Wilkins v. City of Tulsa

• Decision Date: 03 May 2022
• Docket Number: 21-5052
• Citation: 33 F.4th 1265
• Parties: Ira Lee WILKINS, Plaintiff - Appellant, v. CITY OF TULSA, OKLAHOMA; Officer Will Mortenson; Officer Angela Emberton; Officer Edel Rangel, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

33 F.4th 1265

Ira Lee WILKINS, Plaintiff - Appellant,

v.CITY OF TULSA, OKLAHOMA; Officer Will Mortenson; Officer Angela Emberton; Officer Edel Rangel, Defendants - Appellees.

No. 21-5052

United States Court of Appeals, Tenth Circuit.

FILED May 3, 2022

Robert M. Blakemore (Daniel Smolen with him on the briefs) Smolen & Roytman, Tulsa, Oklahoma, for Plaintiff - Appellant.

T. Michelle McGrew (Kristina L. Gray with her on the brief) City of Tulsa, Tulsa, Oklahoma for Defendants - Appellees.

Before MATHESON, EBEL, and BACHARACH, Circuit Judges.

MATHESON, Circuit Judge.

Three Tulsa police officers, dispatched late at night to a parking lot, found Ira Lee Wilkins asleep in the driver's seat of a running vehicle. They smelled alcohol on his person, ordered him out of his car, and eventually forced him to the ground, where they pepper sprayed him.

Mr. Wilkins sued the officers under 42 U.S.C. § 1983, alleging they used excessive force in violation of the Fourth Amendment. He also named the City of Tulsa (the "City"). The district court granted summary judgment to the officers, concluding they were entitled to qualified immunity because they did not use excessive force. Having found no constitutional violation, the court granted summary judgment to the City. Mr. Wilkins now appeals.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. A reasonable jury could find that the officers’ use of pepper spray was excessive force. Under such a finding, the officers violated clearly established Fourth Amendment law. We remand for further proceedings, including consideration of the municipal liability claim against the City.

I. BACKGROUND

A. Factual History

We draw the following facts from the parties’ statements of undisputed facts, video evidence, the officers’ deposition testimony, and Mr. Wilkins's declaration.¹ On review of summary judgment, we view the facts in the light most favorable to the non-moving party, here Mr. Wilkins, and draw reasonable inferences in his favor. See Rowell v. Bd. of Cnty. Comm'rs of Muskogee Cnty., Okla. , 978 F.3d 1165, 1171 (10th Cir. 2020). But when a "videotape quite clearly contradicts the version of the story told by [the non-moving party]," we cannot "adopt that version of the facts." Scott v. Harris , 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; see also Emmett v. Armstrong , 973 F.3d 1127, 1131 (10th Cir. 2020) ("[W]e will accept the version of the facts portrayed in the video, but only to the extent that it ‘blatantly contradict[s]’ the plaintiff's version of events." (quoting Scott , 550 U.S. at 380, 127 S.Ct. 1769 )).

1. Initial Encounter with Mr. Wilkins

The Tulsa Police Department employed Will Mortensen,² Angela Emberton, and Edel Rangel as police officers. Mr. Mortensen was an Officer-in-Training assigned to Officer Rangel, his Field Training Officer. On February 5, 2017, at approximately 12:30 a.m., all three officers were dispatched to a Tulsa car dealership parking lot. After arriving, Officer Rangel activated his body camera. Mr. Wilkins was asleep in the driver's seat of his vehicle. The vehicle was running, and the radio was playing loudly. Rangel BodyCam Footage, pt. 1 at 0:53-1:14.

The officers testified that they smelled alcohol on Mr. Wilkins's person, Aplt. App., Vol. I at 130-32, 151, 159, 162, but Mr. Wilkins stated that he "had not consumed any alcohol," Aplt. App., Vol. II at 285 ¶ 2.³ Officer Mortensen believed Mr. Wilkins was committing the crime of actual physical control of a vehicle while intoxicated and ordered him to exit the vehicle. See Okla. Stat. tit. 47, § 11-902(A) ; Aplt. App., Vol. II at 314-15; Rangel BodyCam Footage, pt. 1 at 1:04-08. Mr. Wilkins complied, and Officer Mortensen handcuffed Mr. Wilkins's arms behind his back.

2. The Search and Takedown of Mr. Wilkins

Officer Mortensen began to search Mr. Wilkins. He and Officer Emberton stood on each side of Mr. Wilkins, with his back turned to them. Rangel BodyCam Footage, pt. 1 at 2:16-3:58. About one minute into the search, Officer Mortensen forced Mr. Wilkins against the vehicle. Id. at 3:30. Mr. Wilkins asked what he was doing, id. at 3:28-31, and asked why he was "bending [his] wrists," id. at 3:32-34. Officer Mortensen laughed and said, "I'm going to bend a lot more if you keep acting like that." Id. at 3:34-38. Officers Emberton and Mortensen contend that while he was standing and handcuffed, Mr. Wilkins "grabbed [Officer Mortensen's] hand." Aplt. App., Vol. I at 170; id. at 162. Mr. Wilkins disputes "forcefully grab[bing] any officer's hand during the incident." Aplt. App., Vol. II at 285 ¶ 6. We resolve this factual dispute in Mr. Wilkins's favor. See Est. of Taylor v. Salt Lake City , 16 F.4th 744, 756 (10th Cir. 2021) ("[A]ll disputed facts must be resolved in favor of the party resisting summary judgment." (quotations omitted)).

Mr. Wilkins then leaned against the car. Rangel BodyCam Footage, pt. 1 at 3:38. Officer Mortensen grabbed his upper body and said, "Quit flexing up on me." Id. at 3:48-55. At this point, Officer Mortensen and Officer Emberton held Mr. Wilkins's upper arms. Id. at 3:54-4:02. Officer Rangel testified that he "could see the two officers ... about to lose physical control of Ira Wilkins." Aplt. App., Vol. II at 299. All three officers forced Mr. Wilkins to the ground. Rangel BodyCam Footage, pt. 1 at 3:59-4:06.

3. On the Ground after the Takedown

Following the takedown, Mr. Wilkins was facedown on his stomach. Id. at 4:07. Officer Emberton testified that the officers were "on him" and that she held his legs. Aplt. App., Vol. II at 343, 338-40. Mr. Wilkins said, "Okay, man. [Inaudible.] I'm not doing nothing to you. Please, man." Rangel BodyCam Footage, pt. 1 at 4:13-17. Mr. Wilkins repeatedly said, "Please, man," and told the officers, "You're breaking my f---ing wrists." Id. at 4:17-32. The officers contend that Mr. Wilkins continued to resist, attempted to stand, and grabbed Officer Mortensen's hand. Aplt. App., Vol. I at 154, 167, 170. Mr. Wilkins denies resisting and grabbing Officer Mortensen's hand. Aplt. App., Vol. II at 285 ¶¶ 5, 6. Again, we resolve these factual disputes in Mr. Wilkins's favor.

Approximately 30 seconds after the officers forced Mr. Wilkins to the ground, Officer Rangel instructed Officer Mortensen to use pepper spray on Mr. Wilkins.⁴ Rangel BodyCam Footage, pt. 1 at 4:34-39. Without warning, Officer Mortensen sprayed pepper spray in Mr. Wilkins's face and stopped when Officer Rangel said, "That's enough." Id. at 4:43-45. Officer Mortensen then continued searching Mr. Wilkins. Id. at 5:18-44. Officer Rangel told Mr. Wilkins to "quit moving" and repeatedly asked, "You [want to] get some more spray?" Id. at 5:26-37. Officer Mortensen completed the search.

Mr. Wilkins was charged with assault and battery upon a police officer, actual physical control of a vehicle while intoxicated, and resisting arrest. All charges were later dismissed.

B. Procedural History

Mr. Wilkins filed his § 1983 complaint in the United States District Court for the Northern District of Oklahoma. He claimed the officers used excessive force in violation of the Fourth Amendment when they forced him to the ground, sat on top of him, and pepper sprayed him. Mr. Wilkins also sued the City, alleging an affirmative link between the deprivation of his constitutional rights and Tulsa Police Department policies, practices, and/or customs.

Defendants moved for summary judgment. The officers invoked qualified immunity, arguing they did not violate Mr. Wilkins's Fourth Amendment rights and that his rights were not clearly established. The City argued that without a constitutional violation, it could not be liable and that any alleged violation was not the result of a City policy or custom. In his opposition to summary judgment, Mr. Wilkins clarified his municipal liability claim, alleging that the City (1) failed to train its employees and (2) ratified the officers’ unconstitutional conduct. Aplt. App., Vol. II at 280.

The district court granted summary judgment for all Defendants. It held that the officers were entitled to qualified immunity because they did not use excessive force. The court determined the officers’ takedown of Mr. Wilkins was reasonable "in light of [his] failure to heed the officers’ commands that he stop flexing and moving around." Id. at 448. It further concluded that the use of pepper spray was reasonable due to Mr. Wilkins's "continued movement and resistance" on the ground. Id. at 448-49. The court did not address whether the law was clearly established. It granted summary judgment for the City on the municipal liability claim because there was no constitutional violation.

II. DISCUSSION

"We review a district court's grant of summary judgment de novo, applying the same legal standard as the district court." Rowell , 978 F.3d at 1170 (quotations omitted). "The 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). "When applying this standard, we review the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Brewer v. City of Albuquerque , 18 F.4th 1205, 1216 (10th Cir. 2021) (quotations omitted). We conduct our review "from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties." Savant Homes, Inc. v. Collins , 809 F.3d 1133, 1138 (10th Cir. 2016) (quotations omitted); see also Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998).

We address below whether the district court correctly granted qualified immunity to the officers and conclude it did not because (1) a reasonable jury could find they used excessive force on Mr. Wilkins and (2) they violated clearly established Fourth Amendment law. Because the officers...