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Date: 09-29-2023

Case Style:

Lorenzo Clerkley, Jr. v. City of Oklahoma City, Oklahoma and Kyle Holcomb

Case Number: 20-cv-465

Judge: Stephen P. Friot

Court: United States District Court for the Western District of Oklahoma (Oklahoma County)

Plaintiff's Attorney:

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Defendant's Attorney: Mary K. Goff

Description: Oklahoma City, Oklahoma civil rights lawyers represented Plaintiff who sued the Defendants on civil rights violation theories under 42 U.S.C. 1983.

This case arises out of the non-fatal shooting of plaintiff Lorenzo Clerkley, Jr. (Clerkley) by defendant Kyle Holcomb (Holcomb), a sergeant with the Oklahoma City Police Department (OCPD). Clerkley has sued Holcomb under 42 U.S.C. § 1983, alleging that Holcomb subjected him to excessive use of force in violation of the Fourth and Fourteenth Amendments to the United States Constitution.[1]Clerkley also seeks to hold defendant City of Oklahoma City, Oklahoma (City) liable under § 1983 and under Oklahoma law for negligent use of excessive force.

* * *

On the evening of March 10, 2019, Holcomb was working an approved overtime shift as part of the OCPD's VIPER program, which provides extra patrols in areas with high rates of crime and violence.[5] At approximately 5:43 p.m., a woman called 911 to report that “a whole bunch of dudes just got out of a car with guns” at a vacant house across the street from her house, and they had gone into the house. Doc. no. 75-2. The caller's house and the vacant house were in a neighborhood recognized by the OCPD as an area with high crime and violence.

The woman advised 911 that she saw one subject with a gun, whom she described as a black male with dreads, wearing jeans and a gray hoodie. Her daughter saw at least two of the black males with guns. Although the woman told 911 that she was not sure if the guns were real or “play” guns, doc. no. 75-2, this information was not conveyed by dispatch.

Holcomb heard over the radio that a “burg two [was] in progress” and that “several black males” carrying guns went into the house across the street from the 911 caller's house. Doc. no. 75-1, ECF p. 11, l. 19; 1. 21. The call was classified as a priority one call (danger to life or property) for second-degree burglary. Holcomb did not know the ages of any of the individuals who went into the house. They were all minors.

Holcomb and another police officer, Carlon Tschetter (Tschetter), arrived at the scene at the same time. It was still daylight. They parked a distance away and approached on foot. Both officers were in uniform and wearing a body camera. Tschetter began walking toward a white car parked on the street, and Holcomb directed Tschetter to the “green house.” Doc. no. 75-5. Tschetter then radioed the tag of the parked white car. Holcomb radioed, “hey, they're back there.” Id. Hearing noises, Tschetter radioed “cap gun.” Id.; doc. no. 75-6. Holcomb replied, “Huh?” Id. Tschetter, with his gun drawn, approached the front of the house, shouting, “Hey! Police department! Come on out!” Id.

While Tschetter approached the front of the house, Holcomb went to the side of the house. He began walking along a wooden fence. From the sounds he was hearing, Holcomb radioed, “I think it's a cap gun, but they are shooting something off.” Doc. no. 75-5. Tschetter radioed that the noises “could be paint ball.” Doc. no. 75-6. Tschetter then shouted again, “Hey, this is the police department! Come out now!” Doc. no. 75-5; doc. no. 75-6.

Holcomb, with his gun drawn, stopped at a hole in the upper part of the wooden fence where he could see the back corner of the house and part of the backyard. The backyard contained overgrown dead foliage. Seconds later, Holcomb saw a black male in a gray hoodie near the corner of the house walking in his direction. Holcomb shouted, “Show me your hands! Drop it!” Doc. no. 75-5. He immediately fired four shots in quick succession at the black male. Holcomb then yelled, “Drop the gun!” Id. The black male disappeared from Holcomb's sight. Holcomb reported on his radio “Shots fired. Shots fired. Black male with a gray hoodie had the gun.” Id. Holcomb then continued to walk around the exterior of the fence, while another police officer took over Holcomb's position at the opening of the fence.

Holcomb had shot Clerkley in the right upper hip and left leg. Once he was shot, Clerkley fell backwards, and one of his friends helped him into the house through a broken window. Clerkley did not realize he had been shot until he was back in the house. He involuntarily urinated on himself. Hearing police officers shout for them to come out, Clerkley and his friend walked to the front of the house with two other friends. Clerkley's legs started to give out on him. He was the last one to leave the house and, as ordered by Tschetter, laid down on the side of the cement porch. Several times, Tschetter ordered Clerkley to crawl to him, but Clerkley couldn't. Tschetter dragged Clerkley by his hoodie off the porch and to the ground beside him. Clerkley had cut his hand on shattered glass that was on the porch. Clerkley was handcuffed by another officer and taken into custody.

Two other black males, who had been in the house with Clerkley and other friends, had gone out the back window into the backyard. Holcomb and the officer who took over Holcomb's position at the opening of the fence ordered the individuals to get on the ground and covered them with their guns until they were taken into custody by other officers.

Tschetter asked if someone was down in the backyard. Doc. no. 75-5; doc. no. 75-6. Holcomb asked the individuals in the backyard if one of them had been hit. One responded that his friend in the front had been hit. Clerkley, who overheard the questioning, advised that he had been shot. Holcomb told Tschetter, “That looks like the one I shot at. He was wearing a gray hoodie. He's the one that had a gun.” Doc. no. 75-5; doc. no. 75-6. Tschetter asked Clerkley if he had a gun. Clerkley responded that he didn't have the gun. Both Holcomb and Tschetter asked who had the gun. Clerkley replied that he did not know. While Tschetter was checking to see where Clerkley was shot, he asked Clerkley who had the gun and asked if it was him, and he replied, “no, sir.” Doc. no. 75-6.

The individual in the backyard covered by Holcomb had dreads and was wearing a gray hoodie and blue jeans. Holcomb advised another officer that the individual matched the description given by the 911 caller, and said, “so I don't know.” Doc. no. 75-5. One of the officers, who helped take custody of the individuals in the backyard, spotted a black gun on the ground in the backyard outside the window. It was located near where the two individuals had been lying in the backyard. The gun was later identified as a TDP 45 BB pistol.

While clearing the house for other individuals, officers observed three more guns inside. All four guns found at the house were BB guns. Two of the guns found inside the house were “Glock 19” BB pistols.

Holcomb radioed for medical assistance, and Clerkley was taken to the hospital for treatment of his gunshot wounds. After being discharged from the hospital later that night, Clerkley was interviewed by Oklahoma City police detectives. He advised that he and his friends went into the abandoned house because it was raining. The door to the house was open. While in the house, they shot off BB guns only discharging CO2. Clerkley described the gun he had shot as a “Glock.” Clerkley advised the police detectives that he held up his hands as ordered by Holcomb and that he did not have the gun when he was shot. When they asked what he was wearing, Clerkley advised that he was wearing blue jeans, two shorts-one blue-underneath the jeans, Tommy Hilfiger draws, a black Polo shirt, and a gray Polo jacket. According to Holcomb's body camera footage, the other pair of shorts Clerkley wore was black.

;Clerkley testified at his deposition that he shot a BB gun inside the house and set it down on the cabinet in the kitchen. He then walked around the house and went into a room at the back of the house. He wanted to see what was in the backyard and he went through a broken window with his right leg first and then his left leg. When his left leg came out of the window, he turned right. He went two or three steps, and heard, “Freeze, drop it, drop it,” and then gunshots. Doc. no. 83-1, ECF p. 15, ll. 11-12. In response to a question of whether he was “certain” he didn't have a gun when he went out the window, he testified, “Yes, ma'am.” Id., ECF p. 28, ll. 18-21.

At his deposition, Holcomb testified that Clerkley had a gun in his hand and when he told Clerkley to show him his hands and drop it, the gun was pointed at Holcomb, and he fired his gun at Clerkley. Holcomb testified the gun looked like his gun-a black handgun.

At his deposition, Holcomb answered, “No,” to the question, “You not once told another officer when they asked you what had happened that somebody had pointed a gun at you, did you?”

Outcome: 09/29/2023 97 Minute Entry for proceedings held before Judge Stephen P. Friot: Telephonic Conference held with counsel on 9/29/2023. All counsel advise the court that they are in agreement with administratively closing this case pending appeal. The court will enter an administrative closing order. (llg) (Main Document 97 replaced on 9/29/2023 to correct scrivener's error) (llg). (Entered: 09/29/2023)
09/29/2023 98 ADMINISTRATIVE CLOSING ORDER: This action is administratively closed pending final resolution of dft Kyle Holcomb's appeal to the Tenth Circuit. Within 10 days of the Tenth Circuit's issuance of mandate with respect to that appeal, plf shall file a written notice requesting this case be reopened for further proceedings. Signed by Judge Stephen P. Friot on 9/29/2023. (llg) (Entered: 09/29/2023)
09/29/2023 99 TRANSCRIPT LETTER advising no transcripts are necessary re 92 Notice of Appeal filed by Kyle Holcomb. The record is ready for appeal purposes. (ekw) (Entered: 09/29/2023)

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