Case 4:20-cv-00598-TCK-SH Document 72 Filed in USDC ND/OK on 09/21/22 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OKLAHOMA
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`ROSALINDA IBARRA, as the Special
`Administratrix of the Estate of JORGE
`MARTINEZ, deceased,
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`Plaintiff,
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`v.
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`CHEYENNE LEE, and THE
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`BOARD OF COUNTY
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`COMMISSIONERS OF
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`ROGERS COUNTY,
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`Defendants.
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`Case No. 20-CV-598-TCK-SH
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`OPINION AND ORDER
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`Before the Court are the Defendants Cheyenne Lee’s and the Board of County
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`Commissioners of Rogers County’s Motions for Summary Judgment filed pursuant to Federal
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`Rule of Civil Procedure 56. (Docs. 50, 51). Plaintiff filed Responses (Docs. 57, 58), and
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`Defendants filed Replies. (Docs.61, 62).
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`Plaintiff brings this action, pursuant to 42 U.S.C. §1983. Plaintiff alleges that on the
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`afternoon of March 13, 2020, Deputy Cheyenne Lee (“Deputy Lee” or “Lee”) entered the home
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`of Plaintiff’s decedent, Jorge Martinez (“Martinez”), “without warrant, consent, or justification,
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`under the pretext of performing a welfare check on Martinez’s children.” Complaint ¶ 17. Plaintiff
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`claims that after illegally entering her home, Deputy Lee confronted Martinez and when Martinez
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`objected to Deputy Lee’s presence, Deputy Lee proceeded to arrest Martinez. Deputy Lee then
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`allegedly took Martinez to the ground and shot him resulting in Martinez’s death.
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`Defendants, however, allege the following: Deputy Lee was faced with a life-threatening
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`situation when he shot Martinez during an intense and violent struggle. Per the directions of a
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`Case 4:20-cv-00598-TCK-SH Document 72 Filed in USDC ND/OK on 09/21/22 Page 2 of 20
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`Rogers County Judge, Lee was on Martinez’s premises (with the consent of his mother) to serve a
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`protective order, due to allegations of domestic violence made by Sara Chapa. (“Chapa”). When
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`Lee approached Martinez with the protective order, Martinez immediately cursed and threatened
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`Deputy Lee and became aggressive and confrontational. Lee first attempted to calm Martinez and
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`then attempted to arrest Martinez for making threats of violence. But Martinez actively resisted,
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`and engaged in hostile and aggressive fighting with Lee. At one point, Lee reasonably believed
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`Martinez was attempting to get a gun during the struggle and, at another point, Martinez’s mother
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`prevented Lee from obtaining access to his radio to call for help. Ultimately, Martinez escaped
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`Lee’s grasp, and began assaulting and battering Lee in the back room of the house, causing Lee to
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`black-out and urinate on himself. During the struggle and in fear for his life, Lee managed to
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`unholster his gun and fired a single shot striking Martinez in the chest.
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`I. SUMMARY JUDGMENT STANDARD
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`A motion for summary judgment shall be granted “if the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
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`Fed. R. Civ. P. 56(a). Federal Rule of Civil Procedure 56(a) “mandates the entry of summary
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`judgment, after adequate time for discovery and upon motion, against a party who fails to make a
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`showing sufficient to establish the existence of an element essential to that party’s case, and on
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`which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
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`(1986); Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006); Adler v. Wal-Mart
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`Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
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`When the moving party has carried its burden, “its opponent must do more than simply
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`show that there is some metaphysical doubt as to the material facts . . . Where the record taken as
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`a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
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`2 
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`Case 4:20-cv-00598-TCK-SH Document 72 Filed in USDC ND/OK on 09/21/22 Page 3 of 20
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`issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87
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`(1986). “An issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of
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`fact could resolve the issue either way. An issue of fact is ‘material’ if under the substantive law
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`it is essential to the proper disposition of the claim.” Adler, 144 F.3d at 670.
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`II. BACKGROUND
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`Prior to March of 2020, Martinez had an extensive violent criminal history and spent
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`numerous years incarcerated (as a minor and as an adult), including the rape of Chapa when she
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`was a minor, and other violent crimes. 1 (Exhibit 1, Depo. of Chapa at 96-97; Exhibit 2, Petition
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`for Protective Order at 2). Following his release from prison, Martinez began a tumultuous
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`relationship with Chapa involving alcohol, drugs, threats, violence, and caused her to seek
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`protection at a local women’s shelter. (Exhibit 1 at 63-67; Exhibit 3, Depo. of M. Martinez at
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`18:13-22).
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`According to Chapa, on March 10, 2020, Martinez and Chapa left together on a trip and,
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`while returning, Chapa believed Martinez had been drinking and had used drugs. While driving,
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`he threatened her and showed her a gun, causing her to get scared. He said to her: “Don’t be scared”
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`and “Look what I got for you” and “Everything’s going to be all right, I’m going to fix it.” (Exhibit
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`1 at 68-71). At a gas station, Chapa borrowed a phone and called her parents to come and get her;
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`she also called Martinez from the bathroom of the gas station and told him she wanted to leave
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`1  Martinez also had a violent episode with Plaintiff Rosalinda Ibarra (his sister), and her husband
`and daughter. Martinez was charged with assault and battery with a dangerous weapon for pulling
`a knife on Rosalinda and threatening her with bodily harm. (Exhibit 4, Depo. of Ibarra at 52-55).
`Martinez called Rosalinda and told her he was going to kill her, her husband, and her children. (Id.
`at 55:21-25; 56:12-21). Martinez pled guilty to this charge. (Id. at 57:16-19). On a separate
`occasion, he assaulted Plaintiff’s husband and daughter. (Id. at 60-67). 
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`3 
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`Case 4:20-cv-00598-TCK-SH Document 72 Filed in USDC ND/OK on 09/21/22 Page 4 of 20
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`him. (Exhibit 1 at 70-74). The next day, Chapa called Martinez and requested that he give her the
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`children, 2 and he said, “No. Good luck” and hung up the phone. (Exhibit 1 at 75).
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`Deputy Lee’s involvement with Chapa and Martinez began on March 12, 2020, with a call
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`from Chapa asking for a deputy to check on the welfare of her two children. Chapa told Lee what
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`had occurred between her and Martinez the previous day. Lee attempted to check on Chapa’s
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`children that day but was unsuccessful.
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`On March 13, 2020, Lee was advised that Chapa had obtained a Protective Order for herself
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`and her children against Martinez. The Oklahoma Department of Human Services and a local
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`Rogers County District Court Judge were contacted. Lee was provided a copy of the Protective
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`Order and was directed to serve it on Martinez and facilitate taking the children into protective
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`custody. Lee alleges that when he attempted to do so, Martinez became aggressive and violent,
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`and Martinez’s actions resulted in Lee having to use deadly force to protect himself from serious
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`bodily harm or death.
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`The uncontroverted record establishes the following:3
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`1. On March 12, 2020, Chapa called the Rogers County Sheriff Department to obtain a
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`welfare check on her children. (Exhibit 1, Depo. of Chapa at 81; Exhibit 3, Depo. of Maria
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`Martinez 26:1-5; Exhibit 4, Depo. of R. Ibarra at 86:10-12).
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`2  Three (3) children were ultimately born of the relationship between Martinez and Chapa, but
`only two were born at the time of Martinez’s death. (Exhibit 1, Depo. of Chapa at 12; 77-78
`[discussing choking incident following ultrasound on March 9, 2020]).
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` Although Plaintiff provided a response to all fifty-nine (59) of Defendants’ Unidsputed Material
`Facts, many of those responses are contrary to the requirements of Fed.R.Civ.P. 56 and Local Rule
`56.1(c). Specifically, Local Rule 56.1(c) provides that “[e]ach fact in dispute shall be numbered,
`shall refer particularly to those portions of the record upon which the opposing party relies . . . “.
`In the instant case, not only are there instances in which Plaintiff disputes facts in the record
`without any citation to the record, but Plaintiff also makes statements that are not supported by the
`record cited.
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` 3
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`4 
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`Case 4:20-cv-00598-TCK-SH Document 72 Filed in USDC ND/OK on 09/21/22 Page 5 of 20
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`2. On March 12, 2020, the welfare check was routed to Deputy Cheyenne Lee, who went
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`to the Martinez residence and to the residence of Martinez’s sister (Rosalinda Ibarra), but Lee was
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`unable to locate Martinez or the children. (Exhibit 5, D (Exhibit 5, Depo. of I. Mitchell at 42-45;
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`Exhibit 3, Depo. of Maria Martinez at 23:10-21; Exhibit 6, Depo. of Lee at 30:1-14; 36:6- 15;
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`Exhibit 4, Depo. of R. Ibarra at 83-85).
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`3. On that date, Lee talked with Maria Martinez (Martinez’s sister) who was also living at
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`the Martinez’s residence, but she denied knowledge of the location of the children and gave Lee
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`incorrect information about how to contact her mother (Isidra Mitchell). (Exhibit 3, Depo. of Maria
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`Martinez at 23-25; 29:15-25).
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`4. Following her interaction with Lee, Maria Martinez let Martinez know that the Sheriff’s
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`Office was looking for his children. (Exhibit 3, Depo of M. Martinez at 24:19-25; 25:1-2).
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`5. Unbeknownst to Lee or Rogers County or Chapa, Martinez had rented a motel room
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`with his mother and two children and left his sister Maria Martinez by herself at their house.
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`(Exhibit 5, Depo. of I. Mitchell at 44-47; Exhibit 3, Depo. of Maria Martinez at 20-21).
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`6. On March 13, 2020, Chapa sought and obtained a protective order on behalf of herself
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`and her children from the District Court of Tillman County. (Exhibit 2, Petition for Protective
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`Order; Exhibit 7, Emergency Order of Protection; Exhibit 6, Depo. of Lee at 37:8-21).
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`7. On the same date, the Rogers County Sheriff Department was in contact with Rogers
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`County District Judge Pazzo, who instructed Rogers County Sheriff’s Department to serve the
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`Protective Order on Martinez and take custody of the children; Judge Pazzo further indicated he
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`would intervene if the DHS refused to assist in taking custody of the children. (Exhibit 8, Depo.
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`of Sappington at 12-26; Exhibit 9, Depo. of Walton at 44-46; 127:8-15).
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`5 
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`8. On March 13, 2020, Deputy Lee was assigned the job of serving the protective order on
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`Martinez and taking protective custody of the two children. (Exhibit 6, Depo. of Lee at 38:1-5;
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`Exhibit 8, Depo. of J. Sappington at 26:2-11).4
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`9. Deputy Lee, who had talked with Chapa, was aware that Martinez had physically injured
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`and been abusive toward Chapa. (Exhibit 6, Depo. of Lee at 46:2-11; 47:13-14; Exhibit 10, Depo.
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`of L. Eller at 14:16-21).
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`10. On March 13, 2020, Martinez, his mother (Isidra Mitchell), his sister (Maria Martinez)
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`and the two young children were located at the house. (Exhibit 3 at 27; Exhibit 5 at 49-50).
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`11. Once he confirmed that Martinez and the children were there, Lee retrieved the
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`protective order from his car and radioed for back-up assistance. (Exhibit 6, Depo. of Lee at 59:17-
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`22; 61:20-24; Exhibit 10, Depo. of L. Eller at 18-22; Exhibit 13, Depo. of Nelson at 6-7; 11:4-20;
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`45:15-25; 46:1-11).
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`12. Maria Martinez and Isidra Mitchell allowed Lee to enter the house to serve the
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`protective order. (Exhibit 6 at 64:1; Exhibit 5, Depo. of I. Mitchell at 100:18-20; 102:4-9; Exhibit
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`11, Statement of M. Martinez at 19:6-9; Exhibit 12, Depo. of J. Noble at 35:21-25; 36:1-3; Exhibit
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`14, OSBI Interview of I. Mitchell; Exhibit 15, OSBI Interview of M. Martinez).
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`13. Mitchell believed that Martinez would wake up cussing and throwing a fit and be angry
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`and in a bad mood. (Exhibit 3, Depo. of M. Martinez at 33-34; Exhibit 5, Depo. of I. Mitchell at
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`56:15-18; 73:21-25; 74:16; 74-75). Mitchell warned Lee that Martinez might be upset and cussing
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`but gave no warning that he would be violent. (Exhibit 5 at 73-75; Exhibit 11 at 18:1-6).
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`4 The Petition for Protective Order was not provided to the Rogers County Sheriff’s Office nor to
`Deputy Lee. Only the Protective Order itself was provided to Rogers County.
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`6 
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`14. Before Lee entered, Mitchell had attempted to wake Martinez up on two occasions, and
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`he said “no, F that. I’m not going to let no strangers see my kids.” (Exhibit 5, Depo. of I. Mitchell
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`at 55:5-6; 73:7-11).
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`15. After Lee entered, Mitchell led Lee through the house and down the hallway to the
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`bedroom where Martinez was located. (Exhibit 6 at 64:1-6; Exhibit 5 at 56-57; Exhibit 14-15).
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`16. At that time, Mitchell attempted to serve the protective order on Martinez, but Martinez
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`began jumping up and down; cursing; getting wild; fists clinched; and telling the deputy to get out
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`of the house, or to “get the F out of the house” or “what the F are you doing in my house, also
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`pointing at his face, what the F are you doing in my house, get out of my house” or “Fuck [you]
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`and fuck [your] papers.” (Exhibit 3, Depo. of M. Martinez at 34; 5 Exhibit 5, Depo. of I. Mitchell
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`at 57:1-9; 75:5-9 [agreeing Martinez jumped out of bed yelling and cussing]; Exhibit 6, Depo. of
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`Lee at 67:14-20; 68:1-12; 75:6-13; 77:3-4; Exhibit 11, Statement of M. Martinez at 21:17-18 [“He
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`was calling the officer bitch and all types of names. Just yelling at him.”]; Exhibit 14; Exhibit 15).
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`17. Martinez was moving his hands and arms around while yelling at the deputy. (Exhibit
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`3, Depo. of M. Martinez at 36-37; Exhibit 6, Depo. of Lee at 73:14-22; 75:7-8 [“He was in an
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`aggressive fighting stance from the moment he jumped out of the bed, sir.”]; 75:10-12; Exhibit 11,
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`Statement of M. Martinez at 22:15-25; Exhibit 14).
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`18. Lee tried to de-escalate the situation. (Exhibit 6 at 73-74; 78:25; 79:1-3; Exhibit 14;
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`15).
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`5 Martinez had been drinking alcohol that day. (Exhibit 5, Depo. of I. Mitchell at 50:1-8).
`Following his death, his blood alcohol content was determined to be .13. (Exhibit 17, Depo. of
`Lanter at 31-32; 38-39).
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`7 
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`19. Lee told Martinez he was under arrest for making threats and Lee then attempted to
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`grab Martinez’s left upper arm. (Exhibit 6, Depo of Lee at 71:4-24 [“That he would beat her ass;
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`he would beat my ass; and then he threatened to kill me.”]; 73:14-22; 75:15-21).
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`20. Martinez resisted arrest, pulled away, lunged back into the nearby bedroom, and
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`appeared to be reaching toward a nightstand, at which time Lee struck him; tried to place him
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`under arrest; and told him he was under arrest multiple times. (Exhibit 6, Depo of Lee at 76:9- 16;
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`77-78; 83:19-25; Exhibit 5, Depo of I. Mitchell at 57:14-25 [agreeing Lee told Martinez he was
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`under arrest multiple times, and that Martinez was resisting arrest]).
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`21. Lee feared Martinez was reaching for a weapon as he lunged for the nightstand. (Exhibit
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`6, Depo of Lee at 78:1-3; 79:5-25; 80:1-8).
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`22. They physically fought each other for several minutes thereafter as Martinez continued
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`to resist arrest. (Exhibit 6 at 82:7-14; Exhibit 5, Depo. of I. Mitchell at 58:7-22).
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`23. During this time, Martinez was striking Lee, punching him in the lower abdomen, groin,
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`vest, head area. (Exhibit 6 at 86:5-11; 93:12-15; Exhibit 11 at 29:10-14).
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`24. During Lee’s attempt to arrest Martinez, Martinez’s mother was touching Lee and “kept
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`tapping his shoulder” (or was “on top of” Lee) and telling him he “said he wasn’t going to arrest”
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`Martinez. (Exhibit 6, Depo. of Lee at 84:4-18; 95:1-9; Exhibit 5, Depo. of I. Mitchell at 68:5-14
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`[“I kept tapping his shoulder and telling him he said he wasn’t going to arrest him”]; Exhibit 11,
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`Statement of M. Martinez at 25:17-25; 26:8-10; Exhibit 15).
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`25. During the physical confrontation between Lee and Martinez, Lee’s radio became
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`dislodged, and Lee asked Isidra Mitchell to give him his radio several times, and she refused and
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`kicked it away from him causing Lee to become more concerned. (Exhibit 6, 96:5-10; 144-145;
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`Exhibit 5 at 102:18-22 [“A: I remember seeing it fall down, and then I remember that he pointed
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`8 
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`at it and told me to give it to him. Q: And is it true you did not give it to him? A: That is a true
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`statement, sir.”]; 103-104; 58:14-18 [“Cheyenne Lee was on top of him, yelling and screaming at
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`me to give him his radio. At first I said no . . .”]).
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`26. Instead of giving Deputy Lee his radio so Lee could seek help, Isidra Mitchell attempted
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`(unsuccessfully) to record the encounter with her cell phone. (Exhibit 5 at 83:24-25; 57:25; 58:1-
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`10; Exhibit 6 at 80:6-8; 94:18-19; 96:15-18; 142:14-15; Exhibit 14).
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`27. Lee also asked Maria Martinez for his radio, but she also refused and picked up the
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`radio and took it into the living room. (Exhibit 6 at 96:14-15; Exhibit 3 at 40:21-25; 41:1-4 [“Q:
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`And you picked up the radio and took it into the living room; in other words, took it away from
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`the deputy, right? A: Yes, sir.”]; Exhibit 15).
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`28. Lee was able to get a single handcuff onto only one of Martinez’s wrists, and tightened
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`the cuff as a pain compliance technique, but this did not result in any compliance from Martinez.
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`(Exhibit 6 at 85:1-12; 89:7-14; 90:17-22; Exhibit 5 at 79-80, 82; Exhibit 14).
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`29. Martinez was able to get away from Lee’s grip while Lee was on his knees, and
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`Martinez began delivering punches to Lee (also including using the handcuff as a weapon leaving
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`a mark on Lee’s forehead); threatened to kill Lee; and ultimately caused Lee to urinate on himself
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`and begin to black-out. (Exhibit 6, Depo. of Lee at 93:10-21; 99-101; 108:1-14; 99:10-14; 108:6-
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`15; 115:8-11; 117:4-20; 118-120; 123; 124-125; Exhibit 16, Depo. of Walker at 21:14-25).
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`30. Because of the threat to his life and the ongoing physical attack, Lee unholstered his
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`gun and shot Martinez in the chest while Martinez was standing over him in a crouched position.
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`(Exhibit 6, Depo. of Lee at 103-104; 108; 112-113; 140:4-5; 151:18-23).
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`31. At the time Lee fired the shot, he was on his knees, facing south, with his back to the
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`north wall/closet; Martinez was on his feet, facing Lee, i.e., facing north with his back to the south
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`9 
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`wall. (Exhibit 6, Depo of Lee at 115:5-11; 118:8-12; 118-121; 149-150; Exhibit 21, Noedel Expert
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`Report, Figure 10).
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`32. Lee fired the shot from north to south. (Exhibit 6, Depo. of Lee at 149-150).
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`33. The bullet that struck and passed through Martinez was found by Plaintiff in the south
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`wall. (Exhibit 4, Depo. of R. Ibarra at 98-103; Exhibit 22, Letter from Attorney Underwood).
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`34. The bullet that struck and passed through Martinez continued to travel south and struck
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`and entered the south wall approximately 17.5 inches up from the floor and approximately 15.5
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`inches east of the west corner. (Exhibit 21, Noedel Expert Report, pg. 4 of 20 and Figure 5).
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`35. It has been scientifically and mathematically determined that the exit wound from
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`which the bullet left Martinez’s back had to be between 21.7 inches to 25.1 inches up from the
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`floor, depending on how far Martinez was from the south wall when the shot was fired. (Exhibit
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`23, Autopsy Report pg. 1, 3; Exhibit 24, Autopsy Diagram; Exhibit 21, Noedel Expert Report, pg.
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`5 of 20; 8 of 20; Table 1; Figure 10).
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`36. Martinez could not have been laying on the floor when shot, as alleged by Plaintiff.
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`(Exhibit 21, Noedel Report; Exhibit 17, Deposition of Lanter at 28:13-16; 49-50).
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`37. After obtaining his radio back, Lee immediately sought additional help, ambulance,
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`and fire truck, who arrived within minutes. (Exhibit 6, Depo. of Lee at 127-128).
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`38. The gun shot was not survivable with immediate medical care; Martinez lost
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`consciousness within seconds and died within minutes. (Exhibit 17, Depo. of Dr. Lanter at 45-46).
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`39. The District Attorney of Rogers County reviewed the use of force in this case and found
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`the use of force was justified and that any reasonable officer would have concluded that Martinez
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`posed a real and significant threat to Lee’s safety. (Exhibit 18, Letter of DA Matthew Ballard at 4;
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`Exhibit 20, Affidavit of Scott Walton).
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`10 
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`40. In addition, RCSO Use of Force Review Board received, read, and relied upon the
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`OSBI’s investigative report and found that Deputy Lee acted reasonably and in accordance with
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`RCSO policies and procedures. (Exhibit 19, RCSO Use of Force Review Board).
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`III. ANALYSIS
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`A. QUALIFIED IMMUNITY
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`As a general rule, when government officials are sued for performing discretionary
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`functions, courts recognize the affirmative defense of qualified immunity, which protects “all but
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`the plainly incompetent or those who knowingly violate the law,” shielding them from civil
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`liability. See Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citing Malley v. Briggs, 475 U.S.
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`335, 341 (1986)); see also City of Tahlequah v. Bond, 142 S. Ct. 9, 10 (2021). Once a defendant
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`raises qualified immunity, “the plaintiff initially bears a heavy two-part burden.” See Albright v.
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`Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (citing Hannula v. City of Lakewood, 907 F.2d
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`129, 130-31 (10th Cir. 1990)). First, the plaintiff must demonstrate that the defendant’s actions
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`violated a constitutional right. Then, the plaintiff must show that the constitutional rights the
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`defendant allegedly violated were clearly established at the time of the conduct at issue. Id. If the
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`plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant
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`qualified immunity. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).
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`1. Unreasonable Detention and Arrest
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`Plaintiff’s First Claim is for Unreasonable Detention and Arrest in violation of the Fourth
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`Amendment. (Doc. 2, pp. 10-11). Plaintiff claims that Deputy Lee unlawfully arrested Martinez
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`without probable cause and without justification, and that the scope and manner of his detention
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`and arrest were unreasonable. (Id. at ¶39). “When a warrantless arrest is the subject of a § 1983
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`action, the defendant is entitled to qualified immunity if a reasonable officer could have believed
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`11 
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`that probable cause existed to arrest or detain the plaintiff.” Stearns v. Clarkson, 615 F.3d 1278, 1283
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`(10th Cir. 2010) (quoting York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.2008)).
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`“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the
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`facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146,
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`152 (2004); Morris v. Noe, 672 F.3d 1185, 1192 (10th Cir. 2012).
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`In Oklahoma, state law prohibits a person from threatening a violent act. 21 O.S. § 1378(B);
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`Oklahoma Uniform Jury Instruction (Criminal) 2-24; 21 O.S. §649 (crime to “assault” deputy
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`sheriff). In this case, Lee had probable cause to arrest Martinez after he refused to accept service
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`of the protective order, used curse words directed at Deputy Lee, and threatened to “beat” Deputy
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`Lee’s “ass.” For that reason, Plaintiff’s Unreasonable Arrest/Detention claim fails as a matter of
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`law because a reasonable conclusion to be drawn from the facts known to Lee at the time of his
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`arrest was that Martinez was threatening a violent act and/or assaulting Lee.
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`
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`Second, Martinez engaged in conduct that amounted to Obstructing an Officer.6 21 O.S.
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`§540 (“Every person who willfully delays or obstructs any public officer in the discharge or
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`attempt to discharge any duty of his or her office, is guilty of a misdemeanor.”); Trent v. State, 777
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`P.2d 401, 402 (Okla. Crim. App. 1989) (“[W]ords alone may suffice to support a conviction for
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`Obstructing an Officer.”); Marsh v. State, 761 P.2d 915 (Okla. Crim. App. 1988) (finding truck
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`driver’s false statement to police about who backed truck onto homicide victim willfully delayed
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`or obstructed police officer in discharge of his duty). In this instance, Deputy Lee was attempting
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` 
`6 In his deposition, Deputy Lee did not reference this basis for his arrest of Martinez, but Lee’s
`subjective reason or belief for making the arrest is irrelevant to the Fourth Amendment analysis.
`The question is whether any objective probable cause existed. See Scott v. U.S., 436 U.S. 128
`(1978); Whren v. U.S., 517 U.S. 806 (1996); Devenpeck v. Alford, 543 U.S. 146 (2004); Apodaca
`v. City of Albuquerque, 443 F.3d 1286, 1289 (10th Cir. 2006).
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`Case 4:20-cv-00598-TCK-SH Document 72 Filed in USDC ND/OK on 09/21/22 Page 13 of 20
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`to serve a protective order pursuant to the directives of Judge Pazzo and the Tillman County
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`District Court, and yet Martinez slapped the papers out of his hands; started jumping around with
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`his arms in the air; was cussing; threatened Deputy Lee; and prevented Lee from serving the
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`papers. (Exhibit 6, Depo. of Lee at 77).Therefore, Deputy Lee had probable cause to arrest
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`Martinez for Obstructing an Officer.7
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`Third, Martinez was in violation of the protective order issued by a court in Tillman
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`County. Deputy Lee served the protective order on Martinez, even though Martinez pushed it away
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`and did not accept it. In Oklahoma, state law prohibits a person from violating a protective order.
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`22 O.S. §60.6(A). By serving the protective order on Martinez and by Martinez’s refusal to receive
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`it or comply with the provisions of the protective order, Deputy Lee had probable cause to arrest
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`and/or detain Martinez for violation of the protective order.
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`
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`Finally, during the encounter as Deputy Lee attempted to arrest Martinez, Martinez
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`assaulted and battered Deputy Lee in the form of striking, hitting and punching Deputy Lee as Lee
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`attempted to arrest and subdue Martinez. Assault and Battery on a Police Officer is a crime in the
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`State of Oklahoma. 21 O.S. §649; 650; Cantrell v. State, 561 P.2d 973 (Okla. Crim. App. 1977)
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`(affirming conviction for Assault and Battery Upon a Police Officer when defendant struck the
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`officer and rendered him momentarily unconscious). The same is true for Resisting a Peace Officer
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`pursuant to 21 O.S. §268. E.g., Reams v. State, 551 P.2d 1168 (Okla. Crim. App. 1976) (finding
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`that to sustain charge of resisting an officer in discharge of his official duty, it is necessary to show
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`some act of aggression on the part of the accused from which court and jury can reasonably infer
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` 
`7 During the encounter, Isidra Mitchell and Maria Martinez likewise attempted to obstruct Deputy
`Lee. They both refused to provide Deputy Lee with his radio when requested, so he could summon
`help, and Isidra Mitchell touched or “was on top of” Lee during the encounter as she attempted to
`prevent Lee from arresting Martinez. (UF Nos. 25-27).
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`Case 4:20-cv-00598-TCK-SH Document 72 Filed in USDC ND/OK on 09/21/22 Page 14 of 20
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`forcible resistance or interference). Based on the undisputed facts, following Martinez’s immediate
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`resistance and subsequent assault and battery of Lee, Lee had probable cause to arrest Martinez
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`for Assault and Battery on a Police Officer and Resisting a Peace Officer.
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`
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`Accordingly, for all these reasons, the §1983 Unlawful Detention/Arrest Claim is without
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`merit.
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`2. Excessive Force
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`Plaintiff’s Second Claim is one for excessive force. (Doc.2 at p. 11). Plaintiff claims that
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`Lee used excessive force against Martinez during the arrest and subsequent shooting of Martinez.
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`(Id. at ¶44-45). Excessive force cases are analyzed under an “objective reasonableness” standard.
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`See Graham v. Connor, 490 U.S. 386, 388 (1989). Whether or not a use of force is reasonable
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`requires balancing of “the nature and quality of the intrusion on the individual’s Fourth
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`Amendment interests against the importance of the governmental interests alleged to justify the
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`intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985). Determining reasonableness “requires
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`careful attention to the facts and circumstances of each particular case, including the severity of
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`the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
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`others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham,
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`490 U.S. at 396.
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`
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`“This is an objective test, to be ‘judged from the perspective of a reasonable officer on the
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`scene, rather than with the 20/20 vision of hindsight.’” Withers v. City of Cleveland, 640 Fed.
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`Appx. 416, 419 (6th Cir. 2016) (quoting Graham, 490 U.S. at 396). “This standard contains a built-
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`in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in
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`light of the circumstances of the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir.
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`2002). “Further, ‘the calculus of reasonableness must embody allowance for the fact that police
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`officers are often forced to make split-second judgments—in circumstances that are tense,
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`uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
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`situation.’” Sigley v. City of Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006) (quoting Graham,
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`490 U.S. at 396-97); Marquez v. City of Albuquerque, 399 F.3d 1216, 1220 (10th Cir. 2005).
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`
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`If a particular use of force is considered deadly force, then an officer’s use of that force is
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`reasonable only “if a reasonable officer in Defendants’ position would have had probable cause to
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`believe that there was a threat of serious physical harm to themselves or to others.” Estate of Larsen
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`v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008); see Garner, 471 U.S. at 11 (“Where the officer has
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`probable cause to believe that the suspect poses a threat of serious physical harm, either to the
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`officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly
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`force.”); Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009).
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`
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`Here, the undisputed facts demonstrate that Deputy Lee did not use excessive force during
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`his encounter with Martinez. The record reveals Deputy Lee was forced – by Martinez’s resistance
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`– to make split-second decisions about how to deal with Martinez’s aggressive conduct, fighting,
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`assault/battery, threats, and life-threatening conduct. An analysis of the Graham factors in the
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`context of the undisputed facts shows that Deputy Lee is entitled to qualified immunity.
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`a. Severity of the Crimes.
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`The severity of the crimes was substantial. Deputy Lee was serving a protective order for
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`the purpose of ensuring two minor children were safe based on Chapa’s allegations that Martinez
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`was violent and had threated her. Upon Lee’s attempt to serve the protective order, Martinez cursed
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`and threatened Deputy Lee and his own family members. Martinez’s family members agree that
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`Martinez began jumping up and down; cursing; getting wild; throwing his arms in the air; and
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`telling the deputy to get out of the house, or to “get the F out of the house” or “what the F are you
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`Case 4:20-cv-00598-TCK-SH Document 72 Filed in USDC ND/OK on 09/21/22 Page 16 of 20
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`doing in my house, also pointing at his face, what the F are you doing in my house, get out of my
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`house.” (Doc. 50, at 5).
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`
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`Martinez threatened Deputy Lee with bodily harm. Lee then attempted to arrest Martinez
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`for making threats against him and his own family, but Martinez immediately resisted. Martinez
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`struck Lee and punched him in the lower abdomen, groin, vest, and head area. Martinez and Lee
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`engaged in a struggle, and Lee believed Martinez was lunging for a gun in the nightstand.
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`Ultimately, the fight moved t