The Oklahoman

Justices may hear deadly force case

Tahlequah seeks Supreme Court review

- Chris Casteel The Oklahoman USA TODAY NETWORK

On an August night in 2016, three Tahlequah city police officers responded to a call from a woman who wanted her ex-husband to leave her property.

“He’s drunk,” she told the 911 operator, “and it’s going to get ugly real quick.”

The man, Dominic Rollice, was at the side door to his ex-wife’s garage when the officers arrived. One of the officers asked Rollice if he could frisk him; they assured him that they weren’t going to arrest him and only wanted to get him a ride.

Rollice, who was “fidgety,” walked into the garage with the officers trailing him and grabbed a hammer. The officers drew their weapons as Rollice held the hammer above his head.

Rollice moved toward the officers, prompting one to holster his gun and grab his taser. The others pointed their

weapons at Rollice and ordered him to put down the hammer. After Rollice refused to drop the hammer, the officers fired multiple shots at Rollice. Doubled over and groaning, he raised the hammer again, and one of the officers fired another shot. Rollice was pronounced dead at a local hospital.

Rollice’s estate sued the city, claiming civil rights violations, but U.S. District Judge Ronald A. White granted summary judgment for the city and the two officers who shot Rollice, ruling that they had qualified immunity from civil liability in the shooting.

“This court must follow the law as best it can, and the present regime of qualified immunity does not permit the case to proceed further,” White said in his ruling.

In December, the 10th U.S. Circuit Court of Appeals overturned White’s ruling, concluding that a jury hearing the case could find that the officers “recklessly created” a lethal situation by backing Rollice into the garage and cornering him with the tools in reach.

“When Dominic grabbed the hammer, the officers drew firearms and began shouting,” the appeals court said. “A reasonable jury could find that the officers’ reckless conduct unreasonab­ly created the situation that ended Dominic’s life.”

On Monday, U.S. Supreme Court justices were expected to decide whether to review the Tahlequah case, with an announceme­nt likely in the days following.

If justices decline to take the case, the 10th Circuit court’s decision will stand, and Rollice’s estate can pursue its lawsuit against Tahlequah and the officers. If the court decides to review the 10th Circuit decision, justices may use the case to define further when deadly force is justified in cases involving law enforcemen­t officers.

Four of the nine justices must agree to grant a petition for review.

The justices’ considerat­ion of the Tahlequah case comes as Congress has again failed to reach agreement on police reform legislatio­n. Lawmakers who had been negotiatin­g on a bill said last week that talks had broken down and that one of the hang-ups was qualified immunity for police officers when sued for their actions.

Efforts to reach a compromise began in earnest in 2020 after a Minneapoli­s police officer killed George Floyd and the House approved legislatio­n aimed at restrictin­g the use of force.

Tahlequah urges justices to review the case

The city of Tahlequah has hired Paul Clement, who served as solicitor general under former President George W. Bush and frequently argues cases before the U.S. Supreme Court; Rollice’s estate is represente­d by David M. Shapiro, an associate law professor at the Pritzker School of Law at Northweste­rn University and a longtime civil rights attorney.

In 2017, the U.S. Supreme Court ruled unanimousl­y against the so-called “provocatio­n rule” used by the 9th U.S. Circuit Court of Appeals in a police shooting case from Los Angeles.

The high court said the circuit court’s rule permitted someone to sue police for excessive force under the Fourth Amendment if an officer intentiona­lly or recklessly provoked a violent confrontat­ion and the provocatio­n itself was a Fourth Amendment violation.

Justices said the rule was “incompatib­le with our excessive force jurisprude­nce. The rule’s fundamenta­l flaw is that it uses another constituti­onal violation to manufactur­e an excessive force claim where one would not otherwise exist.”

The city of Tahlequah says the Supreme Court didn’t decide whether courts — in determinin­g if police force is reasonable or excessive — can consider whether unreasonab­le police conduct prior to the use of force created the need to use force.

Most federal appeals courts have said no to that question, but the 9th and 10th circuit courts are outliers, the city claims.

“In short, this petition presents an excellent opportunit­y to resolve a frequently recurring question of constituti­onal law on which the lower courts are openly divided and the 9th and 10th Circuits are deeply mistaken,” the city told justices.

“By imposing liability even when officers reasonably respond to an immediate threat, the (10th Circuit) decision below needlessly jeopardize­s the lives of police officers and places them in an impossible position.”

The justices’ considerat­ion of the Tahlequah case comes as Congress has again failed to reach agreement on police reform legislatio­n.

Question of threat posed to officers

But attorneys for Rollice’s estate countered that the Tahlequah case is not an appropriat­e one to hash out arguments over whether police will defend themselves if they’re worried about how their conduct leading up to using force will be judged.

In contrast to other cases that have helped shape jurisprude­nce around the use of force, the police in the Tahlequah case did not confront “a serious threat at any point in the encounter with Rollice,” the attorneys said in a brief urging the court not to review the 10th Circuit decision.

“The Fourth Amendment allows the use of deadly force only if ‘the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others,’” the estate’s attorneys argued in the brief.

“Therefore, even ignoring the officers’ actions in the moments before they pulled the triggers, they violated the Fourth Amendment by firing their weapons. This Court’s interventi­on would not change that.”

If the Supreme Court decides to review the case, a decision would likely come next year. The court’s new term is scheduled to begin on Oct. 4.

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