Terry et al v. City of Oklahoma City Oklahoma et al

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SINCERE TERRY et al., )
)
Plaintiffs, )
)
v. ) Case No. CIV-22-522-G
)
CITY OF OKLAHOMA CITY, )
OKLAHOMA, et al., )
)
Defendants. )
ORDER
Now before the Court is a Motion to Vacate Stay and Expedite Consideration (Doc.
No. 72) filed by Plaintiffs1 in this 42 U.S.C. § 1983 action (“Terry II”). Plaintiffs represent
that their request is not opposed by Defendants.2
Plaintiffs herein are also the six named plaintiffs in a related lawsuit, “Terry I,”
which was filed concurrently in this Court and is also assigned to the undersigned. See
Terry v. Drummond, No. CIV-22-521-G (W.D. Okla.). In Terry I, the plaintiffs are
bringing a facial constitutional challenge to Oklahoma’s riot proscriptions, and specifically
title 21, section 1311 of the Oklahoma Statutes, under the First and Fourteenth
1 The plaintiffs are Sincere Terry, Mia Hogsett, Tyreke Baker, Preston Nabors, Trevour
Webb, and Austin Mack.
2 Defendants are: City of Oklahoma City, Oklahoma; Oklahoma City Police Department
officer Thomas VanNort, in his individual capacity; Oklahoma County District Attorney
Vicki Behenna, in her official capacity; and former Oklahoma County District Attorney
David Prater, in his individual capacity.
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Amendments.3 The legal claims in Terry I concern the criminal charges brought against
the six plaintiffs as a result of the same June 2020 events, and encounters between those
individuals and law enforcement, as are challenged in this action. See Am. Compl. ¶¶ 3-5,
32-354 (Doc. No. 39); see also Terry v. Drummond, No. 24-6046, 2025 WL 707451, at *1
& n.3 (10th Cir. Mar. 3, 2025).
In Terry I, the Court denied Plaintiffs’ request to enjoin enforcement of section 1311
based upon the statute’s alleged overbreadth and vagueness. See Terry v. Drummond, 717
F. Supp. 3d 1106 (W.D. Okla. 2024). Plaintiffs appealed that ruling to the Tenth Circuit
Court of Appeals, and this Court stayed proceedings in Terry I in light of that appeal.
On March 3, 2025, the Tenth Circuit abated the Terry I appeal and issued an order
certifying to the Oklahoma Court of Criminal Appeals (“OCCA”) a “novel and
determinative question” of Oklahoma law regarding the level of intent required for the
State of Oklahoma to prove a prosecution based upon threats constituting riot. Terry, 2025
WL 707451, at *1, *6-9.
The Court then directed the pending motions to dismiss in the instant case to be
stayed and held in abeyance pending further order of the Court. See Order of Mar. 27,
2025 (Doc. No. 66).
3 Section 1311 prescribes: “Any use of force or violence, or any threat to use force or
violence if accompanied by immediate power of execution, by three or more persons acting
together and without authority of law, is riot.” Okla. Stat. tit. 21, § 1311. Section 1320.2
“incorporates the statutory definition of riot from § 1311.” Terry, 2025 WL 707451, at *1;
see Okla. Stat. tit. 21, § 1320.2.
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On July 17, 2025, the OCCA issued an opinion answering the certified question
posed by the Tenth Circuit in Terry I. See Terry v. Drummond, __P.3d__, No. CQ-2025-
185, 2025 WL 2016711 (Okla. Crim. App. July 17, 2025). The Tenth Circuit then lifted
the abatement of the Terry I appeal and ordered supplemental briefing.
On October 24, 2025, the Tenth Circuit again abated the Terry I appeal and certified
four additional questions of state law to the OCCA, all seeking guidance from the state
court regarding title 21, section 1311 of the Oklahoma Statutes. See Terry v. Drummond,
No. 24-6046, 2025 WL 3012448, at *1 (10th Cir. Oct. 24, 2025). The Oklahoma Court of
Criminal Appeals answered those additional questions on March 5, 2026, and the Tenth
Circuit is currently awaiting more supplemental briefing on the Terry I appeal. See Terry
v. Drummond, __P.3d__, No. CQ-2025-860, 2026 WL 617060 (Okla. Crim. App. Mar. 5,
2026); Terry v. Drummond, No. 24-6046 (10th Cir. Mar. 19, 2026) (order).
Beyond the obvious shared factual background, there is substantial overlap and
intertwinement between the factual and legal issues being determined by the Tenth Circuit
in Terry I and those raised in this case. And the Tenth Circuit’s consideration of the
OCCA’s answers to the multiple certified questions presented in Terry I will necessarily
inform the Court’s consideration of certain of Plaintiffs’ claims here. See Order of Mar.
27, 2025, at 3-4.
It follows that the arguments raised pursuant to the Motions to Dismiss, particularly
those addressing the charging of Plaintiffs under the relevant statutes and the existence of
probable cause, are also likely to be materially affected by the pending appeal in Terry I.
See Doc. Nos. 40, 41, 42. Having considered the interests of the parties as reflected in the
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record, as well as judicial efficiency, the Court shall continue to exercise its “broad
discretion” and “power to control its own docket” and stay the Motions for a limited time
to allow their disposition to be informed, as relevant, by the Tenth Circuit’s decision on
the related appeal. Clinton v. Jones, 520 U.S. 681, 706 (1997); see also Apodaca v. Young
Am. Ins. Co., No. 18-cv-00399, 2019 WL 6134718, at *1, *3-4 (D.N.M. Nov. 19, 2019).
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Vacate Stay and Expedite
Consideration (Doc. No. 72) is DENIED, without prejudice to being reurged as
appropriate. The Motions to Dismiss (Doc. Nos. 40, 41, 42) shall remain STAYED and
HELD IN ABEYANCE pending further order of the Court.
IT IS SO ORDERED this 30th day of March, 2026.
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