer Richards violated clearly

established law, Plaintiff “must point to Supreme Court or Tenth Circuit

precedents [o]n point, or to the clear weight of authority from other circuit

courts deciding that the law was as the plaintiff maintains.” Thompson »v.

Ragland, 23 F.4th 1252, 1255 (10th Cir. 2022). Plaintiff’s burden is a heavy

one, and it cannot be satisfied by references to high-level legal truisms. See

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (recognizing that “clearly estab-

lished law” should not be defined “‘at a high level of generality”); Albright v.

Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir.1995) (describing the plaintiff’s

“heavy” preliminary burden). Instead, Plaintiff must point to law that is par-

ticularized to the facts of her case, 7.e., where “an officer acting under similar

circumstances .. . was held to have violated the Fourth Amendment.” White

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

Plaintiff cites many cases in her brief, but most of her arguments con-

sist of general applications of broad legal principles. See Dkt. 77 at 18-19, 20-

25. Rather than describe how particular cases informed Officer Richards (and

others) that it is unreasonable to stop a fleeing motorcyclist by striking him

with a police vehicle, Plaintiff argues only that “the obvious case law of Smith

». Cupp, Walker ». Davis, Harris v. Coweta Cty., Reavis v. Frost, supra, hold it

is a 4" Amendment excessive force violation to hit a motorcycle with a police

car, especially for misdemeanor traffic offenses such as reckless driving.” Dkt.

77 at 41. The Court has reservations as to whether this recitation is sufficient

to satisfy Plaintiff’s burden. Nevertheless, the Court will consider whether

these cases, together or separately, were sufficient to alert Officer Richards

that her actions were unlawful.

No. 23-cv-209

The Court begins with Reavis estate of Coale v. Frost, 967 F.3d 978 (10th

Cir. 2020), and Smith v. Cupp, 430 F.3d 766 (6th Cir. 2005). Both cases in-

volved officers who shot at drivers attempting to flee, but neither involved a

protracted, high-speed pursuit. Reavis, 967 F.3d at 991; Smith, 430 F.3d at 769.

In both cases, the appellate court concluded that a jury could find that the

officers fired their weapons knowing that there was no immediate threat of

harm to the officers or others. Reavis, 967 F.3d at 991; Smzth, 430 F.3d at 775.

And in both cases, the court concluded that a reasonable officer would have

known at the time that it was unlawful to fire at a fleeing vehicle that no longer

presented a threat to the officer or anyone else. Reavis, 967 F.3d at 995; Smith,

430 F.3d at 777.

The Court finds Reavis and Smith to be of limited value. The Tenth

Circuit has recognized that the term “deadly force” encompasses a spectrum

of activity, some more likely to cause death than others, and that “just be-

cause a situation justifies ramming does not mean it will justify shooting a

suspect in the head.” Cordova v. Aragon, 569 F.3d 1183, 1189 (10th Cir.

2009).”" An officer who read Reavis and Smith might have known that she

could not shoot a motorist from behind when the motorist presented no risk

to anyone and had not led vehicles on a high-speed chase through multiple

jurisdictions; she would not have necessarily concluded that it would be un-

lawful to end a high-speed chase by ramming a fleeing vehicle as it entered a

construction zone” in a residential area. Those cases would not have pro-

vided fair warning to Officer Richards that her conduct was unconstitutional.

Halley v. Huckaby, 902 F.3d 1136, 1157 (10th Cir. 2018) (stating that, “while

*\ See also Morrow v. Meachum, 917 F.3d 870, 879 (5th Cir. 2019) (concluding that a

collision is unlike a gunshot, and that cases involving shootings do not govern those involv-

ing collisions between officers’ vehicles and other vehicles).

* Although not discussed at length by either party, the Court notes that the fact

that Mr. McKee entered a construction area at high speed presented a unique risk of harm

that cannot be lightly disregarded.

No. 23-cv-209

general statements of law can sometimes provide fair warning that certain

conduct is unconstitutional, they only do so if they ‘apply with obvious clarity

to the specific conduct in question’” (quoting Unzted States v. Lanier, 520

U.S. 259, 271 (1997))).

Next, Plaintiff cites Harris ». Coweta County, Georgia, 406 F.3d 1307

(11th Cir. 2005). In that case, the court of appeals initially held that it was

well-established by 2001 that an officer could not use deadly force—including

ramming another vehicle at high speed—when the fleeing suspect was nei-

ther armed nor dangerous. /d. at 1320-21. The court of appeals issued a sub-

stitute opinion with a similar holding. See Harris v. Coweta County, Georgia,

433 F.3d 807, 820-21 (11th Cir. 2005). But the substituted opinion was re-

versed by the Supreme Court, which held that the court of appeals erred

when it assumed that the fleeing suspect did not present a danger to others.

Scott v. Harris, 550 U.S. 372, 380 (2007). The Court noted that a video de-

picted the suspect “racing down” narrow roads at night, swerving around

cars, crossing the double-yellow line, and running red lights in a manner that

“plac[ed] police officers and innocent bystanders alike at great risk of serious

injury.” Jd. at 379-80. In view of the risk presented by the suspect, the Court

held that it was reasonable, and not a constitutional violation, for the pursuing

officers to ram the suspect’s vehicle even though doing so created a “high

likelihood of serious injury or death” to the suspect. Jd. at 384.

The version of Harris cited by the Plaintiff could not have put Officer

Richards on notice of the fact that her actions were unreasonable. That case

is no longer good law, and the opinion reversing it, Scott ». Harris, demon-

strates that there are cases where it is acceptable to ram a fleeing vehicle not-

withstanding the risk created to the vehicle’s occupant. /d. Neither Harris’s

now-invalid holding nor Scott would have put Officer Richards on notice of

the fact the Fourth Amendment prohibited her from striking Mr. McKee’s

motorcycle with her police cruiser.

No. 23-cv-209

Finally, Plaintiff cites Walker ». Davis, an opinion from outside of the

Tenth Circuit. 643 F. Supp. 2d 921 (W.D. Ky. 2014), aff’d, 649 F.3d 502 (6th

Cir. 2011). That opinion cannot, by itself, show what was “clearly estab-

lished” at the time of the facts giving rise to this case. See Callahan v. Unified

Govt of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015) (requiring plain-

tiffs to “point to a Supreme Court or Tenth Circuit decision on point, or the

clearly established weight of authority from other courts” to demonstrate that

the unlawful nature of an officer’s conduct was “clearly established” (citation

and quotation marks omitted)). Furthermore, the facts of Walker are unlike

the facts presented here: In Walker the pursuit never exceeded sixty miles per

hour and ended in a field; here, the pursuit exceeded 100 miles per hour, pro-

ceeded through one of Oklahoma’s largest cities, and ended in a construction

zone. Walker, 643 F. Supp. 2d at 926, 932. The court’s determination that it

was unlawful to ram the fleeing motorcycle under the circumstances pre-

sented in Walker did not clearly establish that Officer Richards should have

known she could not ram Mr. McKee’s motorcycle under the very different

circumstances she was presented with.

The cases cited by Plaintiff, whether considered individually or collec-

tively, fail to show that the unlawfulness of Officer Richards’s conduct was

clearly established at the time of the alleged constitutional violation. And the

Court’s own research shows that the question of whether and when an officer

may ram a speeding motorcycle is fact-specific and not easily resolved by a

clear set of rules. The Tenth Circuit has recognized that a motorist’s reckless

driving creates a “substantial but not imminent risk” to innocent bystanders

even when there are “no other motorists in the immediate vicinity.” Cordova,

569 F.3d at 1189. Whether the “risk imposed on innocent bystanders and po-

lice by a motorist’s reckless driving justifies . . a level of force that is nearly

certain to cause the motorist’s death” is “not an easy question, or one that

any court could feel confident in answering.” /d. And the Court could find no

case law within the Tenth Circuit directly addressing how that question

No. 23-cv-209

should be resolved when an officer uses a pursuit intervention technique

against a motorcycle that has sped through a major city and into a construc-

tion zone.

There are some opinions outside of the Tenth Circuit involving facts

that are similar to those presented here. But those cases are in tension with

one another. For example, the Fifth Circuit has held that, as of 2014, it was

not clearly established that an officer would violate the Fourth Amendment

by using a “rolling block” to stop a fleeing motorcyclist who had been travel-

ling at speeds of 100 miles per hour or more on a two-lane road with “light

but consistent traffic.” Morrow v. Meachum, 917 F.3d 870, 873 (5th Cir.

2019).* The Sixth Circuit held in 2016 that an officer could wot use his vehicle

to stop a fleeing motorcyclist who had been speeding in excess of 100 miles

per hour when the collision occurred at 4:20 a.m. on a divided highway with

“no pedestrians or businesses in sight.” Stamm v. Miller, 657 F. App’x 492,

495 (6th Cir. 2016). And the Fourth Circuit held in 2007 that a police officer

acted reasonably when he intentionally rammed a motorcycle at the end of an

eight-mile chase during which he committed numerous traffic violations. Ab-

ney v. Coe, 493 F.3d 412, 416-17 (4th Cir. 2007).

These cases do not establish, by the clear weight of authority from out-

side this circuit, that Officer Richards’s conduct was clearly unconstitutional

at the time of the accident. If anything, these cases show that the question of

whether and when an officer may ram a motorcycle is a fact-specific question

ill-suited to resolution on qualified immunity grounds in all but the clearest

of cases. Although Plaintiff believes that Officer Richards should have been

“forced to decide —with life-or-death consequences for innocent motorists,

*3 Earlier, the same court held that it was reasonable for an officer to “bump” a

fleeing car that had failed to observe a stop sign and fled down a rural, two-lane road at

speeds exceeding ninety miles per hour because of the threat the fleeing vehicle posed to

anyone he might have encountered. Pasco ex rel Pasco v. Knoblauch, 566 F.3d 572, 581 (5th

Cir. 2009).

No. 23-cv-209

in [mere] seconds, and upon pain of personal liability” —whether her chase

was more like Morrow, Stamm, or Abney, “[s|ection 1983 does not put [Officer

Richards] to that choice.” Morrow, 917 F.3d at 880. Neither does this Court.

The cases cited above show that “this area is one in which the result depends

very much on the facts of each case,” and they “by no means ‘clearly estab-

lish?” that Officer Richards’s conduct violated the Fourth Amendment.

Brosseau v. Haugen, 543 U.S. 199, 201 (2004).

Plaintiff has failed to show that Officer Richards violated clearly estab-

lished law by striking Mr. McKee. As a result, Officer Richards is entitled to

summary judgment on Plaintiff’s excessive force claim. See Cordova, 569 F.3d

at 1193 (granting qualified immunity where the law was “vague” as to

whether potential risk to unknown third parties could justify the use of force

nearly certain to cause death); Morrow, 917 F.3d at 879 (“Cases cutting both

ways do not clearly establish the law.”).

Plaintiff next purports to bring a deliberate indifference claim against

Officer Richards. Dkt. 77 at 36-37. To the extent she successfully alleged this

claim,” is foreclosed by binding precedent unless Plaintiff can show that Of-

ficer Richards intended to harm Mr. McKee.” Assuming Plaintiff can prove

this element, her deliberate-indifference claim is subject to the same qualified

immunity defense as the other constitutional claims raised by Plaintiff. See

Green v. Post, 574 F.3d 1294, 1304 (10th Cir. 2009) (applying qualified

*4 Officer Richards argues that this is a new claim not adequately set forth in Plain-

tiff’s original complaint. Dkt. 962 at 16. The Court assumes, without deciding, that this

claim is adequately alleged.

> See County of Sacramento v. Lewis, 523 U.S. 833, 854 (1998) (“Just as a purpose to

cause harm is needed for Eighth Amendment liability in a riot case, so it ought to be needed

for due process liability in a pursuit case. Accordingly, we hold that high-speed chases with

no intent to harm suspects physically or to worsen their legal plight do not give rise to lia-

bility under the Fourteenth Amendment, [that can be redressed] by an action under §

1983.”).

No, 23-cv-209

immunity to deliberate-indifference claim). Plaintiff has failed to point to any

case law demonstrating that, at the time of the collision, it was “clearly estab-

lished” that Officer Richards’s conduct violated the Fourteenth Amendment.

Because Plaintiff has not satisfied her burden, Officer Richards is entitled to

summary judgment on Plaintiff’s deliberate-indifference claim.

IV

The Court next considers Plaintiff’s claims that the City is responsible

for Officer Richards’s wrongful arrest and excessive use of force against Mr.

McKee. Plaintiff sets forth several reasons why the City should be held liable

for Officer Richards’s conduct: First, she claims that the City’s policies and

procedures were the moving force behind Officer Richards’s conduct. Sec-

ond, she argues that the City failed to provide adequate training and supervi-

sion on the handling of minor arrests and police pursuits. Dkt. 2 at [J 14-27.

Third, she alleges that the City ratified Officer Richards’s conduct by failing

to discipline her appropriately. The Court will address each theory in turn.

The Court begins with Plaintiff’s claim that the City’s policies and

procedures caused Officer Richards to violate Mr. McKee’s constitutional

rights. See Monell v. Dep’t of Soc. Servs. of City of N.¥., 436 U.S. 658, 690 (1978)

(holding that a local government can be sued directly under § 1983 when an

unconstitutional action implements an official policy or regulation). To estab-

lish a viable claim under Monell, Plaintiff must first point to an underlying

constitutional violation that the City is allegedly responsible for. See Hinton v.

City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993) (recognizing that, if

there is not sufficient evidence for a jury to find an underlying constitutional

violation, then there is no basis for imposing municipal liability under § 1983).

Plaintiff cannot make this showing with respect to her illegal arrest claim be-

cause, as the Court recognized in Section III(A), supra, the evidence of record

would not permit a jury to find that Officer Richards illegally arrested Mr.

McKee in violation of his Fourth-Amendment rights.

No. 23-cv-209

A different situation is presented by Plaintiff’s excessive-force claim

because the Court did not find, as a matter of law, that Officer Richards acted

reasonably when she arrested Mr. McKee. That question has been left open.

Assuming Officer Richards acted unlawfully, the City cannot be held liable

for her conduct simply because Officer Richards was employed by the City at

the time she allegedly used excessive force. See Bd. Of Cnty. Comm’rs of Bryan

Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997). A municipality can be held

liable for the unconstitutional acts of its employee only if the employee “im-

plements or executes a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by [the municipality’s] officers.” Monell,

436 U.S. at 690. To ensure that a municipality is being held liable for its own

conduct, rather than being held liable for the torts of its employees under a

respondeat superior theory, a plaintiff seeking to hold a municipality liable for

an officer’s wrongdoing must show that (1) an official policy or custom (2)

caused the plaintiff’s injury, and (3) was “enacted or maintained with delib-

erate indifference to an almost inevitable constitutional injury.” Schneder v.

City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013).

Plaintiff points to two policies that allegedly gave rise to Mr. McKee’s

death. First, she notes that the City’s policies permitted officers to engage in

tactical vehicle interventions and ramming to end police chases. Second, she

argues that the City had an ongoing practice of allowing officers to engage in

high-speed pursuits outside city limits. Plaintiff has failed to establish that

either policy caused Mr. McKee’s injuries or was adopted with deliberate in-

difference to a risk of constitutional harm.

The City’s policies on pursuit intervention techniques are not causally

connected to Mr. McKee’s injuries. Although the Skiatook Police Depart-

ment Policy Manual authorizes officers to engage in tactical vehicle interven-

tions and ramming, it specifies that TVIs and ramming should only be used

No. 23-cv-209

in certain limited circumstances. Dkt. 63-1 at 16.”° Plaintiff does not argue □

that Officer Richards acted in accordance with those constraints. Instead, she

argues that Officer Richards rammed Mr. McKee’s motorcycle even though

the City’s policy would not have allowed her to do so under the circumstances

presented.” The City’s policies, which did not authorize Officer Richards to

intentionally ram Mr. McKee, could not have been the causal “moving force”

behind Mr. McKee’s death. Schneider, 717 F.3d at 770 (recognizing the plain-

tiff’s obligation to show that a municipal policy or custom was the “moving

force” behind an alleged constitutional violation); Smith v. Rogers Co. Crim.

J. Auth., No. 05-cv-0138-CVE-SAJ, 2005 WL 3298981, at *4 (Dec. 5, 2005)

(holding that “it was not a policy that placed plaintiff at risk of a fall, but ra-

ther [the] individual jailers’ failure to designate plaintiff as disabled” and in

need of accommodations offered under the defendant’s policies).

There is likewise no evidence that the City’s purported practice of

permitting its officers to go on high-speed chases outside of city limits caused

Mr. McKee’s injuries. Assuming for argument’s sake that this policy can be

inferred from the evidence of record, Plaintiff has not identified evidence that

the policy was causally connected to Mr. McKee’s injuries. Plaintiff has not

pointed to a single high-speed chase (other than the one at issue in this case)

that culminated in an alleged constitutional violation. In fact, the evidence

*6 According to the policy, TVIs may be used only by “properly trained officers with

the approval of a supervisor” following an assessment of the risk of injury to officers, the

public, and the occupants of the pursued vehicle. Dkt. 63-1 at 16. Ramming may be per-

formed only if the fleeing suspect is “‘an actual or suspected felon who reasonably appears

to represent a serious threat to the public if not apprehended” and is driving in a willful,

reckless, or life-endangering manner. Jd. The Court notes that these policies are generally

aligned with current case law governing the permissible uses of force. Where a policy is

itself not unconstitutional, the causation requirement should be “applied with especial ri-

gor.” Schneider, 717 F.3d at 770 (citation and quotation marks omitted).

77 See Dkt. 63-1 at 16 (recognizing that ramming should only be used when the sus-

pect is an actual or suspected felon who represents a serious threat to the public); Dkt. 89

at 18 (additional statement of fact no. 12) (asserting Officer Richards only had probable

cause to believe Mr. McKee had been speeding and had run a stop sign).

No. 23-cv-209

demonstrates that most of the City’s high-speed chases ended peaceably and

without any constitutional harms. See Dkt. 63 at 10 (statement of fact no. 5).

Plaintiff provides no evidence or explanation as to how the City’s decision to

permit chases outside of its jurisdiction “sen[t] a message that dissimilar con-

duct, like the use of. . . force in this case, is tolerated.” Finch v. Rapp, 38 F.4th

1234, 1246 (10th Cir. 2022). Absent such evidence or analysis, Plaintiff can-

not “meet the demanding standard of causation” required in municipal lia-

bility cases. /d. (affirming summary judgment where the plaintiff pointed only

to “a handful” of shootings that arguably gave rise to constitutional viola-

tions, none of which were factually similar to the incident on appeal).

Even if Plaintiff could establish that Mr. McKee’s injuries were the

product of either of the policies discussed above, there is no evidence that

would permit a jury to find that the City was deliberately indifferent to the

risk that its policies were “enacted or maintained with deliberate indifference

to an almost inevitable constitutional injury.” Schneider, 717 F.3d at 769.

There is no evidence that the City was aware of a pattern of other, similar

constitutional violations, which is “ordinarily necessary” to satisfy the

“stringent deliberate indifference standard.” Waller v. City & Cnty. of Denver,

932 F.3d 1277, 1285 (10th Cir. 2019) (citation and quotation marks omitted).

And Plaintiff has not shown that this is the rare case where deliberate

*® According to the City, Skiatook officers had been involved in ten pursuits outside

of Skiatook in the three years prior to Mr. McKee’s death. Dkt. 63 at 10. Of those, six were

terminated due to safety concerns, three ended after the fleeing driver became stuck or dis-

abled, and one ended when the Oklahoma Highway Patrol (not the City) employed stop

sticks. /d. at 10-11. Plaintiff states she cannot admit or deny these factual allegations and

asks the Court to disregard this evidence. But if the Court ignores this evidence, there is

even less evidence to support Plaintiff’s claim that the City had an unofficial policy of per-

mitting high-speed chases outside of its jurisdiction, as Plaintiff did not point to any other

evidence of chases that resulted in constitutional violations. See Dkt. 89 at 16-19. At most,

she refers to “16 high speed pursuits outside the Skiatook city limits in the 5 years prior to

this incident.” Dkt. 89 at 11. But she does not provide any evidence suggesting that those

pursuits violated the Constitution, federal law, or even the City’s own policies.

No. 23-cv-209

indifference can be inferred without a pattern of prior constitutional viola-

tions. It would not have been plainly obvious to the City that, by adopting

policies permitting pursuit interventions in limited circumstances and allow-

ing high-speed pursuits in others, one of its officers would disregard an order

to terminate a pursuit of a misdemeanant fleeing on his motorcycle and delib-

erately ram the motorcycle in violation of City policies as it slowed to a stop

in a construction zone. Jd. There is no evidence to support a finding that the

City’s policies were the driving force behind Mr. McKee’s injuries, nor is

there evidence that the City was deliberately indifferent to the risks associated

with those policies.

The Court next turns to Plaintiff’s claim that the City failed to train

Officer Richards regarding high-speed pursuits, tactical vehicle interven-

tions, and ramming. There are “limited circumstances” under which a mu-

nicipality can be held liable for failure to train its employees under § 1983, and

a claim for municipal liability is “most tenuous” when it turns on such a fail-

ure. Connick »v. Thompson, 563 U.S. 51, 61 (2011); George, on behalf of Bradshaw

v. Beaver Cuty., by & through Beaver Cnty. Bd. of Commissioners, 32 F.4th 1246,

1253 (10th Cir. 2022) (citation and internal quotation marks omitted).

A municipality’s failure to train its officers gives rise to § 1983 liability

only when the failure is tantamount to deliberate indifference toward the

rights of those the untrained officers come into contact with. George, 32 F.4th

at 1253. Deliberate indifference “requires proof that a municipal actor disre-

garded a known or obvious consequence of his action” by, for example, main-

taining a deficient program despite having actual or constructive notice that

the “training deficiency caused city employees to commit constitutional vio-

lations.” Jd. (citation omitted). Ordinarily, a pattern of violations that pre-

cedes the challenged conduct is necessary to establish deliberate indifference;

exceptions arise only where the “unconstitutional consequences of a failure

No, 23-cv-209

to train are highly predictable and patently obvious.” Jd. (quoting Waller, 932

F.3d at 1285).

There is no evidence of a pattern of constitutional violations that pre-

dates Mr. McKee’s death. Although there is some evidence that other City

officers have engaged in high-speed chases, there is no evidence that any of

those chases involved the allegedly unconstitutional use of a vehicle to end a

pursuit. Dkt. 63 at 10; Dkt. 89 at 11. And there is no evidence of any other

incident in which an officer used a patrol car to ram or otherwise seize a flee-

ing suspect. Cf Dkt. 63 at 11. Plaintiff’s oblique references to high-speed

chases, without more, cannot establish that the City was deliberately indiffer-

ent to the risk that its deficient training would give rise to constitutional vio-

lations.

The Court disagrees with Plaintiff’s suggestion that it would have

been “obvious” to the City that its officers might use cars to unconstitution-

ally seize fleeing misdemeanants without specific training to the contrary.

The City maintained policies on vehicle pursuits, pursuit interventions, and

the appropriate use of force. Dkt. 63 at 9; Dkt. 63-1 at 6-27. Those policies

prohibited officers from using ramming or other pursuit intervention tech-

niques except in limited circumstances. Dkt. 63-1 at 15-17. All City officers

were required to read, understand, and comply with those policies, and the

City required officers to complete daily training bulletins relevant to its poli-

cies and procedures in addition to their other training requirements. Dkt. 63

at 9. It would not be “plainly obvious” that an officer who read these policies

would violate them by ramming a fleeing suspected misdemeanant. Cf

George, 32 F.4th at 1253-54 (affirming summary judgment where the evidence

showed that all officers had access to the county’s handbook and were re-

quired to participate in ongoing training regarding the implementation of

those policies). The Court finds that the evidence is insufficient to support a

jury verdict on a failure-to-train theory.

9c

No. 23-cv-209

The Court now turns to Plaintiff’s claim that the City ratified Officer

Richards’s conduct by failing to investigate and discipline Officer Richards

for using excessive force. A “municipality will not be found liable under a rat-

ification theory unless a final decisionmaker ratifies an employee’s specific

unconstitutional actions, as well as the basis for these actions.” Bryson v. City

of Oklahoma City, 627 F.3d 784, 790 (10th Cir. 2010). The evidence of record

fails to provide any evidence that would permit a finding of ratification here.

The City investigated Officer Richards’s conduct and, rather than condoning

those actions, disciplined her for violating the City’s policies. Dkt. 63 at 11

(statement of fact no. 9); Dkt. 89 at 14. Although the City did not separately

discipline her for any alleged constitutional violations, that failure is not the

equivalent of an express approval of Officer Richards’s actions and the basis

for them. The record is insufficient to permit a jury to find that the City rati-

fied Officer Richards’s allegedly unconstitutional conduct.

Finally, the Court turns to Plaintiff’s state-law assault claim against

Officer Richards. Officer Richards argues that there is no evidence that she

intended to hit Mr. McKee, and that the Oklahoma Governmental Tort

Claims Act shields her from liability. Dkt. 62 at 41-42. Plaintiff responds only

to the first of these two arguments. Dkt. 77 at 42.

The Court has already held that there is evidence that could permit a

jury to find that Officer Richards intentionally collided with Mr. McKee’s mo-

torcycle. Thus, this case will proceed to trial unless the OGTCA bars Plain-

tiff’s assault claim. But neither Plaintiff nor Defendant has fully developed

this issue, which is now the only one remaining for the Court’s consideration.

Rather than direct the parties to provide additional briefing, the Court de-

clines to exercise supplemental jurisdiction over Plaintiff’s remaining assault

claim. The question of whether the OGTCA bars recovery is a state-specific

claim best addressed in state court. See Smith v. City of Enid ex rel. Enid City

76

No. 23-cv-209

Comm?n, 149 F.3d 1151, 1156 (10th Cir. 1998) (recognizing that, when all fed-

eral claims have been resolved, “the court may, and usually should, decline to

exercise jurisdiction over any remaining state claims’’).

VI

For the reasons discussed above, the Court holds that Officer Richards

is entitled to qualified immunity with respect to the federal claims asserted

against her. The Court further holds that Plaintiff has failed to demonstrate

that the City is liable for any of the constitutional claims asserted against it,

and the City is therefore entitled to judgment as a matter of law on all of Plain-

tiff’s constitutional claims. This leaves Plaintiff’s state-law assault claim

pending against Officer Richards, and the Court declines to exercise jurisdic-

tion over that claim. For all these reasons, Defendants’ motions for summary

judgment [Dkts. 62, 63] are granted.

DATED this 12th day of September 2025.

Tawi

JOHN D. RUSSELL

United States District Judge