F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 17 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GARY GOUSKOS,
Plaintiff-Appellant,
v. No. 03-5133
(D.C. No. 01-CV-967-H)
JOSEPH D. GRIFFITH, (N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON and BALDOCK , Circuit Judges, and MARTEN , ** District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
Gary Gouskos appeals from summary judgment granted in favor of
defendant Joseph Griffith on his claims for false arrest and excessive force
brought under 42 U.S.C. § 1983 and under the Oklahoma Constitution and state
law. Our jurisdiction arises under 28 U.S.C. § 1291. Because we conclude that
there are genuine issues of material fact precluding summary judgment on both
claims and that the district court erred in applying issue preclusion to bar the
false-arrest claim, we reverse and remand.
I. Standard of review
Our standard of review in cases in which summary judgment has been
granted on the basis of issue preclusion is well settled.
We review the grant of summary judgment de novo, applying the
same standards as did the district court under Fed. R. Civ. P. 56(c).
The movant has the burden of establishing that it is entitled to
summary judgment, and we examine the record in the light most
favorable to the nonmoving party. Additionally, the legal question of
whether issue preclusion bars the relitigation of the issue of probable
cause in a subsequent action is reviewed de novo.
Bell v. Dillard Dep’t Stores, Inc., 85 F.3d 1451, 1453-54 (10th Cir. 1996)
(quotations and citations omitted).
Similarly,
[w]e review a grant of summary judgment on the basis of qualified
immunity de novo. Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue of material fact and one party is entitled to judgment as a
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matter of law. Fed.R.Civ.P. 56(c). We construe the record in the
light most favorable to the non-moving party.
Jiron v. City of Lakewood , 392 F.3d 410, 414 (10th Cir. 2004).
II. Relevant facts and proceedings below
The following facts are contained in the summary judgment record.
A. The altercation and preceding events. On January 1, 2000, Gouskos
received a call from his eighteen-year-old daughter just after midnight, asking
him to pick her up from a New Year’s Eve party that had gotten out of hand. Don
Bahnmaier, a city council member, lived next door to the house where the party
was being held, and had called the Glenpool city police. Bahnmaier stood outside
and watched as the police handled the situation. City police, including Officer
Robert McAtee, were already at the house by the time defendant State Trooper
Joseph Griffith–who is now the only defendant left in the litigation–arrived at the
scene.
The police decided to break up the party and to require the party-goers,
some of whom were already eighteen or older, to have their parents pick them up.
It was undisputed that the officers’ intent was “to get the kids out of there and
preferably to their parents.” Aplt. App., Vol. II at 482 (Officer McAtee’s
deposition testimony). Accordingly, even though the party-goers refused to let
the police into the house, no arrests were made that evening, other than of
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Gouskos. Gouskos retrieved his daughter from the house without incident, with
McAtee and Griffith both knowing why he was there. Id. Vol. I at 345.
When another parent asked for Gouskos’s help in getting her daughter,
Gouskos returned to the house. As Gouskos walked from the back to the front
yard of the house with the other parent and her daughter and another girl, and a
couple of young men and a young woman who had asked Gouskos for a ride
home, McAtee approached Gouskos. McAtee was standing between Gouskos and
the street, where Gouskos’s wife was waiting in their car.
It is at this point that Gouskos’s and the other eyewitness testimony differs
markedly from McAtee’s and Griffith’s testimony, and the material facts are hotly
disputed. Accepting Gouskos’s version of the events for summary judgment
purposes, McAtee told Gouskos that he could not take the young adults home, so
Gouskos turned to tell them they could not go with him. McAtee then stepped
closer and told Gouskos he was “interfering with an arrest and [had] no right to
be here.” Id. Vol. II at 454. Gouskos replied, “I have as much right to be here as
you do.” Id. Gouskos testified that, at that point, someone “attacked [him] from
behind,” and that as he lost his balance and fell to the ground, he grabbed at
whoever attacked him. Id. at 454-55. It is undisputed that Griffith was the
attacker.
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Gouskos admitted that he struggled after that point, but only “to try to keep
from being slammed on my face.” Id. , Vol. I at 180. When asked whether he
tried to prevent his hands from being cuffed, he responded, “I was face down on
the ground just struggling, I would say yes.” Id. When asked whether he tried
“to bring [his] hands between [his] body and the ground?,” he stated, “I don’t
think so, no.” Id. at 180-81.
At the preliminary hearing in 2000, Rocky Cargola, one of the
eighteen-year-olds who asked Gouskos for a ride home, and who was with him
during the altercation and “saw everything clearly,” testified that McAtee
approached Gouskos and told him that he could not take Cargola home. Id. at
557, 554. Cargola testified that no one warned Gouskos that he was going to be
arrested or that he was interfering, and that Gouskos did not strike McAtee. Id. at
554. He testified that Gouskos was just “[t]ackled from the back” by Griffith. Id.
at 555.
At her deposition taken in January 2003, Chandler Ishmael, the young
woman who had asked Gouskos for a ride home, testified that two officers
approached Gouskos and asked him what he was doing. When Gouskos replied
that he was taking the young adults home, an officer replied, “No you’re not,” and
Gouskos said, “Yes, I am” and “took a step forward to get around them, and then
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the officers grabbed him and threw him to the ground on his face and put his
hands behind his back.” Id. , Vol. I at 210-11.
Bahnmaier testified in his July 2000 sworn statement that he saw Gouskos
come around the house with some boys and saw Glenpool officers go up to talk
with him, but that he did not notice anything “out of the ordinary” happen during
that discussion. Id. , Vol. II at 566. He testified that he turned away for a moment
but turned back around when he heard a scuffle, just in time to see the Glenpool
officers and Griffith throw Gouskos to the ground:
[T]he whole time they were throwing Mr. Gouskos down to the
ground, he was saying, “Why are you doing this? I’m not fighting
you. I’m not fighting you.” . . . They threw him down, the two
Glenpool police officers handcuffed him. And the highway
patrolman had him around his neck and was choking him so hard his
face had lost all color, and he was obviously under–in duress,
begging for this highway patrolman that he’s not–“I’m not fighting
you. Please, you’re choking me.” And my wife hit me and said,
“They’re going to kill him.” Because at that time, I thought they
were.
....
[T]he highway patrolman rolled [Gouskos] over on his stomach
and took his foot and put it right in the middle of his back and started
pushing down on his back. Mr. Gouskos says, “Officer, please get
your foot out of my back. I can’t breathe.” And the highway
patrolman said, “Too bad,” and pushed even harder.
Now, I’m on the city council, and I’m sitting here watching
this. In fact, that’s when I said, “This is enough,” and I called out to
. . . McAtee . . . [a]nd I said, “This is B-S. This guy is not resisting
you. Why are you doing this to him?” And Robert McAtee said–told
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me to shut up and said, “Do you know the law?” And I said, “no.”
And then, he said, “Then I would advise you to shut up.”
Aplt. App., Vol. II at 568-69.
Bahnmaier testified that he then went to another Glenpool policeman and
asked him why they were treating Gouskos that way, and the officer told him to
go home in a threatening manner that caused Bahnmaier to believe that, if he
didn’t, he “would be next.” Id. at 569. Bahnmaier testified as a council member
that the city had five or six lawsuits against them from “people claiming that our
cops are roughing them up, that our cops are being mean to them,” and that he
saw Griffith “rough” up Gouskos and the Glenpool police did nothing to stop him.
Id. at 569-70. He testified that Griffith then “grabbed [Gouskos] by the back of
his shirt and back of his pants . . . opened the door and threw him in the [patrol]
car headfirst.” Id. at 570. He testified that, when Gouskos’s wife respectfully
asked Griffith what he was going to do with her husband and what her husband
had done wrong, “he told her to shut up or she was next.” Id. at 571. Bahnmaier
stated that he “never heard any orders issued to [Gouskos] that he refused to
obey” before Griffith tackled Gouskos. Id. at 577. He stated that it was possible
that the officers told Gouskos to do something that Bahnmaier did not hear, but
that he
was close enough, I could hear them when they had their foot and
[Griffith] was grinding his foot in the middle of his back. I was
close enough to hear [Gouskos] say, “Please, I can’t breathe” . . . [in
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a] very low [voice] because he couldn’t breathe, and I heard that very
clearly. So I’m assuming that if they had issued any orders to him or
whatever, I would have heard that, as well. . . . I thought they were
going to kill him. My wife did, too.
Id. at 577-78. Bahnmaier’s preliminary hearing testimony was consistent with his
sworn statement quoted above. See id. at 543-47.
The officers’ preliminary hearing testimony is not present in the record on
appeal. A police report prepared by Glenpool officer Randy Rains two days after
the incident and submitted in the summary judgment materials did not allege that
Gouskos assaulted McAtee before he was arrested or that McAtee ever told
Gouskos he was under arrest. Rains stated that, after McAtee told Gouskos he
could not take the boys home, Gouskos stated “that they were leaving with him.
McAtee again told him they were not. After that I saw arms flying and McAtee
and Trooper Doug Griffith taking Gouskos to the ground.” Id. , Vol. I at 223.
Griffith submitted excerpts from McAtee’s and Griffith’s deposition
testimony taken three years after the arrest. McAtee testified that he instructed
“two juveniles,” a young man and a young woman, 1
that they could not leave
without their parents and to go stand by a patrol car. Id. at 331. He did not
indicate that the young adults refused to follow his instruction, and nothing in the
record indicates that Gouskos was physically holding or touching the young
1
Cargola was already eighteen and no longer a “juvenile.” The record does
not reveal how old Ishmael was.
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adults. McAtee testified that, after he told Gouskos he could not leave with the
two young adults, Gouskos said “he was leaving with them, I was to get out of his
way.” Id. at 332. He testified that Gouskos then bumped him with his torso in an
“attempt” to push him out of the way, and that McAtee warned him that “he
would be arrested for interfering with police officers if he didn’t [desist] and
leave.” Id. at 332-33. He stated that Gouskos then bumped him with his stomach,
and that is when he told Gouskos he was under arrest. Id. at 334-35. But
McAtee’s testimony differs from Griffith’s, who testified that Gouskos chest-
butted, and then used his forearm to push, Officer McAtee, at which point
McAtee “yelled that he’s under arrest.” Id. at 347. He claims he then also “told
[Gouskos] he was under arrest for assaulting an officer . . . and we took him to
the ground.” Id.
B. Gouskos’s criminal prosecution . A month later, Gouskos was
charged by information with one felony count of assault on a police officer, and
one count each of obstructing an officer, resisting an officer, and malicious injury
to property (Griffith’s helmet strap was broken during the altercation). He was
arraigned a month later, but his preliminary hearing was not held until August 23,
2000.
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In his summary judgment materials, Griffith submitted a single page of
transcript from Mr. Gouskos’s preliminary hearing, in which the state magistrate
judge stated:
The question is whether or not there was a crime committed.
And the law is that, at the level of a preliminary hearing, if there is
an issue of fact, the Court has to resolve it in favor of the State, and
that’s what the Court does .
I find that the State has proved assault and battery on a police
officer, two counts, and that there is probable cause to believe that
this defendant committed that crime.
Aplt. App., Vol. I at 362 (emphasis added). On August 28, Gouskos was charged
with a second count of felony assault and battery on an officer. On February 2,
2001, the whole case and all counts were dismissed, with costs assessed to the
State.
C. Federal proceedings. Gouskos filed his complaint in December 2001.
After extensive discovery, Griffith moved for summary judgment in March 2003
on the false arrest claims on the basis of issue preclusion and qualified immunity
and for summary judgment on the excessive force claims on the basis of qualified
immunity. The district court granted judgment in favor of Griffith, and Gouskos
appeals.
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III. Analysis
A. False arrest claim
The common-law tort of false arrest has a single element in Oklahoma:
that the defendant-officer arrested the plaintiff without probable cause. Overall v.
State ex rel. Dep’t of Pub. Safety , 910 P.2d 1087, 1091 (Okla. Ct. App. 1995).
Griffith argued, and the district court agreed, that Gouskos’s false-arrest claim
was precluded by the state magistrate judge’s preliminary-hearing determination
that sufficient evidence warranted binding Gouskos over for trial on the issue
whether Gouskos had, indeed, committed two counts of assault on an officer. In
his summary judgment response and on appeal, Gouskos submitted the evidence
outlined above to support his claims that both McAtee and Griffith lied about
Gouskos touching McAtee, and that no one ever told him he was under arrest
before Griffith attacked him. Gouskos claimed that he should be given an
opportunity to prove that Griffith’s attack and seizure was a false arrest made
without probable cause.
“We apply Oklahoma state law to determine the preclusive effect, if any, of
the [state] proceedings on this federal court action.” Pittsburg County Rural
Water Dist. No. 7 v. City of McAlester , 358 F.3d 694, 708 (10th Cir.), cert.
denied , 125 S. Ct. 44 (2004). In Oklahoma, “once a court has decided an issue of
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fact or of law necessary to its judgment, the same parties or their privies may not
relitigate that issue in a suit brought upon a different claim.” Miller v. Miller ,
956 P.2d 887, 897 (Okla. 1998). The party seeking to apply preclusion “must
show that the issue sought to be precluded was actually litigated and determined
in the prior action between the parties or their privies, and that the determination
was essential to the decision in the prior action.” Id. But “[i]ssue preclusion is
not applied mechanistically. It may only be invoked if the party against whom the
earlier decision is interposed had a ‘full and fair opportunity’ to litigate the
critical issue in the previous case.” Id. at 898.
Gouskos argues that issue preclusion should not apply because he never had
a full and fair opportunity to litigate the issue of probable cause and because there
is evidence to show that the magistrate court’s probable-cause ruling was
erroneous. We agree.
We first note that preliminary hearings are not true trials in that the court
does not resolve disputed facts regarding probable cause that are intertwined with
the guilt or innocence of the accused–that is for the jury to decide. See State v.
Tinkler , 815 P.2d 190, 192 (Okla. Crim. App. 1991), overruled on other grounds
by State v. Johnson , 877 P.2d 1136 (Okla. Crim. App. 1992). Instead, the
magistrate judge simply determines whether there is evidence, if believed by a
jury, that could result in a finding that a defendant committed a crime.
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Although their early opinions did not use the terms “issue preclusion” or
“collateral estoppel,” Oklahoma courts have long held that a finding of probable
cause made at a preliminary hearing in a criminal case provides prima facie
defensive evidence in subsequent civil case that a false-arrest claim should be
dismissed. See, e.g., Ames v. Strain , 301 P.2d 641, 644 (Okla. 1956); Lindsey v.
Couch , 98 P. 973, 976 (Okla. 1908) (“Where the grand jury have returned a true
bill upon the charge made, such finding amounts to a judicial recognition that
probable cause does exist. Hence arises a rule that a plaintiff, suing for damages
in such a case, must prove the absence of probable cause; and, if he fails to do so,
such judicial recognition is prima facie proof of a probable cause.”) (quotation
omitted). If the facts underlying the arrest are undisputed, the prima facie
evidence becomes conclusive on the issue, and the court must dismiss the false-
arrest claim. See Ames , 301 P.2d at 644; cf. Young v. First State Bank, Watonga ,
628 P.2d 707, 710-11 (Okla. 1981) (“If there is no controversy over the facts, or
if the facts are conceded, then it becomes a pure question of law for the court to
determine whether there was probable cause or not. It therefore becomes the duty
of the court, when evidence has been given to prove or disprove the existence of
probable cause, to submit to the jury its credibility, and what fact it proves, with
instruction that the facts found amount to proof of probable cause, or that they do
not.”) (quotation omitted).
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There are several more recent Oklahoma cases in which these principles are
applied. For example, in Delong v. State ex rel. Oklahoma Department of Public
Safety , 956 P.2d 937 (Okla. Ct. App. 1998), the Oklahoma Court of Appeals
noted that the false-arrest plaintiff had pleaded nolo contendere in her criminal
case. Id. at 939. The arresting officer’s affidavit stated that he observed the
plaintiff weaving on and off the road, and the plaintiff “offered no evidence
concerning the operation of her vehicle contradicting the arresting officer’s
affidavit,” thus establishing the arresting officer’s probable cause to initially stop
and arrest the plaintiff. Id. Together, these facts were fatal to the claim of false
arrest. Id.
Likewise, if the false-arrest plaintiff is convicted in the criminal trial for
the acts for which he was arrested, probable cause for his arrest is conclusively
established and precludes a subsequent civil action for false arrest. See Franklin
v. Thompson , 981 F.2d 1168, 1171 (10th Cir. 1992) (applying issue preclusion in
Oklahoma case to bar false-arrest claim because plaintiff had been convicted of
the disorderly conduct that formed the basis of probable cause for her arrest, and
she did not appeal from that conviction). But here, there was never a final
determination regarding probable cause because the State dismissed the criminal
case, and the underlying factual predicate for probable cause is disputed. Thus
we turn to those cases that are factually similar to the case at bar.
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The Oklahoma Supreme Court recognized many years ago that a plaintiff
may establish want of probable cause, notwithstanding having been bound over
for trial after a preliminary hearing, by showing that false testimony was the basis
for a probable cause ruling. See Ames , 301 P.2d at 643-44 (recognizing that
question of probable cause resolved by magistrate at preliminary hearing
precludes civil prosecution for false arrest except when the arresting officer “is
shown to have presented the facts to the justice dishonestly, or to have . . . acted
without probable cause”) (quotation omitted); Young , 628 P.2d at 710-11.
“Because the doctrine of issue preclusion is flexibly applied [in Oklahoma], the
focus is on whether its application would work an injustice on the party against
whom estoppel is urged.” Carris v. John R. Thomas & Assocs. , 896 P.2d 522, 529
(Okla. 1995).
In a more recent malicious prosecution case 2
against a defendant who swore
a criminal complaint accusing the plaintiffs of committing a crime, the Oklahoma
Supreme Court held that, “where the evidence is conflicting on the question of the
existence of probable cause, the court should submit the issue to the jury” even
though “a judge found that probable cause existed to detain” the plaintiffs and
2
Malicious prosecution cases are analogous to false-arrest cases because the
plaintiffs in both situations must prove the essential element of lack of probable
cause. See Page v. Rose , 546 P.2d 617, 620 (Okla. 1975).
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had bound them over for trial. Powell v. LeForce , 848 P.2d 17, 18-19 (Okla.
1992).
Danner v. Dillard Department Stores, Inc. , 949 P.2d 680 (Okla. 1997),
provides one of the more recent Oklahoma Supreme Court discussions of how to
apply probable-cause issue preclusion in a false arrest/malicious prosecution case.
Danner first set forth the general rule of issue preclusion as stated in Adamson v.
Dayton Hudson Corp. , 774 P.2d 478, 479 (Okla. Ct. App. 1989), and Christopher
v. Circle K Convenience Stores, Inc. , 937 P.2d 77, 79 (Okla. 1997)–which were
both cited by the district court in this case as the controlling precedent: “an order
at preliminary hearing binding over the defendant for criminal trial precludes
relitigation of the issue of probable cause in a subsequent civil suit for false arrest
following acquittal.” 949 P.2d at 682 (quotation omitted). But the Danner
opinion next expounded on the “important exception” to that rule: issue
preclusion does not apply if a party did not have a full and fair opportunity to
litigate an issue. Id. Because the plaintiffs in Danner had shown in their criminal
trial that false testimony supported the probable cause determination, the court
held that the “false testimony should not provide the basis for both a
determination of probable cause for an arrest and preclusion of relitigation of that
issue in a civil suit.” Id. at 683.
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In the cases cited by the district court or by Griffith where issue preclusion
barred the civil suit, either the facts supporting the probable cause determination
were undisputed or the false arrest/malicious prosecution plaintiff did not earlier
challenge the probable cause determination. See, e.g., Christopher , 937 P.2d at
80 (affirming summary judgment based on issue preclusion in case in which there
were “no disputed facts” on probable cause issue, and distinguishing Bell because
there were “many disputed factual contentions” in that case); Adamson , 774 P.2d
at 479 (“Plaintiff did not dispute that probable cause existed in order to bind her
over for trial . . . .”); Hubbert v. City of Moore , 923 F.2d 769, 771, 773 (10th Cir.
1991) (relying on Adamson and Lee and noting undisputed facts that false-arrest
plaintiff had run in officers’ direction “with a knife in her hand” although she was
later acquitted of assault with a dangerous weapon).
We conclude that this case falls into the exception for applying issue
preclusion. Here, as in Powell , there has been no final ruling on the issue of
whether Griffith presented false testimony to obtain a probable cause finding. As
noted above, the state magistrate judge did not decide the credibility issues
between Gouskos’s witnesses’ and Griffith’s versions of the pre-arrest events; the
judge simply resolved the probable-cause dispute in favor of the State as required
by law. Therefore, no factfinder has ever finally resolved the question whether
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Griffith in fact had a reasonable belief that Gouskos was assaulting McAtee or
was attempting to arrest Gouskos before Griffith tackled and seized him.
Further, Oklahoma has adopted the R ESTATEMENT (S ECOND ) OF J UDGMENTS
§ 28(5), which provides that, even when an issue is actually litigated and
determined, relitigation of the issue in a subsequent action is not precluded if
there is a clear and convincing need for a new determination “because the party
sought to be precluded, as a result of the conduct of his adversary or other special
circumstances, did not have an adequate opportunity . . . to obtain a full and fair
adjudication in the initial action.” Salazar v. City of Okla. City , 976 P.2d 1056,
1061 n.7 (Okla. 1999) (quotation omitted). Oklahoma also follows the
R ESTATEMENT (S ECOND ) OF J UDGMENTS § 29. See Robinson v. Volkswagenwerk
AG, 56 F.3d 1268, 1272 n.3 (10th Cir. 1995); and see Kirkpatrick v. Chrysler
Corp. , 920 P.2d 122, 132 (Okla. 1996) (citing § 29 as the law concerning issue
preclusion in subsequent litigation with non-parties). Section 29 provides that a
party precluded from relitigating an issue with an opposing party, in accordance
with § 28 of the R ESTATEMENT , is also precluded from doing so with another
person unless other circumstances justify affording him an opportunity to
relitigate the issue. These circumstances include when “[t]he forum in the second
action affords the party against whom preclusion is asserted procedural
opportunities in the presentation and determination of the issue that were not
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available in the first action and could likely result in the issue being differently
determined.” R ESTATEMENT (S ECOND ) OF J UDGMENTS § 29(2). McAtee’s and
Griffith’s testimony was contested, but the preliminary hearing gave no
opportunity for Gouskos to obtain a ruling on their credibility. When the State
dismissed the criminal charges, Gouskos lost his opportunity to obtain a final
ruling on whether he chest-bumped McAtee, which was act that Griffith claimed
gave him probable cause to seize Gouskos. Gouskos has never had an opportunity
to obtain a full and fair adjudication on the credibility issues underlying the
probable cause determination, and he must be allowed his day in court.
Thus, under these circumstances, we conclude that Oklahoma would not
give preclusive effect to the probable-cause determination. See, e.g. , Danner , 949
P.2d at 683 (refusing to apply issue preclusion in malicious prosecution case in
which plaintiff claimed that complainant in criminal case perjured her testimony);
Powell , 848 P.2d at 18-20 (holding that issue of probable cause in malicious
prosecution case should have gone to the jury because of contested facts, even
though judge in criminal case had made probable cause finding); cf. Lindsey , 98
P. at 975-76 (holding that finding of no probable cause by magistrate and
subsequent finding of probable cause by grand jury neutralized each other so that
plaintiff in malicious prosecution case had to produce other evidence in order to
prove want of probable cause).
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We further note that, although Gouskos bears the burden of proving a lack
of probable cause, cf. Lewis v. Crystal Gas Co. , 532 P.2d 431, 433 (Okla. 1975)
(malicious prosecution case), Griffith bore the burden of establishing the defense
of issue preclusion on the issue of probable cause, see Salazar , 976 P.2d at 1060.
Thus, Griffith bore “the burden of establishing that the issue [of probable cause]
was actually litigated and determined in the prior action between the parties or
their privies, and that its resolution was essential to a decision in that action.” Id.
at 1060-61. When a false-arrest defendant desires to use facts from a previous suit
prosecuted in a different court system for issue preclusion, Oklahoma law
requires the defendant to submit a complete record of the previous case, including
all the preliminary hearing transcripts, so that the trial court in the false-arrest
case can fully review the previous record to determine the “meaning and
preclusive force to be accorded [the previous court’s] ruling . . . by resort solely
to the face of the judgment roll . . . .” Id. at 1062. Failure to submit the entire
judgment roll “is fatal to [an] issue-preclusion defense” on summary judgment.
Id. Summary judgment should have been denied for this reason alone.
B. Excessive force claim
A finding of probable cause for an arrest does not preclude an excessive-
force claim. See Dixon v. Richer , 922 F.2d 1456, 1459 (10th Cir. 1991) (“Even if
the second issue–whether Richer and Yarbrough had probable cause to arrest the
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Dixons–were decided in the prior proceeding, it would not preclude litigation of
the critical issue whether Richer and Yarbrough used unreasonably excessive
force in arresting the Dixons.”).
The district court summarily dismissed Gouskos’s excessive force claim,
stating:
[T]he Court FINDS that the Plaintiff has not shown, by the facts
alleged and by the evidence and argument contained in the record,
that his constitutional right to be free from excessive use of force
was violated. Plaintiff failed to meet his burden of proof as set forth
in Saucier v. Katz , 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272
(2001). Therefore, Defendant Trooper Joseph D. Griffith is entitled
to Qualified Immunity and his Motion for Summary Judgement is
hereby GRANTED .
Aplt. App., Vol. II at 617. Gouskos raises four issues on appeal regarding this
ruling: that the court failed to provide a substantive explanation for its ruling;
that it used the wrong legal standard on summary judgment by resolving disputed
facts in favor of Griffith; that it failed to recognize the existence of genuine
issues of material facts; and that it substantively erred in granting qualified
immunity to Griffith on the facts Gouskos alleged. A review of the controlling
case law and the record supports Gouskos’s arguments.
Saucier requires a two-part analysis: first, the court determines whether,
“[t]aken in the light most favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional right?” 533 U.S. at
201. If they do, the court then determines whether the right was clearly
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established at the time of the alleged conduct. Id. “The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Id. at 202.
The law has long been settled that “law enforcement officers must be
‘objectively reasonable’ in their searches and seizures.” Dixon , 922 F.2d at
1461.
Determining whether force used to effect a particular seizure is
reasonable under the Fourth Amendment requires a careful balancing
of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake. . . . Because the test of reasonableness under the
Fourth Amendment is not capable of precise definition or mechanical
application, however, its proper application requires careful attention
to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.
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.
....
In applying this standard, we are to consider the evidence in the light
most favorable to [the person who was arrested].
Id. at 1462 (alterations, citations, and quotations omitted). Gouskos presented
testimony that Griffith used excessive force by (1) tackling him when he was
unarmed and presented no threat to anyone, was engaged in lawful behavior, and
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had not been told that he was under arrest; (2) putting him in a chokehold and
choking him almost to unconsciousness when he was already on the ground, he
was exclaiming that he was not resisting, and three other officers were sitting on
him, holding his legs, and handcuffing him; and (3) stepping on his back so that
he could not breathe after he was handcuffed behind his back and lay totally
subdued on his stomach.
In his summary judgment motion, Griffith invited the district court to
determine the first prong of Saucier (whether Griffith had violated a
constitutional right by engaging in the acts alleged by Gouskos) by relying solely
on Griffith’s disputed deposition testimony. This was improper. See Mick v.
Brewer , 76 F.3d 1127, 1136-37 (10th Cir. 1996) (reversing summary judgment on
issue of qualified immunity in excessive force case because district court ignored
testimony of eyewitnesses in favor of officer’s disputed testimony). Further,
although Griffith claims he saw Gouskos chest-butt McAtee and heard McAtee
tell Gouskos that he was under arrest (which Gouskos disputes), he fails to even
address Gouskos’s claims that Griffith also used excessive force by choking him
almost to unconsciousness after Gouskos stopped struggling and by stomping on
his back after he was totally subdued. See Aplt. App., Vol. I at 281-85.
On appeal, Griffith alleges a plethora of facts that he claims established a
dangerous situation and the reasonableness of his behavior as a matter of law, but
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those facts do not support the use of the excessive force alleged. For example,
Griffith claims that Gouskos’s crime was “of great significance” because Gouskos
was charged with felony assault of an officer. Aplee. Br. at 18. But whether
Gouskos ever “chest-butted” McAtee is a disputed issue. Griffith maintains that
he reasonably perceived Gouskos to be a threat because of his size (6’1”, 225
lbs.), because he had a black eye (from an unrelated prior event), and because he
was not wearing shoes. Id. at 19. But size alone will not establish a reasonable
basis for perceiving someone to be a threat, and it is for a jury to decide whether
Griffith, who tackled Gouskos from Gouskos’s right rear side at night, actually
saw that Gouskos’s left eye was black. He also claims Gouskos was a threat
because he was yelling at McAtee. But Bahnmaier testified that Gouskos did not
yell and Griffith testified that Gouskos’s alleged yelling was “something to the
effect of either ‘you can’t tell me what to do’ or ‘I’m taking them anyway,’” Aplt.
App., Vol. I at 343, and not of threats of violence. Further, Gouskos insists that
he told McAtee only that he had as much right to be there as McAtee did, which
is not a threatening statement.
Griffith claims dangerous circumstances because the party had previously
gotten out of hand, “children” were taunting officers by singing songs and giving
them the “finger,” and there was broken glass and blood on the sidewalk. Aplee.
Br. at 19. But none of these facts has anything to do with Griffith’s decision to
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tackle Gouskos from behind in light of the record demonstrating that Griffith
knew Gouskos was a parent who was there to pick up his daughter (and therefore
not involved in the prior party problem), and that McAtee approached Gouskos
when Gouskos was trying to leave the scene. Aplt. App., Vol. I at 343. The
summary judgment record indicates that, when Griffith tackled Gouskos, the
scene outside was fully under control and the young adults whose parents had not
yet arrived were still in the house. Our careful review of the summary judgment
record indicates that there was no evidence of any kind of violence after the
police came to the scene, except for (1) the police kicking open the front door of
the house (without a warrant) after Gouskos’s arrest, and knocking it into the
head of an occupant, (2) Griffith’s kicking and choking of Gouskos, and (3)
someone throwing a beer bottle at Officer Rains, who was holding Gouskos’s legs
down while Griffith was choking him.
Further, none of these questions of facts are relevant to Griffith’s decision
to continue to choke-hold and then stomp on Gouskos’s back after Gouskos was
lying subdued and handcuffed.
Griffith claims that, because Gouskos allegedly bit him when Griffith was
choking him, Griffith’s behavior was reasonable. This assertion begs the question
whether the choking was a reasonable response in the first place, and, again,
Gouskos disputes that he bit Griffith. But even if he did, “[w]hen an officer in
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making a lawful arrest uses more force or aggression than is reasonably
necessary, the party so assaulted has the right of self-defense and may repel the
attack with sufficient force to avert its threatened consequences, using no more
force than is necessary.” Carter v. State , 507 P.2d 932, 934 (Okla. Crim. App.
1973). A jury should decide whether Griffith’s and Gouskos’s responses were
reasonable.
Gouskos pointed out to the district court that there were genuine issues of
material fact regarding whether Griffith’s alleged perceptions were reasonable or
whether he was lying and whether Gouskos was struggling to avoid being
handcuffed or simply trying to avoid injury while he was being knocked to the
ground. He also argued that Griffith had failed to rebut witness testimony that
Griffith continued to choke Gouskos and stomped on his back after he had been
subdued and handcuffed. Aplt. App., Vol. II at 387-88. We conclude that the
district court improperly resolved the excessive force/qualified immunity issue by
totally discounting Gouskos’s and his eyewitnesses’ testimony. See Olsen v.
Layton Hills Mall , 312 F.3d 1304, 1314 (10th Cir. 2002) (“[T]his court will not
approve summary judgment in excessive force cases–based on qualified immunity
or otherwise–if the moving party has not quieted all disputed issues of material
fact.”); Mick , 76 F.3d at 1136-37; Dixon , 922 F.2d at 1463 (holding that
post-arrest kicking, beating, and choking of plaintiff was constitutionally
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excessive in light of the fact that the plaintiff had made no additional “aggressive
moves or threats” toward officer).
The judgment of the district court is REVERSED and REMANDED for
further proceedings.
Entered for the Court
J. Thomas Marten
District Judge
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