Justices may hear deadly force case
Tahlequah seeks Supreme Court review
On an August night in 2016, three Tahlequah city police officers 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 officers arrived. One of the officers 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 “fidgety,” walked into the garage with the officers trailing him and grabbed a hammer. The officers drew their weapons as Rollice held the hammer above his head.
Rollice moved toward the officers, 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 officers fired multiple shots at Rollice. Doubled over and groaning, he raised the hammer again, and one of the officers fired 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 officers who shot Rollice, ruling that they had qualified immunity from civil liability in the shooting.
“This court must follow the law as best it can, and the present regime of qualified 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 find that the officers “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 officers drew firearms and began shouting,” the appeals court said. “A reasonable jury could find that the officers’ 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 officers. If the court decides to review the 10th Circuit decision, justices may use the case to define further when deadly force is justified in cases involving law enforcement officers.
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 qualified immunity for police officers when sued for their actions.
Efforts to reach a compromise began in earnest in 2020 after a Minneapolis police officer 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 officer 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 flaw 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 officers reasonably respond to an immediate threat, the (10th Circuit) decision below needlessly jeopardizes the lives of police officers 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 officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others,’” the estate’s attorneys argued in the brief.
“Therefore, even ignoring the officers’ actions in the moments before they pulled the triggers, they violated the Fourth Amendment by firing 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.