Ruth SAMUEL, as the personal representative of the estate of Nathan Samuel, deceased, Plaintiff-Appellant, v. CITY OF BROKEN ARROW, OKLAHOMA, a municipal corporation; Stephen Garrett, an individual, Defendants-Appellees.
No. 11-5166
United States Court of Appeals, Tenth Circuit
Dec. 21, 2012
751
CARLOS F. LUCERO, Circuit Judge.
Before LUCERO, O‘BRIEN, and MATHESON, Circuit Judges.
IV. CONCLUSION
Although the injunction, as written, is vacated, we presume neither party will file additional lawsuits about venue. Claim preclusion “prevents the parties or their privies from relitigating issues that were or could have been raised in an earlier action.” Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir.2000) (internal quotation marks omitted). We also pre-sume the parties will be most circumspect in attempting to foreclose arbitration of the contract provisions regarding choice of law.
The district court‘s order granting a preliminary injunction, as written, is vacat-ed.
James E. Frasier, Steven R. Hickman, Frasier, Frasier & Hickman, George Mi-chael Miles, Tulsa, OK, for Plaintiff-Appel-lant,
Trevor A. Dennis, Best & Sharp, Scott B. Wood, Esq., Wood, Puhl & Wood, P.L.L.C., Tulsa, OK, Beth Anne Wilken-ing, City of Broken Arrow, Oklahoma Le-gal Department, Broken Arrow, OK, for Defendants-Appellees.
CARLOS F. LUCERO, Circuit Judge.
Ruth Samuel appeals the district court‘s grant of summary judgment in favor of defendants Stephen Garrett and the City of Broken Arrow, Oklahoma. Exercising
I
The parties are familiar with the facts of this case, which we need not recite in detail here. City of Broken Arrow police officer Stephen Garrett shot and killed Nathan Samuel after responding to a do-mestic violence call at the Samuels’ home. Ruth Samuel, Nathan‘s wife, brought this action against Garrett and the City under
II
We review the district court‘s grant of summary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir.2009). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any mate-rial fact and the movant is entitled to judgment as a matter of law.”
A
The district court held that Garrett‘s use of force did not violate the Fourth Amend-ment and that he was entitled to qualified immunity. To defeat a qualified immunity defense asserted at summary judgment, a plaintiff must advance evidence showing that: “(1) the defendant violated a consti-tutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (citation omitted). We have “discre-tion to determine which of the two prongs of the qualified immunity analysis should be addressed first in light of the circum-stances in the particular case at hand.” Id. (quotation omitted). Because we agree with the district court that Garrett‘s ac-tions did not violate clearly established law, we decline to address the constitution-al question.
“Ordinarily, in order for the law to be clearly established, there must be a Su-preme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff main-tains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir.2011). “Although there does not need to be a prior case with precisely the same facts, our inquiry must be undertaken in light of the specific con-text of the case, not as a broad general proposition.” Id. (quotation and altera-tions omitted). “The pertinent question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation.” Id. (quotation omitted).
It is well established that the use of “deadly force is justified under the Fourth Amendment if a reasonable officer in the [d]efendant‘s position would have had probable cause to believe that there was a threat of serious physical harm to them-selves or to others.” Walker v. City of Orem, 451 F.3d 1139, 1159 (10th Cir.2006) (quotation omitted). In assessing the “de-gree of threat” facing an officer, we con-sider several factors, including: “(1) whether the officers ordered the suspect to drop his weapon, and the suspect‘s compli-ance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the dis-tance separating the officers and the sus-pect; and (4) the manifest intentions of the
Applying these factors in Larsen, we held that the use of deadly force was reasonable under circumstances very simi-lar to those at issue in the case at bar. See id. at 1260-61. Although the distance between the officer and the suspect in this case was somewhat greater than in Larsen, the distance between Ruth Samuel and Nathan Samuel was similar to the distance at issue there. Cf. Tennessee v. Garner, 471 U.S. 1, 11 (1985) (use of deadly force may be reasonable if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others“). Moreover, “[o]ur cases decline to adopt a per se rule where distance alone would create a fact question as a matter of law.” Larsen, 511 F.3d at 1262 (italicization omitted).
In contrast, the factual circumstances presented in the cases cited by Ruth Sam-uel differ materially from those before us here. In three of the cases she cites, we held that it was not clear whether the suspect had manifested an intent to harm an officer or bystander on the scene, un-like the facts of this case. See Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1155 (10th Cir.2010); Walker, 451 F.3d at 1144; Zuchel v. Spinharney, 890 F.2d 273, 275 (10th Cir.1989). And in the remaining case she relies upon as clearly establishing that Garrett‘s actions were unreasonable, Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir.1997), we affirmed the denial of summary judgment because of a dispute of material fact as to “whether [d]efen-dants’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force,” id. at 840 (quotation omitted), an issue not present in this case.
Finally, it is clear that “some warning” must be given before an officer uses dead-ly force if “feasible.” Garner, 471 U.S. at 12. We have treated or-ders to drop a weapon, an order Garrett provided, as sufficient warning when “[e]vents were unfolding extremely quick-ly.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1311 (10th Cir.2009). Given this precedent, there is no indication that Garrett‘s actions violated clearly estab-lished law.
We sympathize with Ruth Samuel‘s plight. There is no doubt that Nathan Samuel‘s death was a regrettable tragedy. But we must recognize that officers are “often forced to make split-second judg-ments ... about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). Respecting that discretion, we conclude that Garrett is entitled to qualified immu-nity.
B
Ruth Samuel also argues that the dis-trict court erred in granting the City‘s motion for summary judgment on her fail-ure to train claims.1 She contends that
To prevail on a failure to train claim under
(1) the officers exceeded constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situations with which police officers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city toward persons with whom the police officers come into contact[;] and (4) there is a direct causal link between the constitutional depriva-tion and the inadequate training.
Carr v. Castle, 337 F.3d 1221, 1228 (10th Cir.2003) (quotation omitted).
Even assuming the first two factors are satisfied, we agree with the district court that this claim fails on the third Carr requirement. A plaintiff establishes delib-erate indifference “when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional viola-tion, and it consciously or deliberately chooses to disregard the risk of harm.” Id. at 1229.
The record establishes that the City pro-vides extensive training on the appropriate use of deadly force, including live firing exercises based on different factual scenar-ios. Further, the City instructs officers on the need for a verbal warning in compli-ance with current law, and trains officers on how to respond to domestic disputes. Ruth Samuel‘s failure to train claim is based entirely on the report of an expert witness. But that report does not articu-late the manner in which the City‘s train-ing fails to comply with established law, it simply offers a conclusory assertion to that effect. Further, the report does not accu-rately state the content of the City‘s train-ing program. This evidence is insufficient to create a genuine dispute of material fact as to whether the City was deliberately indifferent.
For the same reason, we conclude that summary judgment was proper under a state common law failure to train theo-ry.2 To prevail on a negligence claim un-der Oklahoma law, a plaintiff must prove “the existence of a duty owed by the de-fendant to the plaintiff to use ordinary care, a breach of that duty, and an injury proximately caused by the defendant‘s breach of duty.” Comer v. Preferred Risk Mut. Ins. Co., 991 P.2d 1006, 1010 (Okla. 1999). Although the ordinary care stan-dard is often a question for the jury, the report upon which Ruth Samuel relies wholly fails to create a triable issue as to whether the City failed to exercise reason-able care in training its officers.
C
Ruth Samuel‘s final argument is that the City is liable for Garrett‘s alleged negligence under state tort law under a theory of respondeat superior. We con-clude that the Oklahoma Governmental Tort Claims Act (“OGTCA“) provides the City immunity from such claims.
The OGTCA exempts state and political subdivisions from claims that stem from “the failure to provide, or the method of providing, police, law enforcement or fire
Under Oklahoma law, “protection” in-cludes actions taken to restrain a suspect “from harming herself or others.” Id. at 1067 (italicization omitted); see also Schmidt v. Grady Cnty., 943 P.2d 595, 596, 598 (Okla.1997) (deputy was immune under
Garrett‘s “relationship to [the Samuels and their neighbors] was as a municipality carrying out a [police] protection function.” Schmidt, 943 P.2d at 598. Garrett was seeking to protect the Samuels and the bystanders, including to “protect [Nathan Samuel] from harming [him]self or others” rather than attempting to arrest him or otherwise carry out a law enforcement function. Id. at 596.3 Because Garrett‘s use of force was “[ ]related to the method of providing police protection to the pub-lic” rather than to a law enforcement activ-ity such as arresting a suspect, we con-clude that the City is entitled to immunity from tort liability under
III
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
We review the grant of a preliminary injunction for an abuse of discretion. A district court abuses its discretion if it com-mits an error of law, or is clearly erroneous in its preliminary factual findings. Further, because a preliminary injunction is an ex-traordinary remedy, the movant‘s right to relief must be clear and unequivocal. Three types of preliminary injunctions are specifically disfavored: (1) preliminary in-junctions that alter the status quo; (2) man-datory preliminary injunctions; and (3) preliminary injunctions that afford the mov-ant all the relief that it could recover at the conclusion of a full trial on the merits. For these categories of disfavored preliminary injunctions, the movant has a heightened burden of showing that the traditional four factors weigh heavily and compellingly in its favor before obtaining a preliminary in-junction. Fundamentalist Church of Jesus Christ of Lat-ter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir.2012) (citations omitted) (internal quotation marks and brackets omitted).
3. Under Oklahoma law, we may look to an officer‘s subjective intentions to determine whether the action was protective. See Morales, 230 P.3d at 876 (considering whether the officer‘s role was protective or law enforce-ment “[f]rom [the officer‘s] viewpoint“).