Tahlequah officers seek high court's review of qualified immunity ruling
Jun. 8—Lawyers representing two Tahlequah police officers asked the U.S. Supreme Court to review a decision denying them qualified immunity to excessive force claims because they "recklessly created the situation that led to the fatal shooting."
A three-judge panel of the 10th Circuit Court of Appeals reversed the lower court's decision to dismiss civil rights claims filed against two Tahlequah police officers involved in the fatal shooting of Dominic Rollice. U.S. District Judge Ronald A. White granted summary judgment to Officers Brandon Vick and Josh Girdner based on the legal theory of qualified immunity.
Qualified immunity shields officials from civil liability when the conduct at issue violates no clearly established right. Lawyers representing Rollice's estate allege the officers' use of deadly force was excessive and unconstitutional.
Daniel Smolen said he believes it is "unlikely" the Supreme Court "accepts the writ" and reviews the 10th Circuit's decision. If for some reason that is not the case, Smolen said he and his team "feel confident we will prevail on the merits."
"The 10th Circuit opinion in the Rollice matter is consistent with long-established prohibitions on the unlawful use of force against individuals like Dominic," Smolen said. "What these officers did violated clearly established law — the video on that is clear."
Rollice's "movements were defensive" when officers opened fire, and he presented no threat when "Girdner fired the final shot," Smolen and his team argued in court documents. The officers "recklessly and deliberately created the circumstances" that necessitated "deadly force."
Lawyers representing the officers say Rollice "posed a serious threat to their safety" and that his aggressive conduct justified their use of deadly force. The officers also contend they were not responsible for Rollice making the decision to arm himself with a hammer.
White, chief judge for the U.S. District Court of Eastern Oklahoma, agreed with the officers. But the 10th Circuit judges said the district judge "did so based on findings from the video evidence that demonstrate a failure to view that evidence in the light most favorable to the estate."
The 10th Circuit determined "a reasonable officer" under these circumstances "and presumptively aware" of a 1997 decision involving Muskogee police "would have known that cornering Dominic in the garage might recklessly or deliberately escalate the situation." Under such circumstances, the court held "an officer's ultimate use of deadly force would be unconstitutional."
Lawyers with a Washington, D.C., firm who filed the petition on the officers' behalf allege the 10th Circuit's opinion was flawed for a couple reasons. They allege the decision misapplies the appropriate test and ignores the high court's rejection of the "so-called provocation rule" in an earlier case from the Ninth Circuit Court of Appeals.
"The Tenth Circuit's free-form inquiry into whether officers contributed to the danger, without regard to whether those prior actions were themselves unconstitutional, is even more problematic than the provocation rule this Court unanimously rejected in Mendez," lawyers for petitioners argue. "This case is an ideal vehicle to resolve the acknowledged circuit split over the question ... left open" by a decision in an earlier case.
