Lawyers representing the estate of a man shot and killed four years ago by Tahlequah police hailed an opinion published this week by the 10th Circuit Court of Appeals as "a victory for all civil rights advocates."

A three-judge panel of the federal appeals court in Denver reversed the decision to dismiss civil rights claims filed by the estate of Dominic Rollice against two Tahlequah police officers involved in the fatal shooting. U.S. District Judge Ronald A. White granted summary judgment to Officers Brandon Vick and Josh Girdner based on the legal theory of qualified immunity, which shields officials from civil liability when the conduct at issue violates no clearly established right.

Daniel Smolen said he and his colleagues at the Tulsa-based firm representing the estate "are pleased that the 10th Circuit reversed the trial court’s grant of summary judgment." .

"It has become increasingly difficult for civil rights plaintiffs to overcome assertions of qualified immunity," Smolen said. "Significantly, in issuing its opinion, the circuit looked at the totality of the circumstances, including the reckless conduct of the officers that created the purported justification for the use of deadly force. Hopefully, the opinion will result in improved training and supervision so that such a tragedy can be averted in the future."

District Attorney Jack Thorp determined the shooting was justified when Rollice, 49, refused to drop a hammer and then raised it above his head after police cornered him inside a garage. Officers had been summoned by Rollice's ex-wife, who wanted him removed from the property after he showed up while intoxicated.

Lawyers representing Rollice's estate allege the officers' use of deadly force was excessive and unconstitutional. They said Rollice's "movements were defensive" when officers opened fire; that he presented no threat when "Girdner fired the final shot"; and that officers "recklessly and deliberately created the circumstances necessitating deadly force."

The officers' lawyers countered, arguing Rollice "posed a serious threat to their safety" and that his aggressive conduct justified their use of deadly force. The officers also contend they were not responsible for Rollice making the decision to arm himself with a hammer.

White, chief judge for the U.S. District Court of Eastern Oklahoma, agreed with the officers. But the 10th Circuit judges said the district judge "did so based on findings from the video evidence that demonstrate a failure to view that evidence in the light most favorable to the estate."

The 10th Circuit judges determined reasonable jurors could have differing opinions about what was seen in the video, and those differences must be construed "in the light most favorable to the nonmoving party" — Rollice's estate, in this case.

In determining whether police violated Rollice's constitutional right to be free from excessive force, appellate judges examined the "severity of the crime" being investigated and "active resistance or evasion of arrest." They also evaluated the immediacy of the threat encountered by officers.

"While the district court's interpretation of the video evidence is plausible, a reasonable jury could conclude Dominic did not make any movements to put the officers in fear of serious physical harm," the panel of judges wrote in the 32-page opinion.

The panel of appellate judges determined police "may have recklessly escalated the situation" by cornering Rollice in the garage and blocking the exit. Rollice, they note, grabbed the hammer after he was cornered and pulled it back in response to an advancing officer who wielded a Taser.

The appeals court determined "a reasonable officer" in these circumstances "and presumptively aware" of a 1997 decision involving Muskogee police "would have known that cornering Dominic in the garage might recklessly or deliberately escalate the situation." Under such circumstances, the court held "an officer's ultimate use of deadly force would be unconstitutional."

Smolen said police "needlessly shot and killed" Rollice after they "responded to a routine domestic call." He described Rollice's death as something that "should never have happened."

The estate's civil rights claims will proceed in district court as a result of the appellate court's decision.

D.E. Smoot writes for the Muskogee Phoenix.

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