Janelle Bridges, as special administrator of the estate of Shane Bridges, deceased v. Kyle Wilson, in his individual

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JANELLE BRIDGES, as special
administrator of the estate of Shane
Bridges, deceased,
Plaintiff - Appellant,
v.
KYLE WILSON, in his individual and
official capacity; BOARD OF COUNTY
COMMISSIONERS OF MAYES
COUNTY, OKLAHOMA; MIKE REED,
in his individual and official capacity,
Defendants - Appellees.
No. 20-5037
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:15-CV-00126-GKF-JFJ)
_________________________________
Thomas Mortensen, Mortensen & Associates, LLC, Tulsa, Oklahoma, for Appellant.
Jordan L. Miller (Stephen L. Geries and Michael L. Carr with him on the briefs), Collins
Zorn & Wagner, P.C., Oklahoma City, Oklahoma, for Appellees.
_________________________________
Before HARTZ, KELLY, and PHILLIPS, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
FILED
United States Court of Appeals
Tenth Circuit
May 10, 2021
Christopher M. Wolpert
Clerk of Court
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Early on January 1, 2014, Deputy Kyle Wilson of the Mayes County Sheriff’s
Office drove to the home of Shane Bridges in response to a call that Mr. Bridges was
intoxicated and possibly suicidal. Within seconds of his arrival at the home, he had
fired 13 rounds from his semiautomatic handgun at Mr. Bridges, hitting him twice
and killing him. The shooting led to claims by Plaintiff Janelle Bridges, special
administrator of Mr. Bridges’s estate, against Deputy Wilson and the Board of
County Commissioners of Mayes County. She sued Wilson under 42 U.S.C. § 1983
for allegedly violating Mr. Bridges’s constitutional rights by using unreasonable
force, and sued the Board under the Oklahoma Governmental Tort Claims Act
(OGTCA), Okla. Stat. tit. 51, §§ 151–72, based on alleged negligence by Deputy
Wilson.
The district court granted the Board summary judgment on the ground that the
OGTCA did not waive the Board’s immunity from suit because Wilson was acting
“as a protector, not as a law enforcer.” Aplt. App., Vol. II at 506 (brackets and
internal quotation marks omitted). The § 1983 claim against Wilson was then tried to
a jury, which ruled in Wilson’s favor. At trial Plaintiff contended that when Wilson
drove up, Mr. Bridges had briefly opened the door to his home to look outside and
had never fired a weapon, but that Wilson began firing at him after he had closed the
door and gone inside, where he was hit by shots that pierced the door. Wilson’s
account was that Mr. Bridges began firing at him from the porch of the home after he
had parked his vehicle, and that Wilson fired only in response to the shots from
Mr. Bridges, who then retreated into his home and died.
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On appeal Plaintiff does not dispute the jury verdict but challenges the
summary judgment entered in favor of the Board. The original briefs of the parties
focused on the propriety of granting immunity to the Board. At oral argument,
however, we raised the issue of whether liability of the Board on the merits would be
incompatible with the jury verdict; and the parties submitted supplemental briefing
on the matter.
We have jurisdiction under 28 U.S.C. § 1291. After reviewing the briefs and
the record, we affirm the summary judgment in favor of the Board on the ground
suggested at oral argument. We do not address the immunity issue. We recognize
that there may be cases where a negligence claim under the OGTCA can be sustained
while a civil-rights claim under § 1983 could not be sustained on the same facts, and
vice versa. But on the evidence and theories of liability in this case, we hold that a
negligence claim under the OGTCA would be incompatible with the jury verdict. As
explained below, Plaintiff could prevail on the merits on each claim if, and only if,
Mr. Bridges did not initiate the gun battle by firing at Deputy Wilson from his porch.
By rendering a verdict in Wilson’s favor, the jury must have found that Mr. Bridges
fired first. We are therefore highly confident that if the district court had not granted
summary judgment on the OGTCA claim and it had gone to the jury, the jury would
have found in favor of the Board. In other words, even if the Board was not entitled
to immunity, any error in that ruling was harmless.
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I. BACKGROUND
A. Factual Background
On the evening of December 31, 2013, Mr. Bridges, Mrs. Bridges, and their
children did nothing special at their home except they engaged in their traditional
celebration of the New Year by firing guns at midnight. Shortly thereafter, Mr.
Bridges answered a call from Jennifer Crook, Mrs. Bridges’s sister. After that
conversation Ms. Crook called the Mayes County Sheriff’s Office. 1 Deputy Wilson
then heard a call from dispatch reporting that there was an intoxicated, possibly
suicidal person named Shane Bridges at the Bridges’s address. Wilson had met Mr.
Bridges several times before and headed to Mr. Bridges’s house to “talk to him and
figure out what was going on.” Dist. Ct. Doc. 294 at 378.
After a half-hour drive, Wilson arrived at the Bridges’s house at 1:25 a.m. and
got out of his patrol car. What happened next has been disputed by the parties.
Wilson gave the following account at trial: Mr. Bridges stepped onto the porch and
fired a gun into the night. Wilson then yelled, “Shane,” and Mr. Bridges turned
toward him and fired. Id. at 385. Wilson returned fire, and the two exchanged shots
until Mr. Bridges retreated into the house; Wilson thought Mr. Bridges had fired a
total of four rounds. Plaintiff’s trial witnesses, in contrast, said that Mr. Bridges
never fired a shot at Wilson. According to them, when Mr. Bridges heard Wilson’s
1 Ms. Crook, who did not testify at trial, testified at her deposition that she placed
this call to the Sheriff because her conversation with Mr. Bridges had gotten heated
and Mr. Bridges had threatened to kill himself and harm Ms. Crook’s daughter, who
lived with Mr. and Mrs. Bridges.
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car arrive outside the house, he opened the door, looked out, and closed the door a
second later, at which time Wilson opened fire. It is undisputed that Wilson fired 13
times, hit Mr. Bridges twice, and killed him.
After the shooting a handgun with three spent casings and three live rounds
was found on the floor near Mr. Bridges’s body. (Mrs. Bridges testified that he had
fired the gun less than two hours earlier to celebrate the New Year.) Particles
consistent with gunpowder residue were found on Mr. Bridges’s hands. Wilson’s
expert at trial testified that Mr. Bridges’s wounds indicated that he was shot while his
arm was outstretched toward the oncoming bullet, as if it had been pointing at
Wilson’s gun.
B. Procedural History
The operative complaint in this case is Plaintiff’s second amended complaint
(the Complaint) filed in 2015 in the United States District Court for the Northern
District of Oklahoma. 2 The claims relevant to this appeal are a claim against Deputy
Wilson under 42 U.S.C. § 1983 for unreasonably using deadly force against Mr.
Bridges in violation of his Fourth Amendment rights, and a claim against the Board
under the OGTCA based on Wilson’s alleged negligence. 3
2 The Complaint was mistakenly titled Plaintiff’s “Third Amended Complaint.”
3 The Complaint names Mrs. Bridges as plaintiff in three capacities—individually, as
Mr. Bridges’s surviving spouse, and as mother and next friend of her six children.
But because she had been appointed special administrator of Mr. Bridges’s estate, the
district court permitted her to be substituted as plaintiff in that capacity. In addition,
the court permitted Plaintiff to correct the Complaint by substituting the Board for
the named defendant “Mayes County.” Aplt. App., Vol. I at 29. The Complaint also
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The Board moved for summary judgment, arguing that it was immune from
suit under Okla. Stat. tit. 51, § 155(6), which retains immunity for political
subdivisions with respect to claims based on the “failure to provide, or the method of
providing, police [or] law enforcement . . . protection.” In response to the Board’s
summary-judgment motion, Plaintiff described Deputy Wilson’s alleged negligence
as follows:
The Plaintiff’s [sic] contend that when Shane Bridges was shot and
killed, he was unarmed, inside of his residence, and the front door to the
residence was closed. The undisputed evidence . . . will show that
Defendant Wilson emptied every bullet of his firearm into the front of
Plaintiff’s residence killing the Decedent and coming within mere
inches of killing a nine-year old child asleep on the living room couch.
Plaintiffs contend that the indiscriminate and blind shooting into a
residence, with the hopes of hitting the occupant inside, is unreasonable
and unlawful.
Aplt. App., Vol. I at 285 (emphasis and original ellipsis omitted). Concluding that
“Deputy Wilson, responding to the dispatch call, stood vis-à-vis Bridges as a
protector, not as a law enforcer,” the district court held that the Board was immune
from suit and granted the summary-judgment motion. Aplt. App., Vol. II at 506
(internal quotation marks omitted).
The excessive-force claim against Deputy Wilson proceeded to a jury trial.
The trial presented no subtle issues of reasonableness to the jury. There was
essentially only one issue to be resolved and that was the choice between two
named additional defendants—Deputy Wilson in his official capacity and Mayes
County Sheriff Mike Reed in his individual and official capacities—but the court
granted summary judgment against Plaintiff on those claims and they are not relevant
to this appeal.
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diametrically opposed accounts of events: did Deputy Wilson fire his gun in
response to shots being fired by Mr. Bridges, or did he fire his gun without
provocation while Mr. Bridges, who had never fired at him, was inside his home with
the door closed, presenting no danger.
This dichotomy is reflected in the opening statements by counsel at trial.
Plaintiff’s attorney began by saying that the parties would not be arguing about how
to apply the law and that no one would dispute liability if the jury found the facts
alleged by Plaintiff:
[This is] a wrongful death matter. There was a law-enforcement officer
that had used his firearm on an individual and that individual is now
dead. What’s not going to be argued in this case is whether or not what
the law is. It’s going to be particularly about what facts are present
because there’s a great dispute or disagreement about what those facts
are. But I guess in saying that, regardless how you may feel about law
enforcement, there is no dispute about if there was a certain action taken
by a law-enforcement officer in this particular case, nobody’s going to
disagree that that would be unlawful.
Dist. Ct. Doc. 293 at 4–5. Counsel then went through undisputed facts before turning
to where the parties differ:
[T]his is where the stories start to—start to stray. And when I say
“stray,” I mean significantly. The deputy parks. He gets out of his
vehicle. And by all accounts, within seconds he takes his firearm out—
he has 13 shells inside of his gun—and he unloads all 13 into the side of
the house.
. . . .
There is going to be a difference of opinion—I’ll say that—about
what happened at that particular point. I believe the defendant will
present testimony in the form of, well, it was Shane Bridges that came
out onto the porch, Shane Bridges had a firearm, and Shane Bridges
started firing at Kyle Wilson, and only then did Kyle Wilson unholster
his gun and return fire, all 13, into the side of the house. It was then, as
alleged, that Shane Bridges went back into the house and shortly after
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he got into the house he didn’t make it much longer and he died shortly
thereafter.
Id. at 8–9. But, he continued, there was “a great deal of evidence to suggest” the
following contrary account:
[A]t the time that the gunshots were fired by Officer Wilson, Shane
Bridges was not on the front porch, Shane Bridges did not have a
firearm, and Shane Bridges was inside of his house.
What the evidence will show you was, he opened the door to see
who was driving up and he closed the door. . . . He has to slam it so
that the insulation stays shut so that it could fully shut. And it is then
right around that time that there were 13 shells that were fired from
Officer Wilson’s gun into that house.
. . . [I]t appears as though the officer was trying to hit somebody
behind the door because there was a pattern [of gunshots] from four or
five feet outside of the door frame on either side and four in the door.
. . . [W]e have undisputable proof [Shane Bridges] was inside of that
house and the door was closed at the time the shots were taken.
Id. at 9–10.
The opening statement of Wilson’s attorney presented a contrasting theory of
what happened after Wilson arrived at Mr. Bridges’s house:
[Wilson] sees movement and he turns, and he sees Shane Bridges come
onto the porch with a revolver and “bang,” fires off a round into the
darkness.
Deputy Wilson is confused and he yells out to this person he knows,
he says, “Shane.” At that time Shane turns and aims the gun right at
Deputy Wilson, pulls the trigger. Deputy Wilson had nothing that he
could do other than return fire. So he draws his weapon and an
exchange of gunfire is had. Deputy Wilson fires 13 rounds at Shane
Bridges and the entire time he’s on the front porch pointing his gun
firing his gun at the deputy, “bam.” The deputy empties what rounds he
has in his gun, 13 rounds, the slide locks, and Shane Bridges goes back
into the house.
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Id. at 16–17.
At no time during the district-court litigation did Plaintiff suggest that Deputy
Wilson could be liable even if Mr. Bridges fired first, nor did Deputy Wilson suggest
that he would not be liable even if Mr. Bridges was shot while within his home.
After hearing these arguments and the evidence presented at trial, the jury
found Wilson not liable. The district court entered judgment in favor of Wilson,
stating that “the jury found in favor of defendant on [the excessive-force] claim, and
therefore concluded that the force used by defendant Wilson was reasonable.” Dist.
Ct. Doc. 269 at 1.
Plaintiff appealed only the summary judgment granted to the Board. The
parties’ briefing focused on whether the district court had properly applied the
exception in § 155(6) to the general waiver of immunity in the OGTCA. But at oral
argument we asked whether the jury’s determination that Deputy Wilson had acted
reasonably when he shot Mr. Bridges meant that he had not been negligent under the
OGTCA. After oral argument we directed the parties to file supplemental briefing on
this question.
II. DISCUSSION
Plaintiff asserted her negligence claim against the Board under the OGTCA,
which generally waives the immunity of governmental entities for tort liability
arising from the negligence of their employees. See Okla. Stat. tit. 51, § 153 (“The
state or a political subdivision shall be liable for loss resulting from . . . the torts of
its employees acting within the scope of their employment . . . .”); see also Smith v.
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City of Stillwater, 328 P.3d 1192, 1198 (Okla. 2014). The district court, however,
granted summary judgment to the Board under Okla. Stat. tit. 51, § 155(6), which
contains an exception to the OGTCA’s waiver of immunity for claims based on “the
failure to provide, or the method of providing, police [or] law enforcement . . .
protection.” On appeal the parties dispute whether Deputy Wilson was engaged in
providing protection on January 1, 2014. But we see no need to resolve this issue
because, in light of the jury’s verdict in favor of Wilson, any error by the district
court was harmless.
Under Fed. R. Civ. P. 61, “the court must disregard all errors and defects that
do not affect any party’s substantial rights.” See 12 Moore’s Federal Practice - Civil
§ 61.02 at 61-4 (2021) (“[E]ven if the trial court is mistaken, it will not be reversed
unless its ruling results in substantial prejudice, or had a substantial effect on the
outcome of the case.”). “An error affecting a substantial right of a party is an error
which had a substantial influence or which leaves one in grave doubt as to whether it
had such an effect on the outcome.” Hill v. J.B. Hunt Transp., Inc., 815 F.3d 651,
659 (10th Cir. 2016) (internal quotation marks omitted); see Hinds v. Gen. Motors
Corp., 988 F.2d 1039, 1049 (10th Cir. 1993) (error “can only be prejudicial if it can
be reasonably concluded that . . . without such [error], there would have been a
contrary result”). “In considering whether an error was harmless, the court
necessarily must look to the circumstances of the particular case . . . . The entire
record must be considered and the probable effect of the error determined in the light
of all the evidence.” 11 Charles Alan Wright & Arthur R. Miller, Federal Practice
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and Procedure § 2883 at 617 (3d ed. 2012). Harmless-error doctrine is not technical.
The appellate court exercises common sense, trying to make a “realistic assessment”
of the “practical likelihood” that the result in the district court would have been
different had the error not occurred. Wills v. Brown Univ., 184 F.3d 20, 30 (1st Cir.
1999).
Our opinion in Abbasid, Inc. v. First Nat. Bank of Santa Fe, 666 F.3d 691
(10th Cir. 2012), demonstrates the applicability of the harmless-error rule in a
procedural context similar to that before us. The plaintiff’s ex-wife allegedly
deposited checks generated by the plaintiff’s business into her cousin’s personal bank
account (and used money from that account for personal expenses) without
authorization. See id. at 693. The plaintiff sued the bank on claims of negligence
and conversion for accepting the deposits. See id. at 694. Before trial the district
court granted summary judgment to the bank on the plaintiff’s negligence claim,
ruling that the claim was preempted by the Uniform Commercial Code. See id. at
696. The parties tried the conversion claim to a jury, which found that the bank did
not convert any of the plaintiff’s checks. See id. at 694. The plaintiff then appealed
the earlier grant of summary judgment to the bank on the negligence claim. See id. at
696. We ruled that we had no need to resolve whether the grant of summary
judgment was proper because, given the jury verdict, any error was harmless. See id.
at 696–97. We explained:
[W]e need not resolve whether a preverdict dismissal of a claim was
proper if the jury’s verdict on the remaining claims shows that any error
in failing to present the dismissed claim to the jury was harmless. . . .
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The jury found that the Bank had not converted any checks, meaning
that it found that there were no checks that satisfied all three elements
of the conversion claim. But [the plaintiff’s] negligence claim related
only to checks that satisfied those three elements. . . . Because the jury
found that no such checks existed, the negligence claim would
necessarily fail. Thus, any error in dismissing the negligence claim
turned out to be harmless.
Id.; see also Eisenhour v. Weber Cty., 897 F.3d 1272, 1279 (10th Cir. 2018) (any
district-court error in dismissing certain claims was harmless because “[n]o plausible
view could reconcile [the jury’s] finding [at trial] with a finding” that the previously
dismissed claims were meritorious).
The Abbasid approach resolves this case. “No plausible view could reconcile”
the jury’s finding that Wilson did not employ excessive force with findings necessary
to support Plaintiff’s claim under the OGTCA. Eisenhour, 897 F.3d at 1279.
Plaintiff points out that the Oklahoma Supreme Court has declared that “the ultimate
inquiries” in Fourth Amendment excessive-force claims against law-enforcement
officers and Oklahoma state-law claims for negligent use of excessive force by law-
enforcement officers can “differ.” Morales v. City of Oklahoma City ex rel.
Oklahoma City Police Dep’t, 230 P.3d 869, 880 n.47 (Okla. 2010). This potential
difference arises because the Fourth Amendment test, unlike the state-law negligence
test, asks the court to “balance the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion.” Id. (internal quotation marks omitted). But
such nuances are totally irrelevant here. Plaintiff’s claims against Wilson and the
Board turn solely on a dispositive factual question: did Mr. Bridges initiate the
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gunfight or did Deputy Wilson shoot Mr. Bridges without any provocation? And the
jury answered the question in favor of Wilson.
Plaintiff argues that “without the benefit of any factual findings derived
through the use of special jury interrogatories,” Aplt. Supp. Br. at 5 (emphasis
omitted), the jury’s general verdict does not resolve all the factual questions
necessary to apply Abbasid or Eisenhour. But she fails to identify any factual issue
that could have made a difference in the state-law claim. Her supplemental brief on
appeal does not suggest any theory of liability other than that Deputy Wilson shot
Mr. Bridges without provocation. 4 We therefore must conclude that even if the
summary judgment was ill-advised (a matter we see no need to investigate), any error
was harmless.
III. CONCLUSION
We AFFIRM the judgment of the district court.
4 Plaintiff also argues that we must resolve this case on immunity grounds because
that was the issue presented in the parties’ initial round of briefing and the Board has
waived any harmless-error defense. But “we have discretion to affirm a summary
judgment on any ground adequately supported by the record, so long as the parties
have had a fair opportunity to address that ground.” Hasan v. AIG Prop. Cas. Co.,
935 F.3d 1092, 1099 (10th Cir. 2019) (brackets and internal quotation marks
omitted). Because we ordered supplemental briefing from the parties, allowing them
to show that there were unresolved relevant factual issues and to explain any
unfairness in resolving this appeal on harmless-error grounds, we see no obstacle to
deciding this case on such grounds.
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