Terry et al v. City of Oklahoma City Oklahoma et al

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SINCERE TERRY et al., )
)
Plaintiffs, )
)
v. ) Case No. CIV-22-522-G
)
CITY OF OKLAHOMA CITY, )
OKLAHOMA, et al., )
)
Defendants.1 )
ORDER
Plaintiffs,2 who are individuals engaged in racial and social justice activism, allege
in this 42 U.S.C. § 1983 action a violation of their rights under the First, Fourth, and
Fourteenth Amendments to the United States Constitution. See Am. Compl. (Doc. No. 39).
Each of the defendants3 has filed a motion to dismiss (Doc. Nos. 40, 41, 42), and those
motions are now at issue.
In the instant lawsuit, Plaintiffs allege that in June 2020 they complained about
certain actions taken by an officer for the Oklahoma City Police Department (“OCPD”)
and were then arrested and informed that they would be charged with felony incitement to
1 Pursuant to Federal Rule of Civil Procedure 25(d), current Oklahoma County District
Attorney Vicki Behenna is hereby substituted as a defendant on the official-capacity claims
brought against former Oklahoma County District Attorney David Prater.
2 The plaintiffs are Sincere Terry, Mia Hogsett, Tyreke Baker, Preston Nabors, Trevour
Webb, and Austin Mack.
3 Defendants are: City of Oklahoma City, Oklahoma; Oklahoma City Police Department
officer Thomas VanNort, in his individual capacity; Oklahoma County District Attorney
Vicki Behenna, in her official capacity; and former Oklahoma County District Attorney
David Prater, in his individual capacity.
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riot under title 21, section 1320.2 of the Oklahoma Statutes. See Am. Compl. ¶¶ 3-5, 181.
Plaintiffs bring multiple constitutional claims, seeking damages, declaratory relief, and
injunctive relief: (1) Violation of the First Amendment (retaliatory arrest and prosecution
for protected speech); (2) Violation of the First Amendment (freedom to petition); (3)
Violation of the First Amendment (content and/or viewpoint discrimination); (4) Violation
of the Fourth Amendment (false arrest); (5) Violation of the Fourth Amendment (malicious
prosecution); (6) Conspiracy to Violate Civil Rights; and (7) Violation of the Fourteenth
Amendment (equal protection). See id. ¶¶ 388-451.
Plaintiffs herein are also the six named plaintiffs in a related lawsuit, “Terry I,”
which was filed concurrently in this Court and is also assigned to the undersigned. See
Terry v. Drummond, No. CIV-22-521-G (W.D. Okla.). In Terry I, the plaintiffs are
bringing a facial constitutional challenge to Oklahoma’s riot proscriptions, and specifically
title 21, section 1311 of the Oklahoma Statutes, under the First and Fourteenth
Amendments.4 The legal claims in Terry I concern the criminal charges brought against
the six plaintiffs as a result of the same June 2020 events, and encounters between those
individuals and law enforcement, as are challenged in this action. See Am. Compl. ¶¶ 3-5,
32-354; see also Terry v. Drummond, No. 24-6046, 2025 WL 707451, at *1 & n.3 (10th
Cir. Mar. 3, 2025).
4 Section 1311 prescribes: “Any use of force or violence, or any threat to use force or
violence if accompanied by immediate power of execution, by three or more persons acting
together and without authority of law, is riot.” Okla. Stat. tit. 21, § 1311. Section 1320.2
“incorporates the statutory definition of riot from § 1311.” Terry, 2025 WL 707451, at *1;
see Okla. Stat. tit. 21, § 1320.2.
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In Terry I, the Court denied Plaintiffs’ request to enjoin enforcement of section 1311
based upon the statute’s alleged overbreadth and vagueness. See Terry v. Drummond, 717
F. Supp. 3d 1106 (W.D. Okla. 2024). Plaintiffs then appealed that ruling to the Tenth
Circuit Court of Appeals, and this Court stayed proceedings in light of that appeal. On
March 3, 2025, the Tenth Circuit issued an order certifying to the Oklahoma Court of
Criminal Appeals (“OCCA”) a “novel and determinative question” of Oklahoma law
regarding the level of intent required for the State of Oklahoma to prove a prosecution
based upon threats constituting riot. Terry, 2025 WL 707451, at *1, *6-9.5 The appellate
court has abated the appeal and directed the parties to submit a joint report every 90 days
as to the status of the proceedings before the OCCA. See id.
Beyond the obvious shared factual background, there is substantial overlap and
intertwinement between the factual and legal issues being considered in Terry I and those
raised in this case. And, significantly, the Tenth Circuit’s and the OCCA’s answers to the
questions being asked in Terry I will necessarily inform the Court’s consideration of certain
of Plaintiffs’ claims here. For example, the certified question in Terry I regarding the
requirements for the State to prove a “threats prosecution” under the Oklahoma Statutes
may bear directly upon the merits of Plaintiffs’ claim that “[t]here was no probable cause
for Plaintiffs’ arrests and prosecution for incitement to riot.” Am. Compl. ¶ 435; see also
5 The precise question certified is as follows:
Does Okla. Stat. Ann. tit. 21, § 1311 require the State to prove the defendant
consciously disregarded a substantial risk that his communications would be viewed
as threatening violence toward another to convict for threats constituting riot?
Terry, 2025 WL 707451, at *9.
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id. ¶¶ 181, 183 & n.3 (identifying the elements allegedly required for law enforcement to
support such a charge under section 1320.2). It is also reasonable to conclude that a
determination as to the facial constitutionality of the Oklahoma riot statutes in Terry I could
materially affect the disposition of Plaintiffs’ as-applied challenge to those statutes brought
in this action. Cf. Fontenot v. Hunter, 378 F. Supp. 3d 1075, 1081 n.2 (W.D. Okla. 2019)
(“‘[The distinction between facial and as-applied challenges] goes to the breadth of the
remedy employed by the Court.’ The facial invalidation of a statute is a broader remedy
than an as-applied invalidation.” (quoting Citizens United v. FEC, 558 U.S. 310, 331
(2010))); Vill. of Schaumberg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980)
(“Given a case or controversy, a litigant whose own activities are unprotected may
nevertheless challenge a statute by showing that it substantially abridges the First
Amendment rights of other parties not before the court.”).
It follows that the arguments raised pursuant to the Motions to Dismiss, particularly
those addressing the charging of Plaintiffs under the relevant statutes and the existence of
probable cause, are also likely to be materially affected by the pending appeal. See Doc.
Nos. 40, 41, 42. Having considered the interests of the parties as reflected in the record,
as well as judicial efficiency, the Court shall exercise its “broad discretion” and “power to
control its own docket” and stay the Motions for a limited time to allow their disposition
to be informed, as relevant, by the OCCA’s answer to the certified question presented in
Terry I. Clinton v. Jones, 520 U.S. 681, 706 (1997); see, e.g., Apodaca v. Young Am. Ins.
Co., No. 18-cv-00399, 2019 WL 6134718, at *1, *3-4 (D.N.M. Nov. 19, 2019).
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CONCLUSION
IT IS THEREFORE ORDERED that the Motions to Dismiss (Doc. Nos. 40, 41, 42)
are STAYED and HELD IN ABEYANCE pending further order of the Court.
Plaintiffs shall notify the Court within seven (7) days of the Oklahoma Court of
Criminal Appeals’ issuance of any orders or opinion on the certified question in Terry I.
IT IS SO ORDERED this 27th day of March, 2025.
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