Simpson v. Little

499 F.Supp.3d 1058

Tiffany SIMPSON, Personal Representative of the Estate of Logan Wayne Simpson, Plaintiff,

v.Jon LITTLE, et al., Defendants.

Case No. 18-cv-491-GKF-FHM

United States District Court, N.D. Oklahoma.

Signed November 4, 2020

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.¹ [Doc. 69, p. 12, ¶ 13; Doc. 96, p. 11, ¶ 13].

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].² 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].

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,...