Opinion
Case No. 18-cv-491-GKF-FHM
11-04-2020
Tiffany SIMPSON, Personal Representative of the Estate of Logan Wayne Simpson, Plaintiff, v. Jon LITTLE, et al., Defendants.
Carin Leigh Marcussen, Marcussen Law Firm, P.L.L.C., Edmond, OK, Kevin Duane Adams, Kevin D. Adams, Attorney at Law, Tulsa, OK, William Bernard Federman, Federman & Sherwood, Oklahoma City, OK, for Plaintiff. Scott Boudinot Wood, Wood Puhl & Wood, Tulsa, OK, for Defendants.
Carin Leigh Marcussen, Marcussen Law Firm, P.L.L.C., Edmond, OK, Kevin Duane Adams, Kevin D. Adams, Attorney at Law, Tulsa, OK, William Bernard Federman, Federman & Sherwood, Oklahoma City, OK, for Plaintiff.
Scott Boudinot Wood, Wood Puhl & Wood, Tulsa, OK, for Defendants.
ORDER
GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE Before the court is the Motion for Summary Judgment [Doc. 69] of defendant Jon Little. For the reasons set forth below, the motion is denied.
I. Procedural History
On March 1, 2019, plaintiff Tiffany Simpson, as the personal representative of the Estate of Logan Wayne Simpson, filed a First Amended Complaint asserting four causes of action. [Doc. 26]. Relevant here, plaintiff's first cause of action is a 42 U.S.C. § 1983 excessive force claim against defendant police officer Little in his individual capacity. Little moves for summary judgment on the basis of qualified immunity.
II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." 1-800 Contacts, Inc. v. Lens.com, Inc. , 722 F.3d 1229, 1242 (10th Cir. 2013) (quoting Sally Beauty Co., Inc. v. Beautyco, Inc. , 304 F.3d 964, 971 (10th Cir. 2002) ). "No genuine issue of material fact exists ‘unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.’ " Hasan v. AIG Property Casualty Co. , 935 F.3d 1092, 1098 (10th Cir. 2019) (quoting Bones v. Honeywell Int'l Inc. , 366 F.3d 869, 875 (10th Cir. 2004) ).
III. Factual Background
At approximately 5:09 a.m. on July 22, 2018 the Bixby Police Department received a 9-1-1 call from Tiffany Simpson. Ms. Simpson asked the dispatcher to send an ambulance and the police to her mobile home located at 16409 South 84th East Avenue. When asked why, she stated someone had attacked her son with an "axe or something." [Doc. 69, pp. 10-11, ¶ 4; Doc. 96, p. 8, ¶¶ 3-4; see also Doc. 69-4, pp. 2-3 (Transcript of 9-1-1 Call)]. Ms. Simpson also mistakenly reported to the dispatcher that "[s]omeone just stole my son's car. Like, I don't know who all is here and what's going on." Ms. Simpson stated "It's white. It's a Toyota something." She confirmed "It's an SUV." [Doc. 69, p. 11, ¶ 7; Doc. 96, p. 9, ¶ 7; see also Doc. 69-4, pp. 6-7 (Transcript of 9-1-1 Call)]. Actually, Ms. Simpson's sixteen-year-old son, Logan Simpson (Simpson), was driving the SUV. [Doc. 69, p. 15, ¶ 34; see also Doc. 96, p. 9, ¶ 7].
That morning, defendant Little was working in his capacity as a patrol officer for the City of Bixby. [Doc. 69, p. 10, ¶ 3; Doc. 96, p. 8, ¶¶ 3-4]. Little was several miles away when he started westbound toward the Simpsons' home. When Little was about a mile from the Simpson home, a white SUV passed Little driving eastbound. [Doc. 69, p. 11, ¶¶ 6, 9; Doc. 96, p. 9, ¶ 6]. Little turned around and began following the SUV. [Doc. 69, p. 11, ¶ 9; Doc. 96, pp. 9-10, ¶ 9]. Before Little could catch up, Simpson turned south onto South 92nd East Avenue. Little continued to follow Simpson, activating his overheard lights which activated his dash camera. [Doc. 69, pp. 11-12, ¶ 10; Doc. 96, pp. 10-11, ¶¶ 10-11].
Simpson continued south until he reached 176th Street where he had to turn right and head westbound. As Simpson made the turn, Little "bleeped" his siren. [Doc. 69, p. 12, ¶ 11; Doc. 96, pp. 10-11, ¶¶ 10-11]. Little, still following Simpson, activated his siren and left it on. Little announced over the radio "Yeah, they are running." [Doc. 69, p. 12, ¶ 12; Doc. 96, p. 11, ¶ 12]. Simpson continued westbound until he reached the end of the street. [Doc. 69, p. 12, ¶ 13; Doc. 96, p. 11, ¶ 13].
The parties dispute the path Simpson took after reaching the end of the street. [Compare Doc. 69, pp. 12-13, ¶¶ 14-19 with Doc. 96, pp. 11-13, ¶¶ 14-19]. At this stage, the court must "view the facts in the light most favorable to [Ms. Simpson] and resolve all factual disputes and reasonable inferences in [her] favor." Estate of Ceballos v. Husk , 919 F.3d 1204, 1209 (10th Cir. 2019) (quoting Knopf v. Williams , 884 F.3d 939, 946 (10th Cir. 2018) ).
The dash camera video shows Simpson's SUV reach the end of the street, drive in to the grass, execute a three-point turn, and proceed back down the street in the opposite direction. [Doc. 104 (Little Dash Cam 1 at 1:04-1:26)]. During that time, Little exits his patrol car, draws his gun from its holster, and begins giving loud verbal commands for Simpson to "get on the ground" and "show me your hands." [Id. (Dash Cam Video at 1:14-1:25); Doc. 69, p. 12, ¶ 15; Doc. 96, p. 12, ¶ 15]. Little again yells for Simpson to "Get out of the car and get on the ground!" [Doc. 104 (Little Dash Cam 1 at 1:23-1:26); Doc. 69, p. 13, ¶ 20; Doc. 96, p. 13, ¶ 20]. Simpson does not comply and continues eastbound.
Little then fired 10 rounds at Simpson over the course of about 2.5 seconds. [Doc. 69, p. 14, ¶ 24; Doc. 96, p. 15, ¶¶ 23-24]. Though the dash camera video does not show where Little was standing in relation to the SUV when the shots were fired, none of the bullets struck the front of the vehicle. Instead, the bullet defects begin near the middle of the driver's side window and continue along the side of the SUV, and two shots struck the rear of the vehicle. [Doc 69-9; Doc. 69-10, p. 6 (OSBI Diagram of Bullet Defects); Doc. 96-17, p. 6 (same); Doc. 96-27, pp. 4-5 (Photos of SUV); Doc. 96-29 (OSBI Report)]. Little announced over the radio "210, shots fired, 210, shots fired." [Doc. 69, p. 14, ¶ 27; Doc. 96, p. 15, ¶ 27]. Little's radio call sign was "210." [Doc. 69, p. 10, ¶ 3; Doc. 96, p. 8, ¶¶ 3-4].
Plaintiff disputes Little's description of his position in relation to the SUV, but not that Little fired ten (10) rounds at Simpson. [See Doc. 96, pp. 14-15, ¶ 22].
Other Bixby officers responded and located the SUV a couple of blocks away from where the shooting took place. Simpson had driven off the road, across a yard, and into a vacant field. [Doc. 69, p. 14, ¶ 30; Doc. 96, p. 16, ¶ 30]. Little and the other officers approached the SUV, removed Simpson, and began first aid. [Doc. 69, p. 15, ¶ 32; Doc. 96, p. 16, ¶¶ 31-32].
Simpson died later that day from two gunshot wounds. [Doc. 69, p. 15, ¶ 34; Doc. 96, pp. 16-17, ¶ 34]. The bullets which struck Logan Simpson in his left hip came through the driver's door of the SUV and traveled "Left to right; Back to front; Downward." [Doc. 69, p. 15, ¶¶ 34-35; Doc. 96, p. 17, ¶ 35; Doc. 69-7, p. 5].
IV. Analysis
Defendant Little argues he is entitled to qualified immunity. "The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Mullenix v. Luna , 577 U.S. 7, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). Qualified immunity "protects all but the plainly incompetent or those who knowingly violate the law." Id. (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ) (internal quotation marks omitted).
Because Little asserts a qualified immunity defense, "the [summary judgment] burden shifts to the plaintiff" to satisfy a "heavy two-part burden." McCowan v. Morales , 945 F.3d 1276, 1282 (10th Cir. 2019) (quoting Estate of Ceballos , 919 F.3d at 1212-13 ). "The plaintiff must first establish that the defendant's actions violated a constitutional or statutory right. If the plaintiff establishes a violation of a constitutional or statutory right, he must then demonstrate that the right at issue was clearly established at the time of the defendant's unlawful conduct." Estate of Ceballos , 919 F.3d at 1212 (quoting Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001) ). "In determining whether the right was clearly established, the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether the right was sufficiently clear that a reasonable officer would understand that what he is doing violates that right." McCowan , 945 F.3d at 1282 (quoting Estate of Ceballos , 919 F.3d at 1212 ). "A court can consider the two qualified-immunity inquiries—whether the plaintiff has established a statutory or constitutional violation and whether that violation was clearly established—in any order." McCowan , 945 F.3d at 1282 (citing Pearson , 555 U.S. at 236, 129 S.Ct. 808 ). As the Tenth Circuit has explained:
If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity. If the plaintiff successfully establishes the violation of a clearly established right, the burden shifts to the defendant, who must prove that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. In short, although [the court] review[s] the evidence in the light most favorable to the nonmoving party, the record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.
Estate of Ceballos , 919 F.3d at 1212 (quoting Medina , 252 F.3d at 1128 ).
A. Whether a Reasonable Jury Could Find Facts Supporting a Violation of a Constitutional Right
Plaintiff argues Little violated Logan Simpson's Fourth Amendment right to be free from excessive force. Officer Little disagrees, arguing his use of force was objectively reasonable because, in his view, Logan Simpson posed an immediate threat of serious bodily harm or death to Officer Little himself.
"To state an excessive force claim under the Fourth Amendment, [Simpson] must show both that a seizure occurred and that the seizure was unreasonable." Reavis Estate of Coale v. Frost , 967 F.3d 978, 985 (10th Cir. 2020) (emphasis original) (quoting Thomas v. Durastanti , 607 F.3d 655, 663 (10th Cir. 2010) ). Here, Little's use of deadly force constitutes a Fourth Amendment seizure. Tennessee v. Garner , 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ("[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment."). The question is whether that use of deadly force was reasonable. "[W]here an officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force, but that statement must not be read too broadly. It does not mean that any risk of physical harm to others, no matter how slight, would justify any application of force, no matter how certain to cause death." Cordova v. Aragon , 569 F.3d 1183, 1190 (10th Cir. 2009) (internal citations omitted).
The reasonableness inquiry in an excessive force case is an objective one. The court asks "whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 1188 (quoting Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). "Reasonableness ‘must be judged from the perspective of a reasonable officer on the scene,’ who is ‘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.’ " Id. (quoting Graham , 490 U.S. at 396-97, 109 S.Ct. 1865 ). "This is a ‘totality of the circumstances’ analysis." Reavis , 967 F.3d at 986 (citing Garner , 471 U.S. at 8-9, 105 S.Ct. 1694 ). "When considering ‘the facts and circumstances of each particular case,’ " the court specifically considers three factors outlined by the Supreme Court in Graham v. Connor , 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) : "(1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect poses an immediate threat to the safety of the officers or others,’ and (3) ‘whether he is actively resisting arrest or attempting to evade arrest by flight.’ " Id. (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ).
1. The Severity of the Crime at Issue
In plaintiff's view, the crime at issue was either theft of a motor vehicle or eluding the police. Neither of which, plaintiff argues, justifies the use of deadly force. Little avers that he "believed the driver of the SUV was the suspect in an attack with an ax and had fled the scene by stealing the victim's vehicle, based on what he had learned over his police radio." [Doc. 69, p. 25]. But, as plaintiff points out, the transcript of the 9-1-1 call shows dispatch was talking to the police and stated "they have an individual named Deontae on the ground. I believe he is the one who attacked her son." [Doc. 69-4, p. 4 (Transcript of 9-1-1 Call); accord Doc. 96-9, p. 4]. Viewing the facts in the light most favorable to plaintiff, as the court must at this stage, the court infers a reasonable officer would have concluded the driver of the SUV was not the axe attacker in light of the dispatched information. Nonetheless, the record does not indicate that a reasonable officer would have had reason to know the SUV was not stolen. [See Doc. 69-4, p. 7 (dispatcher radioed to police "someone just drove off with their vehicle ... it's an SUV-Toyota"); accord Doc. 96-9, p. 7]. And, theft of a vehicle, a felony, is a serious crime, especially when connected to an assault. See 21 Okla. Stat. § 1720 ("Any person in this state who shall steal" an automobile "shall be guilty of a felony."); Henry v. Storey , 658 F.3d 1235, 1239 (10th Cir. 2011) (noting "a driver caught with a stolen vehicle has strong incentive to evade arrest, given the seriousness of the crime" and that the defendant did not use excessive force by pointing his weapon at the driver where he "had probable cause to believe [the suspect] had stolen a vehicle, a felony"); Clark v. Bowcutt , 675 F. App'x 799, 807 (10th Cir. 2017) (unpublished) ("Felonies are deemed more severe."). Accordingly, the court finds the first Graham factor weighs in favor of Officer Little.
2. Whether Logan Simpson Posed an Immediate Threat to the Safety of Officer Little or Others
"In evaluating whether the suspect poses an immediate threat when deadly force is employed, the court must consider the totality of the circumstances. That is, the question of whether there is no threat, an immediate deadly threat, or that the threat has passed, at the time the deadly force is employed must be evaluated based on what a reasonable officer would have perceived under the totality of the circumstances." Reavis , 967 F.3d at 988. As the Tenth Circuit has explained:
The second Graham factor ... is undoubtedly the most important and fact intensive factor in determining the objective reasonableness of an officer's use of force. This is particularly true in a deadly force case, because deadly force is justified only if a reasonable officer in the officer's position would have had probable cause to believe that there was a threat of serious physical harm to himself or others. Some of the factors we consider when evaluating the degree of a threat include, (1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect. The reasonableness of [the officers'] actions depends both on whether the officers were in danger at the precise moment that they used force and on whether [their] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.
Id. at 985 (internal quotation marks and citations omitted). To determine the degree of threat Simpson posed at the time Little employed deadly force, the court considers each of these factors. See Estate of Larsen ex rel. Sturdivan v. Murr , 511 F.3d 1255, 1260 (10th Cir. 2008).
As to the first factor, Little ordered Simpson to "Get out of the car and get on the ground!" [Doc. 69, p. 13, ¶ 20; Doc. 96, p. 13, ¶ 20]. Simpson did not comply.
A vehicle may be considered a weapon. Thomas , 607 F.3d at 664.
As to whether Simpson made any hostile motions and his manifest intentions, plaintiff argues "[t]he evidence shows that Simpson was attempting to drive around (not into) Little; Simpson even went so far as to drop the passenger side tires of the SUV off the roadway to give Little a wide berth." [Doc. 96, p. 30]. In support, plaintiff points to the dash camera video and photos from the scene. [See, e.g. Doc. 104 (Little Dash Cam 1); Doc. 96-19 (overhead photo showing tire marks); Doc. 96-25, p. 16 (photo showing tire marks and path in the grass)]. Officer Little disputes plaintiff's account, arguing Simpson "began to move forward toward Defendant Little and accelerated." [Doc. 69, pp. 21-22]. But, the dash camera video does not show Officer Little in the path of the SUV at any point. Instead, the video shows the SUV reach the end of the street, drive into the grass, execute a three-point turn, and proceed in the opposite direction. [Doc. 104 (Little Dash Cam 1 at 1:04-1:26)]. Officer Little can be seen in the road with his weapon drawn as the SUV turns around approaching the SUV, but both he and the SUV move off screen as the SUV returns to the road. [Id. at 1:25-1:27]. At this stage, the court must "view the facts in the light most favorable to [plaintiff] and resolve all factual disputes and reasonable inferences in [her] favor." Estate of Ceballos , 919 F.3d at 1209 (quoting Knopf , 884 F.3d at 946 ). Doing so, the court concludes a reasonable jury could find that Little was not in the direct path of the SUV. Further, a reasonable jury reviewing the photos from the scene of tire marks in the grass could find that Simpson attempted to avoid hitting Little by veering off the right side of the road. [See, e.g. , Doc. 96-19]. Accordingly, a jury could conclude a reasonable officer would not have perceived Logan Simpson as making hostile motions nor manifesting an intent to harm by attempting to run Little over.
With respect to Little's position in relation to the SUV, plaintiff contends "[a]ll the shots were in the driver's side, beginning at about the door handle and continue to the back and into the rear of the SUV. The angle of the bullet defects indicates that Little was standing to the side and slightly behind [the] driver's door, firing as the SUV passed him and falling further behind as the SUV headed down the street." [Doc. 96, p. 30]. Plaintiff's view that Little was standing to the side and to the rear of the SUV when he fired is supported by the record. All the bullets struck the side and rear of the vehicle. And, with the exception of the first bullet which struck the SUV just below the middle of the driver's side window, the angle of the remaining bullet defects indicate Simpson had passed by Little when Little fired the shots. [Doc 69-9; Doc. 69-10, p. 6 (OSBI Diagram of Bullet Defects); Doc. 96-17, p. 6 (same); Doc. 96-27, pp. 4-5 (Photos of SUV); Doc. 96-29 (OSBI Report)]. Little does not dispute that the two bullets that struck Simpson came through the driver's door of the SUV. [Doc. 69, p. 15, ¶ 35]. Moreover, the two fatal shots struck Simpson in his left hip with a trajectory of back to front. A reasonable jury could therefore conclude that Little was not in immediate danger when he fired the two fatal shots as Simpson passed by and drove away. See Cordova , 569 F.3d at 1187.
In reply, Officer Little argues plaintiff's expert reports—which plaintiff cites in support of her view that Little was not in danger at the time of the shooting—should be excluded because the reports do not contain an affidavit or sworn declaration to support their reports. [Doc. 117, p. 9]. The court does not rely on those reports in ruling on the instant motion.
In Reavis Estate of Coale v. Frost , 967 F.3d 978 (10th Cir. 2020), the Tenth Circuit upheld a district court's denial of qualified immunity to a sheriff's deputy under analogous circumstances. There, the defendant deputy began following a truck the deputy incorrectly believed was driven by a suspect in a stabbing incident. The deputy activated his emergency lights, but the truck did not pull over. Eventually, the deputy stopped his vehicle directly in the path of the truck. The deputy exited his vehicle and then stood in the middle of the otherwise empty road. The deputy shouted commands at the driver to show his hands with his gun in the ready position. The driver did not comply, but instead accelerated forward and toward the deputy. The deputy moved out of the way as the truck passed within inches of him. The deputy then fired five to seven times as the truck passed. The driver died from a gunshot wound to the back of the head.
The court considers Reavis and Estate of Smart by Smart v. City of Wichita , 951 F.3d 1161 (10th Cir. 2020), in determining whether a constitutional violation has occurred, not for the purpose of deciding whether the alleged violation was clearly established. Reavis and Smart were decided in 2020, and the events in this case occurred on July 22, 2018.
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Taking all of these facts into consideration, the district court concluded that a reasonable jury could find that the deputy was no longer in danger when he fired shots into the driver's fleeing truck and that "there was no immediate danger to other officers or civilians." Id. at 989-90. Instead, "the only risk at the moment the gun was fired was that created by [the driver] fleeing from the stop." Id. at 990. The Tenth Circuit agreed: "Given that all the shots the [deputy] fired were from behind and to the side of [the driver's] vehicle, we ... conclude that even in the short time it took [the deputy] to raise his weapon and line up his shot, a reasonable officer would have perceived he was shooting at the back and side of a fleeing—not an oncoming—vehicle. Thus, a reasonable officer in [the deputy's] position would have known when he raised his weapon and fired that there was no immediate threat of harm to himself or others." Id. at 991 (internal citations and quotation marks omitted). Similarly here, it was not objectively reasonable for Officer Little to believe Simpson posed an immediate threat when Little fired at the side and back of the fleeing SUV.
In sum, though Logan Simpson did not comply with Officer Little's commands, sufficient evidence exists that Simpson was attempting to drive around Officer Little. And, there is no dispute that the bullets which struck Simpson came through the driver's side door of the SUV, supporting plaintiff's argument that Little fired at Simpson from behind and to the side as Simpson drove by. A reasonable jury could conclude Simpson posed no immediate threat to Officer Little. And, even to the extent the facts support Little's contention that Simpson threatened him by accelerating the SUV toward Little, a reasonable jury could nonetheless conclude any threat posed by Simpson had passed when Little fired the fatal shots at the side and back of the SUV and when the SUV no longer posed an immediate danger to Little.
Moreover, the shooting here took place on a residential street just after 5:00 a.m. Officer Little does not argue, nor do the facts indicate, there were any bystanders around. Accordingly, a reasonable officer in Officer Little's position would have perceived that Simpson did not pose any immediate danger to others. See id. at 991 ("A reasonable officer in [the deputy's] position would have also perceived that [the driver's] vehicle did not pose any immediate danger to anyone else as they were alone on a dirt road.").
Under the totality of these circumstances, a reasonable jury could find Simpson posed no immediate danger to Officer Little or others when Little fired the fatal shots. Accordingly, the second, and most important, Graham factor weighs in plaintiff's favor.
3. Whether Logan Simpson was Attempting to Evade Arrest by Flight
There is no dispute that Simpson was evading Little's attempted stop. The third Graham factor weighs in favor of Officer Little.
While this and the first Graham factor weigh in favor of Officer Little, the most important Graham factor weighs in plaintiff's favor. "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so." Garner , 471 U.S. at 11, 105 S.Ct. 1694. Given that a reasonable jury could conclude Simpson posed no immediate threat to Officer Little or others, the jury could also find that Officer Little's use of deadly force was objectively unreasonable and thereby violated Simpson's Fourth Amendment rights. Plaintiff has therefore established, for purposes of summary judgment, that a reasonable jury could find facts supporting a violation of a constitutional right.
B. Whether the Alleged Violation Clearly Established
Plaintiff contends it is clearly established that an officer cannot use deadly force to stop a fleeing suspect who poses no immediate threat to the officer. Little argues that there is no clearly established law sufficient to have put him on notice that his conduct was unreasonable in the situation he confronted. As to the clearly established prong of the qualified immunity test, "the Supreme Court has ‘repeatedly told courts ... not to define clearly established law at a high level of generality.’ " Estate of Smart by Smart v. City of Wichita , 951 F.3d 1161, 1168 (10th Cir. 2020) (quoting Mullenix , 136 S. Ct. at 308 ). "[S]pecificity is especially important in the Fourth Amendment context, where ... it is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts." Id. (quoting Mullenix , 136 S. Ct. at 308 ). Nevertheless, the court's analysis is not a "scavenger hunt for prior cases with precisely the same facts." Casey v. City of Federal Heights , 509 F.3d 1278, 1284 (10th Cir. 2007) (quotation marks omitted). Nor does a prior case need to be "exactly parallel to the conduct here for the officials to have been on notice of clearly established law." Halley v. Huckaby , 902 F.3d 1136, 1149 (10th Cir. 2018). "Rather, the salient question is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged conduct was unconstitutional." Smart , 951 F.3d at 1168 (alterations omitted) (quoting Tolan v. Cotton , 572 U.S. 650, 656, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) ). "This requirement is satisfied where, at the time of the conduct in question, there existed ‘a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts ... found the law to be as the plaintiff maintains.’ " Id. at 1168-69 (quoting Halley , 902 F.3d at 1149 ).
In Garner , the Supreme Court held that "where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so." Garner , 471 U.S. at 11, 105 S.Ct. 1694. In Cordova v. Aragon , 569 F.3d 1183 (10th Cir. 2009), the Tenth Circuit applied this principle to analogous facts. There, officers spotted a suspicious vehicle. The officers attempted to stop the vehicle, but the driver evaded capture by driving straight at them. A pursuit ensued and, when the driver was driving on the wrong side of the highway, officers positioned their vehicles to force the driver back into the proper lane or to exit the highway. The officers then exited their police car, with one officer positioned at the median in the center of the highway and the other officer closer to the side. The officer on the side claimed he was in immediate danger, about to be run over, and therefore rapidly fired at the vehicle while simultaneously trying to move out of the way. He fired either four or five shots, one of which hit the driver in the back of the head, fatally wounding him. However, only one bullet hit the front of the truck; the rest hit the side. And, the fatal shot entered the truck from the side and went through the back of the driver's head which "strongly suggests that [the driver] had turned the truck and was no longer bearing down upon [the officer] at the moment the officer fired the fatal shot." Id. at 1187. Moreover, though the driver behaved recklessly, the facts did not show that any other motorists were in the vicinity or that other motorists would not have been able to spot the driver and avoid an accident themselves. Id. at 1190.
On these facts, the district court found that a reasonable juror could conclude that the officer "was not in immediate danger at the time of the shooting." Id. at 1187-88. The officer did not challenge that finding and the Tenth Circuit's analysis focused on "whether the potential risk to third parties created by [the vehicle] was alone sufficient to justify [the officer's] shooting [the driver." Id. at 1188. The Tenth Circuit held it was not: "When an officer employs such a level of force that death is nearly certain, he must do so based on more than the general dangers posed by reckless driving." Id. at 1190. The Tenth Circuit went on:
The threat to the officers themselves—if actual and imminent—could of course shift the calculus in the direction of reasonableness. If a reasonable officer in [the shooting officer's] position would have feared for his life or the life of his fellow officers, then on one side of the scales would sit not only the potential (even if distant) risk to any motorist who might wander along, but also the very immediate risk of death to the pursuing officers. The urgency of terminating the chase would increase and the balance would tip in the officers' favor. The use of deadly force—even of the level nearly certain to cause death—would likely be justified. Here, however, the threat to the officers is a disputed fact, and for purposes of the summary judgment motion the district court explicitly assumed the officers to be in no immediate danger.
Id.
As in Cordova , a reasonable jury could find that Simpson posed no immediate threat to Officer Little. Little fired the two fatal shots from the side and behind Simpson as the SUV moved past and away. Because such a finding would be reasonable, the issue before this court is whether those actions violated a clearly established right. Cordova resolves that issue, as the Tenth Circuit has put officers on notice that using deadly force is unreasonable when a fleeing vehicle is not bearing down upon the officer and the only threat is one posed by reckless driving.
Because Little was on notice that an officer's use of deadly force to stop a fleeing vehicle when the officer is no longer in immediate danger and the vehicle poses no immediate threat to others is constitutionally unreasonable, plaintiff has satisfied her burden of showing on summary judgment that Officer Little violated a clearly established constitutional right. See also Fancher v. Barrientos , 723 F.3d 1191, 1201 (10th Cir. 2013) (A reasonable officer would have known firing "six shots into a suspect" when he "lacked probable cause to believe [the suspect] posed a threat of serious harm to [the officer] or others at the time he fired shots" violated clearly established law.).
Little disagrees, instead arguing "Tenth Circuit law as well as Supreme Court case law establish Defendant Little's conduct was not in violation of Mr. Simpson's constitutional rights." [Doc. 69, p. 27]. But the cases Little cites are distinguishable as they involve circumstances where the officer shot at a vehicle coming directly toward the officer or toward other persons. See Brosseau v. Haugen , 543 U.S. 194, 200-01, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (concluding "shooting[ing] a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight" did not violate a clearly established constitutional right); Thomas , 607 F.3d at 666 (officer's use of force based on "misperception" that the vehicle was still approaching him was reasonable "given that the video indicates that he had just been struck by the [car] and spun around"); Carabajal v. City of Cheyenne, Wyoming , 847 F.3d 1203, 1210-11 (10th Cir. 2017) (concluding the officer reasonably perceived a threat of imminent harm when that officer was standing directly in the path of an oncoming vehicle and shot the driver); Clark v. Bowcutt , 675 F. App'x 799, 810-11 (10th Cir. 2017) (unpublished) (finding no constitutional violation where officer shot driver through the vehicle's windshield as the suspect drove toward the officer). These cases do not bear on whether, in 2018, it was clearly established that an officer may not use deadly force to stop a fleeing vehicle when a reasonable officer would have perceived he was in no immediate danger at the time he fired. See Reavis , 967 F.3d at 995 ("Given our decision in Cordova , it would be clear to every officer [in 2016] that the use of deadly force to stop a fleeing vehicle is unreasonable unless there is an immediate threat of harm to himself or others."). Accordingly, plaintiff has satisfied her heavy two-part burden.
V. Conclusion
WHEREFORE, defendant Jon Little's Motion for Summary Judgment [Doc. 69] is denied.
IT IS SO ORDERED this 4th day of November, 2020.