Appendix — York v. Wrather

001635 APR 23 2001

No. OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

W.B. YORK, PETITIONER,

V.

DERONN WRATHER, STEPHEN WILLIAMS AND VINCENT

7 TURNER

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

APPENDIX

PETITION FOR A WRIT OF CERTIORARI

LAkRY V. SIMMONS

Deputy City Attorney

Counsel of Record

JOHN E. DORMAN

Senior Assistant City Attorney

Legal Department

City of Tulsa

200 Civic Center, Third Floor

Tulsa, Oklahoma 74103

(918) 596-7717

TABLE OF CONTENTS

Appendix A: United States Court of Appeals, Tenth Circuit

Order and Judgment, January 22, 2001 .....:sscseeseeseeees la

Appendix B: United States District Court, Northern District

of Oklahoma Order, October 28, 1999......:ssessecseeeeeees Ta

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 99-5224

DERONN WRATHER; STEPHEN WILLIAMS AND VINCENT

TURNER, PLAINTIFFS-APPELLEES,

Vv.

CLARK, in their official capacity as Tulsa Police

Officers; and OTHER UNKNOWN PERSONS individually

and in their official capacities as Tulsa Police Officers;

W.B. MAJOR; A Co RAL; A. WILSON; AND KEVIN

JOHNSON, individually and in their official capacity as

Tulsa Police Officers, DEFENDANTS,

and

BILL YELTON, individually; MICHAEL ECKERT, individually;

CHARLES JORDAN; STEVEN MIDDLETON, individually; B

BONHAM, individually; SGT. J. CLARK individually; and

W.B. YORK, individually and in his official capacity as a

Tulsa Police Officer, DEFENDANTS-APPELLANTS.

ORDER AND JUDGMENT

[FILED: JANUARY 22, 2001]

BEFORE BRORBY, KELLY, AND LUCERO,

CIRCUIT JUDGES.

Defendants-appellants W. B. York, Bruce Bonham,

Bill Yelton. Michael Eckert, and Steven Middleton appeal

the district court's denial of qualified immunity in this civil

rights action. Because defendants-appellants are challenging

the district court's conclusion that genuine factual disputes

remain which affect the availability of qualified immunity.

(la)

2a

we lack jurisdiction over this interlocutory appeal and

therefore dismiss.’

On May 4, 1996, members of the Ku Klux Klan held

a rally on the Tulsa County courthouse steps, to be followed

by a cross burning on private land. After the rally had

concluded, the Klansmen had been escorted to their cars,

and the street had been reopened to traffic, a crowd of

predominately African-Americans remained on a sidewalk

approximately a block from the courthouse.

Tulsa police officers conferred with defendant-

appellant York and decided to clear the crowd. The crowd

was broken up through a combination of officers adva.icing

into the crowd on horses, officers advancing in a skirmish

line, pepper spray, and the arrest of uncooperative crowd

members. Defendants-appellants Yelton, Bonham, Eckert,

and Middleton participated in these actions. Plaintiffs were

arrested during the dispersal of the crowd. Plaintiff Turner

was arrested for disorderly conduct by defendant-appellant

Bonham. Plaintiff Wrather, now married to plaintiff Turner,

was arrested by defendant-appellant Eckert for obstructing

officers, resisting arrest, and assaulting an officer. Plaintiff

Williams was arrested for inciting a riot, assaulting an

officer, and resisting arrest, by a number of officers,

including defendant-appellant Middleton.

This order and judgment is not binding precedent, except under

the doctrines of law of the case, res judicata, and collateral estoppel. The

court generally disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.

R. 34.1(G). The case is therefore ordered submitted without oral

argument.

3a

Plaintiffs filed an action against the City of Tulsa, the

mayor, the police chief, and various police officers, alleging

civil rights violations under the First, Fourth, and Fourteenth

Amendments, and state law violations. All defendants filed

motions for summary judgment, seeking qualified immunity

for their conduct.

To show the existence of factual disputes, plaintiff

Turner submitted an affidavit stating (1) that before police

dispersed the crowd, people were peacefully assembled on

the sidewalk, there were no threats of violence, and no one

was asked to leave or given any warning before the horse

attack; (2) that plaintiff Turner at no time made any loud or

angry statements or failed to obey an order, and therefore

was afrested without reason; and (3) that plaintiff Wrather

did not interfere with Turner's arrest and thus was arrested

without cause. Video evidence was also submitted, showing

that before the horses arrived approximately ten Tulsa police

officers were on the street facing a crowd of men, women,

and children, predominately African-American, who were

milling around on the sidewalk and grassy area, and were

sitting on a concrete fence enclosing a parking lot. No angry

threats or interchanges can be heard on the video tape, and

the crowd's demeanor appears peaceful. The video then

shows the Tulsa mounted police riding into the crowd, the

skirmish line advancing. and the deployment of pepper

spray. In the resulting chaos, the video shows several

take-down arrests, including a struggle to get plaintiff

Williams to the ground which ended with defendant-

appellant Middleton kicking Williams in the head.

The district court considered each claim separately,

and made several rulings relevant to this appeal: (1)

regarding plaintiffs’ claim that their First Amendment right to

peaceably assemble had been violated, the district court

dismissed claims against three police officers, but held there

was a factual dispute as to the objective reasonableness of the

4a

conduct of defendants-appellants York, Yelton, Eckert,

Middleton, Bonham, and defendants Clark and Jordan;’ (2)

regarding plaintiffs' Fourth Amendment claims of false arrest

and/or excessive violence, the district court dismissed claims

against most of the officers, but denied qualified immunity

on Turner's false arrest claims against defendant-appellant

Bonham and defendant Clark, plaintiff Wrather's false arrest

claim against defendant-appellant Eckert, and plaintiff

Williams’ excessive force claim against defendant-appellant

Middleton; and (3) regarding the state law claims, the district

court declined to enter summary judgment in favor of any of

the defendants. Defendants-appellants York, Yelton, Eckert,

Middleton, and Bonham have appealed these rulings, arguing

they are entitled to qualified immunity as a matter of law.

We must examine whether we have jurisdiction over

this interlocutory appeal. "Since federal courts are courts of

limited jurisdiction, we presume no jurisdiction exists absent

an adequate showing by the party invoking federal

jurisdiction. If jurisdiction is challenged, the burden is on the

party claiming jurisdiction to show it by a preponderance of

the evidence." United States ex rel. Hafter _v. Spectrum

Emergency Care. Inc., 190 F.3d 1156, 1160 (10th Cir. 1999)

(citations omitted).

An order denying qualified immunity is appealable

before trial only if it involves "neat abstract issues of law."

Johnson v. Jones, 515 U.S. 304, 317 (1995) (quotation

omitted). When the district court's denial of qualified

immunity rests on the existence of a genuine issue of fact

which will determine the availability of the defense. the

ruling is not immediately appealable under the collateral

order doctrine. Id. at 310, 313-15 (affirming dismissal for

lack of jurisdiction officers' appeal from denial of qualified

immunity based on a factual dispute whether they engaged

, Defendants Clark and Jordan originally appealed the

court’s ruling, but have since withdrawn their appeals

Sa

in beating, noting lack of separability from merits): Foote v.

Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997)

("{G]overnment officials cannot appeal pretrial denial of

qualified immunity to the extent the district courts order

decides nothing more than whether the evidence could

support a finding that particular conduct occurred."). Such a

denial may be appealed as a question of law, however, if a

defendant argues that even under the plaintiff's facts there

was no violation of clearly established law. Johnson v.

Martin, 195 F.3 d 1208, 1214-15 (10th Cir. 1999).

In this case, the district court denied summary

judgment solely on the ground that plaintiffs’ evidence

created factual disputes whether the police conduct in

breaking up the assembly and arresting several participants

was objectively reasonable. Such a reasonableness inquiry

precludes jurisdiction over defendants-appellants’ claims on

appeal. Myers v. Okla. County Bd. Of County Comm'rs, 80

F.3d 421, 425 (10" Cir. 1996) (holding district court’s

denial of qualified immunity was not immediately

appealable when it rested solely on the existence of a

factual dispute regarding the reasonableness of defendants’

use of force).

Defendants-appellants York and Bonham attempt to

cast their arguments as questions of law, however, arguing

they cannot be held liable because they relied on

information provided by other officers in making their

decisions. An officer “‘may rely on information furnished

by other law enforcement officials to ... develop probable

cause.”’ Baptiste, 147 F.3d at 1260. This is a question of

fact.

Here, the record does not show what information was

communicated to defendant-appellant York or to

defendant-appellant Bonham. Without such information, the

court cannot presume that the -officers acted reasonably

6a

simply because they relied on the observations of other

officers. Because the district court denied qualified

immunity based on a factual dispute regarding the

reasonableness of York's and Bonham's decisions, and the

officers do nothing more than challenge this ruling, we are

without jurisdiction to review the denial. See eg,

McFarland v. Childers, 212 F.3d 1178, 1184 (10th Cir.

2000) (holding court lacked jurisdiction when appellant's

argument "requests this court to review the record to

deterrnine if the district court correctly interpreted the facts

to find a genuine dispute") (quotations omitted).

The appeal is DISMISSED for lack of jurisdiction.

Entered for the Court

Carlos F. Lucero

Circuit Judge

Ta

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

CASE NO. 97-CV-435-BU

DERONN WRATHER, STEPHEN WILLIAMS, & VINCENT

TURNER, PLAINTIFFS,

V.

THE CITY OF TULSA, A MUNICIPAL CORPORATION, ET AL.,

DEFENDANTS.

ORDER

[FILED: OCTOBER 28, 1999]

Plaintiffs, Deronn Wrather, Stephen Williams and

Vincent Turner, bring this civil action seeking damages

pursuant to 42 U.S.C. § 1983 based upon events which

occurred after a Ku Klux Klan rally in Tulsa, Oklahoma on

May 4, 1996. Specifically, Plaintiffs allege that their

constitutional rights under the First and Fourteenth

Amendments were violated because they, along with other

citizens, were attacked by foot patrol officers, horse mounted

officers and pepper gas while peacefully assembled on a

public sidewalk, so that Ku Klux Klan members and

supporters could have exclusive use of the public sidewalk.

Plaintiffs also claim that their constitutional rights under the

Fourth Amendment were violated because they were arrested

without probable cause. Plaintiffs, Deronn Wrather and

Stephens Williams, further -allege that their constitutional

rights under the Fourth Amendment were violated because

unreasonable and excessive force was used in effectuating

their arrests. In addition to the § 1983 claims, Plaintiffs allege

8a

state law claims of intentional infliction of emotional distress,

assault and battery and malicious prosecution.

Presently before the Court are the motions of

Defendants, Bill Yelton, Michael Eckert, Charles Jordan,

Steven Middleton, B. Bonham, Chris Witt, Sgt. Jim. Clark,

Major W.B. York, Corporal A. Wilson, Kevin Johnson, Ron

Palmer, Susan Savage and the City of Tulsa, for summary

judgment pursuant to Rule 56 (c), Fed. R. Civ. P. Upon due

consideration of the parties' submissions, the Court makes its

determination.’

Summary judgment is appropriate only "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c). In reviewing the

record, the Court views the evidence and draws any

inferences therefrom in the light most favorable to the party

opposing summary judgment. Latta v. Keryte, 118 F.3d

693, 697 (10" Cir. 1997) (citing Coosewoon v. Meridian

Oil Co., 25 F.3d 920, 929 (10" Cir. 1994)).

In their motions, the individual Defendants have

raised the affirmative defense of qualified immunity as to

Plaintiffs' § 1983 claims. When a public official raises the

defense of qualified immunity on summary judgment,

special rules apply. Hinton v. City of Elwood, Kansas, 997

F.2d 774, 779 (10" Cir. 1993). The plaintiff must initially

make a two-fold showing. Id. First, the "[p]laintiff has the

PRC icine na esone tars ek LE RRA Te pitt 200 Peg PGI

pris

, Plaintiffs have filed a Motion to Strike Defendants'Reply Briefs

and an Opposed Application for Surreply. Upon review, the Court finds

that Plaintiffs’ Motion to Strike Defendants' Reply Briefs should be

denied and the Plaintiffs' Opposed Application for Surreply should be

granted.

MOPS ge Ns oe

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9a

"burden to show with particularity facts and law establishing

the inference that defendant violated a constitutional

right.""" Hollingsworth v. Hill, 110 F. 3d 733, 737 (10 Cir.

1997)(quoting Abeyta v. Chama Valley Indep. Sch. Dist., 77

F.3d 1253, 1255 (10™ Cir. 1996) (quoting Walter v. Morton,

33 F.3d 1240, 1242 (10 Cir. 1994)). Second, the plaintiff

must demonstrate that "the constijutional rights ... . the

defendant allegedly violated were clearly established at the

time of the conduct at issue.” Id. (quoting Albright v.

Rodriguez, 51 F.3d 1531, 1534 (10™ Cir. 1995)). Ordinarily,

for the lew to be "clearly established," there must be a

Supreme Court or Tenth Circuit decision on point or the

weight of authority from other circuits must be as the

plaintiff maintains, and " [t] he contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right." V-1 Qil Co. v.

Means, 94 F.3d 1420, 1422 (10" Cir. 1996) (quoting

Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,

97 L.Ed.2d 523 (1987)). If the plaintiff makes the required

two-fold showing, the public official then bears the usual

summary judgment movant's burden of showing that there

are no genuine issues of material fact and that he or she is

entitled to judgment as a matter of law. Hinton, 997 F.2d at

779. Specifically, the defendant must show that ""no

material issues of fact remain as to whether the defendant's

actions were objectively reasonable in light of the law and

information the defendant possessed at the time of

his-actions.””’ Hollingsworth, 110 F.3d at 737 (quoting

Guffey v. Wyatt, 18 F.3d 869, 871 (10 Cir. 1994) (quoting

Salmon v. Schwarz, 948 F.2d 1131, 1136 (10" Cir. 1991));

see also, Hinton, 997 F.2d at 779.

Guided by the above principles, the Court turns first

to Plaintiffs' First Amendment claim against the individual

Defendants. The First Amendment to the Constitution

provides in part that "Congress shall make no law ...

abridging the ... right of the people peaceably to assemble."

10a

This right has long been made applicable to the states by the

Fourteenth Amendment. De Joncre v. Oregon, 299 U.S. 353,

364 (1937). "The right of peaceable assembly is a right

cognate to those of free speech and free press and is equally

fundamental." Id. People assemble in public places not only

to speak or to take action, but also to listen, observe, and

learn; indeed, they may "assembl[e] for any lawful

purpose." Hague v. CIO, 307 U.S. 496, 519 (1939) (opinion

of Stone, J.). Subject to the traditional time, place, and

manner restrictions, see, Cox v. New Hampshire, 312 U.S.

569, 574-576 (1941); Cox v. Louisiana, 379 U.S. 559,

560-564 (1965), public streets, sidewalks, and parks are

places traditionally open, where First Amendment rights

may be exercised, see, Hague, 307 U.S. at 515 (opinion of

Roberts, J.).

The Court finds that Plaintiffs have sufficiently shown facts

from which a reasonable jury might conclude that a violation

of their constitutional right to peaceably assemble may have

occurred. Plaintiffs, through the affidavit of Plaintiff,

Vincent Turner, reveal that they were peaceably assembled

on a public sidewalk with other citizens after the Ku Klux

Klan rally. In his affidavit, Mr. Turner testifies that when the

Ku Klux Klan members were leaving the scene and

immediately thereafter, some of the members of his group

were yelling hostile comments. However, Mr. Turner

testifies that these initial taunts quickly subsided. He also

testifies that some ten to fifteen minutes later approximately

eight police officers arrived at the scene and formed a line in

front of the group. Mr. Turner testifies that no person or

persons threatened the officers, charged the officers’ line or

made any hostile gestures to the police officers. Further, Mr.

Turner testifies that there was no warning before the horse

lla

attack and that when the horses entered the crowd the

officers immediately sprayed O.C.’ gas.

Although Plaintiffs have shown facts from which a

reasonable jury may conclude that their First Amendment

right to peaceful assembly was violated, the Court concludes

that Plaintiffs have not shown that all of the Tulsa police

officers named as Defendants in this action caused or

contributed to the alleged violation of their First

Amendment right. The Court has examined the record and

viewing the evidence in a light most favorable to Plaintiffs,

it appears that Defendants, Bill Yelton, Michael Eckert,

Steven Middleton and B. Bonham, were part of the skirmish

line that assisted in attempting to disperse the crowd. It also

appears that Sgt. Jim Clark and Sgt. Charles Jordan

conferred about the situation with Major W.B. York and

they decided to disperse the crowd. It further appears that

Sgt. Jim Clark and Sgt. Charles Jordan were involved in

attempting to disperse the crowd. As to Defendants, Chris

Witt, Kevin Johnson and Cpl. A. Wilson, there is no

evidence in the record that they were involved in the

skirmish line or were on mounted horses or sprayed pepper

gas on the crowd. In regard to Cpl. A. Wilson, the record

only shows that he advised Sgt. Jim Clark of the crowd

gathered on the street and that later, he directed Officer

Rodney Russo to arrest Shannon Johnson, one of the

members of the crowd, for inciting a riot. There is no

showing in the record by Plaintiffs that he was involved in

dispersing the allegedly peaceful crowd. Because there is no

showing by Plaintiffs that these individual Defendants

violated their First Amendment right to peaceably assemble,

the Court finds that these individual Defendants are entitled

to qualified immunity on the First Amendment claim.

; According to the record, the term O.C. stands for Oleoresin

Capscium

12a

As to the second part of Plaintiffs' two-part burden,

the Court finds that clearly Plaintiffs have shown that the

constitutional right to peaceably assemble on the public

sidewalk was established in May of 1996. In Edwards v.

South Carolina, 372 U.S. 229 (1963), and in Cox v.

Louisiana, 379 U.S. 536 (1965), the Supreme Court

overturned convictions for breach of the peace for black

defendants who were marching peaceably on a public

sidewalk to publicize their dissatisfaction with

discriminatory actions against blacks. The Supreme Court

found that the convictions in part violated the defendants’

First Amendment rights of free assembly. The Supreme

Court, in Edwards, noted that there was no violence or threat

of violence on the part of the marchers or on the part of any

member of the crowd watching them. It also noted that the

marchers were not in violation of any law. The Supreme

Court found that by marching peaceably on a public

sidewalk and peaceably expressing their grievances, the

defendants were exercising basic constitutional rights in

their most pristine and classic form.

Because Plaintiffs have satisfied their two-part

burden, the individual Defendants, Bill Yelton, Michael

Eckert, Charles Jordan, Steven Middleton, B. Bonham, Sgt.

Jim Clark, and Major W.B. York, have the burden to show

no material issues of fact remain as to whether their actions

were objectively reasonable in light of the law and

information they possessed at the time of their actions. The

Court, upon review, finds that Defendants have failed to

satisfy their burden. The Court concludes that there are

questions of material fact as to whether the individual

Defendants' actions were objectively reasonable. The

individual Defendants have presented evidence that the

officers wanted to disperse the crowd in order to allow the

Ku Klux Klan sympathizers to have access to their cars. The

individual Defendants have submitted evidence to show that

several members of the gathered crowd were in the street

13a

kicking passing cars; that they were making threats to Ku

Klux Klan sympathizers; that they had refused to move out

of the street when directed by the officers; that they made

threats against the officers; that they had been warned that

horses would come in if they did not disperse and that the

crowd still refused to disperse and responded with taunts

against the officers. However, the affidavit testimony of

Plaintiff, Vincent Turner, disputes such evidence. Therefore,

because genuine issues of material fact remain in regard to

the First Amendment claim, the Court finds that Defendants,

Bill Yelton, Michael Eckert, Charles Jordan, Steven

Middleton, B. Bonham, Sgt. Jim Clark, and Major W.B.

York are not entitled to qualified immunity on that claim.

The Equal Protection Clause of the Fourteenth

Amendment provides: "No State shall ... deny to any person

within its jurisdiction the equal protection of the laws." U.S.

Const. amend. XIV, § 1. This Clause embodies "a general

rule that States must treat like cases alike but may treat

unlike cases accordingly." Vacco v. Quill, 521 U.S. 793,

117 S.Ct. 2293, 2297, 138 L.Ed.2d 834 (1997). Unless a

legislative classification or distinction targets a suspect

class, courts will uphold it if it is rationally related to a

legitimate end. Id.

Plaintiffs, in this case, are African-Americans.

Plaintiffs contend that the individual Defendants removed

them from the public in order to give the white Ku Klux

Klan sympathizers exclusive use of the sidewalk. The Court,

however, finds that Plaintiffs have not shown that the

individual Defendants targeted them because of their race.

While it is true the crowd gathered on the public sidewalk

were predominately black, the record in the case shows that

white individuals were also a part of the crowd and that

they, along with Plaintiffs, were subjected to the

dispersement by foot officers, horse-mounted officers and

pepper gas. Contrary to Plaintiffs' allegations, none of the

14a

police officers' reports in the record indicate that the crowd

was removed because of their race. Thus, Plaintiffs have not

shown that the individual Defendants took action against

Plaintiffs based upon their race.

The Court also finds that Plaintiffs have not met

their burden of showing a constitutional violation under the

Equal Protection Clause as they have not shown that the

individual Defendants treated them differently than others

similarly situated The allegation that a plaintiff was treated

differently from those similarly situated is an essential

element of an equal protection claim. Hennigh v. City of

Shawnee, 155 F.3d 1249, 1257 (10" Cir. 1998); see also,

Gehl Group v. Koby, 63 F.3d 1528, 1538 (10 Cir. 1995).

Therefore, because Plaintiffs have failed to show that they

were treated differently than those similarly situated, the

Court finds that the individual Defendants are entitled to

qualified immunity on Plaintiffs' Fourteenth Amendment

claims.

In the Second Amended Complaint, Plaintiffs allege

that they were arrested without probable cause in violation

of the Fourth Amendment. The Fourth Amendment

guarantee of an individual's right not to be arrested without

probable cause was clearly established long before Plaintiffs’

arrests. Beck v. Ohio, 379 U.S. 89, 91 (1964). An arrest

without a warrant is proper as long as the arresting officer

~ has probable cause to believe that the arrestee has

committed a crime. Romero v. Fay, 45 F.3d 1472, 1476

(10" Cir. 1995). A defendant is "entitled to immunity if a

reasonable officer could have believed that probable cause

existed to arrest" a plaintiff. Hunter v. Bryant, 502 U.S. 224,

228 (1991). "Probable cause exists if facts and

circumstances within the arresting officer's knowledge and

of which he or she has reasonably trustworthy information

are sufficient to lead a prudent person to believe that the

arrestee has committed or is committing an offense." Jones

15a

v. City & County of Denver, 854 F.2d 1206, 1210 (10 Cir.

1988) .

As to Plaintiff, Vincent Turner, the Court finds that

Plaintiff has presented facts from which a reasonable jury

may conclude that he was arrested without probable cause.

According to the record, Plaintiff was arrested for disorderly

conduct. In his affidavit, Plaintiff testifies that he never |

stated a loud or angry word to any person. He also testifies

that no police officer asked him to leave. Plaintiff testifies

that at no time did he fail to obey an order nor did he

encourage another person to fail to obey an order. Plaintiff

further testifies that police officers simply grabbed him and

handcuffed him without reason and warning.

The Court notes that Plaintiff, Vincent Turner, has

not identified the individual Defendants who were involved

in his arrest. The record in this case reveals that Defendant,

Sgt. Jim Clark, ordered Defendant, B. Bonham, to arrest

Plaintiff As to the individual Defendants, Bill Yelton,

Michael Eckert, Charles Jordon, Steven Middleton, Chris

Witt, Major W.B. York, Cpl. A. Wilson and Kevin Johnson,

Plaintiff has failed to allege facts to show that they violated

Plaintiff's constitutional right under the Fourth Amendment

to be free from false arrest. Plaintiff has failed to present any

evidence that any of these individual Defendants were

involved in Plaintiff's arrest. Moreover, Plaintiff has failed

to demonstrate that any of these Defendants had an

opportunity to intervene in preventing the arrest. See, Mick

v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996); Lusby v.

TG. & Y. Stores, Inc., 749 F. 2d 1423, 1433 (10th Cir.

1984) (ruling that officer who did not prevent fellow

officer's use of allegedly excessive force against arrestee

"may be liable [under § 1983] if he had the opportunity to

intervene but failed to do so"), vacated on other grounds,

474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985). The

Court, therefore, concludes that the individual Defendants,

16a

Bill Yelton, Michael Eckert, Charles Jordan, Steven

Middleton, Chris Witt, Major W.B. York, Cpl. A. Wilson

and Kevin Johnson, are entitled to qualified immunity on

Plaintiff's Fourth Amendment claim for false arrest.

As to the individual Defendants, Sgt. Jim Clark and

B. Bonham, the Court finds that they are not entitled to

qualified immunity. Plaintiff has satisfied his two-fold

burden of alleging a constitutional violation and that the law

was Clearly established at the time of his arrest. The Court

concludes that Defendants have not demonstrated that no

genuine issues of material fact exist as to whether

Defendants’ conduct was objectively reasonable in light of

the law. Although Defendants rely upon police records to

establish probable cause, the Court, in light of Plaintiff's

affidavit, concludes that genuine issues of fact exist as to

whether probable cause existed to arrest Plaintiff for

disorderly conduct.

In their motion, Defendants, citing to Baptiste v. J.

C. Penney Co., 147 F. 3d 1252, 1260 (10th Cir. 1998),

contend that Defendant, B. Bonham, is entitled to qualified

immunity because he reasonably relied upon information

received from Defendant, Sgt. Jim Clark, to arrest Plaintiff,

Vincent Turner. From the record in this case, the Court,

however, cannot say as a matter of law that Defendant, B.

Bonham reasonably relied on Defendant, Sgt. Jim Clark's

order to arrest Plaintiff. All the Court can glean from the

record is that Defendant, Sgt. Jim Clark, ordered Defendant,

B. Bonham, to arrest Plaintiff and acting on that order

Defendant, B. Bonham arrested Plaintiff. The Court is not

aware of the communication between Defendants in regard

to the order to arrest. For example, the Court does not know

if Sgt. Jim Clark explained the circumstances which led him

to believe that Plaintiff should be arrested for disorderly

conduct. In the absence of facts speaking to the

reasonableness of Defendant, B. Bonham's reliance on the

17a

order to arrest, the Court concludes that Defendant, B.

Bonham, is not entitled to summary judgment on Plaintiff's

false arrest claim. Saffold v. City of m inoi

47 F.Supp.2d 927, 935 (N.D. I11. 1999).

As to Plaintiff, Deronn Wrather, the Court finds that

Plaintiff has presented facts from which a reasonable jury

may conclude that Defendant, Michael Eckert, violated her

Fourth Amendment right to be free from false arrest. The

record shows that the reason Defendant, Michael Eckert,

approached Plaintiff, Deronn Wrather, was to arrest her for

the misdemeanor crime of obstructing officers. Plaintiff,

_ through the affidavit of Plaintiff, Vincent Turner, has

alleged that although she initially had her hands on Mr.

Turner's legs, she still allowed the officers to move forward.

She has also alleged that she then yelled "no, no, no" and

without warning was grabbed by Defendant, Michael

Eckert.

The Court notes that Plaintiff, Deronn Wrather, has

only identified Defendant, Michael Eckert, as the person

involved in her arrest. Plaintiff has not alleged any facts to

show that Defendants, Bill Melton, Charles Jordan, Steven

Middleton, B. Bonham, Chris Witt, Sgt. Jim Clark, Major

W.B. York, Cpl. A. Wilson and Kevin Johnson, violated

Plaintiff's constitutional right under the Fourth Amendment

to be free from false arrest. Plaintiff has failed to show that

any of these individual Defendants were involved in

Plaintiff's arrest in any manner. Bennett v. Passic, 545 F.2d

1260, 1262-63 (10" Cir. 1976)(plaintiff must show

defendant personally participated in the alleged violation to

state a claim under § 1983). Moreover, Plaintiff has failed to

show that any of these Defendants had an Opportunity to

intervene in preventing the arrest. Lusby, 749 F.2d at 1433.

The Court, therefore, concludes that the individual

Defendants, Bill Melton, Charles Jordan, Steven Middleton,

B. Bonham, Chris Witt, Sgt. Jim Clark, Major WB. York,

18a

Cpl. A. Wilson and Kevin Johnson, are entitled to qualified

immunity on Plaintiff's Fourth Amendment claim for false

arrest.

As to Defendant, Michael Eckert, the Court finds that

he is not entitled to qualified immunity. Plaintiff has satisfied

his two-fold burden of alleging a constitutional violation and

that the law was clearly established at the time of his arrest.

The Court concludes that Defendant has not satisfied his

burden that no genuine issues of material fact exist as to

whether Defendant's conduct was objectively reasonable.

The Court notes that Defendant has not set forth the elements

for the misdemeanor crime of obstructing officers. At

Stephen Williams, trial, Defendant testified that Plaintiff was

arrested because she was interfering with Mr. Turner's arrest

by prohibiting the officers from performing the handcuffing

duties.’ However, Defendant also testified that he was not

certain that the officers were attempting to get the handcuffs

on him. The videotapes submitted by Plaintiff do not show

her prohibiting the officers from performing the handcuffing

duties. Defendant, however, also testifies that Plaintiff was

backed up to her husband and had her arms behind her. On

the record before it, however, the Court cannot determine

whether these facts and any other facts that Defendant may

have had knowledge of would lead a prudent person to

believe that Plaintiff was committing the misdemeanor crime

of obstructing officers in his presence. Therefore, the Court

finds that Defendant, Michael Eckert, is not entitled to

qualified immunity on Plaintiff's Fourth Amendment claim

for false arrest.

In regard to Plaintiff, Stephen Williams, Defendants

maintain that Plaintiff is precluded from re-litigating the

issue of probable cause for his arrest in this case as such

. In his arrest report, Defendant, Michael Eckert, also states that

Plaintiff tried to keep officers from placing handcuffs on Plaintiff,

Vincent Turner.

19a

issue was previously determined in Plaintiffs criminal

proceeding. Defendants, in support of their position, rely

upon Hubbert v. Citv of Moore, 923 F.2d 769 (10th Cir.

1991), wherein the Tenth Circuit ruled that the plaintiffs in a

civil rights action were precluded from re-litigating the issue

of probable cause for their arrest because the issue had been

decided during a preliminary hearing in an earlier criznina!

proceeding. In reaching its decision in Hubbert, the Tenth

Circuit relied upon Adamson v. Dayton Hudson Corp., 774

P.2d 478 (Okla.Ct.App. 1989), which held that a finding of

probable cause at a preliminary hearing precluded a plaintiff

in a civil suit for false arrest from re-litigating the issue of

probable cause. Since the Hubbert decision, the Oklahoma

Supreme Court has addressed the issue and has also

determined that an order at a preliminary hearing binding

over a defendant for criminal trial precludes a plaintiff from

re-litigating the issue of probable cause in a subsequent civil

suit for false arrest following acquittal. Christopher v. Circle

K Convenience Stores, Inc., 937 P.2d 77 (Okla. 1997).

In the instant case, Defendants assert that by

overruling Plaintiff's demurrer to the state's evidence, the

judge in the criminal proceeding necessarily determined

under Oklahoma law, see, State v. Williams, 307 P.2d 163

(Ok1.Cr. 1957), that there was proof tending reasonably to

sustain the allegations of the charges. As the judge made

such determination, Defendants contend that he made a

finding of probable cause and Plaintiff cannot re-litigate the

issue of probable cause in this case.

Plaintiff, in response, contends that Hubbert_ is

distinguishable from this case as no preliminary hearing was

held in Plaintiff's criminal case because he was charged with

misdemeanor crimes. Plaintiff asserts that his arrest was not

contested at trial. He also contends the Oklahoma Supreme

Court in Williams made no distinction between a demurrer

and a directed verdict and a directed verdict is regarded as

20a

demurrer. Plaintiff contends that the judge sustained his

motion for directed verdict after viewing the Eckert #1

videotape of the scene.

Upon review, the Court finds that Plaintiff is

precluded from re-litigating the issue of probable cause.

Even though a preliminary hearing was not held in the

criminal proceeding, the Court concludes that the trial judge,

in overruling the demurrer to the state's evidence, inherently

made a finding of the existence of probable cause.* Under

Oklahoma law, to withstand a directed verdict or demurrer,

there must be competent evidence reasonably tending to

sustain the allegations of the charges. Winrow v. State, 645

P.2d 1019 (Ok1.Cr. 1982). The Court finds that Plaintiff had

the opportunity to fully and fairly litigate the issue of

probable cause prior to the judge's finding as he had the

opportunity to fully cross-examine witnesses. The Court

therefore concludes that Plaintiff is precluded from

re-litigating the issue of probable cause. Because Plaintiff

cannot show that he was arrested without probable cause,

the Court finds Plaintiff has failed to satisfy his initial

two-fold burden and summary judgment in favor of the

individual Defendants on Plaintiff, Stephen Williams, false

arrest claim is appropriate.

Plaintiffs, Deronn Wrather and Stephen Williams,

also allege a Fourth Amendment claim of excessive force.

To analyze a Fourth Amendment excessive force claim, the

district court begins by "identifying the specific

constitutional right allegedly infringed by the challenged

application of force." Id. (quoting Graham v. Connor, 490

U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

The Tenth Circuit has determined that the Fourth

Amendment provides constitutional protection from

4

The Court also notes that prior to Plaintiff's criminal trial, the

- trial judge overruled a motion to dismiss filed by Plaintiff.

2la

excessive force after a warrantless arrest but before judicial

determination of probable cause to arrest. Pride v. Does, 997

F.2d 712, 716 (10th Cir. 1993). Under the Fourth

Amendment, the district court must look to whether the

officer's action was “objectively reasonable" in light of all

the facts and circumstances, without regard to the officer's

subjective motivations. Id.

In Graham, the Supreme Court explained,

the reasonableness of a particular use of force

must be judged from the perspective of a

reasonable officer on the scene, rather than

with the 20/20 vision of hindsight . . . . With

respect to a claim of excessive force. . . [n] ot

every push or shove, even if it may later seem

unnecessary in the peace of a judge's

chambers . . .violates the Fourth Amendment.

The calculus of reasonableness must embody

allowance for the fact that police officers are

often forced to make split-second

judgments--in circumstances that are tense,

uncertain, and rapidly evolving--about the

amount of force that is necessary in a

particular situation.

Graham, 490 U.S. at 396-397, 109 S.Ct. at 1872. Relevant

factors in determining whether the force used by an

arresting officer was objectively reasonable include the

severity of the crime, whether the subject posed an

immediate threat to the safety of the officer, and whether the

subject was resisting arrest. Id.

Initially, the Court notes that in support of her claim

that the force used by Defendant, Michael Eckert, was

excessive, Plaintiff relies solely upon the Eckert #1

videotape and the opinion of her expert, Lou Reiter.

22a

According to Mr. Reiter, Defendant, Michael Eckert, used

“unreasonable force in his control" of Plaintiff. The Court,

however, declines to consider this expert opinion as the

Court finds such evidence would not be admissible at trial.

Fed. R. Evid. 704 (a) provides that " [t] estimony in the form

of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be

decided by the trier of fact." While Rule 704 has abolished

the common law "ultimate issue" rule, however, it has not

"lower[ed] the bars so as to admit all opinions." Fed. R.

Evid. 704 advisory committee's note. The advisory

committee's note to Rule 704 illuminates the distinction

between admissible and excludable expert's opinion

testimony:

Under Rules 701 and 702, opinions must be

helpful to the trier of fact, and Rule 403

provides for exclusion of evidence that wastes

time. These provisions afford ample

assurances against the admission of opinions

which would merely tell the jury what result to

reach, somewhat in the manner of oath-helpers

of an earlier day. They also stand ready to

exclude opinions phrased in terms of

inadequately explored legal criteria. Thus the

question, "Did T have capacity to make a

will?" would be excluded, while the question,

"Did T have sufficient mental capacity to

know the nature and extent of his property and

the natural objects of his bounty and to

formulate a rational scheme of distribution?

would be allowed.

Fed.R.Evid. 704 advisory committee's note.

In this case, Mr. Reiter simply tenders the legal

conclusion that Defendant, Michael Eckert's use of force was

23a

"unreasonable." The Court finds that this conclusion crosses

the line provided by Rule 704. Mr. Reiter's opinion merely

tells the factfinder what result to reach on Plaintiffs

excessive force claim. In other words, it invades the province

of the factfinder. The Court finds that Mr. Reiter's opinion is

different from the testimony given by the expert in Zuchel v.

City and County of Denver, 997 F.2d 730 (10th Cir. 1993),

which was found to be admissible. In that case, the expert

had testified that the use of deadly force was inappropriate

based upon his understanding of generally accepted police

custom and practice. Id. at 742-743. The Tenth Circuit found

that such testimony was permissible finding that an expert

may testify as to whether the conduct at issue fell below

accepted standards in the field of law enforcement. Id. at

742. In this case, Mr. Reiter, in proffering his opinion, has

not informed the court that he is Opining in regard to the

prevailing standards in the field of law enforcement. Rather,

he has only opined that Defendant, Michael Eckert's conduct,

was unreasonable and such opinion, in the Court's view,

invades the province of the factfinder. Any factfinder would

be capable of assessing the reasonableness of Defendant,

Michael Eckert's conduct. Because the Court finds that the

opinion crosses the line provided by Rule 704, the Court

concludes that such opinion would be inadmissible at trial

and must be disregarded for summary judgment purposes.

Beyene v. Coleman Sec. Servs. Inc., 854 F.2d 1179, 1181

(9th Cir. 1988)(trial court may consider only admissible

evidence in ruling on a motion for summary judgment).

As Mr. Reiter's testimony is disregarded, the only

evidence in support of Plaintiff's excessive force claim is the

Eckert #1 videotape. Upon review of the videotape, the

Court concludes that Plaintiff has failed to show that

Defendant, Michael Eckert, used unreasonably and

excessive force in taking her to the ground. Although

Plaintiff was being arrested for a misdemeanor crime and

did not pose an immediate threat to the safety of Defendant,

24a

Michael Eckert, the videotape submitted by Plaintiff shows

that she was in fact resisting her arrest. Before Defendant,

Michael Eckert, took Plaintiff to the ground, she was trying

to get away and when Defendant grabbed her from behind,

she swung her right hand back and hit him. The Court finds

that the force used by Defendant, Michael Eckert, was

objectively reasonable. Therefore, the Court finds that

Defendant, Michael Eckert, is entitled to qualified immunity

on Plaintiff's Fourth Amendment excessive force claim.

As to the excessive force claim of Plaintiff, Stephen

Williams, the Court has also disregarded the opinion of Mr.

Reiter for the reasons above stated. Consequently, the only

evidence relied upon by Plaintiff is the Witt #1 videotape.

Upon review of the videotape, the Court finds that Plaintiff

has shown facts from which a reasonable jury may conclude

that Defendant, Steven Middleton, applied excessive force

in kicking Plaintiff. The videotape shows Defendant, Steven

Middleton, kicked Plaintiff in the head. At the time of the

kick, Plaintiff was on the ground and being held by the

police officers. There appears no reason from the videotape

for the kick. The Court also finds that Defendant has not

established his burden of showing no genuine issues of

material fact exist that Defendant's conduct was objectively

reasonable. Defendant has presented testimony that he

kicked Plaintiff because he was going to bite another officer.

However, such testimony was presented for the first time in

the individual Defendants' reply brief. As Plaintiff has not

had an opportunity to respond to suc —estimony, the Court

concludes that such evidence is not properly considered in

determining whether summary judgment is appropriate.

Therefore, the Court concludes that Defendant, Steven

Middleton, is not entitled to qualified immunity on

Plaintiff's Fourth Amendment excessive force claim.

In regard to the other challenged uses of force applied

to Plaintiff, Stephen Williams, i.e., the pepper spray, the

25a

neck restraint/chokehold, and the standing on one foot, the

Court finds that Plaintiff has failed to show that such uses of

forces were unreasonable. The Witt #1 videotape shows that

Plaintiff was in fact resisting arrest. Plaintiff was swinging

his arms and trying to get away from three of the police

officers who were trying to get control of him. It took 5 to 6

officers to get Plaintiff to the ground. The use of the pepper

spray, the neck restraint/chokehold and holding down of one

foot was not unreasonable. As to the use of a neck

restraint/chokehold, the Court notes that the Tenth Circuit

has previously found such use to be reasonable. Pride, 997

F.2d at 717.

Defendants, Susan Savage and Ron Palmer, also

challenge Plaintiffs' 1983 claims. As the Court has found

that Plaintiffs have failed to prove they were denied equal

protection under the Fourteenth Amendment, Plaintiff.

Deronn Wrather, has failed to prove she was subjected to’

the use excessive force in effectuating her arrest and

Plaintiff, Stephen Williams, has failed to prove he was

arrested without probable cause against the Tulsa police

Officers, the Court finds that these claims against

Defendants, Susan Savage and Ron Palmer, as supervisors

of these police officers also fail.°

In regard to the other § 1983 claims, the Court finds

that Defendants, Susan Savage and Ron Palmer, are entitled

to summary judgment. The Supreme Court has instructed

that a person in a supervisory role cannot be held liable

under § 1983 upon a theory of respondeat superior. See,

City of Canton v. Harris, 489 U.S. 378, 385 (1989). In other

, By definition, the predicate to supervisory liability is the

existence of a constitutional violation. That is, a supervisor may be liable

only if there is an “affirmative link' between the constitutional violation

and the supervisor's own actions or failure to supervise." Mee v. Ortega,

967 F.2d 423, 431 (10th Cir. 1992)(citing Meade v. Grubbs, 841 F.2d

1512, 1527 (10th Cir. 1988)).

26a

words, to prevail on a 1983 claim, it is not sufficient for a

plaintiff to show that a defendant was in charge of the actors

who actually committed a violation. Just as with any

individual defendant, the plaintiff must show a deliberate,

intentional act by the supervisor to violate constitutional

rights. Woodward v. City of Worland, 977 F.2d 1392, 1399

(10th Cir.), cert. denied, 509 U.S. 923 (1993). A plaintiff

may satisfy this standard by showing personal direction of

or actual knowledge and acquiescence of the violaticns. Id.

at 1400 (citing Andrews v. City of Philadelphia, 895 F.2d

1469, 1478 (3d Cir. 1990).

The Court finds that Plaintiffs have failed to show

personal participation and/or direction by Defendants, Susan

Savage and Ron Palmer, in the alleged constitutional

violations. Neither Defendant was present on scene during

the alleged events. Indeed, Defendant, Ron Palmer, was out

of town when the challenged events occurred.

In addition, the Court finds that Plaintiffs have failed

io present sufficient evidence to establish that Defendant,

Susan Savage, acquiesced in the alleged constitutional

violations. The Supreme Court has held that a supervisor is

not liable under § 1983 for constitutionally-proscribed

misconduct by their subordinates unless the plaintiff

demonstrates "[a]n affirmative link between the occurrence

of the . . . misconduct and the adoption of any plan or

policy--express or otherwise--showing [the supervisor's]

authorization or approval of such misconduct." Rizzo_v.

Goode, 423 U.S. 362, 371 (1976). Upon review of the

record, the Court concludes that Plaintiffs have failed to

present sufficient evidence to raise a genuine issue of fact as

to whether Defendant, Susan Savage, adopted a plan or

policy which authorized or approved of the alleged

misconduct in this case. Plaintiffs assert that Defendant,

Susan Savage, had established a policy of routing

approximately 400 to 500 citizen complaints through the

27a

City of Tulsa's legal division, whose attorneys also

represented the City and its employees, rather than having

such complaints independently investigated and had also

established a policy of not investigating citizens complaints

of racial discrimination against Defendant, Ron Palmer. The

Court, however, finds that even if such alleged policies did

exist, they do not show an authorization or approval by

Defendant, Susan Savage, of the remaining alleged

constitutional violations in this case.

To the extent Plrintiffs attempt to argue that

Defendant, Susan Savage, should be held liable because she

stated in a letter to a constituent, Andrea Anderson, three

days after the Ku Klux Klan rally, that the police officers

acted appropriately and she testified in deposition that she

was satisfied the situation was handled appropriately by the

police officers, the Court finds that such action does not

give rise to supervisory liability. Such action occurred days

and months after the alleged constitutional violations by the

police officers. In order to prevail under § 1983, a plaintiff

must show that a defendant caused or contributed to the

alleged constitutional violation. Jenkins v. Wood, 81 F.3d

988, 944 (10th Cir. 1996). Clearly, the letter and/or the

deposition testimony did not cause or contribute to the

remaining alleged constitutional violations.

The Court further finds that Plaintiffs have failed to

establish liability on the part of Defendant, Susan Savage,

on the basis that she failed to intervene. The Tenth Circuit

has ruled that in order to be liable under § 1983 based upon

a failure to intervene, a person must have had an opportunity

to intervene but failed to do so. Lusby, 749 F.2d at 1433. In

this case, Plaintiffs have not shown that Defendant, Susan

Savage, had an opportunity to intervene to stop the alleged

unconstitutional acts. When the Tulsa police officers began

dispersing the crowd, Defendant, Susan Savage, was on the

eleventh floor of the Tulsa City Hall building, looking out

28a

her window. There is no evidence that from her location, she

could have stopped the Tulsa police officers from allegedly

dispersing peaceably asSembled crowd and/or could have

stopped the officers from allegedly arresting Plaintiffs

without probable cause, or could have prevented Plaintiff,

Stephen Williams, from allegedly being subjected to the use

of excessive force. The Court, therefore, finds that

Defendant, Susan Savage, is entitied to summary judgment

on Plaintiffs' constitutional claims.

As to Defendant, Ron Palmer, Plaintiffs also seek to

impose supervisory liability based upon certain policies he

maintained. Plaintiffs contend that Defendant, Ron Palmer,

approved for distribution a written policy entitled Command

Strategies and Control Tactics for Unusual Occurrences and

Civil Disturbances, which delegated to the field commander

the power to determine whether to disperse a relatively

peaceful crowd in the event of an civil disorder and which

permitted police officers to arrest those who failed to

disperse. Plaintiffs contend that the police officers were

acting pursuant to this policy when they forcefully removed

Plaintiffs from the public sidewalk and such removal

resulted in the violation of their constitutional rights. The

Court, however, finds that P!uintiffs have failed to establish

an affirmative link between the alleged misconduct and the

written policy. The writter policy does not authorize or

approve of the dispersement of a crowd, which is relatively

peaceful, unless there is a civil disorder. In this case,

Plaintiffs maintain that the alleged misconduct of the police

officers was removing Plaintiffs from the public sidewalk -

when they and other citizens were peaceably assembled and

there was no violation of any ordinance or statute and there

were no threats of violence. Under such alleged facts, the

crowd's removal would not have been in accordance with

Defendant, Ron Palmer's written policy. Therefore, the

Court finds that Plaintiffs cannot establish that Defendant

29a

acquiesced in the alleged misconduct through the existence

of the written policy.

Plaintiffs also claim that Defendant, Ron Palmer,

maintained an unwritten policy that racial discrimination

was acceptable and such policy authorized the alleged

misconduct in this case. The Court, however, again finds

that Plaintiffs have failed to demonstrate an affirmative link

between the alleged misconduct and the alleged policy.

There is no evidence in the record that Plaintiffs, Vincent

Turner and Deronn Wrather, were arrested without probable

cause because of their race or that Plaintiff, Stephen

Williams, was subjected to the alleged excessive force

because of his race. There is also insufficient evidence to

show that Plaintiffs and the other citizens were allegedly

attacked by foot patrol officers, horse mounted officers and

pepper gas because of their race. Plaintiffs allege that the

police officers' reports demonstrate a racially-motivated

justification for their actions. However, having reviewed the

reports, the Court finds no mention of the citizens being

removed because of their race or that race played any part in

the police officers' actions. As previously discussed in

regard to Plaintiff's equal protection claims, both black and

white citizens were in the crowd and were subjected to the

challenged attack. Therefore, the Court finds that Plaintiffs

have failed to show an affirmative link between the alleged

misconduct and the alleged unwritten policy of acceptance

of racial discrimination by Defendant, Ron Palmer.

In addition, Plaintiffs seek to impose supervisory

liability upon Defendant, Ron Palmer, on the ground that

after viewing the Eckert #1 videotape, he testified in this

case that the police officers acted appropriately. However,

such testimony, occurring during this lawsuit, cannot result

in supervisory liability under § 1983. Defendant, Ron

Palmer's testimony did not in any way cause or contribute to

the alleged unconstitutional acts. Jenkins, 81 F.3d at 944.

30a

There is no “affirmative link" or direct nexus between

his-testimony and the alleged misconduct.

Further, Plaintiff, Stephen Williams, seek to impose

supervisory liability on the basis that Defendant, Ron

Palmer, failed to train Defendant, Steven Middleton, in

regard to the use of excessive force. Plaintiff contends that

Defendant had prior knowledge of a complaint by a citizen

that Defendant, Steven Middleton, broke down her door and

that he had received a letter of reprimand for failing to

maintain his temper and that he had two additional charges

of excessive force which resulted in exoneration.

The inadequacy of police training may serve as the

basis for § 1983 liability only where the failure to train

amounts to deliberate indifference to the rights of persons

with whom the police come into contact. City of Canton,

489 U.S. at 388. Deliberate indifference exists when the

supervisor has actual or constructive notice of a deficiency

the training program and does nothing, or, in a narrow range

of circumstances, when the supervisor fails to train an

employee in specific skills needed to handle recurring

situations that present an obvious potential for constitutional

violations. Barnet v. Pulsipher, 143 F.3d 1299, 1308 (10th

Cir. 1998.)

In the instant case, the Court finds that Plaintiff has

failed to show that Defendant, Ron Palmer, acted with

deliberate indifference to their constitutional rights.

Although Plaintiff contends that Defendant had notice of a

previous incident where Defendant, Steven Middleton,

broke down a door and had notice of two previous

complaints of which Defendant, Steven Middleton, was

exonerated, the Court concludes that the notice of such

incidents does not establish actual or constructive notice that

Defendant, Steven Middleton, would kick Plaintiff, Stephen

Williams, and that there was a deficiency in his training in

3la

that regard. Therefore, the Court concludes that Defendant,

Ron Palmer, may not be held liable under § 1983 for

Plaintiff's excessive force claim based upon a failure to

train.

Plaintiffs also seek to recover damages against the

City of Tulsa under § 1983. As the Court has found that

Plaintiffs have failed to prove a violation of their equal

protection right under the Fourteenth Amendment, Plaintiff,

Deronn Wrather, has failed to prove a violation of the right

to be free from excessive force under the Fourth

Amendment and Plaintiff, Stephen Williams, has failed to

prove a violation of the right to be free from false arrest

under the Fourth Amendment against the Tulsa police

officers, the Court finds that these claims against Defendant,

City of Tulsa, also fail. It is well-settled that a city may not

be held liable absent a constitutional violation by its

officers. Thompson v. City of Lawrence, 58 F.3d 1511,

1517 (10t' Cir. 1995).

Turning to the remaining §1983 claims, the Court

notes that a city may be liable under §1983 only for its own

constitutional or illegal policies and not for the tortious acts

of its employees. Monell v. Department of Soc. Servs., 436

U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611

(1978). The Supreme Court has instructed that a municipality

is liable only when an official policy is the "moving force’

behind the injury alleged. That is, a plaintiff must show that

the municipal action was taken with the requisite degree of

culpability and must demonstrate a direct causal link between

the municipal action and deprivation of federal rights." Board

of County Comm'rs v. Brown, 520 U.S. 397, 117 S.Ct. 1382,

137 L.Ed.2d 626 (1997).

Only municipal officials, who have "final

policymaking authority, " by their actions may subject the

municipality to § 1983 liability. City of St. Louis _v.

32a

Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107

(1988). Nonetheless, the Supreme Court has identified two

situations where a municipality may be found liable even

though the action was by someone not a final policymaker.

First, “egregious attempts by local governments to insulate

themselves from liability for unconstitutional policies are

precluded ... [if plaintiff proves] the existence of 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." Praprotnik, 485 U.S. at 127. Second, when the

municipality's authorized policymakers "approve a

subordinate's decision and the basis for it, their ratification

would be chargeable to the municipality because their

decision is final." Id.

In the instant case, the Court finds that Plaintiffs have

failed to establish the existence of a widespread practice

constituting a custom or policy of Defendant, City of Tulsa,

which caused the alleged deprivation of Plaintiffs’

constitutional rights. | While Plaintiffs, as previously

discussed, have alleged that Defendant, Susan Savage,

established certain customs and policies regarding the

handling of citizens complaints, Plaintiffs have failed to

demonstrate that such alleged customs and policies were the

“movirz force” behind Plaintiffs’ alleged injuries.

Although Plaintiffs have not established the existence

of a custom or policy of the City of Tulsa which was the

moving force behind Plaintiffs’ alleged injuries, Plaintiffs

nevertheless argue that Defendant, City of Tulsa, still remains

liable for their § 1983 claims. Plaintiffs specifically contend

that Defendant, Susan Savage, as the final policymaker for

Defendant, City of Tulsa, ratified the alleged unconstitutional

acts of the police officers by her May 9, 1996 letter to

constituent, Andrea Anderson, and through her deposition

testimony in this case, and therefore, such acts are chargeable

33a

to the City of Tulsa. As previously stated, if an authorized

policymaker approves a subordinate's decision and the basis

for it, her ratification will be chargeable to the municipality.

Praprotnik, 485 U.S. at 127.

Defendant, City of Tulsa, responds that it may not be

held liable under a ratification theory as Plaintiffs have not

provided any evidence that Defendant, Susan Savage, ratified

any of alleged unconstitutional acts of the police officers.

Defendant asserts that it is undisputed that Defendant, Susan

Savage, did not have all the information regarding the events

at the time of her letter. Defendant asserts that there was no

information in the police reports reviewed by Defendant,

Susan Savage, which would have indicated that a

constitutional violation occurred. Furthermore, Defendant

contends that there is no evidence that Defendant, Susan

Savage, was aware of the basis for any of the officers’ alleged

unconstitutional acts.

Upon review, the Court concludes that Defendant,

City of Tulsa, may not be held liable under § 1983 based

upon any purported ratification by Defendant, Susan Savage,

of the police officers' actions. As the record reveals,

Defendant, Susan Savage's purported ratification occurred

days and even years after the events alleged in this case.

Plaintiffs have not cited to any authority which would impose

municipality liability under § 1983 based upon a final

policymaker's ratification of events days and years after their

occurrence. As the Supreme Court has instructed, a plaintiff

must demonstrate "a direct causal link between the municipal

action and deprivation of federal rights." Board of County

Comm'rs, 520 U.S. at 404; see also, City of Canton, 489 U.S.

at 385.

In the Tenth Circuit cases which have addressed and

applied the ratification theory, there was a direct causal link

between the final policymaker's approval of an employee's

34a

action and the deprivation of a federal right. In those cases,

the final policymaker had discussed with the employee the

proposed action to be taken and was aware of the

impermissible action and approved such action. See, e.g.,

Butcher v. City of McAlester, 956 F.2d 973, 977 (10th Cir.

1992) (employee made recommendations for personnel

actions which were approved by final policymaker; employee

and final policymaker were in constant communication with

each other and final policymaker aware of impermissible

motives); Ware v. Unified School District No. 492, 902 F.2d

815 (10th Cir. 1990) (final policymaker knew employee's

recommendation of personnel action was in retaliation for

plaintiff's speech and approved recommendation); Melton v.

City of Oklahoma City, 879 F.2d 706, 724 (10th Cir.

1989)(testimony indicated that the supervisor discussed the

proposed dismissal of plaintiff with subordinate and

approved such dismissal). However, in the instant case, there

is no evidence that Defendant, Susan Savage, had discussed

the proposed action to be taken by the individual police

officers prior to the challenged acts. There is also no

evidence in the record that she knew the alleged

unconstitutional basis for the actions.

As previously stated, Plaintiffs assert that Defendant,

Susan Savage, ratified the alleged unconstitutional acts of the

police officers in her May 9, 1996 letter to Andrea Anderson.

However, there is no evidence in the record that Defendant,

Susan Savage, had any information which would have

indicated that the alleged acts of the police officers were

unconstitutional. There is also no evidence in the record

which demonstrates that she adopted any alleged

unconstitutional motives of the police officers. Butcher, 956

F.2d at 978 (ratification requires that the final policymaker

know of and approve an employee's actions and adopt the

employee's unconstitutional motive). The Court therefore

concludes that Plaintiffs cannot show a direct causal link

BND ON net tap ener cbadaescsmapgring PEAS DES PS

35a

between Defendant, Susan Savage's alleged ratification and

the alleged deprivation of federal rights. |

As to Defendant, Susan Savage's purported

ratification during this lawsuit after viewing all of the

evidence including the Eckert #1 videotape, the Court finds

such ratification is not sufficiently established. Although

Defendant, Susan Savage, after viewing the Eckert #1

videotape, testified that she did not see anything on the

videotape which struck her as inappropriate, she also testified

that if a formal complaint was received and investigated and

determined that there was in fact problems, those police

officers would be disciplined. Thus, the Court concludes that

the record does not disclose that Defendant, Susan Savage,

approved any alleged unconstitutional motives of the police

officers, thereby making the alleged unconstitutional acts of

the police officers chargeable to Defendant, City of Tulsa.

Additionally, for the reasons previously stated in connection

with the May 9, 1996 letter to Andrea Anderson, "laintiffs

have failed to establish the requisite direct causal link.

Consequently, the Court finds that summary judgment is

appropriate as to Plaintiffs’ remaining §1983 claims agairst

Defendant, City of Tulsa.

Defendants contend that they are entitled to

summary judgment on Plaintiffs’ state law claims for assault

and battery, intentional infliction of emotional distress and

malicious prosecution. Defendants contend that the same

arguments they have made in regard to their §1983 claims

applies with equal force to the state law claims. However, the

Court, upon review, declines to grant summary judgment on

the state claims. Defendants have not properly shown that no

genuine issues of fact apply as to these claims. Defendants

have simply provided the Court with conclusory allegations

that summary judgment is appropriate. The Court cannot

determine from the summary judgment record whether

36a

Defendants are entitled to judgment as a matter of law on the

state law claims.

Based upon the foregoing, Defendant Susan Savage's

motion for Summary Judgment (Docket Entry #105) is

GRANTED; Defendant, Ron Palmer's Motion for Summary

Judgment (Docket Entry #106) is GRANTED; Defendant,

City of Tulsa's Motion for Summary Judgment (Docket Entry

#109) is GRANTED; and Defendants, Bill Yelton, Michael

Eckert, Charles Jordan, Steven Middleton, B. Bonham, Chris

Witt, Sgt. Jim Clark, Major W.B. York, Corporal A. Wilson,

and Kevin Johnson's Motion for Summary Judgment (Docket

#107) is GRANTED in part and DENIED in part. Plaintiff's

Motion to Strike Defendants' Reply Briefs (Docket Entry

#138)is DENIED and Plaintiffs Opposed Application for

Surreply (Docket Entry #137) is GRANTED.

ENTERED this 28th day of October, 1999.

S//

MICHAEL BURRAGE

UNITED STATES DISTRICT

JUDGE