Emergency Motion Exhibits

8/18/2019 Emergency Motion Exhibits

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(1) ROBBIE EMERY BURKE, as the )

Special Administratrix of the Estate of )

Eric Harris, Deceased, ))Plaintiff, )

) Case No. 16-CV-007-JED-FHMv. ) ATTORNEY LIEN CLAIMED

) JURY TRIAL DEMANDED(1) STANLEY GLANZ, in his individual )

capacity, )(2) ROBERT C. BATES, )

(3) MICHAEL HUCKEBY, )(4) JOSEPH BYARS, )

(5) RICARDO VACA, and )(6) RICHARD WEIGEL, in his official )

capacity as Acting Tulsa County Sheriff, ))

Defendants. )

PLAINTIFF’S EMERGENCY MOTION FOR ORDER COMPELLING THE

TULSA COUNTY SHERIFF’S OFFICE TO PRODUCE

BATES’ REVOLVER FOR EXPERT TESTING

COMES NOW the Plaintiff, Robbie Emery Burke, as the Special Administratrix

of the Estate of Eric Harris, Deceased, and asks this Court for an emergency order

compelling Sheriff Vic Regalado and Tulsa County Sheriff’s Office (“TCSO”) to

produce the gun used by Defendant Robert Bates to shoot and kill Eric Harris. Said gun is

currently being held by the TCSO as evidence in the case State of Oklahoma v. Robert

Charles Bates, Tulsa County Court Case No. CF-2015-1817, which is set for trial

beginning Monday, April 18, 2016. Because the gun at issue will cease to be protected by

the TCSO as evidence as soon as that trial concludes, an emergency order is necessary to

prevent spoliation of evidence, as set forth herein.

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 1 of 13


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STATEMENT OF RELEVANT FACTS

This case involves Plaintiff’s claims that Defendants’ unconstitutional and

excessive use of force, and their subsequent callous indifference to his serious need for

medical treatment, resulted in the wrongful death of Eric Harris. See, generally,

Complaint (Dkt. # 1). Specifically, Plaintiff alleges that Defendant Bates – a Reserve

Deputy of the TCSO – shot Mr. Harris in the back, at close range, with a .357 Smith &

Wesson revolver (the gun at issue, hereafter “the Revolver”), at a time when Mr. Harris

was unarmed, not fleeing arrest, and had already been subdued by as many as for (4)

other deputies. Id . at 1 (emphasis added).

In her Complaint, the Plaintiff has made specific and thorough allegations

outlining the close relationship between Defendant Bates and former TCSO Sheriff

Stanley Glanz. See, generally, Complaint, Dkt. #1. Bates contributed to Sheriff Glanz’s

political campaigns over the years and gave donations to the TCSO while Glanz was

sheriff. Id . at 9-10. In return, Glanz knowingly allowed Bates to act as a Reserve Deputy

in dangerous field operations despite not having the requisite training and certification,

and over the express objections of Glanz’s own officers. Id . at 10-21.

Bates killed Harris during the course of an “undercover sting operation”

conducted by the TCSO’s Violent Crimes Task Force on April 2, 2015. Id . at 2, 25. At

the time of the shooting, Bates was a 73-year-old insurance executive moonlighting as a

Reserve Deputy. Id . at 2. However, he lacked the requisite training, by hundreds of hours,

to participate in such a field operation. Id . In fact, he was not even certified to carry

the Revolver as his service weapon while “in the field.” Id .; see also TCSO Weapons

Training and Qualification (“WTQ”) Policy, Chp. 4-06, §6.4(P.5) (Ex. 1, p. 8)



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(“Weapons, of any type, that have not been approved by the Sheriff, will not be carried or

used by deputies of the Tulsa County Sheriff’s Office during the course of law

enforcement duties.”)1. Bates’ Revolver was not approved by the TCSO. Id .

During the sting operation, an undercover officer had arranged to purchase a

firearm from Mr. Harris in the parking lot of a Dollar General Store in North Tulsa. Id . at

25. Video footage captured by the TCSO reveals that during the initial discussion

between Harris and the undercover deputy, Harris made it clear that a single firearm, a 9

millimeter Luger which he handed over to the undercover deputy, was the only firearm in

his possession. Id . After the gun was no longer in Harris’ possession, an unmarked car

sped into the parking lot and stopped next to the undercover deputy’s trunk in which Mr.

Harris was still sitting. Id . at 25-26. Realizing an arrest was likely imminent, Harris

exited the truck and began to run north up a sidewalk and into the street. Id . Deputy

Ricardo Vaca – himself without the requisite training to participate in such a dangerous

field operation – pursued Harris. Id . at 26. Vaca was wearing video recording equipment

that captured footage of the incident. Id . The footage shows Harris ran down the street at

a jogger’s pace for a short period of time. Id . Harris, wearing a t-shirt and gym shorts,

was clearly unarmed. Id . Vaca quickly caught up to Harris, tackled him and brought him

to the ground. Id .

1 The TCSO requires that reserve deputies only carry weapons that are authorized

and registered with the Sheriff’s Office. WTQ Policy, § 6.1 (Ex. 1 at 1). To be consideredapproved, a weapon must initially be issued to the deputy by the TCSO or approved by

the Sheriff or a designee for use by the deputy in the performance of their assigned

duties. Id . at § 6.4(A.3)(b) (emphasis added) (Ex. 1 at 2). A “weapons specification

sheet,” reviewed annually, must be completed for each approved weapon and must bemaintained by the Training Sergent and kept on file in the training office. Id . at § 6.4(C)

(Ex. 1 at 2). This was not done with respect to the Revolver at issue in this case.Moreover, The WTQ Policy provides a list of approved firearms; Bates’ .357 Smith &

Wesson revolver is not on that list. Id . at § 6.4(D) (Ex. 1 at 3).



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Even though as many as seven (7) deputies were already involved in the arrest,

Reserve Deputy Bates deployed to the scene shortly after hearing that the arrest team was

moving in. Id . Bates claims he saw Vaca pursuing Harris and grabbed his pepper ball

launcher and exited his vehicle to assist in the pursuit. Id . at 26-27. By the time the 73-

year old Bates got to the location where Vaca had tackled Harris, four (4) other deputies

were already there. Id . at 27. At least two (2) of these officers, and possibly all four (the

video is unclear on this point), were physically holding Mr. Harris down on the

pavement . Id . One deputy was standing on Harris’ leg, making it impossible for him to

flee or actively resist. Id . Nonetheless, Bates then drew a Smith & Wesson .357 revolver

(“the Revovler”) from its holster on his hip , id . at 27-28, and shot Mr. Harris, at close

range, in the back, under his right arm.” Id . at 28-29. Mr. Harris died shortly thereafter

as a result of the gunshot wound inflicted by Defendant Bates. Id . at 31.

The Revolver at issue is particularly significant evidence in the case-at-bar for a

number of reasons, including:

! The Revolver was Bates’ own personal firearm; it was not issued to him bythe TCSO, id . at 28;

! Bates was never trained or certified to use the Revolver as his service

weapon, in violation of TCSO policy2, id ; and

! The Revolver was not on the list of approved firearms deputies can carry onduty, id . at 28; see also Grand Jury Report at 3.

In both public statements and in the criminal case against him, Mr. Bates and the

TCSO claim that Mr. Bates “mistook” the Revolver for the Taser he carried with him.

2 The Grand Jury that indicted Sheriff Glanz following Harris’ death specifically

found that “Reserve Deputy Bates was permitted by [TCSO] to wear and utilize firearmsnot approved for use by the Sheriff[‘s] Office in violation of TCSO policy.” Grand Jury

Report at 3 (emphasis added).



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That is, it is Defendants’ position that Bates meant to grab his Taser and shoot that at Mr.

Harris, intending only to stun him, but instead Bates accidently grabbed his Revolver and

unwittingly shot Mr. Harris with a bullet. Id . at 27-29. Plaintiff maintains that Bates did

not mistake the Revolver for his Taser and that, in any event, his conduct was objectively

unreasonable as a matter or law.

Comments made during an April 12, 2016 hearing in Bates’ criminal trial by

Clark Brewster 3 - Bates’ attorney - reveal that Bates’ Revolver will be critical evidence in

this case. During said hearing, Mr. Brewster stated publically to Tulsa County

District Court that he has dry-fired Bates’ Revolver and “the trigger pull is just –

I’ve never had a revolver with a trigger pull so light, just so absolutely, unbelievably

light .” See Transcript of Proceedings held April 12, 2016, attached as Ex. 2, p. 8. That

means that the force necessary to shoot the weapon is lighter than a standard Smith &

Wesson .357 revolver. Id . This is sometimes called a “hair trigger”. This contention, if

true, will support Plaintiff’s claims of excessive force and deliberate indifference because

it would mean that, even if Mr. Bates did confuse his Revolver with his Taser – which is

an incredible claim that is certainly not admitted by Plaintiff – he was only able to do so

because the Revolver had been modified to allow an unintended discharge (having a

closer discharge weight to a Taser than a stock .357 Smith & Wesson). The fact that

Sheriff Glanz and the TCSO knowingly allowed Bates to use a modified service weapon

that had not been certified and approved by the TCSO – in direct violation of unequivocal

TCSO policy – supports that Defendants were deliberately indifferent to Mr. Harris’

3 Mr. Brewster, himself friends with both former Tulsa County Sheriff Stanley

Glanz and Robert Bates – represents Mr. Bates in both this case and in the criminal caseagainst Bates. He continues to represent Sheriff Glanz and the TCSO in several civil

rights cases pending before this Court.



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constitutional rights.

Additionally, we now know that Mr. Brewster actually had an “exemplar” Smith

& Wesson .357 revolver modified for use in Bates’ criminal case by changing the

standard trigger to a hair trigger. Ex. 2; see also Affidavit of Michael L. Hardison4,

attached hereto as Ex. 3. According to Mr. Brewster’s public comments during the April

12, 2016 hearing, the modified “exemplar” .357 was only intended for use at his office by

his experts, although the same was listed on Mr. Bates’ exhibit list in the criminal matter

and was only excluded as evidence following the State’s motion in limine. See State v.

Bates, CF-2015-1817, State’s Objection to Defendant’s Witnesses and Exhibits List,

attached as Ex. 4, p. 5. A reasonable inference, supported by Mr. Hardison’s affidavit and

Mr. Brewster’s comments during the criminal hearing5, is that Mr. Bates and his

attorneys intended to introduce the modified weapon to the jury, hoping the jury would

not understand the difference between a modified weapon and a stock weapon, and that

4 As set forth in the attached Affidavit, Mr. Hardison is a certified gunsmith andholds a federal firearms license. Ex. 3 at 1. Until recently, he worked as a gunsmith for

2A Shooting Center (“2A”) in Tulsa, which is owned by Mr. Brewster. Id . In March of2016, Hardison was asked by a manager at 2A to do a “trigger job” on Smith & Wesson

.357 revolver that had been ordered by 2A for use in the criminal case against Mr. Bates. Id . at 1-2. Specifically, Mr. Hardison was asked to modify the gun by significantly

reducing the amount of force required to discharge the weapon from its stockconfiguration of 11 to 12 ! pounds. Id . Mr. Hardison was reluctant to modify the weapon

for a number of reasons. Id . When he asked why Mr. Bates could not simply rely on theactual gun used to shoot Eric Harris as evidence in the trial, he was told that the jury

would be “too stupid to figure it out.” Id . at 2. Mr. Hardison believed that the requestedmodification was to fool or manipulate the jury and resigned instead of performing the

modification. Id .5 Mr. Brewster advised the court that the gun was modified “to have the same kind

of feel” as the “lighter trigger pull” on Bates’ Revolver which would be available for theState to use if it wanted instead of bringing in the original. Ex. 2 at 8 (“[I]t’s been used as

an exemplar for us and our experts…so we don’t intend to use that as an exhibit. Unlessthe State wanted to use it instead of getting the other one out of a bag or something.

They’re identical.”).



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they would believe that Mr. Bates honestly confused the Revolver with his Taser and

easily pulled the light trigger without thinking.

In the case at bar, whether the trigger weight was modified to a hair trigger or not

is important. If not, it would have been significantly more difficult for Mr. Bates to

discharge his Revolver, supporting the theory that he did not “confuse” the Revolver with

his Taser and that he actually intended to shoot Mr. Harris in the back. If the trigger was

modified, as Mr. Brewster claimed publically during the April 12, 2016 hearing, it would

have been significantly more easy for Mr. Bates to discharge his Revolver. Because

modification of service weapons is a serious issue that can easily and obviously lead to

constitutional violations, TCSO WTQ Policy absolutely requires that personal weapons

be certified by the TCSO prior to use. See Ex. 1. The fact that Sheriff Glanz and the

TCSO knowingly allowed Mr. Bates to use a personal, non-certified weapon shows

that they were deliberately indifferent to Mr. Harris’ constitutional rights. That

indifference is made all the more egregious if the Revolver Mr. Bates was allowed to

carry had been modified to have a hair trigger. For these reasons, the trigger weight of

the Revolver used by Robert Bates to shoot and kill Eric Harris is materially relevant in

this case.

As stated above, the Revolver is currently locked in the TCSO evidence room

because it is evidence in the criminal case against Bates. See, e.g., Ex. 4 at 5. While it is

locked away, it is protected from tampering. That is, no one can alter the trigger weight

of the Revolver at issue at this time. However, as soon as the trial against Bates is

concluded, the Revolver will be released to Bates and his attorneys, who have the

knowledge, resources and motive to tamper with the weapon. See Affidavit of Michael



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Hardison, Ex. 3 at 2 (noting that when he indicated he was uncomfortable reducing the

trigger weight on the standard .357 - based solely on the idea that a jury would be “too

stupid” to understand trigger weights and other basic gunsmithing – Brewster’s business

partner, Rick Phillips interjected in the conversation to say “ Bob [Bates] shooting that

guy was an accident .”) (emphasis added). Accordingly, the testing required by the

Plaintiff in this case should take place before the criminal trial against Bates concludes

and the Revolver is released to Bates and his attorneys.

The hearing in the criminal case that took place on Tuesday, April 12, 2016, was

to hear the State’s motion to continue the trial set for Monday, April 18, 2016, due to

thousands of page of new documents that were only recently produced to the State by

Bates’s attorneys. After a three (3) hour hearing, the court denied the State’s motion and

ruled that trial would begin on Monday, April 18, 2016, as scheduled. Thus, an

emergency order in this case is necessary to preserve and protect crucial evidence in this

case.

The testing requested by Plaintiff is a simple “trigger weight” test, which can be

performed by any qualified gunsmith. The test itself is simple, and involves using a scale

mechanism similar to the scales used to weigh fish. Plaintiff has spoken with certified

gunsmith Dean Doyle Arnold, who is qualified to perform the testing, and he has agreed

to act as Plaintiff’s expert witness in this case. Plaintiff is confident that if the Court

orders the testing to take place before the Revolver is released from the evidence room by

the TCSO, the Parties can coordinate a mutually convenient date, time and place for Mr.

Arnold to perform the testing prior to the conclusion of Bates’ criminal trial.



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ARGUMENT

“Parties may obtain discovery regarding any nonprivileged matter that is relevant

to any party’s claim or defense and proportional to the needs of the case…” Fed. R. Civ.

P. 26(b). As set forth above, the “trigger weight” of Bates’ Revolver used to shoot and

kill Eric Harris is critically important to the issues in this case. As such, it is well within

the permissible scope of discovery. Rule 34 permits parties to test physical evidence, as

requested herein. Fed. R. Civ. P. 34(a)(2) (providing for entry onto designated property

possessed or controlled by another party for purposes of testing the property or any

designated objection thereon). Here, the property at issue, the Revolver, is in the control

of the TCSO and the Sheriff, both of which are Defendants in this case.6

Traditionally, requests for testing such as the one Plaintiff is making, are made in

writing to the party in control of the product to be tested. Fed. R. Civ. P. 34. The

controlling party then has thirty (30) days to respond to the request and either allow the

testing to occur, or provide an objection thereto. Id . Such requests cannot be made before

the parties engage in a discovery conference pursuant to Rule 26(f) unless authorized by

court order . Fed. R. Civ. P. 26(d)(1) (emphasis added).

The Tenth Circuit has acknowledged that the district courts have the discretion to

6 Plaintiff brings this case against the Sheriff of Tulsa County, in his official

capacity. It is well-established, as a matter of Tenth Circuit authority, that a § 1983 claimagainst a county sheriff in his official capacity “is the same as bringing a suit against the

county.” Martinez v. Beggs, 563 F.3d 1082, 1091 (10th

Cir. 2009). See also, Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010); Bame v. Iron Cnty., 566 F. App’x 731, 737

(10th Cir. 2014). After a special election on April 5, 2016, Sheriff Vic Regadalo tookoffice on April 11, 2016, replacing acting Sheriff Richard Weigel, who is named in the

Complaint. However, Rule 25(d) of the Federal Rules of Civil Procedure provides that‘[a]n action does not abate when a public officer who is a party in an official capacity

dies, resigns, or otherwise ceases to hold office while the action is pending,” rather “[t]heofficer’s successor is automatically substituted as the party.”



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authorize and compel expedited discovery. See, e.g., Washington v. Correia, 546 Fed.

App’x 786, 787 (10th Cir. 2013) (citing with approval Arista Records v. Doe 3, 604 F.3

110, 119 (2nd

Cir. 2010))7. In Arista Records, the Second Circuit identified several

principal factors: (1) the “concreteness” of the plaintiff’s showing of a prima facie claim

of actionable harm; (2) the specificity of the discovery requested; (3) the absence of

alternative means to obtain the subpoenaed information; (4) the need for the information

sought to advance the claim, and (5) the objecting party’s expectation of privacy. Arista

Records, 604 F.3d at 119. The issue in Arista involved a motion filed by an anonymous

defendant to quash a subpoena that had been served on an Internet service provider for

disclosure of the identities of internet users who had allegedly downloaded/distributed

music online in violation of copyright law. However, as acknowledged by the Tenth

Circuit in Correia, the factors are equally relevant to situations like the case at bar where

expedited discovery is sought.

With respect to the first factor, Plaintiff claims that Defendants violated Eric

Harris’ constitutional right to be free from excessive force, as well as his right to

reasonably necessary medical treatment, in violation of the Fourth and Fourteenth

Amendments to the United States Constitution. Plaintiff’s excessive force claim includes,

but is not limited to, Mr. Bates’ shooting and killing of Eric Harris. It is clearly

established that “deadly force cannot be used when it is unnecessary to restrain a suspect

or secure the safety of officers, the public, or the suspect himself…” Weigel v. Broad ,

7 In Correia, the plaintiff was seeking the defendant’s address from the apartment

manager of the defendant’s former apartment. Correia, 546 Fed. App’x at 787. In

denying his request for expedited discovery, the district court found that the plaintiff hadfailed explore other means to obtain the address, such as consulting phone directories and

conducting Internet searches. Id .



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544 F.3d 1143, 1155 (10th

Cir. 2008). Further, “‘there undoubtedly is a clearly

established legal norm’ precluding the use of violent physical force against a criminal

suspect or detainee ‘who already has been subdued and does not present a danger to

himself or others.’” Estate of Booker v. Gomez , 745 F.3d 405, 424-34 (10th

Cir. 2004)

(quoting Harris v. City of Circleville, 583 F.3d 356, 367 (6th

Cir. 2009) (emphasis added).

As set forth above and in Plaintiff’s Complaint, the well-documented facts are more than

sufficient to establish a concrete prima facie case against Defendant Bates.8

Regarding the second factor, the specificity of the discovery requested, Plaintiff

seeks to have a very specific and standardized “trigger weight” test performed on Bates’

Revolver by a certified and qualified gunsmith. Plaintiff is confident the test can be

completed at a mutually agreeable date, place and time.

Regarding the third and forth factors of the Arista Records test – the absence of

alternative means to obtain the subpoenaed information and the need for the information

to advance the claim – as set forth above, there are no other means to obtain the trigger

weight of Bates’ Revolver other than by performing a trigger weight test on that

particular Revolver. The trigger weight is a material piece of evidence in this case. As

indicated by Mr. Brewster during the recent criminal hearing, the trigger weight of Bates’

Revolver is significantly less than a standard Smith & Wesson .357, making it easier to

discharge. Whether that is true, or whether the trigger weight on Bates’ Revolver is the

standard, 11-12 ! pound trigger weight, will be extremely important to Plaintiff’s claims

that Bates was deliberately indifferent to Mr. Harris’ rights by knowingly carrying a

modified and non-certified weapon on duty. The evidence is also extremely important to

8 Plaintiff further directs the Court to her responses to Defendants’ motions to

dismiss, Docket ## 15, 16.



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Plaintiff’s claims that former Sheriff Glanz and the TCSO were deliberately indifferent to

Mr. Harris’ rights by knowingly permitting Mr. Bates to carry a non-certified weapon

while on duty. Plaintiff is entitled to test the truth of these assertions. That can only be

accomplished by testing the trigger weight of the Revolver.

Finally, with respect to the fifth factor – expectation of privacy – neither Mr.

Bates nor any of the other Defendants have any expectation of privacy in the trigger

weight of the Revolver.

In this case, it is not possible to have the required discovery conference, issue a

traditional discovery request, and wait thirty (30) days for a response from Defendants

before conducting the necessary “trigger weight” testing before the Revolver is released

from evidence and becomes subject to interference. All Defendants in this case, aside

from Bates, have filed motions to dismiss which, although wholly without merit, are

currently pending. Traditional discovery has not yet begun. Moreover, the need for the

trigger weight testing was not made clear until the hearing in the criminal matter on April

12, 2016, during which Mr. Hardison’s affidavit came to light and Mr. Brewster indicated

– for the first time – that the trigger weight of the Revolver had been modified. As set

forth above, the Plaintiff cannot wait for traditional discovery to conduct this necessary

and critical testing. This Court has the authority to order the same and, under the

circumstances presented herein, should compel the testing to occur in the interests of

justice.

CONCLUSION

For the reasons set forth herein, Plaintiff asks the Court to enter an order

compelling Sheriff Regalado and the TCSO to present the Bates’ Revolver for trigger-



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weight testing by Plaintiff’s expert, at a mutually agreeable time and place, before the

Revolver is released to Mr. Bates at the conclusion of his criminal trial in Tulsa County

District Court case number CF-2015-1817.

Respectfully submitted,

/s/Daniel E. SmolenDaniel E. Smolen, OBA#19943

Donald E. Smolen, II, OBA#19944Robert M. Blakemore, OBA#18656

SMOLEN, SMOLEN & R OYTMAN, PLLC

701 S. Cincinnati Ave.

Tulsa, OK 74119(918) 585-2667 P

(918) 585-2669 F

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on the 13th

day of April, 2016, I electronically transmitted theforegoing document to the Clerk of Court using the ECF System for filing and for

transmittal of a Notice of Electronic Filing to all ECF registrants who have appeared inthis case.

/s/Daniel E. Smolen



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Chapter 4, Policy 6Weapons Training and Qualification

Issued 06/03/96 (Revised 10/19/05) Review Date: November1

4-06 Weapons Training and Qualification

6.1 Policy:

The Tulsa County Sheriff’s Office has established firearms training andqualification requirements to ensure that all deputies who will carry any lethal orless than lethal weapons possess safe and effective skills. Deputies will completeannual training and remain updated on applicable laws and Sheriff’s Office

policies. While on or off duty, deputies and reserve deputies will carry onlyweapons and ammunition authorized and registered with the Sheriff’s Office.

6.2 Purpose:

To provide guidelines regarding the weapons and ammunition authorized to becarried by deputies and the qualification requirements for firearms training. Toprovide information regarding firearm range rules, regulations, records andinspection requirements. To identify the firearms proficiency awards program.

6.3 Definitions:

See Glossary for terms.

6.4 Procedure:

A. Weapons Authorization:

A.1 A deputy or reserve deputy may only carry a weapon if they receivetraining on the weapon's safe and proper usage and qualify with it.

A.2 The weapon must meet the proper specifications and be inspectedby the Sheriff’s Office Firearms instructor, armorer or other certifiedweapons officer for that particular type of weapon.

A.3 To be considered approved, a weapon must initially be:

a. Issued to the deputy by the Sheriff’s Office; or

Tulsa County Sheriff's Office

Tulsa, Oklahoma

1

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b. Approved by the Sheriff or designee for use by the deputy inthe performance of their assigned duties.

B. Issuance and Storage of Sheriff’s Office Weapons. The Sheriff’sOffice Quartermaster Office will be responsible for the storage, and

issuance, of all Sheriff’s Office issued weapons.

B.1 Firearms:

a. The Quartermaster Office will maintain all firearms in a safeand secure environment until such time that the firearm is issuedor replaced.

b. Ammunition for firearms will be stored in the QuartermasterOffice, and at the firing range, in a dry, climate controlledand secure area separate from the firearms.

c. Access to the secure placement of firearms and ammunitionwill be limited.

B.2 TASERs:

a. The Quartermaster Office will store TASERs in asecured, dry, climate controlled area until such time that theyare issued, disposed of or replaced.

b. The Quartermaster Office will store TASER cartridges in asecure, dry, climate controlled area separate from theTASERs.

c. Access to the secure placement of the TASERs and theTASER cartridges will be limited.

B.3 O. C. Spray. The Quartermaster Office will store all O.C. Spray ina safe, dry, climate controlled area until such time the spray isissued, disposed of, or replaced.

C. Approved Weapons. A weapons specification sheet will be completedon each approved weapon. These sheets will be maintained by the

Training Sergeant and on file in the training office. They will be updatedeach time there is a change in weapons and will be reviewed annually bythe Training Sergeant.



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D. Approved firearms include:

D.1 Smith and Wesson-9mm semi-automatic Model #3953;

D.2 Smith and Wesson-.45 semi-automatic pistol Model #4506,

#4506-1 and #4516;

D.3 Glock Model 21C, 22C, 30, and 36;

D.4 Remington-12 gauge pump shotgun Model #870;

D.5 Smith and Wesson Model #457;

D.6 Rifles:

a. Approved models are:

a.1 Colt AR-15;

a.2 Ruger Mini14;

a.3 Bushmaster;

a.4 Olympic Arms;

a.5 Armalite;

a.6 H & K;

a.7 Wilson Combat;

a.8 M-1 Carbine 30 Caliber.

c. The approved rifles will not be provided by the Sheriff'sOffice. It will be the responsibility of the deputy to purchaseand maintain the weapon.

E. Approved ammunition includes:

E.1 230 Grain Gold Dot Ammunition:

E.2 00 Buckshot (12 Gauge);

E.3 Slugs (12 Gauge);

E.4 .223, 69 grain, Federal Boat Tail/Hollow Point ammunition.



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E.5 Rifle ammunition, issued by the Sheriff's Office, will bethe only approved ammunition for use with approved rifles.

E.6 All certified deputies are issued 50 rounds of service ammunitionduring the fall firearms course. Deputies are required to present

the previously issued rounds to the Firearms Instructor at the timeof firearms qualification.

E.7 Deputies must account for all missing ammunition. If a deputy ismissing issued ammunition, the deputy will be required to issue amemo to their Division Chief through the Training Sergeantexplaining the missing rounds.

F. Other approved weapons include:

F.1 The straight police baton;

F.2 O.C. gas-PUNCH II M-4;

F.3 A.S.P. 26-inch chrome expandable baton;

F.4 Other weapons as authorized in writing by General Orders orindividually by the Sheriff or designee.

G. Firearms Qualification:

G.1 The Training Unit will schedule training sessions biannually forfirearms. The training sessions will be graded. A minimum score of70% is required during one of the qualifying rounds for successfulcompletion. The training will be conducted by a C.L.E.E.T. certifiedfirearms instructor and a permanent record showing the deputy’sshooting score will be maintained by the Training Unit.

G.2 All deputies must pass a qualification course annually with aminimum score of 70%. A passing score enables the deputy to beauthorized by the Sheriff or designee to carry the firearm while onduty. A deputy who fails to qualify must:

a. Attend and complete a retraining course administered by aC.L.E.E.T. certified firearms instructor and complete aqualifying round of fire.

b. Fire only under the supervision of the T.C.S.O. FirearmsInstructor.



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c. If the deputy fails to qualify after a reasonable amount oftime, to be determined by the Training Sergeant, the matterwill be referred to the Sheriff or designee for further action.The deputy will be placed on a non-firearm duty status andwill not be authorized to carry a weapon until qualified.

G.3 Rifle Qualifications. The Sheriff's Office Firearms Instructor willconduct rifle qualification on approved dates and times. Deputiesusing the approved rifles must use only approved ammunition andmust qualify with a score of no less than 80%.

H. Firearms Instructor Authority. All deputies are directed to obey allorders as given by the Firearms Instructor, regardless of rank, while on thefiring range. This will ensure that adequate safeguards exist to protectemployees from serious injury while on the firing range.

I. Range Schedules:

I.1 All certified deputies will be assigned range dates by their DivisionCaptain. It is the responsibility of the deputy to attend the range onthe date assigned. If a deputy or their supervisor finds it necessaryto change a range date, the deputy must notify the appropriateDivision Captain by memo as soon as a potential schedulingconflict is discovered. The memo requesting a change in the rangeschedule must state the reason the change is needed.

I.2 Only supervisors ranked Captain or above may change a rangedate. If a request for change is granted, the Division Captain mustnotify the Training Sergeant at least 24 hours before the effecteddeputy is scheduled to attend.

I.3 The Division Captain should attempt to replace the opening withanother deputy as soon as possible and notify the TrainingSergeant of the change. This action will allow the FirearmsInstructor to complete the range instruction on the scheduled date.If a deputy is a "no-show" on their assigned range date, theTraining Sergeant will notify the deputy's Division Captain by writtennotice.

I.4 Certified deputies that are assigned to light duty status may notattend the range until released by their medical physician. Thedeputy should present a medical release for full duty to theirDivision Captain who will place the release in the employee'spersonnel file. After being released to full duty, the deputy will beassigned range dates by the Division Captain.



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J. Firearms Proficiency Awards:

J.1 Certified deputies or reserve deputies who demonstrate high pistol

shooting proficiency during the annual fall firearms qualificationperiod will be eligible to receive one of the following awards:

a. Marksman - with a qualifying score of 80 to 85;

b. Expert - with a qualifying score of 86 to 94;

c. Master - with a qualifying score of 95 to 100.

J.2 The Firearms Proficiency Award is valid for one year from the datethat the deputy achieves the qualifying score.

J.3 The Firearms Instructor will provide a list of deputies eligible for afirearms award to the Training Unit Captain, Training Unit Sergeantand the Quartermaster Office.

J.4 Firearms proficiency ribbons will be awarded weekly and may beobtained from the Quartermaster Office. Ribbons will be availablefor pick up on Friday of each qualification week.

J.5 Deputies will receive only one ribbon for each level of proficiencyachieved. Deputies will be allowed to wear on their uniform onlythe ribbon for the level at which they are currently qualified.

J.6 A deputy must achieve the qualifying score annually to continue towear the ribbon; however, a deputy will not be required to return apreviously awarded ribbon.

K. Other Weapons. No deputy is permitted to carry and use a weapon untilthey have received training and are qualified as proficient in its use by acertified weapons instructor. All approvals are conditional on annualrequalification.

L. The Sheriff’s Office will maintain a complete record of all authorizedweapons, which lists the following:

L.1 Type and description of the weapon, and model and serial numberif the weapon is a firearm;

L.2 The owner or assignee of the weapon;



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L.3 Signature of the Sheriff or designee approving its use and the dateof approval;

L.4 Training administered and scores attained on the applicable test;

L.5 Weapon inspection and approval as being safe.

M. Review and Inspection:

M.1 All firearms will be inspected by a Firearms Instructor prior to initialissuance to the receiving deputy.

M.2 All firearms and less lethal weapons issued to a deputy will beinspected periodically by the deputy’s supervisor to assure that it isclean and in operable order, in accordance with Policy 5-03, Lineand Staff Inspections.

M.3 All firearms and less lethal weapons issued to a deputy will beinspected annually by a certified firearms or weapons instructor.

M.4 Any time a weapon is discharged or used it will be inspected by asupervisor or armorer for its condition and serviceability.

M.5 If the use of the weapon was in the line of duty, a written report will be made, giving the results of the inspection.

M.6 O.C. spray canisters will be inspected at the time of the reviewconcerning the incident where the spray was used.

M.7 If, during the course of any inspection, a weapon is found to beunsafe, it will be removed from duty as soon as practical and turnedin for exchange or replacement by the Quartermaster Office. TheQuartermaster Office will notify the Training Sergeant of the unsafeweapon as soon as possible.

N. Off-Duty Carrying of Firearms. Since deputies remain subject to 24-hour call, they are permitted, but not required, to carry an approvedfirearm while off duty. Off-duty weapons must meet the samerequirements as weapons used on-duty, including training, approval andauthorization.

O. Lost, Stolen and Replacement Weapons:

O.1 If any authorized weapon is lost, stolen or disposed of, theemployee must immediately notify the Training Sergeant, and theSheriff via the chain of command.



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O.2 If a deputy is given a replacement weapon it should be of the sametype and caliber they qualified with previously.

P. Other Requirements:

P.1 All deputies, both full-time and reserve, must carry their C.L.E.E.T.

certification card, badge and commission card at all times whilecarrying an authorized firearm. This includes while on-duty or off,and while in or out of uniform.

P.2 When not in uniform, deputies choosing to wear their weaponsmust use the approved holster, as outlined in Policy 6-01, Uniformsand Equipment, and must have the Sheriff's Office badgeprominently displayed if the weapon being worn is not concealed.

P.3 No deputy may consume any alcoholic beverage when inpossession of a weapon unless it is necessary in the line of

undercover duty.

P.4 When not being worn, deputies must take the necessary measuresto ensure that their weapons are kept in a safe and secure place,out of reach of children, and inaccessible to anyone other than thedeputy.

P.5 Weapons, of any type, that have not been approved by the Sheriff,will not be carried or used by deputies of the Tulsa County Sheriff’sOffice during the course of law enforcement duties.

6.5 Standards:

C.A.L.E.A.: 1.3.9; 1.3.10; 1.3.11; 33.5.1.O.L.E.A.: OPS.01.01; OPS.01.02; OPS.01.03, OPS.01.04.



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STATE OF

OKLAHOMA

COUNTY

OF TULSA

)

)

)

ss.

ffidavit ofMichael ardison

1 I am over the age of 18 and ofsound mind.

2. I have personallmowledge ofthe matters stated in this Affidavit.

3. For fourteen (14) years, I worked as an aircraft maintenance technician

withAmericanAirlines. I hold an Airframe

and/or Powerplant (A P)

certificate issued by the Federal Aviation Administration (FAA).

4. In

2003, I obtained an Associate s Degree in gunsmithing from

the

Colorado School

of

Trade.

5. I also hold a federal firearms license.

6. From 2003 through August of 2011 I worked as a gunsmith d/b/a

Tulsa Gun Works. During this time, I worked out of Oklahoma Police

Supply, which was owned and operated by Rick Phillips ( Phillips ).

7.

In August 2011, I was hired to work as the gunsmith for 2A Shooting

Center ( 2A ). 2A Shooting Center is, and was at all pertinent times,

owned by Phillips

and

Clark Brewster ( Brewster ) as partners.

Brewster is a local attorney in Tulsa. I hired as the gunsmith for 2A by

both Brewster and

Phillips.

8. I worked for 2Afrom its inception.

9.

I negotiated my salarywith Brewster before I began work for 2A.

10.

I was the only gunsmith at

2A.

11. I went on salary with 2A in August 2011 and was

there

until March 10,

2016.

12. My duties

and

responsibilities as gunsmith at 2A included, care and

cleaning of guns and rentals. I also brought in walk-in business. was

my responsibility

to

keep the rental guns in safe working condition.

13.

I was further tasked with gun modifications. In

2008 or 2009

I was

hired by Robert

C.

Bates ( Bates ) to do some modifications on several

shotguns he owned. Bates is a local insurance executive

and

former

Reserve Deputywith the Tulsa County Sheriffs Office ( TCSO ). This

is the first time I recall meeting Bates. I modified Bates shotguns

by

taldng them from lethal to less lethal.

14. On or about March 8, 2016, Eric Fuson ( Eric ), manager at 2A and

10 owner of 2A, asked me to modify a gun for use in

the

criminal trial

of

Bates. Bates is represented by Brewster in

the

criminal matter.

15. Eric specifically told me

that

2A had a gun coming in for use in

the

Bates trial and that it needed a trigger job . Eric asked

me

to modify

the

gun by reducing the amount of force required

to

discharge

the

weapon. Eric indicated that I was to take the gun s trigger from stock

configuration (11

to 12

1/2 pound offorce required)

and

significantly

reduce that number.

3



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16 I initially told Eric okay . We had no further conversation on

the

Bates matter

th t

day.

17

On or about March 9, I came to work at

2A nd

s w

a Smith

nd

Wesson .357 model 340 on a desk. The .357 was still in

the

box.

Clearly, the .357 h d been ordered by 2A

18

After seeing the gun, I asked Eric whether

it

was

the

gun for the Bates

trial we discussed earlier. Eric said yes .

19 I told Eric I have a problem with that . I then asked Eric several

questions. I asked Eric why I needed to do a trigger job

on

a gun th t

would be evidence in trial. I noted

th t

it was improper

to

modify a

duty weapon . was p rt ofmy training (armor tr,aining

nd

Colorado School

of

Trade) - one should never modify a dutyweapon. I

asked Eric, Why don t they use the actual gun [used to shoot Eric

Harris] as evidence [at the trial]?

20. Eric told me

th t

the jury [in the Bates trial] too stupid

to

figure it

out. My impression from this was

th t

the trigger was

to be

modified

in order

to

fool

or

manipulate the jury in the Bates trial.

21

I told Eric, I can t do that .

22. Rick Phillips he rd the last part ofthis conversation with Eric. Phillips

stated, Bob [Bates] shooting th t guy was an accident.

23. I finished out the work day on March

9

24. I came back to 2A the next day, March 10, nd resigned. I told Eric, I

resign. I

spent th t

day moving tools out. Eric asked, where

re

replacement springs to do the trigger job for the .357? I gave Eric

the

springs

nd

left.

Anything further, affiant saith not.

DATED this

th

day of April, 2016.

Signed

nd

sworn

to

before me this 8th day of April, 2016, by Michael

Hardison.

My

Commission Expires:

(SEAL)



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Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(1) ROBBIE EMERY BURKE, as the )

Special Administratrix of the Estate of )

Eric Harris, Deceased, ))Plaintiff, )

) Case No. 16-CV-007v. ) ATTORNEY LIEN CLAIMED

) JURY TRIAL DEMANDED(1) STANLEY GLANZ, in his individual )

capacity, )(2) ROBERT C. BATES, )

(3) MICHAEL HUCKEBY, )(4) JOSEPH BYARS, )

(5) RICARDO VACA, and )(6) RICHARD WEIGEL, in his official )

capacity as Acting Tulsa County Sheriff, ))

Defendants. )

PLAINTIFF’S MOTION FOR EXPEDITED BRIEFING AND RULING ON

HER EMERGENCY MOTION FOR ORDER COMPELLING THE

TULSA COUNTY SHERIFF’S OFFICE TO PRODUCE

BATES’ REVOLVER FOR EXPERT TESTING

COMES NOW the Plaintiff, Robbie Emery Burke, as the Special Administratrix

of the Estate of Eric Harris, Deceased, and asks this Court to expedite its briefing and

ruling on Plaintiff’s Emergency Motion for Order Compelling the Tulsa County Sheriff’s

Office to Produce Bates’ Revolver for Expert Testing (Dkt. # 19) (“Emergency Motion”).

The Emergency Motion was filed on April 13, 2016. Under the normal briefing

scheduling, Defendants’ response to the Emergency Motion would be due May 4, 2016.

See LCvR7.2(e). However, the purpose of the Emergency Motion is to secure trigger

weight testing of the Bates’ Revolver before the same is released to Bates and his

attorneys from the TCSO evidence room where it is being held pending Bates’ criminal

trial in Tulsa County Court Case CF-2015-1817. See Emergency Motion, Dkt. # 19. As



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set forth in the Emergency Motion, the criminal trial will begin Monday, April 18, 2016

and will likely conclude before the normal briefing schedule. Under these circumstances,

expedited briefing and ruling on the Emergency Motion is warranted.

WHEREFORE, premises considered, Plaintiff respectfully requests the Court

expedite briefing and ruling on Plaintiff’s Emergency Motion for Order Compelling the

Tulsa County Sheriff’s Office to Produce Bates’ Revolver for Expert Testing (Dkt. # 19).

Respectfully submitted,

/s/Daniel E. SmolenDaniel E. Smolen, OBA#19943

Donald E. Smolen, II, OBA#19944Robert M. Blakemore, OBA#18656

SMOLEN, SMOLEN & R OYTMAN, PLLC

701 S. Cincinnati Ave.

Tulsa, OK 74119(918) 585-2667 P

(918) 585-2669 F

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on the 13th

day of April, 2016, I electronically transmitted theforegoing document to the Clerk of Court using the ECF System for filing and for

transmittal of a Notice of Electronic Filing to all ECF registrants who have appeared inthis case.

/s/Daniel E. Smolen


Documents

Emergency Motion Exhibits