Reece v. United States of America
Filing
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ORDER granting 15 defendant's Motion for Summary Judgment (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 8/19/2015. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PHYLLIS REECE, on behalf of JOE
REECE,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
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Case No. CIV-14-734-M
ORDER
This case is scheduled for trial on the Court’s September 2015 trial docket.
Before the Court is defendant’s Motion for Summary Judgment, filed July 8, 2015. On July
29, 2015, plaintiff filed her response, and on August 5, 2015, defendant filed its reply. Based upon
the parties’ submissions, the Court makes its determination.
I.
Introduction1
On October 4, 2012, Joe Reece (“Mr. Reece”) was at the Veterans Affairs Medical Center
of Oklahoma City (“VAMC”) for a doctor’s appointment with Dr. Sopukro Tienabeso. Mr. Reece
was dissatisfied with his medical treatment at the VAMC and became upset during his doctor’s
appointment when he was expressing his dissatisfaction. Plaintiff Phyllis Reece (“Mrs. Reece”), Joe
Reece’s spouse, remained in Dr. Tienabeso’s office while Mr. Reece exited the office and walked
into the main area of C-Module, where Mr. Reece encountered a VAMC staff member, Bennett
Warman, LPN. Nurse Warman stepped toward Mr. Reece, attempting to calm him. Mr. Reece
yelled at Nurse Warman: “Don’t you touch me. I’ll break your arm off.” Declaration of Bennett
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In her response, plaintiff does not specifically dispute any of the facts set forth in this
introduction.
Warman of the Veteran Affairs Medical Center of Oklahoma City at ¶ 4, attached as Exhibit 5 to
defendant’s Motion for Summary Judgment. VAMC staff member, Darlene Ross, observed and
heard Mr. Reece’s response to Nurse Warman, felt that it was threatening and hostile, and activated
the VAMC panic alarm. Ms. Ross explained the incident to the VAMC police dispatch and
provided a physical description of Mr. Reece.
VAMC police officers Sergeant Robert Armstrong and Corporal Camron Hanks received
calls from the VAMC police dispatch center to respond to an individual being assaultive toward staff
in C-Module. Both officers have testified that at that time they believed that a possible violation of
state or federal law had occurred. Officers Hanks and Armstrong, dressed in their law enforcement
uniforms, proceeded to investigate and identified Mr. Reece as he approached the south information
desk on the first floor of the VAMC. Mr. Reece was using a walker. The officers identified
themselves as law enforcement, and Corporal Hanks asked Mr. Reece to return to C-Module to
discuss the incident and resolve it. Mr. Reece would not return to C-Module and became
increasingly agitated during his interaction with Corporal Hanks, pushing towards Corporal Hanks
and pointing his fingers at Corporal Hanks and at the floor.
Corporal Hanks touched Mr. Reece’s arm and explained that he would not permit Mr. Reece
to leave the premises until the incident in C-Module had been discussed. Mr. Reece began gesturing
emphatically and yelling when speaking to Corporal Hanks. Mr. Reece again informed Corporal
Hanks that he was leaving the premises and began to walk away from Corporal Hanks. Corporal
Hanks again informed Mr. Reece that he could not leave the premises, placing his hand on Mr.
Reece’s arm. Mr. Reece resisted Corporal Hanks’ verbal commands and requests and continued
walking toward the exit. Corporal Hanks attempted to stop Mr. Reece from leaving the VAMC by
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placing both hands on Mr. Reece’s left arm. Mr. Reece raised his right fist as if to punch Corporal
Hanks, causing Corporal Hanks to release Mr. Reece’s arm. Mr. Reece lunged toward Sergeant
Armstrong, attempting to push him, and then walked toward Corporal Hanks, attempting to hit
Corporal Hanks with his hands.
Mr. Reece leaned on a wall and continued pointing and yelling at Sergeant Armstrong while
Corporal Hanks attempted to subdue Mr. Reece, pinning his arms so he could not hit the officers.
Mr. Reece physically resisted. Mr. Reece was informed that he was under arrest, and Mr. Reece
again raised his fists. Lieutenant Kelly Bales then arrived at the scene to provide assistance, and Mr.
Reece began talking to him. Lieutenant Bales told Mr. Reece to comply with the officer’s
commands. While Mr. Reece interacted with Lieutenant Bales, Corporal Hanks and Sergeant
Armstrong switched places with Corporal Hanks stepping closer to Mr. Reece. Corporal Hanks
touched Mr. Reece’s left arm attempting again to arrest Mr. Reece by placing his hands behind his
back, and Mr. Reece again resisted arrest refusing to allow Corporal Hanks to place his hands behind
his back. Mr. Reece then stumbled towards Lieutenant Bales.
As Mr. Reece continued to resist the officers and disregard verbal commands, Sergeant
Armstrong delivered approximately a one second burst of pepper spray. Mr. Reece continued
walking forward and moving despite Lieutenant Bales and Corporal Hanks’ attempts to secure his
arms and complete the arrest. Mr. Reece was taken to the floor and finally subdued. Lieutenant
Bales and Corporal Hanks each secured Mr. Reece’s arms; Officer Steiner secured his feet, and
Officer Zumwalt secured his torso in order to prevent Mr. Reece’s additional resistance. Mr. Reece
finally stopped resisting the police officers and allowed them to place him under arrest.
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Mr. Reece was then lifted from the ground, placed in a wheelchair, and transported to the
VA Emergency Room. Mr. Reece was later transported to Oklahoma County Jail and was charged
with resisting an executive officer, obstruction of a public officer in the discharge of duties, and
assault upon a police officer. Mr. Reece pled nolo contendere to obstructing an officer in the
performance of his official duties.
Plaintiff has brought the instant action under the Federal Tort Claims Act (“FTCA”), alleging
a cause of action for assault and battery and a cause of action for negligent use of excessive force.
Defendant now moves for summary judgment as to both causes of action.
II.
Summary Judgment Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving
party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir.
1998) (internal citations and quotations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden
of doing more than simply showing there is some metaphysical doubt as to the material facts.
Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
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Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and
quotations omitted).
III.
Discussion
A.
Negligent use of excessive force
Defendant asserts that this Court lacks subject matter jurisdiction over plaintiff’s negligent
use of excessive force cause of action. Specifically, defendant asserts that this Court lacks
jurisdiction because plaintiff fails to state a claim which is cognizable under the FTCA. Defendant
contends that while the FTCA provides a remedy for common law torts committed by federal
employees acting within the scope of employment under 28 U.S.C. § 2679(b)(1), there has been no
waiver of the United States’ sovereign immunity for claims in violation of federal constitutional
laws and no cause of action has been created against the United States for negligent use of excessive
force. In her response, plaintiff does not address whether this Court has subject matter jurisdiction
over her negligent use of excessive force cause of action. Accordingly, the Court finds that plaintiff
has confessed this issue and that her negligent use of excessive force cause of action should be
dismissed for lack of subject matter jurisdiction.
B.
Assault and battery
Defendant asserts that it is entitled to summary judgment because the police officers’ actions
are protected by the law enforcement privilege.2
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Oklahoma law clearly recognizes a law
While the Tenth Circuit has not addressed the law enforcement privilege in the FTCA
context, the Fifth Circuit has held that federal law enforcement officers could assert a state law
enforcement privilege under the FTCA. See Villafranca v. United States, 587 F.3d 257 (5th Cir.
2009). In her response, plaintiff appears to concede that the federal officers can assert the Oklahoma
law enforcement privilege; plaintiff just disputes that the officers’ actions are protected by the law
enforcement privilege.
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enforcement privilege. See Morales v. City of Okla. City, 230 P.3d 869 (Okla. 2010).
[A] police officer has a special dispensation from the duty of ordinary
care not to endanger others. A police officer’s duty is very specific:
it is to use only such force in making an arrest as a reasonably
prudent police officer would use in light of the objective
circumstances confronting the officer at the time of the arrest. In
applying this standard, an officer’s subjective mistake of fact or law
is irrelevant, including whether he (she) is acting in good faith or bad.
The question is whether the objective facts support the degree of
force employed.
Among the factors that may be considered in evaluating the
objective reasonableness of an officer’s use of force in making an
arrest are: (1) the severity of the crime of which the arrestee is
suspected; (2) whether the suspect poses an immediate threat to the
safety of the officers or others, (3) whether the suspect is actively
resisting arrest or attempting to evade arrest; (4) the known character
of the arrestee; (5) the existence of alternative methods of
accomplishing the arrest; (6) the physical size, strength and weaponry
of the officers compared to those of the suspect; and (7) the exigency
of the moment.
Id. at 880.
In determining whether defendant is entitled to summary judgment as to plaintiff’s assault
and battery cause of action, the Court must first determine whether the officers’ initial detention of
Mr. Reece was legally permissible. The Supreme Court recognizes “three categories of policecitizen encounters: consensual encounters, investigative stops, and arrests.” Morris v. Noe, 672 F.3d
1185, 1191 (10th Cir. 2012) (internal citation omitted). “An investigative detention, also called a
Terry stop, is an encounter in which police may stop and briefly detain a person for investigative
purposes.” Id. (internal quotations and citation omitted). An investigative detention “is justified if
the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be
afoot,’ even if the officer lacks probable cause.” Id. at 1191-92 (internal quotations and citation
omitted).
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Having carefully reviewed the parties’ briefs and evidentiary submissions, and viewing the
evidence in the light most favorable to plaintiff and viewing all reasonable inferences in plaintiff’s
favor, the Court finds that the police officers had grounds to conduct an investigative stop and detain
Mr. Reece to determine whether a crime had been committed and, thus, the officers’ initial detention
of Mr. Reece was legally permissible. It is undisputed that Nurse Darlene Ross activated the panic
alarm and provided an explanation of what had occurred, along with a physical description of Mr.
Reece to dispatch.3 It is also undisputed that Corporal Hanks and Sergeant Armstrong were notified
by the VAMC dispatch that an individual in C-Module was being assaultive toward staff. Based
upon the above information, the Court finds that the officers reasonably believed a crime had
occurred in C-Module and lawfully detained Mr. Reece to investigate.
Having determined that the officers’ initial detention of Mr. Reece was legally permissible,
the Court must now determine whether the police officers’ use of force was objectively reasonable.
Because the basic facts surrounding the use of force themselves are not disputed, and because the
video clearly depicts, and reasonable minds cannot differ as to, what occurred, the Court finds that
whether the police officers’ use of force was objectively reasonable may be determined as a matter
of law. Having carefully reviewed the video, the Court finds that the officers’ use of force was
clearly objectively reasonable and, thus, the officers’ actions are protected by Oklahoma’s law
enforcement privilege. Specifically, the Court finds that the factors set forth in Morales weigh in
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Plaintiff asserts there was no basis for the panic alarm to have been activated. However,
whether the panic alarm should have been activated is irrelevant to the Court’s analysis of whether
the officers’ use of force was objectively reasonable. In making the objectively reasonable force
determination, the Court must look at what the police officers knew at the time. See Graham v.
Connor, 490 U.S. 386, 396 (1989) (“The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.”).
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favor of the police officers. First, the police officers received a notification from dispatch that Mr.
Reece was being assaultive toward staff in C-Module; thus, at that point, the officers believed a
possible felony offense had occurred. Second, when Mr. Reece was detained and told he could not
leave, Mr. Reece became hostile, pushed the officers, and attempted numerous times to hit the
officers. The Court finds Mr. Reece’s behavior and actions clearly posed a threat to the safety of
the officers and to the public, and this factor weighs heavily in favor of the officers.
Third, once informed that he was under arrest, Mr. Reece actively resisted arrest.4
Accordingly, the Court finds this factor weighs heavily in favor of the officers. Fourth, the Court
finds that at the time of the incident, the police officers had no knowledge of Mr. Reece’s mental
health issues and plaintiff has submitted no evidence of any factors readily apparent at the time of
the incident that would have alerted the officers to such concerns. Fifth, the Court finds that the
officers employed many alternative methods to accomplish the detention and arrest of Mr. Reece
prior to using the pepper spray and physically taking Mr. Reece down to the ground. The officers
verbally informed Mr. Reece multiple times that he could not leave the premises and that he was
under arrest and applied only some force by touching Mr. Reece’s arm or his hands to effectuate the
arrest. Further, the Court finds that the officers’ actions complied with the VAMC’s use of force
policy. Sixth, while Mr. Reece had a walker during most of the incident, a review of the video
clearly shows that Mr. Reece often used the walker to forcefully push the officers away.
Additionally, Mr. Reece, at a height of 6’2” and weighing at least 210 pounds, was much larger than
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In her response, plaintiff asserts that Mr. Reece had the right to physically resist an illegal
arrest. However, the Court finds that the officers’ arrest of Mr. Reece was lawful. The officers
clearly had probable cause to arrest Mr. Reece for obstruction of an officer and assault upon a police
officer.
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the officers. Finally, the Court finds that the incident was rapidly evolving requiring quick decisions
from the officers involved.
Finally, the Court finds that under the totality of the circumstances, the officers’ use of force
was objectively reasonable. The officers initially attempted to talk to Mr. Reece and to get him to
accompany them back to C-Module. Mr. Reece, however, became more and more hostile, and
ultimately physically resisted, including throwing punches at the officers, any attempt to detain him
at the facility. Mr. Reece’s conduct left the officers with no other option but to subdue and restrain
Mr. Reece in order to effectuate the arrest. The Court finds the force the officers ultimately used
was clearly reasonable under these circumstances.
The Court, thus, finds that the officers’ actions are protected by Oklahoma’s law enforcement
privilege and defendant, therefore, is entitled to summary judgment as to plaintiff’s assault and
battery cause of action.
IV.
Conclusion
Accordingly, for the reasons set forth above, the Court GRANTS defendant’s Motion for
Summary Judgment [docket no. 15].
IT IS SO ORDERED this 19th day of August, 2015.
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