Payne v. Myers

• Decision Date: 30 September 2015
• Docket Number: Case No. 14-CV-39-GKF-TLW
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: JERRY DEAN PAYNE, JR., Plaintiff, v. JEREMY MYERS, et al., Defendants.

JERRY DEAN PAYNE, JR., Plaintiff, v. JEREMY MYERS, et al., Defendants.

Case No. 14-CV-39-GKF-TLW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

September 30, 2015

OPINION AND ORDER

Before the court is the Motion for Summary Judgment of defendant City of Miami, Oklahoma ("City of Miami" or "the City") [Dkt. #121], the Motion for Summary Judgment of defendant Jeremy Myers [Dkt. #122], the Motion for Summary Judgment of defendant Teresa Lashmet [Dkt. #127], and the Motion for Summary Judgment of defendants Kenny McKee and the Department of Public Safety ("DPS") [Dkt. #128].

This case arises from traffic stop that took place in Miami, Oklahoma, on May 14, 2013, during which the plaintiff, Jerry Dean Payne Jr., was forcibly removed from his truck and arrested. In January 2014, Payne brought this action against the three arresting officers, defendants Myers, Lashmet, and McKee, as well as their employers, defendants DPS and the City of Miami, alleging various civil rights violations. The defendants now move for summary judgment on all twenty-eight (28) claims contained in the nine (9) causes of action contained in the Second Amended Complaint.

I. BACKGROUND

In the early morning hours of May 14, 2013, Oklahoma Highway Patrol Trooper Kenny McKee and Miami Police Officers Teresa Lashmet and Jeremy Myers were on-duty, standing outside a Love's convenience store on Steve Owens Boulevard in Miami, Oklahoma. At approximately 2:00 a.m., the officers observed a pickup truck driven by Payne traveling westbound on Steve Owens Boulevard. The three officers all visually estimated that Payne was traveling in excess of the posted speed limit of 35 miles per hour. [Dkt. #128-1, p. 2; Dkt. #122-4, p. 2; Dkt. #122-6, p. 4; Dkt. #122-7, p. 2]. According to Officer Myers and Trooper McKee, Payne appeared to be traveling approximately 45 to 50 miles per hour. [Dkt. #128-1, p. 2; Dkt. #122-4, p. 2; Dkt. #122-6]. All three officers also observed Payne drive onto the curb while making a left turn onto H Street. [Dkt. #128-1, p. 3; Dkt. #122-4, p. 2-3; Dkt. #122-6, p. 7; Dkt. #122-7, p. 2].

The three officers, each in separate patrol vehicles, immediately pursued Payne. Trooper McKee was in the lead, followed by Officer Lashmet and then Officer Myers. [Dkt. #127-3, p. 5]. The events which follow were recorded on a dash-mounted video camera in Trooper McKee's patrol vehicle. [See Dkt. #121-5]. After turning onto H Street, Trooper McKee activated his siren and emergency lights to initiate a stop. By that time, Payne was several hundred yards ahead of the officers and preparing to turn into The Stables Casino. Trooper McKee pulled up behind Payne just as he turned into the casino's parking lot. After momentarily stopping in the middle of the lot, Payne slowly pulled forward into a parking spot adjacent to H Street. As he did so, Trooper McKee shouted at Payne to stop. Payne immediately complied. After stopping his vehicle, Payne opened the driver-side door and, while remaining seated, held his hands in the air.

Officer Lashmet and Trooper McKee approached Payne with their guns drawn and held in a low-ready position. While approaching the vehicle, Trooper McKee told Payne to keep his hands where they could be seen but did not otherwise order Payne to exit his vehicle. Upon reaching the vehicle, Trooper McKee holstered his weapon, grabbed Payne by his left arm, and pulled him from the vehicle onto the ground. Trooper McKee guided Payne to the ground while holding him by his left arm and behind his neck. Payne initially went to his knees while holding himself up with his right arm. Trooper McKee then ordered Payne to get on the ground and pushed Payne's head downward from behind the neck. Payne complied with the order and went to the ground on his right side. At that point, Officer Lashmet and Trooper McKee began pushing Payne to roll onto his stomach, which he did after Trooper McKee ordered him to "roll over."

During this time, Officer Myers had arrived on the scene and parked his vehicle on the other side of Payne's truck, approximately 100 feet from the scene. He ran towards the scene just as Trooper McKee and Officer Lashmet were working to roll Payne forward onto his stomach. Just as Payne rolled over, Officer Myers ran around the back end of the truck. Payne was on his stomach, but his face was inclined slightly upward. Officer Myers's right leg struck Payne's face, causing Payne's head and neck to snap back. Officer Myers then fell onto Payne's back and assisted Trooper McKee in handcuffing Payne. Approximately thirty seconds elapsed from the time Trooper McKee extracted Payne from the vehicle until the time he was handcuffed. As a result of the arrest, Payne suffered bruising and lacerations to his face, bruised ribs, a chipped tooth, and a cracked bridge. [Dkt. #147-1 p. 7-8].

After he was handcuffed, Officer Lashmet learned that Payne had a suspended license and an outstanding arrest warrant. [Dkt. #127-5, p. 1]. Payne was booked at the Ottawa County Jail on charges of driving under the influence, obstructing an officer, driving on a suspended license, and failure to appear for a warrant. [Id. at 1-2]. Officer Lashmet later submitted a probable cause affidavit for Payne's arrest, which described the events of that night as follows:

On Tuesday, May 14, 2013 at approximately 0200 hours while on patrol I observed a vehicle traveling westbound on Steve Owens Blvd at a high rate of speed. The vehicle then attempted to turn south on "H" Street Southeast and left the roadway. The vehicle then swerved back onto the roadway and continued southbound on "H" Street Southeast. I then activated my emergency equipment and conducted a traffic stop on the said vehicle in the Stables parking lot. The said vehicle is described as a black in color 2004 Ford F150 pickup truck bearing Oklahoma License Plate 152HCK.

The driver immediately got out of his truck. After multiple orders for him to remain in his vehicle the driver, Jerry Dean Payne Jr sat back inside his truck while yelling, "what the fuck did I do". As I approached the vehicle I observed that Payne's hands were empty, I then ordered Payne to slowly get out of his truck. Payne remained seated telling me that I had just ordered him back in his truck. I again asked Payne to step out of the truck and he refused.

While talking with Payne I observed the following signs of intoxication, slurred speech, the odor usually associated with the smell of an alcoholic beverage coming from his breath, unsteady on his feet, and red bloodshot eyes.

Trooper Kenny McKee arrived on the scene. Due to Payne refusing to exit his truck, McKee then pulled Payne from the truck and we placed him on the ground using a straight arm bar technique. Mckee secured his left arm and I ordered Payne to roll to his stomach and give me his arm. Payne refused to roll onto his stomach and give me his right arm. I gave the command again to roll onto his stomach and give me his right arm. Payne again refused. I attempted to pull his right arm out from underneath him and turn him onto his stomach. Officer Myers then arrived on scene and assisted me in getting control of Payne. Officer Myers then secured Payne in handcuffs. I helped Payne into a sitting, kneeling, standing position and placed him in my patrol car.

[Id. at 1].

On May 17, 2013, Payne was charged in Ottawa County District Court with driving a motor vehicle under the influence of alcohol, obstructing an officer, and driving with a suspended licence. [Dkt. #127-9, p. 1]. In October 2013, the State moved to dismiss all charges against Payne without prejudice; the court granted the motion. Ottawa County Assistant District Attorney Jennifer Ellis ("ADA Ellis") later testified that she decided to dismiss the charges against Payne after reviewing the video of the stop. [Deposition of Jennifer Ellis-McAffrey, Dkt. #148-4, p. 7]. When asked what specifically about the video led her to do so, ADA Ellis stated,

When I reviewed the video, it was wholly and entirely different than any reports I had received about this arrest, about the allegations, about the conduct of Mr. Payne that led to his arrest. Not only was I surprised by the differences in the video versus the reports, but I couldn't articulate from reviewing the footage what crimes I would even choose to proceed against Mr. Payne on at that point. So I really felt like there was no proper basis to continue to prosecute Mr. Payne based on that video in conjunction with the affidavits.

[Id. at 7-8].

When asked to recall specific discrepancies between the video and Officer Lashent's affidavit, ADA Ellis pointed to Payne's conduct during his arrest:

So from the get go, I was concerned that my probable cause affidavit that I had relied on was not correct. And then as the video goes on and you see the conduct of Mr. Payne, from my interpretation of the video, he seemed cooperative, compliant. There was nothing about his conduct that made me instantly concerned that he was under the influence or that he was combative with officers and a reading of the PC affidavit was very, very different.

It articulates that he is essentially out of control and in that that—it gives—it gives one the impression that Teresa Lashmet had to call for backup because of this person being so combative and unruly, but I didn't see any of that in the video.

[Id. at 8-9].

After reviewing the video, ADA Ellis spoke with Officer Lashmet about the inaccuracies in her affidavit. During their conversation, Officer Lashmet stated that she "only wrote what her supervisor told her to write." [Id. at 12: 6-9]. She also told ADA Ellis that she had stopped working the night shift because she was "tired of all the violence that occurs on every traffic stop" and that she had once seen an officer "punch him [a suspect] to the point where he couldn't breathe." [Ellis Memorandum, Dkt. #148-10].¹

On October 17, 2013, Miami Police Detectives David Dean and Mark...