Eric Harris’ Estate Joins Federal Civil Rights Lawsuit Against Tulsa County Sheriff

June 30, 2015
By David Lee
TULSA (CN) – The estate of the black man killed by a white Tulsa County sheriff’s volunteer deputy who confused his gun with his Taser has joined a federal lawsuit against the sheriff.
The estate of Eric Courtney Harris on Sunday joined a lawsuit filed by Scott W. Birdwell in May. Birdwell claims he was assaulted by another inmate in the Tulsa County Jail last year and was denied adequate medical care.
Harris, 44, was killed on April 2 by reserve deputy Robert C. Bates, 73, after Harris was chased down a street by several deputies and held on the ground. Bates fired a single gunshot and immediately apologized as Harris screamed that he had been shot, according to a deputy’s body camera video.
Bates, an insurance agent, was charged with second-degree manslaughter involving culpable negligence. If convicted, he faces up to four years in state prison.
“In essence, Bob Bates was not adequately trained, [Tulsa County] Sheriff [Stanley] Glanz/TCSO acted to cover this up, and Sheriff Glanz/TCSO knowingly and dangerously allowed an undertrained and underqualified 73-year old insurance executive to play cop,” the 56-page amended complaint states. “Eric Harris died as a result.”
The plaintiffs say they were killed or injured “as a result of inadequate and unconstitutional training and supervision fostered” by Glanz.
They claim the sheriff’s judgment “is badly clouded” by his “unchecked cronyism” that harms inmates and the public.
“Fundamentally, Sheriff Glanz has exhibited, time and time again, over a period of many years, deliberate indifference to the health and safety of inmates and citizens on the street, alike,” the amended complaint states. “Sheriff Glanz has displayed a remarkable willingness to place his personal, political and financial relationships over the safety of inmates and the community at large. Whether it is his relationship with the CEO of the former private medical provider at the jail or his relationship with defendant Robert C. Bates, Sheriff Glanz has continually over-prioritized these relationships at the expense of public safety.”
The plaintiffs say “no reasonable officer” could have mistaken a gun for a Taser.
“The .357 revolver was Bates’ own personal firearm,” the amended complaint states. “It was not issued to him by TCSO. Consistent with Sheriff Glanz/TCSO’s failure to train and supervise Bates, and in violation of TCSO policy, there is no evidence that Bates was ever trained or certified to use the .357 revolver as his service weapon. Further, the Smith & Wesson .357 revolver was not on the list of approved firearms deputies can carry on duty.”
The gunshot was unreasonable and excessive because Harris was unarmed and already had been subdued by other deputies, the complaint states.
The plaintiffs also question Bates’ statement that he drew his gun after leaving his vehicle. They claim that a former sheriff’s detective said Bates grabbed the gun from his trunk and had it in his right hand from the moment he left the vehicle.
A third plaintiff, Terry Byrum, also joined the lawsuit Sunday. Byrum claims Bates Tasered him while he was already handcuffed on the ground on Feb. 12, two months before Harris was killed.
“The force used by Bates was objectively unreasonable. Bates’ use of a Taser on Byrum when he was handcuffed, on the ground and subdued was completely unnecessary,” the amended complaint states. “Because Byrum did not pose any immediate threat and was not actively resisting arrest, Bates had no reasonable basis to employ any force on Byrum. The use of a Taser under the circumstances constitutes clearly excessive use of force.”
Other defendants include Bates, the Board of Tulsa County Commissioners and Armor Correctional Health Services.
Sheriff’s spokesman Terry Simonson told the Tulsa World late Monday that he had not seen the amended complaint.
“Since the Sheriffs’ Office has not been served the court papers, it cannot comment on what appears to be yet another seemingly baseless and frivolous lawsuit seeking taxpayer money,” Simonson said. “The taxpayers of Tulsa County need to be protected from these tactics with a vigorous defense, which will occur.”
Glanz has been sheriff of Tulsa for more than 25 years. In a May 10 editorial, the Tulsa World praised his record, but said it was time for him to retire.
Citing a 2009 memo specifically addressing Bates, the World said the memo showed that “questions of favoritism and lack of training concerning Bates had been raised by department supervisors, but that higher ranking sheriff’s officials quashed those questions.”
Then records from a dismissed federal court case surfaced in Oklahoma City surfaced, in which Bates bragged about his influence with the sheriff. “On tape, Bates says he hadn’t paid his attorney yet, adding ‘Let’s say, I mean, he knows I’ve done some s— for him at the Sheriff’s Office for some of his clients,'” according to the World’s editorial.

From Courthouse News.

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Oklahoma Moves to Resume Executions After Supreme Court Validates Execution Protocol

June 30, 2015
By David Lee
OKLAHOMA CITY (CN) – Oklahoma lost no time Monday preparing to resume executions after the Supreme Court upheld its new execution protocol with replacement drugs.
Attorney General Scott Pruitt’s office filed a notice suggesting the appropriateness of scheduling execution dates with the Oklahoma Court of Criminal Appeals.
Pruitt halted all pending executions on Jan. 28 pending the Supreme Court ruling in Glossip v. Gross, in which four inmates claimed the state’s use of midazolam – the first drug in the three-drug replacement protocol – fails to render a person insensate to pain, in violation of the Eighth Amendment.
Pruitt asked the state’s highest criminal appeals court to schedule executions for Aug. 5, Aug. 26, Sept. 16, Oct. 7 or Oct. 28 for the three remaining plaintiffs: Richard Glossip, Benjamin Robert Cole and John Marion Grant.
A fourth plaintiff, Charles Warner, was executed on Jan. 15 with replacement drugs. He told witnesses during his final statement that the injection “hurt” and “feels like acid.”
States have been forced to seek replacement execution drugs from compounding pharmacies after anti-death penalty activists persuaded large drug manufacturers to stop making traditional lethal injection drugs. Oklahoma’s previous three-drug protocol required pentobarbital to knock the inmate unconscious, vecuronium to stop breathing and potassium chloride to stop the heart.
The lawsuit was filed in the months after the botched execution of convicted murderer Clayton Lockett, 38, in April 2014. He was declared unconscious after the injection of midazolam, but breathed heavily, writhed, clenched his teeth and strained to lift his head off a pillow three minutes later. Blinds separating a viewing gallery and the death chamber were lowered and Oklahoma Department of Corrections Director Robert Patton halted the execution. It took Lockett 43 minutes to die of a heart attack.
In a 5-4 ruling Monday, the Supreme Court upheld the new execution protocol, saying the inmates failed “to identify a known and available alternative method of execution that entails a lesser risk of pain.”
Justice Samuel Alito, writing for the majority, criticized the dissenting opinion’s “outlandish rhetoric” and “groundless suggestion” that the ruling amounts “to allowing prisoners to be ‘drawn and quartered, slowly tortured to death, or actually burned at the stake.'”
Attorney General Pruitt commended the court’s ruling, saying it is the eighth time a court has upheld Oklahoma’s lethal injection protocols.
“The families in these three cases have waited a combined 48 years for justice,” Pruitt said in a statement Monday. “Now that the legal issues have been settled, the state can proceed with ensuring that justice is served for the victims of these horrible and tragic crimes.”
Anti-death penalty and religious leaders expressed disappointment with the ruling. Archbishop Paul S. Coakley of the Archdiocese of Oklahoma City said Monday he prays for the day Oklahoma and other states will outlaw capital punishment.
“The use of the death penalty, in any form, diminishes us all,” the archbishop said. “When available, we should choose nonlethal ways to ensure justice and to protect society.”
Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, said Monday the death penalty is losing ground even in conservative states such as Nebraska, which recently prohibited it.
“Yet that message clearly has not risen up to the highest court in the land,” she said. “That means our work is far from done.”

From Courthouse News.

Texas Attorney General Blasted for Advising County Clerks, Judges on Gay Marriage

June 30, 2015
By David Lee
DALLAS (CN) – Texas Attorney General Ken Paxton’s message that county clerks and judges need not issue same-sex marriage licenses if it violates their religious beliefs roused a bit of furor Monday.
Paxton issued the non-binding advisory opinion Sunday, two days after the Supreme Court’s landmark ruling in Obergefell v. Hodges struck down state bans on same-sex marriage and made it legal nationwide.
“County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses,” Paxton’s 6-page letter states.
Paxton warned that clerks might be sued for doing this, and a same-sex couple did sue the Smith County clerk on Monday, for refusing to issue them a license. They called Smith County Clerk Karen Phillips’ refusal not just illegal, but “mean-spirited and petty,” and intended to “humiliate and shame” them. Tyler is the seat of Smith County.
Paxton wrote: “The strength of any such claims depends on the particular facts of each case. Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive mans of the government ensuring the ceremonies occur.”
“The strength of any such claims depends on the particular facts of each case. Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive means of the government ensuring the ceremonies occur.”
Paxton said the Religious Freedom and Restoration Act requires governments to use the least restrictive means to further a compelling government interest when “substantially burdening” a person’s religious rights.
He warned that if a judge or county clerk invokes that right and refuses to issue a same-sex marriage license, the applicants could sue.
Paxton said the Supreme Court “again ignored the text and spirit” of the Constitution in legalizing same-sex marriage and “manufacture[d] a right” that does not exist.
“In so doing, the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live,” he said in a statement Sunday.
“Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution.”
Civil liberties and gay rights groups denounced Paxton’s opinion at a Monday rally at the Texas Capitol.
Rebecca Robertson with the American Civil Liberties Union of Texas said religious liberty does not allow officials “to use their personal religious beliefs” as an excuse to violate the law.
She said a memorandum that Texas Gov. Greg Abbott sent to state agency leaders “seemed to invite” resistance against the Supreme Court ruling.
State Sen. Rodney Ellis, D-Houston, criticized Abbott’s opinion as “significantly increas[ing] the likelihood of civil rights violations” if county officials follow his advice. He asked U.S. Attorney General Loretta Lynch on Monday to monitor the implementation of Obergefell in Texas and to intervene if necessary.
“Officials who take an oath to uphold the Constitution should not be able to deny Texans’ constitutional rights with the backing of state legal guidance,” Ellis wrote. “I have serious concerns about the far-reaching implications of this blanket protection for officials who may choose to ignore the law based on their personal religious beliefs. Will judges be able to argue that they should not have to recognize or authorize divorces if it offends their religious sensibilities? Could a judge refuse to sentence a defendant to the death penalty under his or her belief that ‘thou shalt not kill’ means just that? Where does this end?”
Religion must not be used as “an excuse to discriminate,” Ellis said.

From Courthouse News.

Oklahoma Victim of Failed Beheading Speaks

By David Lee
June 26, 2015
NORMAN, Okla. (CN) – An Oklahoma woman who survived a beheading attempt after an argument about race at work said the attack ruined her life.
Traci J. Johnson, 44, of Oklahoma City, spoke in detail about the attack for the first time Wednesday on the Fox News show “The Kelly File.”
Alton Alexander Nolen is charged with the first-degree murder of 54-year-old Colleen Hufford, at a Vaughn Foods processing plant.
Nolen, 30, of Norman, killed Hufford by “sawing” her neck with a “large bladed knife,” according to a criminal information.
Nolen then cut Johnson’s throat and face in the Sept. 25, 2014 attack and tried to stab a company executive, who fended off the attack by shooting him, according to contemporary news reports.
Cleveland County District Attorney Greg Mashburn said in September the attack was sparked by a complaint Johnson made about Nolen “not liking white people.”
Nolen allegedly drove home to get the knife after being suspended for the complaint.
Nolen was charged with first-degree murder and assault and battery with a deadly weapon. He faces the death penalty if he is found to be mentally competent to stand trial.
His now-deleted Facebook page showed several images of beheadings and Osama bin Laden, and posts about terrorism in the Middle East. Nolen is a Muslim convert.
Johnson said she had been working at the Moore plant for just four days when Nolen began “slicing” her neck. Scars are still visible on the right side of her neck.
“He got ahold of my face, he cut my right index finger,” a visibly emotional Johnson said. “He wouldn’t stop as I am screaming for help and didn’t think anyone was coming around.”
Her left cheek and lip were cut and Nolen came within “a millimeter of my jugular,” she said.
Johnson said Vaughan Foods chief operating officer Mark Vaughan shot at Nolen and missed before Nolen charged him with the knife, resulting in two more gunshots that struck him. The attacks lasted five to 10 minutes.
Johnson was a temporary employee for 1st Staffing Group USA during the attack.
She was paid $352 per week in workers’ compensation benefits for temporary disability, which payments have stopped, The Oklahoman reported Thursday.
She told CBS-affiliate KWTV that she has “extremely hard days” coping with the attack and “wanting to give up” sometimes.
“They say I have a thing called survivor’s guilt and that’s because of what has happened,” she said in December. “I feel like a lot of this is my fault.”

From Courthouse News.

Federal Judge Tosses Clayton Lockett Family Claims Over Botched Execution

June 26, 2015
By David Lee
OKLAHOMA CITY (CN) – A federal judge dismissed a lawsuit from the family of Clayton Lockett, criticizing their claims of “torture” and “human experimentation” in his botched execution as “bombast.”
It took Lockett 43 minutes to die after being lethally injected on April 29, 2014. His lengthy death throes fueled a movement that seeks an end to capital punishment.
U.S. District Judge Joe Heaton on Wednesday dismissed with prejudice Lockett’s brother’s claims against Gov. Mary Fallin, Department of Corrections Director Robert Patton, State Penitentiary Warden Anita Trammell, and the attending doctor, Johnny Zellmer. He dismissed without prejudice Gary Lockett’s claims against unidentified compounding pharmacies and drug manufacturers.
Traditional execution drugs have become scarce as large pharmaceutical companies have been pressured into stopping their production. Several states, including Texas and Oklahoma, have compounding pharmacies produce substitute execution drugs.
Lockett’s brother claimed that the “barbaric spectacle” of his brother’s execution was due to the “untested mixture” of execution drugs.
Witnesses said Lockett clenched his teeth and strained to lift his head off a pillow as midazolam was injected. A curtain separating the death chamber from witnesses was closed as he gasped for breath. He died of a heart attack.
Heaton said the state actors in the execution are protected by sovereign immunity. He said Gary Lockett’s “hyperbolic allegations about ‘torture,’ ‘crimes against humanity,’ and the like” were “bombast” and “conclusory allegations.”
After pointing out that Clayton Lockett “was sentenced to death after being convicted of assault and battery, murder, rape, forcible sodomy, and kidnapping,” Heaton said his brother’s torture allegation is based upon improper insertion of the intravenous line, inadequate observation of the injection site, prematurely declaring Lockett unconscious and failing to give Lockett more drugs that were to be used to kill another inmate that night – his execution was called off.
“Even assuming these allegations are true, they do not violate a right that was clearly established at the time,” Heaton wrote.
He said the first three allegations amount to negligence, which does not rise to the level of an Eighth Amendment violation.
“These allegations suggest nothing more than the sort of ‘isolated mishap,’ which ‘alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty.'” (Baze v. Rees, 553 U.S. 35, 50 (2008)).
Nor was the judge persuaded by the claim based on the use of “untested” drugs, saying it identified no authority showing a right to the use of a drug other than midazolam to be “clearly established.”
“Even assuming that defendants actually used a compounded drug and that this, on some basis, violated Mr. Lockett’s constitutional rights, that right was not clearly established at the time of his execution,” Heaton wrote. “Plaintiff has not identified any Supreme Court or Tenth Circuit authority suggesting that the use of compounded drugs in general, or of this one in particular, is unconstitutional.” (Whitaker v. Livingston, 732 F.3d465 (5th Cir. 2013)).
Lockett was convicted in 2000 of the rape and murder of Stephanie Neiman, 19. He was convicted of shooting her with a sawed-off shotgun and watching two accomplices bury her alive.
A group of Oklahoma death row inmates have filed their own federal lawsuit against the replacement lethal injection formula, claiming it violates their constitutional rights and is the equivalent of burning a man alive through drugs. Executions are on hold pending a ruling by the U.S. Supreme Court that is expected imminently , Glossip v. Gloss.
Heaton noted that the Supreme Court could rule against Oklahoma’s execution protocol.
“However, what is determinative for present purposes is that the claimed constitutional violations asserted here as to Mr. Lockett are not based on standards that were ‘clearly established’ at the time of his execution,” Heaton wrote in his 21-page ruling. “The law therefore recognizes that these defendants should not be held personally liable for any violation which may have occurred.”
Plaintiff’s attorney David Lane, with Killmer Lane in Denver, told The Oklahoman the Lockett family will appeal.
“It is an absolute travesty that the judge believes that when you torture a man to death and engage in human medical experimentation, as doctor Johnny Zellmer did on Clayton Lockett, that somehow that does not state any claim under the Constitution of the United States of America,” Lane told the newspaper. “That is a travesty of justice.”
Oklahoma Attorney General Scott Pruitt’s spokesman Aaron Cooper told The Oklahoman it was pleased with the ruling.
“The attorney general appreciates the thoughtful consideration of the court and its decision to dismiss the claims against the state,” he said.
“This case is DISMISSED, with all claims against the individual defendants being dismissed with prejudice,” Heaton concluded. “The claims against the as-yet unidentified compounding pharmacies are dismissed without prejudice, but without leave to amend here.”

From Courthouse News.

Delta, Southwest Dispute Heats Up at Dallas Love Field

June 23, 2015
By David Lee
DALLAS (CN) – As Dallas asks a federal judge to settle a dispute over limited gate space at Dallas Love Field, Delta and Southwest Airlines are trading punches over whether Delta should be kicked out in two weeks.
Southwest operates a hub at the city-owned airport and leases 18 of the airport’s 20 gates from Dallas.
Delta has permission to use some of Southwest’s gate slots under a sublease set to end on July 6.
Delta wants to stay at Love Field, but Southwest wants it out at the end of the contract.
Dallas sued both airlines in Federal Court last week, plus Virgin, American, United, Seaport, the U.S. Department of Transportation and the Federal Aviation Administration.
Dallas says it is in an “impossible situation” because the FAA requires it to provide Delta long-term gate accommodations at Love Field, so long as Delta maintains “the same pattern of service regardless of Southwest’s future gate” plans. The FAA requires this to encourage competition.
Dallas says this order contradicts an agreement to repeal the Wright Amendment of 1979, a federal law that protected the viability of the newer, larger Dallas/Fort Worth International Airport, by effectively banning all long distance, nonstop flights out of Love Field.
After Southwest hinted it would relocate its headquarters away from Love Field, a compromise was reached and all nonstop flights restrictions were lifted in October 2014.
Dallas says the Wright Amendment Reform Act of 2006 protects Southwest’s preferential gate rights from interference. Now the city is in a Catch-22 dilemma, with none of its options being without significant risks for lawsuits.
Delta attorney Kenneth Quinn, with Pillsbury Winthrop in Washington, D.C., told city officials on Friday that the “crisis and chaos” the city is bemoaning “are of its own making.”
Quinn said Delta “will be seeking legal recourse” because it has “exhausted” its good-faith efforts to see through its request for gate accommodations.
“The city in effect is now abdicating its airport sponsor responsibilities at this federally funded airport, which has the highest single-airline concentration in the country and a unique statutory cap on gates, despite making repeated commitments to accommodate new entrants,” Quinn wrote in a 6-page letter dated June 19 .
“In filing its complaint, the city is attempting to invoke the limited resources of the federal court to make ab initio decisions that the airport sponsor, consistent with federal requirements and guidance, should have made long ago,” the letter states.
Quinn said Delta has “patiently waited” a year for the DOT-mandated accommodation, but that its “patience has come to an end.”
“The city appears to be engaged in anti-competitive, collusive behavior that ultimately hurts the traveling public by reducing competition and travel choices at Love Field,” Quinn wrote. “Unless the city can live up to its obligation under federal law and accommodate Delta’s five daily flights to Atlanta, Delta will have no choice but to file for emergency injunctive relief to avoid disrupting thousands of passengers.”
Quinn claims that in repealing the Wright Amendment, Congress said that nothing in the legislation was intended to relieve Dallas of its obligations to provide gate access at Love Field “on reasonable terms” and “without unjust discrimination.”
Southwest flatly called Delta a “trespasser” at its gates, if it follows through on threats to stay past July 6, in a request for a temporary restraining order and injunction filed Monday in support of the city’s federal lawsuit.
Southwest says it has already sold 25,000 tickets for five new flights from those gates in anticipation of Delta leaving.
“Delta’s current actions further indicate Delta’s intent to trespass,” the injunction request states. “Indeed, Delta is currently selling tickets for travel out of Southwest’s gates on July 6. Correctly perceiving the imminent disaster that Delta’s trespass is about to create, the city has filed this lawsuit.”
City officials did not immediately respond to a request for comment Monday.
In its lawsuit, Dallas said the lifting of nonstop flight restrictions has “triggered demands” from several airlines for more access at the airport.
It said the defendant airlines want to fly 218 flights daily out of the gates, but Love Field can “legally and safely” handle only 200 flights a day.
Dallas said American wants to add four daily flights in spite of being forced by the U.S. Department of Justice to turn over its gates to Virgin America last year as part of its merger with US Airways.
And it claims that Virgin America, which leases Love Field’s remaining two gates, and its sublessee SeaPort are not interested in sharing their gates with Delta.

From Courthouse News.

Fmr. BearingPoint Executive Indicted For Allegedly Lying in Dallas Corruption Probe

June 24, 2015
By David Lee
DALLAS (CN) – Federal prosecutors accuse a former executive of BearingPoint consultants of lying to investigators during the public corruption investigation of embattled Dallas County Commissioner John Wiley Price.
A federal grand jury charged Helene Tantillo, 58, of Austin, with two counts of making a false statement to law enforcement.
She was arrested Monday, the day the June 16 indictment was unsealed, prosecutors said. She is free on bond. If convicted, she faces up to 5 years in federal prison and a $250,000 fine on each count.
Price and several associates were indicted in July 2014, accused of taking more than $950,000 in cash, cars and real estate for supporting lucrative county contracts.
Tantillo’s employer submitted a bid in 2004 for a multimillion-dollar contract to digitize Dallas County’s records, according to the new indictment.
A county selection committee recommended rejecting BearingPoint’s bid, but the bid was saved by Price’s intervention.
Prosecutors say that Tantillo then signed an amendment between her employer and political consultant Christian Campbell, 44, increasing Campbell’s monthly pay from $5,000 to $10,000 for two months. Campbell was indicted with Price.
When FBI agents interviewed Tantillo in August 2013 about the pay increase, Tantillo “stated she could not recall the reason” for the pay hike according to her indictment. When she was interviewed again five months later, she said it was for a charitable donation to “curry favor with another Dallas County Commissioner,” in violation of company policy, the indictment states.
In a third interview in June 2014, Tantillo said the pay hike was the idea of an unidentified third party.
The indictment says her claims are false because the Campbell’s pay boost “was at least in part in order to pay” Price’s co-defendant, political consultant Kathy Nealy.
Price, known as “Our Man Downtown” by his constituents in south Dallas, has been in office since 1985. He is accused of taking cash bribes of more than $447,000, a new Chevrolet Avalanche every four years and a BMW 645Ci convertible that cost $191,000 to buy and insure.

From Courthouse News.