# Appendix — York v. Wrather

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1129%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 930

## Text

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

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, 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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1129%3A2. Public record. Not legal advice.