Court Sees Video Through Different Eyes and Reverses Grant of Summary Judgement

Bond v. City of Tahlequah, 2020 WL 7038287 (10th Cir. 2020)

Note: The officers in this case were defended by one of the nation’s preeminent civil rights trial attorneys, Scott Wood. Mr. Wood graciously shared the full video recording of the incident with Xiphos readers.

Joy Rollice called police and reported her ex-husband, Dominic Rollice, was at her house in the garage and would not leave. She said he was drunk and that “it was going to get ugly real quick.” Joy confirmed Dominic did not live there and had not been staying there. Officers Girdner, Reed and Vick responded to the radio call.

Officers Girdner and Reed arrived at about the same time and spoke to Joy in the front yard. She showed the officers where the side entrance to the garage was located. They walked to the side door of the garage when Officer Vick arrived.

Officer Girdner began conversing with Dominic at the garage side door, noting Dominic was very “fidgety” in his stance and moving his arms. Officer Girdner asked Dominic if he could pat him down for weapons. Dominic responded by backing away, then turning and walking toward the back of the garage where all three officers followed. Officer Girdner ordered Dominic to stop, but he ignored the command.

Dominic walked to a work bench at the end of the garage and grabbed a claw hammer hanging on the wall over the work bench. As he reached for the hammer, Dominic said, “One of us is going to die tonight.” He then turned around and faced the officers. Dominic grasped the handle of the hammer like a baseball bat, pulling it up to shoulder level on his right side. Looking at the hammer, Dominic turned the claws toward the officers.

The officers commanded Dominic to “drop it,” but he did not comply. Dominic moved to his right until there was a clear path from where he was to where Officer Girdner stood 8 to 10 feet away. The officers continued to give Dominic orders to drop the hammer for the next 20 seconds. Officer Girdner told Dominic several times they just wanted to talk to him. Dominic stated, “I have done nothing wrong here, man. I’m in my house. I’m doing nothing wrong.” Officer Reed called out that he was going “to less lethal,” holstered his gun and drew a TASER® device.

Dominic cocked the hammer higher while holding it in his right hand and took a stance that looked like he was going to charge at the officers or throw the hammer at them. Officers Girdner and Vick then fired their guns at Dominic, who went down into a squatting position but still did not drop the hammer. Dominic yelled out, raising the hammer once more and Officer Girdner fired his gun again. Dominic dropped the hammer and fell backward onto the floor of the garage.

The administrator of Dominic’s estate sued, alleging the officers used excessive force against Dominic. The trial court granted summary judgment to the officers on the basis of qualified immunity. The estate appealed and the 10th Circuit Court of Appeals reversed the judgment and remanded the case back to the trial court.

Over the years, Xiphos has featured hundreds of cases where a qualified immunity decision has been challenged. And we’ve seen the law evolve with a few key Supreme Court decisions issued during this time. The underpinning principle of qualified immunity is to spare the expense and trauma of a trial when an officer either violates no law or makes a reasonable mistake (Saucier v. Katz, 533 U.S. 194 (2001)). The protection of qualified immunity applies regardless of whether an officer’s mistake is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact” (Groh v. Ramirez, 540 U.S. 551 (2004)). It is often noted the defense of qualified immunity aims to protect “all but the plainly incompetent or those who knowingly violate the law.”

To determine whether qualified immunity is appropriate, the court first considers whether the officer violated a constitutional right. If the answer is affirmative, the court must also decide whether the constitutional right was clearly established. If the right has been clearly established by prior decisions of the Supreme Court or the Court of Appeals with authority in the officer’s jurisdiction, then the officer is on notice of what the law allows and disallows. In the past few years, the Supreme Court has repeatedly warned lower courts to “not define clearly established law at a high level of generality” (City of Escondido v. Emmons, 139 S. Ct. 500 (2019)) (per curiam), particularly not in excessive force cases (Kisela v. Hughes, 138 S. Ct. 1148 (2018)) (per curiam).

As is often the case, the officers called to help Joy Rollice were faced with a situation that went downhill fast. What started as a trespass by an unruly, drunk ex-husband very quickly became a confrontation with a drunk man holding a steel claw hammer in a threatening fashion. Such is the nightly fare of patrol officers across the nation. Under the doctrine of qualified immunity, even if the clarity of hindsight suggests the officers’ perception of the need for force was mistaken, they are entitled to qualified immunity under the law.

The benchmark case for assessing the reasonableness of force is Graham v. Connor (490 U.S. 386 (1989)). In the Graham case, the Court instructed lower courts to always ask three questions to measure the constitutionality of a particular use of force. First, what was the severity of the crime the officer believed the suspect to have committed or to be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape? The Supreme Court also stated the use of force should be measured by what the officer knew at the scene, and not in the luxurious view of 20/20 hindsight.

The appellate court held the first and third Graham factors weighed against the officers. Assuming Dominic could have been arrested for trespass, “the severity of this nonviolent misdemeanor is low. When the severity of the crime is low, such as when the alleged crime was a misdemeanor or unaccompanied by violence, this factor weighs against an officer’s use of force … It is undisputed that the officers did not intend to arrest Dominic when they first encountered him in the garage doorway. If the officers had no intent to arrest Dominic, he could not have been actively resisting arrest or attempting to evade arrest by flight when he backed into the garage in response to Officer Girdner’s approach.”

Under the doctrine of qualified immunity, even if the clarity of hindsight suggests the officers’ perception of the need for force was mistaken, they are entitled to qualified immunity under the law.

The appellate court disagreed with the trial court on the second factor: The immediacy of the threat faced by the officers. The 10th Circuit had previously held the immediacy of the threat should be analyzed by examining factors that include, but are not limited to: 1) whether the officer ordered the suspect to drop his weapon and the suspect’s compliance with police commands, 2) whether any hostile motions were made with the weapon toward the officers, 3) the distance separating the officers and the suspect and 4) the manifest intentions of the suspect (Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009)).

As you view the video recording of the incident, ask yourself whether Dominic retreated into the garage on his own or whether Officer Girdner moved his leg first. The trial court ruled that Dominic precipitated the retreat into the garage and the officers followed. The appellate court viewed the same recording and held that a jury might decide Dominic retreated only after seeing Officer Girdner advance (if indeed that happened). The appellate court stated the trial court offered “one fair interpretation of the video” when ruling that Dominic raised the hammer higher as if to throw it or to prepare to charge the officers, but noted, “we are not convinced it is the only way it can be viewed.” The appellate court held that a jury could conceivably conclude Dominic raised the hammer in “a defensive, rather than an aggressive, stance” and “did not make any movements to put the officers in fear of serious physical harm.” (I’d venture to guess most officers would be in fear of serious physical harm when faced with a man holding a raised hammer with the claws forward just after saying, “One of us is going to die tonight.”)

All this aside, there is still the law of qualified immunity: The officers should only be denied qualified immunity if they unreasonably perceived Dominic’s actions as aggressive.

The court stated “a reasonable jury could find that the officers’ reckless conduct unreasonably created the situation that ended Dominic’s life.” The court viewed the video and reached the conclusion that the officers may have recklessly escalated the situation by “driving Dominic into the garage and cornering him with his tools in reach.” Having watched the video recording over and over, I don’t see it. But I do agree with the court that it is not completely impossible a jury could agree with such a view. But is that the law of qualified immunity as laid out by the Supreme Court? Mr. Wood told me this week the defendants are asking for en banc review of the decision, meaning the full panel of the court of appeals would reconsider the case. Failing that, perhaps this is the next case contesting qualified immunity that is headed to the United States Supreme Court.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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