(CN) — A mother asked a 10th Circuit panel Wednesday to revive her lawsuit against the Oklahoma City police officer who shot and killed her son outside a Chief Keef rap concert in 2013.
Officer Paul Gaylon, an off-duty Oklahoma City police officer working security at the concert shot Brian Simms Jr. 12 times as he slept in his car, killing him.
Simms’ mother sued the city and officer in 2015. Senior U.S. District Judge Robin Cauthron, a George H.W. Bush appointee, granted summary judgment on qualified immunity grounds to Oklahoma City and Gaylon in 2018.
According to court documents, the interaction lasted about nine seconds, with Gaylon shooting Simms after seeing him reach for a gun. Before the 10th Circuit, Houston-based attorney Timothy Hootman questioned this narrative.
“There’s the important question of did he in fact go for his gun?” Hootman argued. “Is it reasonable for a jury to conclude based on the officers, after looking at them and sussing up their credibility and whatnot, consistencies or inconsistencies in their story whether or not he went for his gun?”
U.S. Circuit Judge Robert E. Bacharach wondered whether police officers needed to announce themselves if they were in uniform.
“If I’m sitting in my Buick and my window’s down and there’s a police officer that’s come and I’m maybe waiting for my wife at a convenient store, he doesn’t have to say I’m a policeman, I can see that he’s wearing a police uniform,” said Bacharach, a Barack Obama appointee.
But Hootman questioned whether Simms could have known he was being confronted by police, if he had been asleep when they approached and woke to a light shining in his face.
“That’s an open question for the factfinder,” Hootman said.
On behalf of Officer Gaylon, attorney Stacey Haws Felkner argued it is the police officer’s perception that matters.
“The court held that the relevant question was not whether the suspect subjectively knew the officer was in fact a police officer but whether it was reasonable for the officer to assume the suspect knew that,” Felkner said. “Sgt. Gaylon was in a police uniform, so I think it was reasonable for him to assume that Simms knew he was a police officer.”
Senior U.S. Circuit Judge David M. Ebel, a Ronald Reagan appointee, questioned whether that assumption held up in the dark.
“It’s very different if they say ‘We are police officers, are you OK,’ than ‘Hey man, are you OK.’ If I’m approached in a dark alley by somebody who says ‘Hey man, are you OK,’ I’m not necessarily comforted by this inquiry,” Ebel said.
He continued: “Isn’t there at least a doubt that maybe should go to a jury about whether this whole outcome would have been different if their first statement had been ‘We are police officers. Hey man, are you OK?’ He might then not have felt threatened, might not have had to draw the gun, and all this scenario might not have happened.”
Ebel emphasized the police were right to approach the car, but questioned whether they did so safely.
“To me, it turns not on their response when they started to draw their gun, but the earlier cause of action. Did they unconstitutionally set up a bad situation in the first place?” Ebel asked.
Obama-appointed U.S. Circuit Judge Carolyn B. McHugh rounded out the panel.
The hearing was broadcast via YouTube and viewed by 15 parties. The court did not indicate when or how it will decide the case, but Bacharach acknowledged its importance.
“It is a very important case, as all of our cases are and it’s been very well presented in your briefs and your oral arguments,” Bacharach said. “We’ll take this under advisement.”
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