Attorneys for a reserve deputy charged with killing a man during a Tulsa County Sheriff’s undercover sting in April have argued in court filings that their client is a state official who should be “entitled to qualified immunity” in a civil rights lawsuit.
Robert Bates — a 74-year-old insurance executive, longtime friend of Sheriff Stanley Glanz and former reserve deputy — is one of nine defendants named in the suit. Bates shot and killed Eric Harris on April 2 during an arrest in north Tulsa. Harris had just sold a stolen gun to an undercover deputy and ran from officers before he was quickly tackled.
Bates, who had previously donated equipment and vehicles to the sheriff’s office, ran to the scene, announced “Taser! Taser!” then shot Harris once under the right arm.
Bates immediately stated, ”Oh, I shot him. I’m sorry.” Harris died shortly after.
The shooting and what led up to it was recorded by a sunglasses camera Bates had bought for TCSO’s Violent Crimes Task Force. The Sheriff’s Office said the battery died, preventing the camera from recording what happened after Harris was shot.
The civil suit Bates is named in was originally filed in May by Tulsa attorney Daniel Smolen. At the time, Bates was not listed as a defendant and the lawsuit named only one plaintiff, Scott Birdwell, who said he was injured while in the jail and denied medical treatment.
In June, the lawsuit was amended to add two new plaintiffs: Terry Byrum, whom Bates shocked with a Taser earlier this year during a traffic stop that netted no arrests, and Robbie Burke, who has administered Harris’ estate since the April 2 shooting.
Bates and three other deputies present during the Harris shooting were also added to the amended lawsuit.
Bates’ attorney, Clark Brewster, argues in a motion to dismiss that Bates, as a state official, is “entitled to qualified immunity” from liability for civil damages. Qualified immunity is a legal precedent that can protect law enforcement officers from being personally sued for damages caused in the line of duty.
Courts, for instance, have ruled in favor of officers involved in police chases where someone other than the suspect was injured. Court rulings on qualified immunity states it does not protect “the plainly incompetent or those who knowingly violate the law.”
Attorneys working for the Harris family said in a statement they do not believe qualified immunity extends to Bates as far as the Harris shooting.
“First, we do not concede that the shooting was an accident or a mistake,” the statement reads. “And there is enough circumstantial evidence to at least create an issue of fact on that topic. “Second, and more fundamentally, even if one accepts the assertion that Bates ‘mistakenly’ shot Eric Harris with his .357, rather than his Taser, we will argue that such mistake was objectively unreasonable,” the statement says.
“Intent of the officer is largely immaterial in the excessive use of force context. It is well-established that ‘the ‘reasonableness’ inquiry in an excessive force case is an objective one.’”
TCSO records show Bates has been listed as an “advanced reserve deputy,” the highest rank a reserve can reach, since 2008. To reach that level, a volunteer is supposed to have completed around 800 hours of training with both a state agency and the sheriff’s office.
However, the status of Bates’ training has been in dispute since the Harris shooting. TCSO records do not show that Bates was qualified to carry the .357 Smith & Wesson revolver with which he shot Harris. That weapon is also not among the weapons that reserve deputies are allowed to carry under the Sheriff’s Office policy.
Records documenting training Bates received while rising through the reserve ranks have never been fully provided.
In 2009, a TCSO Internal Affairs review stated that many of Bates’ supervisors believed the insurance executive, who has been a longtime friend of Glanz and has donated to his past campaigns, was not trained appropriately.
Further, it laid out a history in which multiple top-ranking TCSO officials — including former Undersheriff Tim Albin and former Maj. Tom Huckeby — allegedly colluded to intimidate and coerce supervisors into passing Bates through the system. Albin and Huckeby resigned under pressure in the fallout over the shooting.
Some training documents were released by Brewster in April, but they cover only a small piece of the training Bates supposedly received. For instance, he released some gun qualification records, but that training is supposed to be done yearly, and the documents provided were many years old.
One page purporting to show that Bates had been field trained up to the standards listed in the TCSO handbook itemized his training hours, but was hand-written on “Bates, LLC.” stationery.
Brewster states in the dismissal motion that “numerous federal courts have held that the accidental discharge of a service weapon by a police officer does not violate a citizen’s right against unreasonable searches and seizures.”
In the statement released by Smolen’s office, attorney Bob Blakemore pointed to two cases similar to the Harris shooting, and said that in each case, the court “determined that the officers’ ‘mistaking’ a gun for a Taser was objectively unreasonable for the purposes of the Fourth Amendment (and qualified immunity).”
In both cases — the accidental shooting of a Maryland man in 2004 and the accidental 2002 shooting of a man in Madera, Calif., — the court first ruled in favor of the officer, granting them qualified immunity. It was only on appeal that those decisions were overturned.
In the Maryland case, a man named Frederick Henry sued after he was shot by a police officer named Robert Purnell. Purnell stated that he believed he was holding his Taser when he shot Henry, who police sought for failing to turn himself in for owing child support.
The U.S. District Court for the District of Maryland tossed the case in 2008, but a later court ultimately agreed with Henry.
In the California case, a man named Everado Torres was shot and killed by Marcy Noriega after Torres, who had been arrested and was in the back of a police car, began kicking the rear window.
Like the Harris case, Noriega said she intended to have drawn her Taser but instead pulled her service weapon — a mistake she had reported previously making twice before.
Noriega was first granted qualified immunity, a decision that was later overturned on appeal.
Blakemore also wrote in the statement that even if Bates had used his Taser after he had approached Harris, such force would have been “unnecessary and objectively unreasonable under the circumstances.”
Also filed on Tuesday was a request by the Board of County Commissioners in Tulsa to be dropped from the Birdwell complaint.
Birdwell’s complaint named Glanz, the BOCC, Armor Correctional Health Services, an unknown nurse and an unknown physician, saying he was improperly treated following an injury he sustained in the jail.
In the Tuesday filing, the BOCC stated they do not believe they are liable for “for the acts and/or omissions of medical personnel employed by Armor to work in the Tulsa County jail.”