Bailey v. Ada, City of et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHRISTY BAILEY, as Personal 	)
Representative of the Estate 	)
of Jeffrey Peterson, deceased, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-20-327-JAR
)
CITY OF ADA; 	)
OFFICER MARCUS BEALE; 	)
OFFICER JUSSELY CANADA; 	)
OFFICER MICHAEL MEEKS; and 	)
OFFICER PHILLIP VOGT. 	)
)
Defendants. 	)
OPINION AND ORDER
This matter comes before the Court on the following motions:
(1) Motion for Summary Judgment filed by Defendants Officer Jussely
Canada, 	Officer 	Michael 	Meeks, 	and 	Officer 	Phillip 	Vogt 	(Docket
Entry 	#93); 	(2) 	Motion 	for 	Summary 	Judgment 	filed 	by 	Defendant
City of Ada (Docket Entry #94); and (3) Motion for Summary Judgment
filed by Defendant Officer Marcus Beale (Docket Entry #95).
Facts Relevant to All Claims
Officers 	Canada, 	Meeks, 	and 	Vogt 	are 	all 	CLEET 	certified
officers 	with 	the 	City 	of 	Ada, 	Oklahoma 	Police 	Department. 	On
September 21, 2019, these Officers received a call for assistance
from Officer Marcus Beale, also a CLEET certified officer with the
City of Ada, who was at the scene of an apartment rented by Jeffrey
Peterson (“Peterson”). 	Officer Canada was the first of the backup
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officers 	to 	arrive. 	She 	observed 	Officer 	Beale 	up 	against 	the
closed 	door 	of 	Peterson’s 	apartment 	and 	a 	female, 	identified 	as
Megan 	Timmons 	(“Timmons”) 	was 	standing 	over 	to 	the 	side 	at 	the
apartment. 	(Canada Depo., p. 29, ll. 1-13). 	Officer Canada never
attempted to make contact with Timmons prior to entering Peterson’s
apartment. 	She 	was 	asked 	for 	assistance 	by 	Officer 	Beale 	which
she deemed more important at the time. 	(Canada Depo., p. 39, ll.
8-14).
Officer Canada went to Officer Beale, who had his duty weapon
drawn. 	(Canada Depo., p. 29, ll. 14-19). 	Seeing Officer Beale’s
weapon, 	Officer 	Canada 	also 	drew 	her 	weapon. 	(Canada 	Depo., 	p.
30, ll. 4-6). 	Officer Beale told Officer Canada that Peterson had
slammed 	the 	apartment 	door 	on 	Officer 	Beale’s 	arm 	as 	he 	tried 	to
enter 	the 	apartment. 	(Canada 	Depo., 	p. 	38, 	ll. 	5-7). 	She 	also
stated that Peterson “told officers that he was going to treat us
as 	intruders 	if 	we 	went 	into 	the 	residence” 	although 	she 	did 	not
attribute this statement to Officer Beale. 	(Canada Depo., p. 33,
ll. 	23-25, 	p. 	34, 	ll. 	1-2). 	Officer 	Canada 	did 	not 	know 	what
happened 	before 	she 	arrived, 	only 	what 	she 	was 	told 	by 	Officer
Beale. 	(Canada Depo., p. 38, ll. 1-4). 	She only knew that Officer
Beale had told her that Peterson had committed assault and battery
on 	a 	police 	officer 	when 	the 	door 	was 	allegedly 	slammed 	upon
Officer Beale’s arm. 	(Canada Depo., p. 34, ll. 17-24).
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Officer Canada did not know if Officer Beale had any injuries
resulting from the slamming of the door on his arm. 	(Canada Depo.
p. 	38, 	ll. 	5-16). 	She 	did 	not 	hear 	him 	complain 	of 	any 	pain 	or
soreness in his arm. 	(Canada Depo. p. 38, ll. 21-25).
Officer 	Canada 	testified 	that 	the 	other 	officers 	arrived 	on
the 	scene 	in 	“[a] 	matter 	of 	moments.” 	(Canada 	Depo. 	p. 	39, 	ll.
1-7). 	Officer Meeks arrived with Officer Vogt, who was in training
with 	Officer 	Meeks. 	(Meeks 	Depo., 	p. 	26, 	ll. 	14-24). 	Officer
Meeks 	and 	Officer 	Vogt 	arrived 	at 	the 	Peterson 	apartment 	and
observed 	Officer 	Beale 	and 	Officer 	Canada 	on 	the 	front 	porch.
They also approached the front porch where Officer Canada briefed
Officer 	Meeks. 	(Meeks 	Depo., 	p. 	30, 	ll. 	1-9). 	Officer 	Meeks
understood 	that 	“there 	was 	some 	sort 	of 	threats 	that 	had 	been
made.” 	(Meeks 	Depo., 	p. 	30, 	ll. 	10-13). 	Officer 	Meeks 	did 	not
recall 	speaking 	with 	Officer 	Beale 	before 	the 	apartment 	door 	was
breached. 	(Meeks Depo. p. 31, ll. 1-3).
Officer Meeks stated that he believed Officer Beale was trying
to 	gain 	access 	into 	Peterson’s 	apartment, 	stating 	“from 	what
Officer Canada said and Officer Beale’s actions, I proceeded (sic)
that some sort of maybe threats or maybe some sort of assault that
had occurred.” 	(Meeks Depo., p. 31, ll. 9-12). 	He believed that
there was a “serious threat”, “[t]aking the totality of what I was
told and what I saw. . . .” 	(Meeks Depo., p. 32, ll. 6-9).
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Officer 	Meeks 	observed 	Officer 	Beale 	trying 	to 	gain 	access
through the apartment door several times. 	Officer Beale tried to
holster 	his 	weapon 	but 	ultimately 	placed 	it 	on 	a 	concrete 	pillar
on the front porch. 	Officer Meeks grabbed the gun, deciding that
the porch was “probably not the best place for it” and gave it to
Officer 	Vogt. 	(Meeks 	Depo., 	p. 	32, 	ll. 	11-18). 	Meeks 	holstered
his 	weapon 	so 	that 	he 	could 	use 	both 	hands 	to 	arrest 	or 	detain
Peterson. 	(Meeks 	Depo., 	p. 	32, 	ll. 	19-25, 	p. 	33, 	ll. 	1-2). 	He
did not know if Peterson was armed. 	(Meeks Depo., p. 34, ll. 14-
16). 	Officer 	Meeks 	believed 	that 	entry 	to 	the 	house 	had 	to 	be
made 	because 	“something 	had 	happened 	prior 	to 	[his] 	arrival 	with
Officer Beale and that he was in hot pursuit of a suspect.” 	(Meeks
Depo., p. 34, ll. 13-20).
A review of Officer Canada’s body camera reveals that Officer
Beale 	attempted 	to 	repeatedly 	force 	the 	door 	open 	but 	it 	would
close again. 	(Canada Video at 15:00:10). 	Officer Meeks then gets
behind 	Officer 	Beale 	to 	jointly 	push 	their 	way 	through 	the
apartment 	door. 	(Canada 	Video 	at 	15:00:17). 	Officer 	Beale
stated, 	“You 	done 	f***** 	up, 	man.” 	(Canada 	Video 	at 	15:00:21).
Officer Canada can then be seen placing her hand on Officer Meeks’
back 	to 	assist 	in 	pushing 	through 	the 	door. 	(Canada 	Video 	at
15:00:22). 	Officer 	Vogt 	cannot 	be 	seen 	pushing 	through 	the 	door
but 	Officer 	Meeks 	testified 	that 	he 	came 	behind 	Officer 	Canada.
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(Meeks 	Depo., 	p. 	33, 	ll. 	25, 	p. 	34, 	ll. 	1-2). 	The 	Officers 	then
gain access to the apartment by forcing their way through the door.
(Canada 	Video 	at 	15:00:25). 	Officer 	Beale 	and 	Officer 	Meeks
physically 	struggle 	with 	Peterson 	who 	resists 	their 	attempts 	to
restrain 	him. 	(Canada 	Video 	at 	15:00:28). 	Officer 	Canada 	then
deploys 	a 	taser 	on 	Peterson 	multiple 	times. 	(Canada 	Video 	at
15:00:31, 15:00:36). 	Officer Meeks begins yelling “Cuff him, cuff
him, 	cuff 	him”. 	(Canada 	Video 	at 	15:00:41). 	Officers 	Beale,
Meeks, and Vogt become visible on the video, struggling to restrain
Peterson 	while 	Officer 	Canada 	continues 	to 	deploy 	her 	taser.
(Canada 	Video 	at 	15:00:41). 	Officer 	Vogt 	attempts 	to 	place
handcuffs on Peterson while Officers Beale and Meeks continue their
physical 	struggle 	with 	Peterson. 	(Canada 	Video 	at 	15:00:48).
Officer 	Vogt’s 	efforts 	are 	unsuccessful. 	(Canada 	Video 	at
15:00:52). 	Officer 	Meeks 	begins 	screaming. 	(Canada 	Video 	at
15:00:57). 	Officer 	Beale 	disengages 	from 	his 	struggle 	with
Peterson 	and 	becomes 	“wrapped 	up” 	in 	the 	lead 	lines 	from 	Officer
Canada’s 	taser. 	(Canada 	Video 	at 	15:01:14). 	Officer 	Meeks
continued to struggle with Peterson in the corner of the apartment.
(Canada 	Video 	at 	15:01:17). 	Officer 	Meeks 	then 	begins 	screaming
“going 	for 	my 	gun.” 	(Canada 	Video 	at 	15:01:25). 	A 	taser
continues 	to 	be 	audibly 	deployed. 	(Canada 	Video 	at 	15:01:26).
Officer 	Canada 	then 	calls 	dispatch 	for 	“more 	units.” 	(Canada
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Video at 15:01:29). 	Officer Meeks again yells “going for my gun.”
(Canada Video at 15:01:33). 	Officer Beale can be seen pointing a
weapon 	in 	the 	direction 	of 	Officer 	Meeks 	and 	Peterson, 	yelling
“watch 	out, 	watch 	out.” 	(Canada 	Video 	at 	15:01:39). 	Officer
Meeks again yells “going for my gun.” 	(Canada Video at 15:01:43).
Gun 	shots 	are 	heard 	in 	the 	video 	from 	Officer 	Beale’s 	weapon.
(Canada 	Video 	at 	15:01:46). 	Officer 	Canada 	advises 	dispatch
“shots fired, shots fired.” 	(Canada Video at 15:01:47). 	Officer
Canada 	then 	tells 	dispatch 	“roll 	EMS.” 	(Canada 	Video 	at
15:01:52).
Officer 	Meeks 	testified 	that 	when 	he 	entered 	the 	apartment
behind 	Officer 	Beale, 	Peterson 	was 	“making 	contact” 	with 	Officer
Beale 	“in 	the 	face 	area” 	while 	Officer 	Beale 	was 	trying 	to 	grab
Peterson’s hands. 	(Meeks Depo., p. 42, ll. 10-22). 	Peterson and
Officer Beale then traded punches when they ended up on the couch
with Peterson on top of Officer Meeks and both of them continuing
to 	throw 	punches. 	(Meeks 	Depo., 	p. 	42, 	ll. 	24-25; 	p. 	43, 	ll. 	1-
3). 	He testified that Peterson then tried to grab Officer Beale’s
gun 	but 	it 	was 	not 	in 	the 	holster. 	(Meeks 	Depo., 	p. 	43, 	ll. 	5-
7). 	Officer 	Meeks 	also 	tried 	to 	grab 	Peterson’s 	arms 	and 	body.
(Meeks Depo., p. 43, ll. 24-25).
Officer Meeks also believed Officer Beale told Officer Canada
to tase Peterson, which she attempted with little effect. 	(Meeks
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Depo., 	p. 	45, 	ll. 	6-9). 	Officer 	Meeks 	stated 	when 	he 	tried 	to
handcuff Peterson but Peterson grabbed for his gun. 	(Meeks Depo.,
p. 45, ll. 9-13). 	Officer Meeks stated that he screamed in order
to 	direct 	Peterson’s 	attention 	so 	he 	turned 	toward 	the 	Officer.
(Meeks 	Depo., 	p. 	45, 	ll. 	24-25; 	p. 	46, 	l. 	1). 	Peterson 	got 	off
Officer Beale and continued struggling with Officer Meeks, trying
to 	strike 	Officer 	Meeks 	numerous 	times 	throughout 	the 	incident.
(Meeks Depo., p. 46, ll. 4-10). 	Officer Meeks did not see Peterson
try to strike either Officer Canada or Officer Vogt. 	(Meeks Depo.,
p. 46, ll. 11-15).
Officer 	Meeks 	could 	“feel 	[Peterson] 	trying 	to 	reach 	for 	my
gun.” 	(Meeks 	Depo. 	p. 	46, 	ll. 	23-24). 	He 	could 	feel 	Peterson’s
hand 	on 	his 	holster 	and 	the 	handle 	of 	the 	gun. 	(Meeks 	Depo., 	p.
47, 	ll. 	1-2). 	Officer 	Meeks 	stated 	Peterson 	“actually 	got 	ahold
of the handle and put his hands or fingers around the handle of my
– 	my 	gun 	that 	was 	still 	in 	my 	holster 	and 	was 	trying 	to 	lift 	up,
pull 	it 	out 	of 	the 	holster. 	And 	during 	those 	times 	I 	actually
said 	or 	screamed, 	he’s 	going 	for 	my 	gun, 	he’s 	trying 	to 	get 	my
gun.” 	(Meeks 	Depo., 	p. 	47, 	ll. 	18-24). 	Officer 	Vogt 	testified
that 	when 	Officer 	Meeks 	screamed, 	he 	looked 	over 	Peterson’s
shoulder 	and 	could 	“see 	that 	his 	left 	arm 	is 	on 	Officer 	Meeks’
firearm 	with 	the 	retention 	broken, 	and 	I 	see 	the 	firearm’s 	being
pulled 	out 	as 	Officer 	Meeks 	is 	using 	both 	of 	his 	arms 	to 	attempt
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to push it back into the holster.” 	(Vogt Depo., p. 36, ll. 3-9).
Officer 	Canada 	stated 	that 	she 	observed 	Peterson 	trying 	to
get Officer Meeks’ duty weapon out of his holster. 	(Canada Depo.
p. 53, ll. 23-24). 	She testified that she saw Peterson “grabbing
ahold 	of 	Officer 	Meeks’ 	pistol 	and 	trying 	to 	grab 	it 	out 	of 	the
holster” 	with 	his 	left 	hand. 	(Canada 	Depo. 	p. 	54, 	ll. 	4-7).
Officer 	Canada 	saw 	Officer 	Beale 	use 	his 	taser 	on 	Peterson.
(Canada Depo., p. 54, ll. 11-15). 	She looked down and saw one of
the 	Officer’s 	duty 	pistols 	on 	the 	ground. 	(Canada 	Depo., 	p. 	54,
ll. 19-20). 	Officer Beale asked Officer Canada for the duty pistol
on the floor. 	She handed him the weapon. 	Officer Beale then shot
Peterson 	three 	times 	while 	Peterson 	continued 	to 	grapple 	with
Officer Meeks. 	Peterson died from his wounds.
Plaintiff brought this action on September 21, 2020, alleging
(1) a violation by all Defendants of Peterson’s First, Fourth, and
Fourteenth Amendment constitutional rights as enforced through 42
U.S.C. § 1983 by “illegally seizing Plaintiff, illegally entering
Plaintiff’s 	home, 	using 	excessive 	force, 	failing 	to 	intervene 	to
prevent 	the 	deprivation 	of 	[Peterson’s] 	rights, 	retaliating
against 	[Peterson] 	for 	the 	exercise 	of 	his 	rights, 	and 	acting 	in
concert 	to 	commit 	these 	constitutional 	violations, 	Defendants
exhibited 	an 	unreasonable 	and 	deliberate 	indifference 	to
[Peterson’s] rights.”; (2) wrongful death against all Defendants;
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(3) 	intentional 	infliction 	of 	emotional 	distress 	against 	the
Defendant Officers; (4) negligent hiring, training, and retention
against 	Defendant 	City 	of 	Ada 	(“City”); 	(5) 	assault 	and 	battery
against 	all 	Defendants; 	and 	(6) 	an 	Open 	Records 	Act 	violation
against Defendant City.
General Law Governing Summary Judgment
Under 	Rule 	56(c) 	of 	the 	Federal 	Rules 	of 	Civil 	Procedure,
summary 	judgment 	is 	appropriate 	“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.” 	Universal 	Money 	Centers 	v. 	A.T. 	& 	T., 	22
F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct.
655, 	130 	L.Ed.2d 	558 	(1994). 	The 	moving 	party 	bears 	the 	initial
burden 	of 	showing 	that 	there 	is 	an 	absence 	of 	any 	issues 	of
material 	fact. 	Celotex 	Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	322, 	106
S.Ct. 	2548, 	2553-54, 	91 	L.Ed.2d 	265 	(1986). 	A 	genuine 	issue 	of
material 	fact 	exists 	when 	“there 	is 	sufficient 	evidence 	favoring
the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505,
2510-11, 91 L.Ed 2d 202 (1986). 	In determining whether a genuine
issue 	of 	a 	material 	fact 	exists, 	the 	evidence 	is 	to 	be 	taken 	in
the light most favorable to the nonmoving party. 	Adickes v. S.H.
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Kress 	& 	Co., 	398 	U.S. 	144, 	157, 	90 	S.Ct. 	1598, 	1608, 	26 	L.Ed.2d
142 (1970). 	Once the moving party has met its burden, the opposing
party 	must 	come 	forward 	with 	specific 	evidence, 	not 	mere
allegations 	or 	denials 	of 	the 	pleadings, 	which 	demonstrates 	that
there 	is 	a 	genuine 	issue 	for 	trial. 	Applied 	Genetics 	v. 	Fist
Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir. 1990); Posey
v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).
Summary Judgment Request of Officers Canada,
Meeks, and Vogt
Officers 	Canada, 	Meeks, 	and 	Vogt 	first 	assert 	they 	are
entitled 	to 	qualified 	immunity 	and, 	in 	doing 	so, 	first 	asserts
that 	no 	violation 	of 	the 	Fourth 	Amendment 	occurred. 	“Individual
defendants 	named 	in 	a 	§ 	1983 	action 	may 	raise 	a 	defense 	of
qualified immunity,” 	Cillo v. City of Greenwood Village, 739 F.3d
451, 	459 	(10th 	Cir. 	2013), 	which 	“shields 	public 	officials 	. 	. 	.
from damages actions unless their conduct was unreasonable in light
of 	clearly 	established 	law,” 	Gann 	v. 	Cline, 	519 	F.3d 	1090, 	1092
(10th 	Cir. 	2008)(quotations 	omitted). 	Generally, 	“when 	a
defendant 	asserts 	qualified 	immunity, 	the 	plaintiff 	carries 	a
two-part burden to show: (1) that the defendant’s actions violated
a federal constitutional or statutory right, and, if so, (2) that
the 	right 	was 	clearly 	established 	at 	the 	time 	of 	the 	defendant’s
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unlawful conduct.” 	Cillo, 739 F.3d at 460.
While Plaintiff identifies a litany of alleged constitutional
violations in the Complaint, she limits her discussion within the
response 	to 	the 	summary 	judgment 	motion 	to 	the 	warrantless 	entry
into 	Peterson’s 	apartment 	and 	excessive 	force. 	This 	Court 	will,
therefore, consider any other alleged violation as abandoned. 	The
remaining 	two 	bases 	for 	an 	alleged 	constitutional 	violation 	will
be addressed in turn.
The 	Fourth 	Amendment 	imposes 	strict 	limits 	on 	when 	law-
enforcement officers may enter a home without a warrant. See United
States 	v. 	McCullough, 	457 	F.3d 	1150, 	1163 	(10th 	Cir. 	2006) 	(“‘It
is 	a 	basic 	principle 	of 	Fourth 	Amendment 	law 	that 	searches 	and
seizures 	inside 	a 	home 	without 	a 	warrant 	are 	presumptively
unreasonable.’”) 	(quoting 	Payton 	v. 	New 	York, 	445 	U.S. 	573, 	586,
(1980)).
A warrantless entry into a home may be justified, however, in
certain exceptional circumstances. See Coolidge v. New Hampshire,
403 U.S. 443, 474–75 (1971) (“It is accepted, at least as a matter
of principle, that a search or seizure carried out on a suspect's
premises 	without 	a 	warrant 	is 	per 	se 	unreasonable, 	unless 	the
police 	can 	show 	that 	it 	falls 	within 	one 	of 	a 	carefully 	defined
set of exceptions based on the presence of ‘exigent circumstances.’
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”); see also Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“We
have 	held, 	for 	example, 	that 	law 	enforcement 	officers 	may 	make 	a
warrantless 	entry 	onto 	private 	property 	to 	fight 	a 	fire 	and
investigate 	its 	cause, 	to 	prevent 	the 	imminent 	destruction 	of
evidence, 	or 	to 	engage 	in 	‘hot 	pursuit’ 	of 	a 	fleeing 	suspect.”
(internal citations omitted)); Georgia v. Randolph, 547 U.S. 103,
116 n. 6 (2006) (listing “hot pursuit,” “protecting the safety of
... 	police 	officers,” 	“imminent 	destruction 	[of 	a] 	building,”
“likelihood that [a] suspect will imminently flee,” and “a fairly
perceived need to act on the spot to preserve evidence” as exigent
circumstances 	that 	might 	justify 	a 	warrantless 	search 	of 	a
residence).
In 	this 	case, 	Officers 	Canada, 	Meeks, 	and 	Vogt 	consistently
stated that they relied upon what they were told by Officer Beale
as 	to 	the 	justifying 	circumstances 	for 	a 	warrantless 	entry 	of
Peterson’s 	apartment. 	The 	bases 	provided 	by 	Officer 	Beale 	were
(1) 	he 	had 	been 	assaulted 	by 	Peterson; 	(2) 	Peterson 	threatened
further 	violence 	against 	Officer 	Beale 	by 	stating 	he 	would 	be
“treated like an intruder”; and (2) after assaulting Officer Beale,
Peterson fled into his apartment. 	Officer Beale’s representations
were 	all 	that 	Officers 	Canada, 	Meeks, 	and 	Vogt 	knew 	and 	relied
upon 	in 	their 	subsequent 	actions 	of 	following 	Officer 	Beale 	into
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Peterson’s apartment. 	The foundation for their continued actions
in 	this 	encounter 	would 	have 	represented 	exigent 	circumstances
justifying a warrantless entry into the apartment under the clearly
established 	law 	existing 	at 	the 	time, 	so 	long 	as 	(1) 	they 	were
entitled to rely upon Officer Beale’s representations; and (2) it
was objectively reasonable to do so.
This 	is 	not 	a 	novel 	concept 	in 	the 	Tenth 	Circuit 	case
authority. 	In Stearns v. Clarkson, the Tenth Circuit stated
When 	one 	officer 	requests 	that 	another
officer 	assist 	in 	executing 	an 	arrest, 	the
assisting 	officer 	is 	not 	required 	to 	second-
guess the requesting officer's probable cause
determination, 	nor 	is 	he 	required 	to
independently 	determine 	that 	probable 	cause
exists. 	See 	Baptiste 	v. 	J.C. 	Penney 	Co., 	147
F.3d 1252, 1260 (10th Cir. 1998) (“An officer
who is called to the scene to conduct a search
incident 	to 	arrest 	is 	not 	required 	to
reevaluate 	the 	arresting 	officer's 	probable
cause 	determination 	in 	order 	to 	protect
herself 	from 	personal 	liability.”). 	Rather,
“a police officer who acts in reliance on what
proves 	to 	be 	the 	flawed 	conclusions 	of 	a
fellow 	police 	officer 	may 	nonetheless 	be
entitled to qualified immunity as long as the
officer's 	reliance 	was 	objectively
reasonable.” Id. (quotations omitted).
Stearns, 615 F.3d 1278, 1286 (10th Cir. 2010).
Officers 	Canada, 	Meeks, 	and 	Vogt, 	faced 	with 	a 	emergent
situation, were reasonable in their reliance upon Officer Beale’s
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representations 	of 	the 	circumstances 	presented. 	Plaintiff 	is
critical of several of these Officers’ actions. 	She contends that
Officer 	Beale 	never 	relayed 	his 	assault 	over 	the 	radio 	or 	deemed
the situation an emergency. 	This does not diminish the increased
level 	of 	threat 	communicated 	by 	Officer 	Beale 	to 	the 	assisting
Officers when these Officers arrived and their reliance upon those
representations. 	Similarly, 	Officer 	Beale 	told 	the 	assisting
Officers 	that 	his 	arm 	was 	slammed 	in 	the 	door 	but 	Plaintiff
contends 	they 	did 	not 	observe 	any 	injury. 	The 	Officers 	were 	not
required 	to 	investigate 	the 	level 	of 	injury 	sustained 	by 	Officer
Beale 	before 	acting 	in 	concert 	with 	him 	to 	enter 	the 	apartment.
Plaintiff 	also 	states 	that 	Timmons 	does 	not 	support 	Officer
Beale’s version of the facts. 	This may have an effect upon Officer
Beale’s 	status 	in 	this 	action 	but 	it 	does 	not 	affect 	the
reasonableness of the reliance of Officers Canada, Meeks, and Vogt
upon Officer Beale’s representations.
Considering 	what 	these 	Officers 	knew 	and 	when 	they 	knew 	it
based 	entirely 	upon 	Officer 	Beale’s 	version 	of 	the 	facts, 	this
Court 	concludes 	that 	these 	Officers 	are 	entitled 	to 	qualified
immunity 	for 	their 	actions 	in 	entering 	Peterson’s 	apartment
without a warrant.
The 	Fourth 	Amendment 	to 	the 	Constitution 	also 	precludes 	an
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illegal “seizure” of a citizen through the use of excessive force.
U.S.C.A. 	Const. 	Amend. 	IV. 	The 	question 	to 	be 	answered 	in 	a
qualified 	immunity 	context 	on 	excessive 	force 	claims 	is 	“whether
the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation.” 	Graham v. Connor, 490 U.S. 386,
397 (1989). 	Under the totality of the circumstances approach, the
court 	is 	required 	to 	consider 	a 	balance 	of 	the 	factors 	of 	“the
severity 	of 	the 	crime 	at 	issue, 	whether 	the 	suspect 	poses 	an
immediate 	threat 	to 	the 	safety 	of 	the 	officers 	or 	others, 	and
whether 	he 	is 	actively 	resisting 	arrest 	or 	attempting 	to 	evade
arrest 	by 	flight.” 	Id. 	at 	396. 	If 	the 	force 	employed 	is 	deadly
force, 	the 	officer’s 	use 	of 	force 	is 	reasonable 	only 	“if 	a
reasonable officer in Defendants’ position would have had probable
cause to believe that there was a threat of serious physical harm
to 	themselves 	or 	to 	others.” 	Estate 	of 	Larsen 	ex 	re. 	Sturdivan
v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008); see also Tennessee
v. 	Garner, 	471 	U.S. 	1, 	11 	(1985). 	An 	important 	aspect 	of 	the
inquiry 	is 	“whether 	the 	officers 	were 	in 	danger 	at 	the 	precise
moment 	that 	they 	used 	force.” 	Phillips 	v. 	James, 	422 	F.3d 	1075,
1083 (10th Cir. 2005).
Considering 	only 	the 	actions 	of 	Officers 	Canada, 	Meeks, 	and
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Vogt, this Court cannot conclude that they exhibited an objectively
unreasonable 	level 	of 	force. 	After 	entry, 	Peterson 	immediately
physically 	confronted 	the 	Officers. 	All 	evidence 	indicates 	that
Peterson 	punched, 	grappled 	with, 	and 	attempted 	to 	disarm 	Officer
Meeks 	while 	Officer 	Canada 	deployed 	a 	taser 	in 	an 	effort 	to 	end
Peterson’s altercation with Officers Meeks and Beale.
The second prong of the qualified immunity test requires that
this 	Court 	determine 	that 	the 	law 	was 	clearly 	established 	at 	the
time of the incident. 	In evaluating whether the right was clearly
established, 	the 	court 	considers 	whether 	the 	right 	was
sufficiently 	clear 	that 	a 	reasonable 	government 	employee 	in 	the
defendant’s 	shoes 	would 	understand 	that 	what 	he 	or 	she 	violated
that 	right. 	Casey 	v. 	W. 	Las 	Vegas 	Indep. 	Sch. 	Dist., 	473 	F.3d
1323, 	1327 	(10th 	Cir. 	2007). 	“A 	clearly 	established 	right 	is
generally 	defined 	as 	a 	right 	so 	thoroughly 	developed 	and
consistently recognized under the law of the jurisdiction as to be
‘indisputable’ 	and 	‘unquestioned.’” 	Lobozzo 	v. 	Colo. 	Dept. 	of
Corr., 	429 	Fed.Appx. 	707, 	710 	(10th 	Cir. 	2011). 	“Ordinarily, 	in
order 	for 	the 	law 	to 	be 	clearly 	established, 	there 	must 	be 	a
Supreme 	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 maintains.” 	Currier v. Doran, 242
F.3d 905, 923 (10th Cir. 2001). see also Medina, 960 F.2d at 1498.
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On 	the 	other 	hand, 	the 	Supreme 	Court 	has 	observed 	that 	it 	is
generally 	not 	necessary 	to 	find 	a 	controlling 	decision 	declaring
the 	“very 	action 	in 	question 	. 	. 	. 	unlawful.” 	Anderson 	v.
Creighton, 483 U.S. 635, 640 (1987). 	“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 	contours 	of 	the 	right 	[were]
sufficiently 	clear 	that 	a 	reasonable 	official 	would 	understand
that 	what 	he 	is 	doing 	violates 	that 	right.’” 	Holland 	ex 	rel.
Overdorff 	v. 	Harrington, 	268 	F.3d 	1179, 	1186 	(10th 	Cir. 	2001). 	A
court should inquire “whether the law put officials on fair notice
that 	the 	described 	conduct 	was 	unconstitutional” 	rather 	than
engage 	in 	“a 	scavenger 	hunt 	for 	cases 	with 	precisely 	the 	same
facts.” 	Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).
To be clear, Officers Canada, Meeks, and Vogt did not employ
the deadly force which resulted in Peterson’s death. 	Only Officer
Beale 	discharged 	his 	weapon 	into 	Peterson. 1 	Plaintiff’s
1 	To 	the 	extent 	Plaintiff 	asserts 	a 	claim 	of 	failure 	to 	intervene 	against
Officers Canada, Meeks, and Vogt, such a claim would require a showing that (i)
the Officers were present at the scene; (ii) the Officers witnessed another
officer 	applying 	force; 	(iii) 	the 	application 	of 	force 	was 	such 	that 	any
reasonable officer would recognize that the force being used was excessive under
the 	circumstances; 	and 	(iv) 	the 	Officers 	had 	a 	reasonable 	opportunity 	to
intercede to prevent the further application of excessive force, but failed to
do so. 	Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996)). 	The record does
not indicate Officers Canada, Meeks, or Vogt had an opportunity to intervene
with Officer Beale’s application of deadly force or that the application of
deadly force was objectively unreasonable under the circumstances.
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protestations to the contrary, once Peterson was aware the entrants
to 	his 	apartment 	were 	police 	officers, 	he 	could 	have 	ended 	the
violent physical altercation and he certainly could have ended his
attempts 	to 	unholster 	Officer 	Meeks’ 	weapon. 	These 	actions 	went
beyond 	mere 	efforts 	to 	defend 	himself 	and 	established 	him 	as 	the
aggressor 	once 	the 	officers 	entered 	the 	apartment. 	This 	Court
cannot 	conclude 	that 	the 	level 	of 	force 	employed 	by 	Officers
Canada, 	Meeks, 	and 	Vogt 	violated 	clearly 	established 	law. 	These
Officers are entitled to qualified immunity on the excessive force
claim.
The 	remaining 	state 	law 	claims 	against 	Officers 	Canada,
Meeks, 	and 	Vogt 	of 	wrongful 	death, 	intentional 	infliction 	of
emotional 	distress, 	and 	assault 	and 	battery 	are 	based 	in 	the
Oklahoma 	Governmental 	Tort 	Claims 	Act 	(“OGTCA”). 	However, 	“[i]n
no 	instance 	in 	any 	such 	action 	shall 	an 	employee 	of 	the 	state 	or
of a political subdivision of the state acting within the scope of
employment 	be 	named 	as 	defendant; 	provided, 	however, 	such 	person
may be named as defendant under alternative allegations that such
person 	did 	not 	act 	within 	the 	scope 	of 	employment.” 	Okla. 	Stat.
Ann. 	tit. 	51, 	§ 	153. 	An 	employee 	is 	acting 	within 	the 	“scope 	of
employment” 	when 	the 	“performance 	by 	an 	employee 	acting 	in 	good
faith within the duties of the employee's office or employment or
of tasks lawfully assigned by a competent authority including the
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operation or use of an agency vehicle or equipment with actual or
implied 	consent 	of 	the 	supervisor 	of 	the 	employee, 	but 	shall 	not
include corruption or fraud.” 	Okla. Stat. Ann. tit. 51, § 152.
Nothing 	in 	the 	record 	indicates 	to 	this 	Court 	that 	Officers
Canada, 	Meeks, 	and 	Vogt 	were 	not 	acting 	in 	good 	faith 	or 	in 	the
scope of their employment as city police officers. 	Based upon the
information communicated to them by Officer Beale, they were acting
appropriately 	to 	apprehend 	a 	suspect 	who 	had 	assaulted 	a 	police
officer. 	As 	such 	is 	the 	case, 	the 	Officers 	are 	immune 	from
liability under the claims based in the OGTCA and those claims are
subject to dismissal.
Additional Facts Relevant to the Summary Judgment
Request of Officer Beale
Timmons 	stayed 	at 	Peterson’s 	apartment 	“maybe 	three 	nights
out 	of 	a 	week”. 	(Timmons 	Depo., 	p. 	27, 	ll. 	22-23). 	She 	did 	not
pay any of the bills but kept the apartment clean and put a couch
and some tablecloths in the apartment. 	(Timmons Depo., p. 27, ll.
12-18). 	Peterson 	and 	Timmons 	were 	friends 	but 	she 	would 	not 	let
him 	kiss 	her 	on 	the 	cheek 	or 	hold 	hands. 	(Timmons 	Depo., 	p. 	19,
ll. 	5-8). 	In 	a 	“short 	amount 	of 	months”, 	Timmons 	and 	Peterson
became 	close 	friends. 	She 	started 	staying 	in 	the 	apartment
because 	Peterson 	was 	arrested 	and 	the 	officers 	gave 	her 	his 	car
keys 	and 	house 	keys. 	(Timmons 	Depo., 	p. 	20, 	ll. 	19-25). 	When
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Peterson 	got 	out 	of 	jail, 	he 	told 	Timmons 	he 	was 	never 	at 	the
apartment because of work and she could stay. 	(Timmons Depo., p.
22, 	ll. 	7-9). 	Timmons 	found 	Peterson 	to 	be 	unhappy 	and 	“just
really aggressive”. 	(Timmons Depo., p. 29, ll. 6-9).
A few days before his death, Peterson forgot to give Timmons
a key to the apartment. 	To gain access, Timmons “drop-kicked the
door, and it busted a little bit out the bottom of the door on the
inside.” 	(Timmons Depo., p. 17, ll. 19-22). 	Timmons “pressed it
back 	on 	there” 	but 	it 	was 	“pretty 	wobbly” 	and 	someone 	would 	be
able to just push their way in. 	It still locked. 	(Timmons Depo.
P. 19, ll. 12-25).
The night before the incident, Timmons brought a homeless man
to 	the 	apartment 	from 	a 	Love’s 	convenience 	store. 	Peterson
objected 	but 	played 	video 	games 	with 	the 	homeless 	man 	all 	night.
(Timmons Depo., p. 30, ll. 2-17). 	Timmons woke up early the next
morning but she could not find any of her stuff in the apartment.
(Timmons Depo., p. 30, ll. 21-25). 	Peterson “was pissy” at Timmons
and walked her out of the apartment. 	She turned around to go back
in 	the 	apartment 	because 	she 	did 	not 	have 	her 	stuff 	and 	Peterson
shut 	the 	door. 	(Timmons 	Depo., 	p.31, 	ll. 	4-8). 	Peterson 	would
not let Timmons back in the apartment. 	He gave her $11.00 and her
phone, which he had altered. 	(Timmons Depo., p. 31, ll. 17-24).
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Timmons still had belongings bagged and boxed in Peterson’s laundry
room. 	(Timmons Depo., p. 33, ll. 5-10).
Timmons 	threatened 	to 	call 	the 	police 	if 	Peterson 	did 	not
return her belongings, stating, “I know you’re scared of them, so
you 	better 	not 	start 	with 	me. 	Give 	me 	back 	my 	stuff.” 	(Timmons
Depo., 	p. 	34, 	ll. 	18-20). 	Timmons 	called 	the 	police 	because 	she
knew 	Peterson 	was 	not 	going 	to 	give 	her 	stuff 	back 	to 	her.
(Timmons 	Depo., 	p. 	40, 	ll. 	9-10). 	She 	told 	the 	police 	what 	was
going 	on 	and 	they 	agreed 	to 	send 	someone 	to 	help 	Timmons 	get 	her
stuff. 	(Timmons Depo., p. 40, ll. 15-16).
Officer Beale responded to the call. 	His goal was to retrieve
Timmons 	belongings. 	(Beale 	Depo., 	p. 	50, 	ll. 	18-19). 	Timmons
knocked on the door to the apartment. 	The door wobbled and Officer
Beale 	told 	her 	it 	was 	open. 	Timmons 	opened 	the 	door. 	Officer
Beale 	saw 	that 	trim 	and 	nails 	were 	sticking 	out 	around 	the 	door
and he put his hand up to hold the trim so the nails would not hit
them. 	They 	then 	attempted 	to 	go 	into 	the 	apartment. 	Officer
Beale 	did 	not 	announce 	himself 	because 	he 	was 	with 	Timmons 	and
believed 	that 	she 	stayed 	in 	the 	apartment. 	(Beale 	Depo., 	p. 	51,
ll. 	13-23). 	Officer 	Beale 	began 	entering 	the 	apartment. 	He
testified 	that 	his 	forearm 	was 	holding 	the 	trim 	on 	the 	inside 	of
the 	door 	when 	he 	heard 	stomping 	and 	the 	door 	slammed 	on 	his 	left
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forearm. 	(Beale 	Depo., 	p. 	54, 	ll. 	2-7). 	Officer 	Beale 	put 	his
right 	shoulder 	into 	the 	door 	to 	prevent 	further 	pressure 	on 	his
forearm 	while 	trying 	to 	remove 	his 	arm 	from 	the 	doorway. 	(Beale
Depo., 	p. 	54, 	ll. 	10-12). 2 	Officer 	Beale 	then 	announced 	he 	was
with the police department. 	He shoved the door to get his forearm
loose. 	He announced that he was there trying to help Timmons get
her 	stuff 	so 	she 	could 	leave 	and 	they 	could 	be 	done 	with 	the
situation. 	(Beale 	Depo., 	p. 	55, 	ll. 	1-8). 	Officer 	Beale
testified 	that 	Peterson 	yelled 	and 	threatened 	through 	the 	door.
He 	asked 	Peterson 	to 	put 	Timmons’ 	stuff 	at 	the 	back 	door 	but
Peterson said he would not do it until Officer Beale left. 	Officer
Beale 	did 	not 	feel 	comfortable 	leaving 	Timmons 	at 	the 	apartment.
He called for back up. 	(Beale Depo., p. 56, ll. 21-25; p. 57, ll.
1-6). 	Officer 	Beale 	unholstered 	his 	weapon 	because 	Peterson 	was
threatening him, telling Officer Beale he would “shoot me like an
intruder.” 	(Beale Depo., p. 58, ll. 21-25).
Timmons 	testified 	that 	she 	grabbed 	Officer 	Beale’s 	arm 	and
tried 	to 	stop 	him 	from 	entering 	the 	apartment. 	She 	told 	him,
“This has gone too far, and I’m sorry. 	Like, I did not want this.
He’s not going to give me my stuff. 	It’s okay. 	I’m going to go.”
2 Officer Beale did not complain about his arm when he went to the doctor. 	He
did not suffer any bruising and any injury to his arm was not reported in the
medical records of his visit. 	(Beale Depo., p. 69, ll. 7-18; p. 72, ll. 14-
20).
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(Timmons Depo., p. 46, ll. 16-25). 	Timmons then ran to a tree.
Timmons provided a statement to the Oklahoma State Bureau of
Investigation 	after 	the 	incident. 	(Plaintiff’s 	Response 	to
Beale’s 	Motion 	for 	Summary 	Judgment, 	Exh. 	5). 	Timmons 	indicated
in 	that 	statement 	that 	she 	knocked 	on 	the 	door 	to 	Peterson’s
apartment, 	then 	Officer 	Beale 	knocked 	on 	the 	door. 	The 	door
wobbled and Officer Beale asked Timmons if the door was open. 	She
told 	him 	no, 	that 	it 	was 	just 	wobbly, 	and 	pushed 	in 	the 	door 	a
little bit to show Officer Beale. 	Peterson then slammed the door
shut. 	Timmons 	did 	not 	reference 	that 	Officer 	Beale’s 	arm 	was
caught 	in 	the 	door. 	Timmons 	also 	does 	not 	state 	that 	Beale 	was
holding the door frame up at the time the door was slammed. 	Id.
Timmons testified that when she attempted to go through the
door, Peterson hit the door, the door hit Timmons and Timmons hit
Officer 	Beale. 	Officer 	Beale 	was 	to 	the 	left 	of 	Timmons.
(Timmons 	Depo., 	p. 	48, 	ll. 	22-24). 	Timmons 	stated 	that 	Officer
Beale’s 	arm 	did 	not 	get 	caught 	in 	the 	door 	when 	Peterson 	slammed
it shut. 	(Timmons Depo., p. 49, ll. 5-9). 	She further testified
that Peterson did not let the door come open. 	(Timmons Depo., p.
49, ll. 19-25). 3
As 	previously 	stated, 	the 	primary 	bases 	for 	a 	warrantless
3 No body camera footage was offered into evidence from Officer Beale’s body
camera.
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entry 	into 	Peterson’s 	apartment 	was 	the 	alleged 	assault 	upon
Officer Beale by slamming his arm in the door and Peterson’s flee
into 	the 	apartment. 	A 	significant, 	material 	factual 	dispute
precludes summary judgment on this claim, including the defense of
qualified immunity.
Moreover, 	the 	facts 	are 	muddled 	and 	disputed 	as 	to 	whether
Timmons was a resident or guest in Peterson’s apartment such that
she could give Officer Beale consent to enter the apartment. 	This
Court recognizes the authority of Illinois v. Rodriguez, 497 U.S.
177 	(1990) 	which 	stands 	for 	the 	proposition 	that 	“[t]he
Constitution 	is 	no 	more 	violated 	when 	officers 	enter 	without 	a
warrant because they reasonably (though erroneously) believe that
the 	person 	who 	has 	consented 	to 	their 	entry 	is 	a 	resident 	of 	the
premises, 	than 	it 	is 	violated 	when 	they 	enter 	without 	a 	warrant
because 	they 	reasonably 	(though 	erroneously) 	believe 	they 	are 	in
pursuit 	of 	a 	violent 	felon 	who 	is 	about 	to 	escape.” 	Illinois 	v.
Rodriguez, 497 U.S. 177, 186 (1990). 	The problem in the facts in
this 	case 	lies 	in 	Timmons 	testimony 	that 	she 	attempted 	to 	pull
Officer Beale away from entering the home, indicating that she did
not consent to his entry into the apartment. 	Thus, even if it was
reasonable to believe Timmons (erroneously or correctly) was a co-
tenant with the capacity to give consent, the facts would lead to
the 	conclusion 	that 	she 	did 	not 	give 	her 	acquiescence 	to 	Officer
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Beale’s entry.
As 	for 	the 	Fourth 	Amendment 	excessive 	force 	claim, 	the 	law
was 	clearly 	established 	at 	the 	time 	of 	this 	incident 	that 	deadly
force was only justified when a suspect “poses a significant threat
of 	death 	or 	serious 	physical 	injury 	to 	the 	officer 	or 	others.”
Garner, 	471 	U.S. 	at 	3. 	Despite 	Plaintiff’s 	assertions 	that 	a
dispute exists in the facts as to whether Peterson was attempting
to unholster Officer Meeks’ weapon, this Court finds overwhelming
evidence 	that 	Peterson 	had 	his 	hand 	on 	the 	weapon 	at 	or 	near 	the
time of the use of deadly force. 	Even considering Officer Beale’s
testimony that he could not see Peterson’s hands when he fired but
could see his arms near Officer Meeks’ weapon and hearing Officer
Meeks 	yell 	that 	Peterson 	was 	attempting 	to 	unholster 	his 	weapon,
it was reasonable for Officer Beale to believe that Peterson posed
a significant threat to himself and the other Officers present in
the struggle.
The 	fact 	remains 	that 	the 	disputed 	claim 	that 	Officer 	Beale
violated 	Peterson’s 	constitutional 	right 	to 	be 	free 	of 	a
warrantless 	search 	could 	be 	found 	to 	have 	lead 	to 	the 	death 	of
Peterson 	and 	the 	resulting 	damages. 	Such 	disputes 	are 	in 	the
exclusive province of the jury as factfinder and not appropriately
resolved 	on 	summary 	judgment 	under 	the 	facts 	presented 	in 	this
case.
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As 	for 	the 	state 	law 	claims 	asserted 	against 	Officer 	Beale,
the question under the OGTCA turns on whether he was acting within
the 	scope 	of 	his 	employment 	at 	the 	time 	he 	entered 	Peterson’s
apartment. 	As 	noted, 	this 	entails 	a 	question 	of 	fact 	regarding
consent 	to 	enter 	and 	the 	warrantless 	entry. 	“Whether 	a 	police
officer's 	actions 	were 	taken 	within 	the 	scope 	of 	employment 	is 	a
jury 	question 	unless 	only 	one 	reasonable 	conclusion 	can 	be 	drawn
from the facts alleged.” 	Tuffy's, Inc. v. City of Oklahoma City,
212 P.3d 1158, 1167 (Okla. 2009). 	Here, more than one conclusion
can 	be 	drawn 	due 	to 	the 	dispute 	in 	the 	facts. 	As 	a 	result,
dismissal 	of 	the 	state 	law 	claims 	is 	inappropriate 	on 	summary
judgment. 4
Additional Facts Relevant to the Summary Judgment Request
of the City of Ada
The 	City 	hires 	officers 	through 	East 	Central 	University’s
Collegiate Officer Program (“COPS”). 	According to Carl Allen, the
current City of Ada Chief of Police and the deponent designated to
speak for the City on issues of training of its officers, the COPS
program takes students who have a concentration in criminal justice
or 	human 	resource 	to 	enter 	the 	program 	as 	“basically 	the
equivalency of an internship” with the same amount of hours as the
4 It should be noted that Officer Beale only sought summary judgment on the
state law claims based upon the immunity provided under the OGTCA. 	The merits
of the various state law claims were not directly addressed.
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Council of Law Enforcement Education and Training (“CLEET”) basic
course. 	(Allen 	Depo., 	p. 	18, 	ll. 	20-25; 	p. 	19, 	ll. 	1-6). 	CLEET
recognizes 	the 	COPS 	program 	as 	the 	equivalency 	of 	CLEET’s 	basic
academy. 	(Allen 	Depo., 	p. 	19, 	ll. 	10-12). 	The 	City 	relies 	upon
COPS 	being 	good 	training 	with 	that 	training 	recognized 	by 	CLEET.
(Allen 	Depo., 	p. 	20, 	ll. 	24-25; 	p. 	21, 	ll. 	1-2). 	Additionally,
the City depends upon CLEET certification training for situations
such as entering dwellings in the officer meeting certain criteria
to be employed as a law enforcement officer. 	(Allen Depo., p. 24,
ll. 	13-19). 	The 	City 	also 	provides 	field 	training 	with 	a 	Field
Training 	Officer 	to 	train 	newly 	hired 	officers 	in 	areas 	such 	as
mental 	health 	training 	and 	entering 	private 	residences. 	This
training is also included in the minimum annual mandated training
requirements 	for 	continuing 	education. 	(Allen 	Depo., 	p. 	32, 	ll.
6-32; 	p. 	33, 	ll. 	1-4). 	The 	required 	field 	training 	is 	also 	set
out 	in 	the 	City’s 	Field 	Training 	Policy 	Manual. 	This 	manual
includes 	benchmarks 	that 	have 	to 	be 	reached 	in 	order 	to 	pass
through 	the 	field 	training 	program. 	(Allen 	Depo., 	p. 	33, 	ll. 	5-
14). 	Officers 	with 	the 	City 	are 	required 	to 	do 	a 	minimum 	of 	24
hours 	of 	continuing 	education 	every 	year 	as 	well 	as 	a 	couple 	of
hours 	of 	mental 	health. 	This 	includes 	hands 	on 	training 	where
officers 	do 	defensive 	tactics 	and 	use 	of 	force 	training. 	If 	any
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issues arise, they are identified through field training. 	(Allen
Depo., p. 25, ll. 4-14).
Officer 	Beale 	had 	COP 	certification 	which 	is 	equivalent 	to
CLEET certification. 	(Allen Depo., p. 26, ll. 16-17). 	He is also
CLEET certified and has received at least the minimum 24 hours of
continuing 	training 	each 	year 	he 	was 	an 	active 	police 	officer.
(Motion 	for 	Summary 	Judgment 	by 	Defendant 	City 	of 	Ada, 	Exh. 	No.
12).
While 	going 	through 	field 	training, 	one 	field 	training
officer out of three in 2016 found Officer Beale was not ready to
be released from the field training officer because of his “least
acceptable 	performance 	in 	the 	area 	of 	problem 	solving/decision
making. 	(Plaintiff’s Response to City of Ada’s Motion for Summary
Judgment, Exh. No. 6). 	Officer Beale was passed through the field
training program despite this recommendation. 	Id.
Officer 	Beale 	received 	deadly 	force 	training 	while 	in 	the
COPS 	program, 	de-escalation 	training 	through 	CLEET, 	and 	dealing
with individuals experiencing emotional or mental health episodes
through the field training program and CLEET. 	(Beale Depo. P. 29,
l. 25; p. 30, ll. 1-25).
Chief Allen agreed that Officer Beale’s placing of his firearm
on 	the 	pillar 	outside 	of 	Peterson’s 	apartment 	was 	a 	violation 	of
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policy. 	(Allen 	Depo., 	p. 	49, 	l. 	25; 	p. 	50, 	ll. 	1-5). 	Officer
Beale received additional training on firearms handling as a result
of this violation. 	(Allen Depo., p. 80, ll. 10-23).
Plaintiff also points to an incident from August of 2016 where
Officer Beale fired ten shots at a vehicle as it was driving away.
The other officer at the scene, Carl Dewayne Campbell, stated that
Officer Beale’s discharge of his weapon was not necessary, in his
opinion. 	(Campbell 	Depo., 	p. 	13, 	ll. 	18-22). 	He 	attempted 	to
stop Officer Beale by yelling “whoa.” 	(Campbell Depo., p. 18, ll.
20-25, p. 19, ll. 1-5). 	To his knowledge, Officer Beale received
training 	in 	discharging 	a 	weapon 	through 	the 	COPS 	program.
(Campbell Depo., p. 19, ll. 20-25).
Municipal 	liability 	attaches 	under 	§ 	1983 	when 	a
constitutional 	violation 	results 	from 	a 	municipality's: 	(i)
official policy; (ii) custom or practice; or (iii) failure to train
employees. 	City 	of 	Canton 	v. 	Harris, 	489 	U.S. 	378, 	380, 	387,
(1989); 	Monell 	v. 	Department 	of 	Social 	Services 	of 	City 	of 	New
York, 	436 	U.S. 	658, 	690-91 	(1978). 	Plaintiff 	has 	not 	identified
a 	policy, 	custom, 	or 	practice 	which 	would 	be 	subject 	the 	City 	to
municipal 	liability. 	Instead, 	Plaintiff 	focuses 	almost
exclusively 	upon 	the 	City’s 	failure 	to 	train 	its 	officers 	in 	the
use of deadly force and properly entering a dwelling.
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To 	prevail 	on 	a 	claim 	that 	the 	City 	failed 	to 	train 	Officer
Beale 5 , 	a 	plaintiff 	must 	show 	that 	the 	municipality 	made 	a
“deliberate 	or 	conscious 	choice” 	to 	not 	train 	its 	employees, 	and
that 	the 	municipality 	was 	deliberately 	indifferent 	to 	its
inhabitants' constitutional rights. 	Manzanares v. Roosevelt Cnty.
Adult 	Det. 	Ctr., 	331 	F. 	Supp. 	3d 	1260, 	1300 	(D.N.M. 	2018) 	citing
City 	of 	Canton 	v. 	Harris, 	489 	U.S. 	at 	388-89. 	Plaintiff 	must
prove “the need for more or different training is so obvious, and
the 	inadequacy 	so 	likely 	to 	result 	in 	the 	violation 	of
constitutional 	rights, 	that 	the 	policymakers 	of 	the 	city 	can
reasonably 	be 	said 	to 	have 	been 	deliberately 	indifferent 	to 	the
need” 	for 	additional 	training. 	Ordinarily, 	“[p]roof 	of 	a 	single
incident of unconstitutional activity is not sufficient to impose
[municipal] 	liability.” 	In 	the 	case 	where 	a 	plaintiff 	seeks 	to
impose municipal liability on the basis of a single incident, the
plaintiff 	must 	show 	the 	particular 	illegal 	course 	of 	action 	was
taken 	pursuant 	to 	a 	decision 	made 	by 	a 	person 	with 	authority 	to
make policy decisions on behalf of the entity being sued. 	Jenkins
v. 	Wood, 	81 	F.3d 	988, 	994 	(10th 	Cir. 	1996); 	see 	also 	City 	of
Canton, Ohio v. Harris, 489 U.S. 378 (1989) (“Only where a failure
5 Since this Court has previously in this Opinion and Order found the Officer
Canada, Meeks, and Vogt did not violate Peterson’s constitutional rights and
were 	entitled 	to 	qualified 	immunity, 	the 	analysis 	on 	Plaintiff’s 	failure 	to
train claim will focus exclusively on Officer Beale.
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to 	train 	reflects 	a 	‘deliberate’ 	or 	‘conscious' 	choice 	by 	an
municipality—a 	‘policy’ 	as 	defined 	by 	our 	prior 	cases—can 	a 	city
be liable for such a failure under § 1983”).
Officer Beale received training through the COPS program and
through CLEET certification. 	These programs offer training in the
areas of use of force and entering a dwelling. 	Plaintiff appears
to be contending that after the incident of firing on the vehicle,
Officer Beale should have received additional training. Plaintiff
also contends obliquely that Officer Beale’s passing from the field
training 	program 	against 	the 	recommendation 	of 	one 	trainer
represented 	a 	training 	deficiency. 	These 	incidents 	occurred 	some
three years before the use of deadly force in this case. 	Officer
Beale 	indisputably 	continued 	to 	receive 	training 	through 	annual
CLEET 	requirements. 	Therefore, 	it 	would 	be 	impossible 	for 	this
Court 	to 	determine 	that 	the 	City 	made 	a 	deliberate 	choice 	to 	not
train its officers to the detriment of its citizens’ constitutional
rights. 	Indeed, 	CLEET 	certification 	itself 	has 	been 	determined
in 	this 	Court 	to 	support 	a 	finding 	of 	adequate 	training 	in 	this
District. 	Jones 	v. 	Hacker, 	2015 	WL 	1279363, 	at 	*8 	n.7 	(E.D.
Okla. 	Mar. 	20, 	2015)(“CLEET-certification 	supports 	summary
judgment 	with 	respect 	to 	any 	argument 	that 	the 	City 	had 	a 	policy
or 	custom 	of 	failing 	to 	train 	or 	supervise 	its 	officers.” 	citing
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Rollins 	v. 	Town 	of 	Haskell, 	Okla., 	2009 	WL 	3614784, 	at 	*10
(E.D.Okla. 	2009)). 	Plaintiff 	finds 	fault 	in 	Chief 	Allen’s
inability 	to 	specifically 	identify 	the 	curriculum 	of 	CLEET 	and
COPS 	training 	programs. 	Reliance 	upon 	these 	programs 	to 	provide
training 	to 	the 	officer 	does 	not 	represent 	an 	abandonment 	of 	the
City’s obligation to train – rather, it indicates an effort to use
these established training programs to meet its needs in insuring
uniform 	training 	for 	its 	officers. 	This 	Court 	finds 	no
constitutional deficiency in the City’s training of Officer Beale
such that municipal liability can be conferred.
Although 	Plaintiff 	also 	brings 	claims 	in 	the 	Complaint 	for
negligent 	hiring 	and 	retention 	against 	the 	City, 	Plaintiff 	has
offered 	no 	evidence 	to 	support 	these 	claims. 	Consequently, 	the
City is entitled to summary judgment on these claims.
Plaintiff asserts claims against the City based in state law
for 	wrongful 	death, 	assault 	and 	battery, 	and 	an 	Open 	Records 	Act
violation. 	The 	City 	relies 	upon 	the 	briefing 	done 	in 	connection
with 	the 	Officers’ 	summary 	judgment 	motions. 6 	In 	its 	summary
judgment 	motion, 	the 	City 	defends 	each 	of 	these 	claims 	by
essentially citing to the elements for each cause of action. 	Under
these 	claims, 	the 	City 	contends 	it 	cannot 	be 	held 	liable 	because
6 See, Defendant City of Ada’s Reply Brief, p. 18.
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“the 	actions 	of 	the 	Defendant 	Officers 	were 	not 	tortious” 	or 	the
City did not commit the acts necessary to prevail on these claims.
Because the state law claims asserted against Officer Beale survive
summary 	judgment 	due 	to 	a 	factual 	dispute 	on 	whether 	he 	acted
within the scope of his employment, whether Officer Beale’s actions
were 	tortious 	remains 	at 	issue. 	“[A] 	municipality 	is 	liable 	for
the tortious acts of police officers committed within the scope of
employment 	as 	defined 	by 	the 	GTCA.” 	Tuffy's, 	Inc. 	v. 	City 	of
Oklahoma 	City, 	212 	P.3d 	1158, 	1167 	(Okla. 	2009). 7 	For 	now, 	the
state 	law 	claims 	against 	the 	City 	will 	survive 	until 	the 	actions
of Officer Beale are definitively determined.
Curiously, 	this 	Court 	finds 	little 	in 	the 	briefing 	on 	the
alleged violation of Open Records Act or on the claim for negligent
hiring, training, and retention. 	Faced with an incomplete record
on these subjects, these claims will survive as well.
IT IS THEREFORE ORDERED that Motion for Summary Judgment filed
by 	Defendants 	Officer 	Jussely 	Canada, 	Officer 	Michael 	Meeks, 	and
Officer 	Phillip 	Vogt 	(Docket 	Entry 	#93) 	is 	hereby 	GRANTED 	on 	all
7 The 	different 	bases 	provided 	by 	the 	party 	Defendants 	on 	summary 	judgment
creates part of the conundrum for this Court. 	The individual officers moved
for summary judgment on the state law tort claims against them on the basis of
immunity which turns on the question of whether they acted in the scope of their
employment 	while 	the 	City 	addresses 	the 	merits 	of 	the 	claims 	against 	the
officers. 	If it is determined by a jury that Officer Beale acted within the
scope of his employment and that he improperly entered Peterson’s apartment,
some or all of the state law tort claims may be determined to have merit. 	At
this stage of the proceedings, summary judgment is inappropriate.
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claims. 	Officers 	Canada, 	Meeks, 	and 	Vogt 	are 	entitled 	to
qualified immunity on the § 1983 claims asserted against them.
IT 	IS 	FURTHER 	ORDERED 	that 	the 	Motion 	for 	Summary 	Judgment
filed by Defendant City of Ada (Docket Entry #94) is hereby GRANTED
in part, in that summary judgment is entered in favor of the City
on 	the 	§ 	1983 	claim 	for 	the 	failure 	to 	train. 	The 	remainder 	of
the Motion is hereby DENIED.
IT 	IS 	FURTHER 	ORDERED 	that 	the 	Motion 	for 	Summary 	Judgment
filed 	by 	Defendant 	Officer 	Marcus 	Beale 	(Docket 	Entry 	#95) 	is
hereby 	GRANTED, 	in 	part, 	on 	the 	§ 	1983 	claim 	for 	excessive 	force
but 	is 	DENIED 	as 	it 	pertains 	to 	the 	§ 	1983 	claim 	for 	warrantless
entry and the state law claims.
IT IS SO ORDERED this 13 th day of October, 2023.
______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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