Redd v. City of Oklahoma City

CHARLESETTA REDD, individually and as personal representative of the estate of Brian Simms, Jr., deceased, Plaintiff-Appellant, v. CITY OF OKLAHOMA CITY, a municipality ex rel., City of OKC Police Department; PAUL GALYON; WILLIAM (W.D. Oklahoma) CITTY, Chief of Oklahoma City Police, in his official and individual capacity, Defendants-Appellees, and BIG DOG HOLDING COMPANY, LLC, d/b/a Oklahoma City Public Farmers Market; 365 LIVE ENTERTAINMENT, LLC, d/b/a 365 Live Entertainment; EVENT SECURITY, LLC, Defendants.

No. 20-6145

United States Court of Appeals, Tenth Circuit

September 1, 2021

(D.C. No. 5:15-CV-00263-C) (W.D. Oklahoma)

Before BACHARACH, EBEL, and McHUGH, Circuit Judges.

ORDER AND JUDGMENT^[*]

Carolyn B. McHugh Circuit Judge.

Paul Galyon is an Oklahoma City police officer who moonlighted as a private security guard for a concert held at the Oklahoma City Farmers Public Market, along with another officer named Antonio Escobar. Off duty, but wearing their police uniforms Officers Galyon and Escobar approached a car parked in the venue parking lot. Brian Simms, Jr., was in the driver's seat, possibly asleep. Officers Galyon and Escobar shined their flashlights into the car as they neared, and Officer Galyon asked Mr. Simms if he was well. Mr. Simms had a firearm tucked into his waistband or on his lap. According to the officers, upon being startled by their approach, Mr Simms made a sudden movement as if to draw the pistol in his lap. Officer Galyon repeatedly shouted, "don't do it," but the officers both reported that Mr. Simms continued to reach for his weapon. Officer Galyon shot Mr Simms nine times, killing him.

Mr. Simms's mother, Charlesetta Murray (then Charlesetta Redd), sued Officer Galyon, the Chief of Police William Citty, and the City of Oklahoma City ("OKC"), among others. She alleged, as relevant here, an excessive force claim against Officer Galyon, a failure to train and discipline claim against OKC, a failure to supervise claim against Chief Citty, and negligence claims against all three of these defendants. The district court held Ms. Murray's tort claims alleged intentional acts rather than negligence, so it dismissed them as barred by the statute of limitations applicable to intentional torts. The district court granted Officer Galyon qualified immunity on his motion for summary judgment, and then granted Chief Citty and OKC's motions for summary judgment. Ms. Murray now appeals. The district court properly dismissed Ms. Murray's state law claims and correctly determined that Officer Galyon did not violate Mr. Simms's Fourth Amendment rights. We therefore affirm.

I. BACKGROUND

A. Factual History^[1]

On the night of July 11, 2013, Officers Galyon and Escobar were off duty from their jobs as police officers for the Oklahoma City Police Department and working for Event Security, LLC, as security guards at a concert. They were wearing their police uniforms, including their OKC-assigned weapons. The Police Department authorized its officers to work "this job and others like it." App. Vol. 6 at 1303. The business operating the concert venue, Big Dog Holding Co., LLC, hired Event Security to provide security services. In turn, Event Security provided a number of unarmed security personnel and two armed personnel-Officers Galyon and Escobar.

While conducting a routine patrol of the parking lot, Officers Galyon and Escobar noticed an Oldsmobile Cutlass parked "cockeyed" and "straddling a parking space." Id. at 1443. Although it was nighttime, the parking lot was relatively well lit. Officer Galyon approached the vehicle from the passenger side front and noticed Mr. Simms in the driver's seat. When he was roughly twenty feet from the vehicle, Officer Galyon could tell Mr. Simms was a Black male, was sitting upright, and had his eyes closed.

Officers Galyon's and Escobar's accounts of the encounter differ in some respects. Officer Galyon claimed that, from five or six feet away, he observed Mr. Simms's hands by his side and that Mr. Simms "looked like he was asleep." Id. at 1444. But Officer Escobar indicated Mr. Simms's hands were "up in the vicinity of the steering wheel." Id. at 1463. Shining a flashlight into the car, Officer Galyon asked Mr. Simms: "Hey, man, are you okay or are you all right" or "[s]omething to that effect." Id. at 1445. Officer Escobar was also shining a flashlight into the car. While speaking, Officer Galyon noticed a pistol in Mr. Simms's waistband. Officer Escobar testified the firearm was in Mr. Simms's lap, but not necessarily in his waistband.

According to Officer Galyon, Mr. Simms immediately opened his eyes, looked at Officer Galyon, and put his hand on the butt of the pistol. Officer Galyon stated he perceived Mr. Simms was beginning to draw the pistol. Officer Galyon readied his own firearm at the same time, which obstructed his view of Mr. Simms's firearm, but he saw Mr. Simms's shoulder, elbow, and head continue to move in a manner consistent with drawing the firearm.

Officer Escobar never saw Mr. Simms grab the pistol, but he saw Mr. Simms bring his hands down toward it. He testified that Mr. Simms "moved his hands slowly towards the weapon" but then made "a sudden, a faster movement towards the direction of the weapon" which caused the entire car to move. Id. at 1353. Officer Escobar moved 4 away from the vehicle when he saw Mr. Simms reach for the gun, and thus he could not see if Mr. Simms's hand touched the gun.

Officer Galyon began to say "don't do it" repeatedly, but by the third repetition, Officer Galyon had his firearm pointed at Mr. Simms and started firing. Officer Galyon fired nine shots, killing Mr. Simms. Officer Galyon could not see Mr. Simms point his firearm at Officer Galyon, and Mr. Simms never fired. Id. at 1448 (Officer Galyon agreeing "that [he] never saw [Mr. Simms] point the gun at [him]"). But both officers reported Mr. Simms was making a sudden movement consistent with drawing the gun.

After the shooting, Officer Galyon contacted on-duty officers and began to secure the scene. In a recorded interview, Officer Galyon stated he secured Mr. Simms's pistol for safety reasons, but could not initially tell its position, including "if the trigger bar was exposed, or if his finger was in there or what." App. Vol. 3 at 623; see also id. at 644 ("[H]is left hand was just above his left thigh, about mid-thigh, and the gun was partially under his left thigh with his left hand over it."); id. at 656 ("[H]is hand wasn't really gripping" the firearm). At his deposition, Officer Galyon claimed Mr. Simms's finger was partially on the trigger of the pistol and the pistol itself was "flipped upside down pointing towards the passenger side" once the firing ended. App. Vol. 6 at 1449. Officer Galyon removed the pistol from the vehicle's interior and placed it on the vehicle's roof.

B. Procedural History

Ms. Murray filed suit on March 13, 2015. Her operative complaint alleged claims against Big Dog Holding Co.; 365 Live Entertainment, LLC (the company that promoted the concert); Event Security, LLC; OKC; Chief Citty; and Officer Galyon. As relevant here, Count I alleges Officer Galyon, OKC, and Chief Citty were negligent in failing to protect Mr. Simms from excessive force and wrongful death; Count II alleges Officer Galyon acted with gross negligence in shooting Mr. Simms; Count III alleges, under 42 U.S.C. § 1983, that Officer Galyon violated the Fourth Amendment by approaching Mr. Simms without probable cause and by using excessive force, and also alleges OKC and Chief Citty are liable under § 1983 for Officer's Galyon's Fourth Amendment violations due to their adoption of unconstitutional polices and their failure to train, supervise, discipline, screen, or hire officers properly; and Count IV alleges OKC is liable on the tort claims under a theory of respondeat superior (i.e., Counts I and II).

OKC, Chief Citty, and Officer Galyon filed motions for summary judgment. Ms. Murray filed a motion for partial summary judgment against Officer Galyon only. The district court granted Officer Galyon, OKC, and Chief Citty's respective motions for summary judgment and denied Ms. Murray's motion for partial summary judgment. Ms. Murray appeals this decision.

II. DISCUSSION

Ms. Murray appeals the district court's grant of summary judgment to Officer Galyon, Chief Citty, and OKC. She argues the district court erred in: (1) holding her complaint alleged state law claims for intentional torts that were time-barred; (2) not concluding Officer Galyon committed a Fourth Amendment violation by approaching Mr. Simms without reasonable suspicion; (3) not concluding Officer Galyon committed a Fourth Amendment violation by using excessive force; and (4) rejecting her supervisory liability claims against OKC and Chief Citty under § 1983 on the same basis. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.^[2]

We begin our discussion with a review of the summary judgment standard. We then consider whether that standard has been met with respect to Ms. Murray's tort claims. Like the district court, we view the tort claims as being based on Officer Galyon's intentional shooting of Mr. Simms, and we therefore affirm the district court's dismissal of the claims as barred by application of Oklahoma's one-year limitations period for intentional torts. Turning next to Ms. Murray's § 1983 claims, we conclude Officer Galyon did not violate Mr. Simms's constitutional rights. Under the facts taken in the light most favorable to Ms. Murray, neither Officer Galyon's approach of Mr. Simms without probable cause, nor his ultimate use of deadly force, violated Mr. Simms's Fourth Amendment rights. Thus, we affirm.

A. Standard of Review

We "review [a] district court's order...