Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 01-11-2023
Case Style:
Wayne Duke Kallaugh v. City of Oklahoma City, et al.
Case Number: 5:16-cv-01314
Judge: David L. Russell
Court: United States District Court for the Western District of Oklahoma (Oklahoma County)
Plaintiff's Attorney:
Defendant's Attorney: Ambre C. Gooch, Chris J. Collins, Stacey Haws Felkner, William R Moon , Jr
Description: Oklahoma City, Oklahoma civil rights lawyers represented Plaintiff who sued Defendants on prisoner civil rights violation theories.
It is uncontroverted that on November 25, 2014, an OCPD officer initiated a traffic stop of a red Toyota Corolla. The driver initially stopped but drove off as the officer approached the car. The driver then bailed out of the moving car and Plaintiff, who had been in the passenger seat, jumped into the driver's seat and drove on at a high rate of speed in heavy rush hour traffic. The officer followed the car for several miles before a police helicopter arrived at the scene and took over the pursuit for safety reasons. A local news station's helicopter also followed the car during the latter part of the pursuit. The news station's video of the pursuit, see Doc. 32 [Video], shows Plaintiff speeding, driving in the median, driving on the shoulder, and running red lights.10 See Video, at 0:09 to 3:26.11
There is also no dispute that Defendant Jones heard and followed the pursuit. He set up stop sticks to try to stop the car, but Plaintiff was able to evade the stop sticks by turning into a parking lot and cutting across the grass to a private road. See Video, at 3:26 to 3:46. Defendant Wright also heard the pursuit and followed Defendant Jones. The private road dead-ended, and it was blocked by a chain-link fence around a National Guard facility. See Video, at 3:46 to 4:04. Plaintiff then backed up the dead-end road and drove in reverse, but police cars approaching from behind him blocked his attempted exit. At that point, Plaintiff accelerated forward and tried—unsuccessfully—to crash through the chain-link fence. Because of the crash, Plaintiff's car became inoperable.12 See Video, at 4:05 to 4:22.
The parties also agree that when Plaintiff then stepped out of car, he had handguns within his reach—three guns according to Plaintiff, including one that fell from his lap—and he put his hands in the air.13 Defendant Jones
ordered him not to move and to keep his hands up.14 Instead, Plaintiff pulled two guns from his waistband,15 dropped them on the ground and, with his hands once again in the air, backed away from the officers just long enough to step over the downed fence.16 As soon as he was over the fence, he turned and ran to the National Guard facility's parking lot.17 Defendants pursued him on foot, and Defendant Wright continued to shout commands for him to stop.18 See Video, at 4:25 to 4:50.
Further, it is uncontested that Sergeant Kevin Deon, an Army reservist, was in the National Guard facility's parking lot when Plaintiff rammed the fence. He saw Plaintiff get out of the vehicle with a gun. He was concerned
there would be a shoot-out between Plaintiff and the police officers because he had seen Plaintiff with one gun and was concerned he might have another. He was also concerned that Plaintiff might enter the building with a weapon if he made it all the way across the parking lot.19
Defendant Wright fell during the foot pursuit,20 and Plaintiff encountered Sergeant Deon before Defendant Wright caught up.21 See Video, at 4:41 to 4:55. Sergeant Deon put Plaintiff on the ground then jumped on the back of his neck and slammed his face into the concrete with the full force of his body weight.22 See Video, at 4:55 to 4:56. He straddled Plaintiff until Defendants reached them23—Defendant Wright first and then Defendant Jones—within seconds of the takedown.24 See Video, at 4:58, 5:02.
At this point, the parties' versions of events diverge. They agree that Defendants struck Plaintiff before he was handcuffed25 but disagree on details, including the number of strikes.26 And in response to Defendants' description of the efforts required to subdue him and the perception that he was reaching for a knife in his back pocket,27 Plaintiff submits that the strikes were purely gratuitous: He denies that he reached for his knife28 or struggled with Defendants in resisting their efforts to take him into custody, and he depicts
himself as compliant, with his arms immobilized.29 This echoes his verified allegations in his amended complaint: "[a]t the time of this incedent [he had] surrendered" and had been "placed . . . on the ground on [his] stomic with [his] hands behind [his] back" by Sergeant Deon. Doc. 18, at 10.
Nonetheless, another of Plaintiff's verified statements plainly contradicts his assertion that he was lying motionless with his hands behind his back at the time of "this incedent." Id. In moving for summary judgment, Plaintiff averred that "once [Defendants Wright and Jones] arive [he] heard one say cuff up so [he] attempted to put his hands behind his back."30 So, in that version of events, Plaintiff's hands were not behind his back, and he was admittedly moving.
Finally, the Video also appears to show that Plaintiff was in motion with free use of his legs and not, as he contends, passive and compliant, and under the control of Defendants at the time of the incident. See id. at 4:58 to approximately 5:22.31 And where, as here, "opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007). Factually, Plaintiff was not subdued at the time Defendants used force.
The parties agree that Plaintiff received medical treatment for injuries at the scene; that an OCDP officer transported him to the hospital as required by OCPD policy; that he was cleared and released back into the custody of the OCPD; and, finally, that he acknowledged at his criminal trial that he did not know if any of his injuries were caused by Sergeant Deon instead of Defendants Jones and Wright because "[e]verything happened so fast."32...
Outcome: 01/03/2023 229 CIVIL JURY TRIAL DOCKET: Docket Call set for 2/7/2023 at 10:00 AM in Courtroom 302 before Judge David L. Russell. Jury Trial set for 2/14/2023 at 09:00 AM in Courtroom 302 before Judge David L. Russell. (km) (Entered: 01/03/2023)
01/11/2023 230 ENTER ORDER. The settlement conference was held on Tuesday, January 10, 2023, before Magistrate Judge Amanda Maxfield Green. The case did settle. Entered at the direction of Magistrate Judge Amanda Maxfield Green on 1/11/2023. (rb) (Entered: 01/11/2023)
01/11/2023 231 ADMINISTRATIVE CLOSING ORDER: This action is administratively terminated without prejudice to the rights of the parties to reopen for entry of any stipulation or order. If not reopened within 60 days to obtain final determination, action is deemed dismissed. Signed by Judge David L. Russell on 01/11/2023. (km) (Entered: 01/11/2023)
01/18/2023 232 ENTRY of Appearance by Sherri R Katz on behalf of City of Oklahoma City (Katz, Sherri) (Entered: 01/18/2023)
01/18/2023 233 MOTION to Substitute Party Defendant by City of Oklahoma City. (Katz, Sherri) (Entered: 01/18/2023)
01/18/2023 234 ORDER granting 233 Motion to Substitute Party Defendant. The City of Oklahoma City is hereby substituted as party Defendant in place of Jacob Jones and Bryan Wright, and the style of the case is updated to reflect this change. Signed by Judge David L. Russell on 01/18/2023. (km) (Entered: 01/18/2023)
02/06/2023 235 JUDGMENT: Pursuant to a compromise settlement of a disputed claim, and without any admission of liability, Plaintiff Wayne Duke Kalbaugh is granted judgment against Defendant City of Oklahoma City, in the sum of Ten Thousand and no/100 Dollars ($10,000.00). See Judgment for details. Signed by Judge David L. Russell on 02/06/2023. (Attachments: # 1 Exhibit 1 - Resolution)(km) (Entered: 02/06/2023)
02/10/2023 236 Receipt for Money Received from Wayne Duke Kalbaugh in the amount of $8.67, receipt number 500000852 regarding 1 Complaint. Balance: $35.93. Receipt mailed to: Wayne Duke Kalbaugh #450429 SAYRE-NFCC 1605 E Main Sayre, OK 73662 (km) (Entered: 02/10/2023)
Plaintiff's Experts:
Defendant's Experts:
Comments: