Clerkley v. City of Oklahoma City, Oklahoma et al

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LORENZO CLERKLEY, JR., 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-20-465-G
)
KYLE HOLCOMB, 	)
)
Defendant. 	)
ORDER
Now before the Court is Plaintiff Lorenzo Clerkley, Jr.’s Motion for New Trial
(Doc. No. 178), in which Plaintiff argues that a new trial should be ordered pursuant to
Federal Rule of Civil Procedure 59(a) in light of an improper statement made by counsel
for Defendant Kyle Holcomb during closing argument. 	Defendant Holcomb has filed a
Response (Doc. No. 182).
I. 	Background
On March 10, 2019, Plaintiff was shot and injured during an encounter with
Defendant Holcomb, an officer with the Oklahoma City Police Department. 	Plaintiff
brought a claim against Defendant Holcomb under 42 U.S.C. § 1983, alleging that
Defendant Holcomb used excessive force during this incident, violating Plaintiff’s rights
under the Fourth Amendment to the United States Constitution. 	See Am. Final Pretrial
Report (Doc. No. 144) at 5-6; Order of Mar. 10, 2025 (Doc. No. 152) (adopting Doc. No.
144 as Final Pretrial Order).1
1 Plaintiff also brought, and proceeded to trial on, a tort claim against Defendant City of
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A jury trial on this claim was held beginning March 11, 2025, and continuing
through March 17, 2025. 	Near the conclusion of Defendant Holcomb’s closing argument,
counsel stated:
If this jury finds against Kyle Holcomb, every law enforcement officer in this
state is going to hear about it. 	And when those officers get in that situation
and have to hesitate because they fear what this jury does, then those officers
are going to end up wounded or dead.
Trial Tr. vol. V, 854.
Counsel for Plaintiff objected to the statement as improper. 	Id. 	The Court
sustained the objection. 	Id.
When Defendant Holcomb’s counsel ended his argument shortly following this
exchange, the Court sua sponte advised and instructed the jury as follows:
Members of the jury, you heard counsel’s statements suggesting that a
verdict in favor of plaintiff might send a message to other law enforcement
officers that could result in a change in their behavior that might increase
injury or death of those officers. 	This is an improper argument. 	Counsel’s
opinion is completely unfounded and [it is] immaterial. 	I instruct you not to
consider that statement at all and to put it out of your mind entirely.
Id. at 855.
In the Court’s preliminary jury instructions given prior to opening statements, the
Court instructed the jury that “[t]he lawyers’ statements and arguments are not evidence.”
Trial Tr. vol. I (Doc. No. 180) at 42. 	In those preliminary instructions, the Court also
advised the jury, “It is also possible that I may order you to disregard things that you saw
Oklahoma City, Oklahoma, alleging that Defendant City was vicariously liable for
Defendant Holcomb’s negligent use of excessive force. 	See Am. Final Pretrial Report at
6-7; Order of Mar. 10, 2025. 	That claim was voluntarily dismissed by Plaintiff
immediately prior to closing arguments. 	Trial Tr. vol. V (Doc. No. 180-4) at 813-15.
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or heard, or statements I strike from the record. 	You must completely ignore all of these
things. 	Do not even think about them. . . . . These things are not evidence, and you are
bound by your oath not to let them influence your decision in any way.” 	Id. 	These
directions were repeated, with slight changes in wording, in the Court’s final jury
instructions given prior to closing arguments. 	See Final Jury Instr. No. 5 (Doc. No. 170).
Further, in the final instructions, the Court instructed the jury, “It is also your duty to base
your verdict solely upon the evidence, without prejudice or sympathy. 	That was the
promise you made and the oath you took.” 	Id. at No. 1. 	And, in the Court’s closing jury
instruction, given after closing arguments, the Court reiterated, “You should not let
sympathy, sentiment, or prejudice enter into your deliberations . . . .” 	Id. at No. 18.
The jury found in favor of Defendant Holcomb and awarded no damages. 	See Jury
Verdict (Doc. No. 172). 	Judgment was entered consistent with that verdict. 	See J. (Doc.
No. 174). 	Plaintiff timely moved for new trial. 	See Fed. R. Civ. P. 59(b).
II. 	Relevant Standards
Federal Rule of Civil Procedure 59(a)(1)(A) provides that, after a jury trial, the trial
court “may, on motion, grant a new trial . . . for any reason for which a new trial has
heretofore been granted in an action at law in federal court.” 	Fed. R. Civ. P. 59(a)(1)(A).
An improper and prejudicial statement by counsel during closing argument qualifies as
such a reason. 	See, e.g., Whittenburg v. Werner Enters. Inc., 561 F.3d 1122, 1133 (10th
Cir. 2009) (remanding for new trial on the basis of improper closing argument).
The 	Tenth 	Circuit 	has 	stated 	that 	“[f]our 	factors 	bear 	on 	whether 	attorney
misconduct,” including improper statements by counsel during closing argument, “merit[]
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a new trial: (1) the pervasiveness of the misconduct, (2) the taking of curative action, (3)
the size of the verdict, and (4) the weight of the evidence.” 	Osterhout v. Bd. of Cnty.
Comm’rs of LeFlore Cnty., 10 F.4th 978, 991-92 (10th Cir. 2021). 	“The ultimate question
is whether the attorney misconduct influenced the verdict.” 	Id. at 992 (internal quotation
marks omitted). 	The Tenth Circuit has provided the following guidance to be considered
when analyzing a motion for new trial in this context:
Courts 	must 	ensure 	that 	every 	litigation 	be 	fairly 	and 	impartially
conducted and that verdicts of juries be rendered only on the issues made by
the 	pleadings 	and 	the 	evidence. 	Litigants 	are 	entitled 	to 	a 	verdict
uninfluenced by the appeals of counsel to passion or prejudice. 	But courts
must exercise great caution in setting aside a jury’s verdict due to an
improper argument. 	Even if some statements exceeded the bounds of
permissible argument, a judgment will not be disturbed unless it clearly
appears that the challenged remarks influenced the verdict.
. . . . Closing remarks often occupy only a fraction of what the jurors hear
and requiring a new trial is a serious and costly remedy for all involved.
Because the presiding trial judge is present in the courtroom throughout the
proceedings, he or she is uniquely positioned to assess the prejudicial effect
of an improper argument in the context of the overall trial, as well as to
fashion an appropriately tailored remedy.
Racher v. Westlake Nursing Home Ltd. P’ship, 871 F.3d 1152, 1168 (10th Cir. 2017)
(alterations, omissions, citations, and internal quotation marks omitted).
III. 	Discussion
Plaintiff argues that the statement by counsel for Defendant Holcomb during closing
argument—i.e., that the jury finding against Defendant would be heard by “every law
enforcement officer in this state,” cause the officers to “hesitate” in similar situations, and
result in the officers being “wounded or dead”—was “highly prejudicial” and “introduced
inflammatory extraneous matter that had a reasonable probability of influencing the jury.”
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Pl.’s Mot. (Doc. No. 178) at 3. 	Defendant responds that the statement at issue was an
isolated one and any prejudice that might have been caused was cured through the Court
sustaining an objection to the statement and promptly instructing the jury to disregard that
statement. 	See Def.’s Resp. (Doc. No. 182) at 2-10, 13.
The Court considers the parties’ arguments in the context of the four factors outlined
by the Tenth Circuit in Osterhout. 	See Osterhout, 10 F.4th at 991-92.
As for the “pervasiveness of the misconduct,” Defendant is correct that at issue here
is a single statement. 	And that statement was made by counsel on the fifth day of trial,
meaning that the jury would have heard what was said only after being presented extensive
evidence from both Plaintiff and Defendant. 	These considerations lessen the likelihood
that the statement influenced the jury’s verdict. 	Still, a single statement can be prejudicial
enough to influence the jury and undermine the fundamental fairness of a trial. 	Here, the
Court finds that the statement by Defendant’s counsel that law enforcement officers will
be wounded or die if the jury finds for Plaintiff was extraordinarily prejudicial. 	This was
an extreme example of an attorney asking the jury to decide a case based on sympathy—
the common concern for the safety of the men and women working for police agencies
across the state—rather than an impartial assessment of the evidence in this case. 	The
Court cannot in this instance find that no influence occurred simply because only one
improper statement was made.
As for the “size of the verdict,” neither the jury’s defense verdict nor any other
information that can be gleaned from the jury’s deliberations reveals whether the jury was
in fact influenced by counsel’s improper statement. 	A verdict of no damages is
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simultaneously the least and the most a jury can do when finding for a defendant—and, so,
says nothing as to whether the jury was acting based on sympathy rather than reason.
The “weight of the evidence” in this case reflects, in the Court’s view, that a close
decision was presented to the jury. 	At trial, the jury heard the testimony of Plaintiff and
Defendant Holcomb, among others, and viewed multiple body worn camera (“BWC”)
videos that captured events before, during, and after Plaintiff was shot.
Plaintiff testified that he was 14 years old when he was shot twice by Defendant
Holcomb, that Plaintiff and several friends had entered an abandoned house and were
playing with and shooting air pistols, that Plaintiff climbed out a window to the back yard
to explore, that at the time Plaintiff did not have either a real gun or an air pistol, that
Plaintiff heard someone say “Show me your hands, drop it, drop it,” that the person began
to shoot, that Plaintiff fell back through the window into the house, and that only after
Plaintiff Clerkley was back in the house did he realize that he had been shot. 	On cross-
examination, Defendant’s counsel pointed to statements made by Plaintiff that were
inconsistent with his trial testimony.
Defendant Holcomb testified that he and other OCPD officers went to a location to
investigate a report that men with guns were in an abandoned house, that as Defendant
Holcomb and another officer approached the house on foot Defendant Holcomb heard what
he thought was a “cap gun,” that Defendant Holcomb saw through a hole in the fence a
person in the back yard of the house and that the person was holding a black gun, that the
gun looked real, that Defendant Holcomb yelled “Show me your hands! Drop it!,” that
Defendant Holcomb saw the person move the gun across his body so that even though the
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person’s side was facing Defendant Holcomb the gun was pointed at Defendant Holcomb,
and that Defendant Holcomb—believing his life was in danger—fired his gun at the person
four times. 	On cross-examination, Plaintiff’s counsel pointed to statements made by
Defendant Holcomb that were inconsistent with his trial testimony.
Both sides presented BWC videos. 	Plaintiff’s counsel argued that the videos
showed that Plaintiff was not holding a gun of any sort when Defendant Holcomb shot
Plaintiff. 	Defendant Holcomb’s counsel argued that the videos showed that Plaintiff had
a gun (or more likely an air pistol that was designed to look like a real Glock firearm) and
that, in any event, Defendant Holcomb believed that Plaintiff had a gun.
In sum, the testimony and evidence presented by the parties did not plainly resolve
the question of whether Plaintiff had a gun of some sort in his hand when confronted by
Defendant Holcomb or whether Plaintiff had pointed the gun toward Defendant Holcomb
when Defendant Holcomb began shooting. 	Because the jury was presented with a close
decision, the Court finds that the jury deliberations were subject to influence in a way that
would not be the case if the evidence had strongly favored one side or the other.
What emerges, then, as the primary question for the Court is whether the curative
action taken by the Court following the improper statement by Defendant Holcom’s
counsel was sufficient to remove the unfair prejudice caused by that statement. 	As
detailed above, the Court sustained Plaintiff’s objection to the improper comment and
promptly gave a curative instruction, advising the jury that the statement was improper and
unfounded and directing that the jury disregard the statement. 	Further, in the Court’s
preliminary and final jury instructions the Court instructed the jury to not confuse argument
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by counsel with evidence and emphasized the obligation of jurors to disregard improper
statements when told by the Court to do so. 	While those efforts were the most robust
medicine the Court could administer, ultimately the Court is not persuaded that they were
sufficient in this instance to cure the prejudice caused by a statement that law enforcement
officers will be wounded or die if the jury finds against his client.
Applying the four factors outlined in Osterhout and the other authority and guidance
set forth above, the Court finds that it “clearly appears” that attorney misconduct influenced
the jury’s verdict and “merit[s] a new trial.” 	Racher, 871 F.3d at 1161; Osterhout, 10
F.4th at 991; see Fed. R. Civ. P. 59(a)(1)(A). 	Accordingly, the verdict and judgment are
hereby VACATED, and the matter will be set for trial on the next regularly scheduled jury
docket.
CONCLUSION
For the foregoing reasons, Plaintiff Lorenzo Clerkley, Jr.’s Motion for New Trial
(Doc. No. 178) is GRANTED.
IT IS SO ORDERED this 31st day of March, 2026.
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