Emergency Motion Exhibits

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 1 of 13
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,
v.
(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.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 16-CV-007-JED-FHM

ATTORNEY LIEN CLAIMED
JURY TRIAL DEMANDED
PLAINTIFFS EMERGENCY MOTION FOR ORDER COMPELLING THE

TULSA COUNTY SHERIFFS 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 Sheriffs 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.
Page 1 of 13
STATEMENT OF RELEVANT FACTS

This case involves Plaintiffs 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 Glanzs
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 Glanzs own officers. Id. at 10-21.
Bates killed Harris during the course of an undercover sting operation
conducted by the TCSOs 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)
Page 2 of 13
(Weapons, of any type, that have not been approved by the Sheriff, will not be carried or
used by deputies of the Tulsa County Sheriffs 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 deputys 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 joggers 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 Sheriffs Office. WTQ Policy, 6.1 (Ex. 1 at 1). To be considered
approved, 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 be
maintained 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).
Page 3 of 13
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 73year 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 by
the 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 on
duty, 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.
The Grand Jury that indicted Sheriff Glanz following Harris death specifically
found that Reserve Deputy Bates was permitted by [TCSO] to wear and utilize firearms
not approved for use by the Sheriff[s] Office in violation of TCSO policy. Grand Jury
Report at 3 (emphasis added).
Page 4 of 13
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 Brewster3 - 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
Ive 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 Plaintiffs 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 case
against Bates. He continues to represent Sheriff Glanz and the TCSO in several civil
rights cases pending before this Court.
Page 5 of 13
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. Brewsters 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 States motion in limine. See State v.
Bates, CF-2015-1817, States Objection to Defendants Witnesses and Exhibits List,
attached as Ex. 4, p. 5. A reasonable inference, supported by Mr. Hardisons affidavit and
Mr. Brewsters 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
As set forth in the attached Affidavit, Mr. Hardison is a certified gunsmith and
holds 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 of
2016, 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 stock
configuration 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 the
actual 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 requested
modification 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 the
State to use if it wanted instead of bringing in the original. Ex. 2 at 8 ([I]ts been used as
an exemplar for us and our expertsso we dont intend to use that as an exhibit. Unless
the State wanted to use it instead of getting the other one out of a bag or something.
Theyre identical.).
Page 6 of 13
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
Page 7 of 13
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 Brewsters 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 States 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
Batess attorneys. After a three (3) hour hearing, the court denied the States 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 Plaintiffs 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.
Page 8 of 13
ARGUMENT
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any partys 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 claim
against 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. Appx 731, 737
(10th Cir. 2014). After a special election on April 5, 2016, Sheriff Vic Regadalo took
office 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]he
officers successor is automatically substituted as the party.
Page 9 of 13
authorize and compel expedited discovery. See, e.g., Washington v. Correia, 546 Fed.
Appx 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 plaintiffs 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 partys 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. Plaintiffs 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,
In Correia, the plaintiff was seeking the defendants address from the apartment
manager of the defendants former apartment. Correia, 546 Fed. Appx at 787. In
denying his request for expedited discovery, the district court found that the plaintiff had
failed explore other means to obtain the address, such as consulting phone directories and
conducting Internet searches. Id.
Page 10 of 13
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 Plaintiffs 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 Plaintiffs 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.
Page 11 of 13
Plaintiffs 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. Hardisons 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-
Page 12 of 13
weight testing by Plaintiffs 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. Smolen
Daniel E. Smolen, OBA#19943
Donald E. Smolen, II, OBA#19944
Robert M. Blakemore, OBA#18656
SMOLEN, SMOLEN & ROYTMAN, 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 the
foregoing 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 in
this case.
/s/Daniel E. Smolen
Page 13 of 13
Case 4:16-cv-00007-JED-FHM Document 19-1 Filed in USDC ND/OK on 04/13/16 Page 1 of 8

Chapter 4, Policy 6
Weapons Training and Qualification
Tulsa County Sheriff's Office

Tulsa, Oklahoma
4-06
6.1
Policy:
The Tulsa County Sheriffs Office has established firearms training and
qualification requirements to ensure that all deputies who will carry any lethal or
less than lethal weapons possess safe and effective skills. Deputies will complete
annual training and remain updated on applicable laws and Sheriffs Office
policies. While on or off duty, deputies and reserve deputies will carry only
weapons and ammunition authorized and registered with the Sheriffs Office.
6.2
Purpose:
To provide guidelines regarding the weapons and ammunition authorized to be

carried by deputies and the qualification requirements for firearms training. To
provide information regarding firearm range rules, regulations, records and
inspection 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 receive

training on the weapon's safe and proper usage and qualify with it.
A.2
The weapon must meet the proper specifications and be inspected

by the Sheriffs Office Firearms instructor, armorer or other certified
weapons 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 Sheriffs Office; or

1
Issued 06/03/96 (Revised 10/19/05)
Review Date: November

Chapter 4, Policy 6
b.
B.
Approved by the Sheriff or designee for use by the deputy in

the performance of their assigned duties.
Issuance and Storage of Sheriffs Office Weapons. The Sheriffs

Office Quartermaster Office will be responsible for the storage, and
issuance, of all Sheriffs Office issued weapons.
B.1
Firearms:
a.
The Quartermaster Office will maintain all firearms in a safe

and secure environment until such time that the firearm is issued
or replaced.
B.2
B.3
C.
b.
Ammunition for firearms will be stored in the Quartermaster

Office, and at the firing range, in a dry, climate controlled
and secure area separate from the firearms.
c.
Access to the secure placement of firearms and ammunition

will be limited.
TASERs:
a.
The Quartermaster Office will store TASERs in a

secured, dry, climate controlled area until such time that they
are issued, disposed of or replaced.
b.
The Quartermaster Office will store TASER cartridges in a

secure, dry, climate controlled area separate from the
TASERs.
c.
Access to the secure placement of the TASERs and the

TASER cartridges will be limited.
O. C. Spray. The Quartermaster Office will store all O.C. Spray in

a safe, dry, climate controlled area until such time the spray is
issued, disposed of, or replaced.
Approved Weapons. A weapons specification sheet will be completed

on each approved weapon. These sheets will be maintained by the
Training Sergeant and on file in the training office. They will be updated
each time there is a change in weapons and will be reviewed annually by
the Training Sergeant.
Issued 06/03/96 (Revised 10/19/05)

Chapter 4, Policy 6
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.
c.
E.
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.
The approved rifles will not be provided by the Sheriff's

Office. It will be the responsibility of the deputy to purchase
and maintain the weapon.
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.
Issued 06/03/96 (Revised 10/19/05)

Chapter 4, Policy 6
F.
G.
E.5
Rifle ammunition, issued by the Sheriff's Office, will be

the only approved ammunition for use with approved rifles.
E.6
All certified deputies are issued 50 rounds of service ammunition

during the fall firearms course. Deputies are required to present
the previously issued rounds to the Firearms Instructor at the time
of firearms qualification.
E.7
Deputies must account for all missing ammunition. If a deputy is

missing issued ammunition, the deputy will be required to issue a
memo to their Division Chief through the Training Sergeant
explaining the missing rounds.
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 or

individually by the Sheriff or designee.
Firearms Qualification:
G.1
The Training Unit will schedule training sessions biannually for

firearms. The training sessions will be graded. A minimum score of
70% is required during one of the qualifying rounds for successful
completion. The training will be conducted by a C.L.E.E.T. certified
firearms instructor and a permanent record showing the deputys
shooting score will be maintained by the Training Unit.
G.2
All deputies must pass a qualification course annually with a

minimum score of 70%. A passing score enables the deputy to be
authorized by the Sheriff or designee to carry the firearm while on
duty. A deputy who fails to qualify must:
a.
Attend and complete a retraining course administered by a

C.L.E.E.T. certified firearms instructor and complete a
qualifying round of fire.
b.
Fire only under the supervision of the T.C.S.O. Firearms

Instructor.
Issued 06/03/96 (Revised 10/19/05)

Chapter 4, Policy 6
c.
G.3
If the deputy fails to qualify after a reasonable amount of

time, to be determined by the Training Sergeant, the matter
will be referred to the Sheriff or designee for further action.
The deputy will be placed on a non-firearm duty status and
will not be authorized to carry a weapon until qualified.
Rifle Qualifications. The Sheriff's Office Firearms Instructor will

conduct rifle qualification on approved dates and times. Deputies
using the approved rifles must use only approved ammunition and
must qualify with a score of no less than 80%.
H.
Firearms Instructor Authority. All deputies are directed to obey all

orders as given by the Firearms Instructor, regardless of rank, while on the
firing range. This will ensure that adequate safeguards exist to protect
employees from serious injury while on the firing range.
I.
Range Schedules:
I.1
All certified deputies will be assigned range dates by their Division

Captain. It is the responsibility of the deputy to attend the range on
the date assigned. If a deputy or their supervisor finds it necessary
to change a range date, the deputy must notify the appropriate
Division Captain by memo as soon as a potential scheduling
conflict is discovered. The memo requesting a change in the range
schedule must state the reason the change is needed.
I.2
Only supervisors ranked Captain or above may change a range

date. If a request for change is granted, the Division Captain must
notify the Training Sergeant at least 24 hours before the effected
deputy is scheduled to attend.
I.3
The Division Captain should attempt to replace the opening with

another deputy as soon as possible and notify the Training
Sergeant of the change. This action will allow the Firearms
Instructor to complete the range instruction on the scheduled date.
If a deputy is a "no-show" on their assigned range date, the
Training Sergeant will notify the deputy's Division Captain by written
notice.
I.4
Certified deputies that are assigned to light duty status may not
attend the range until released by their medical physician. The
deputy should present a medical release for full duty to their
Division Captain who will place the release in the employee's
personnel file. After being released to full duty, the deputy will be
assigned range dates by the Division Captain.
Issued 06/03/96 (Revised 10/19/05)

Chapter 4, Policy 6
J.
Firearms Proficiency Awards:

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

shooting proficiency during the annual fall firearms qualification
period 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 date
that the deputy achieves the qualifying score.
J.3
The Firearms Instructor will provide a list of deputies eligible for a

firearms award to the Training Unit Captain, Training Unit Sergeant
and the Quartermaster Office.
J.4
Firearms proficiency ribbons will be awarded weekly and may be

obtained from the Quartermaster Office. Ribbons will be available
for pick up on Friday of each qualification week.
J.5
Deputies will receive only one ribbon for each level of proficiency
achieved. Deputies will be allowed to wear on their uniform only
the ribbon for the level at which they are currently qualified.
J.6
A deputy must achieve the qualifying score annually to continue to

wear the ribbon; however, a deputy will not be required to return a
previously awarded ribbon.
K.
Other Weapons. No deputy is permitted to carry and use a weapon until

they have received training and are qualified as proficient in its use by a
certified weapons instructor. All approvals are conditional on annual
requalification.
L.
The Sheriffs Office will maintain a complete record of all authorized

weapons, which lists the following:
L.1
Type and description of the weapon, and model and serial number
if the weapon is a firearm;
L.2
The owner or assignee of the weapon;
Issued 06/03/96 (Revised 10/19/05)

Chapter 4, Policy 6
L.3
M.
L.4
Signature of the Sheriff or designee approving its use and the date
of approval;
Training administered and scores attained on the applicable test;
L.5
Weapon inspection and approval as being safe.
Review and Inspection:

M.1
All firearms will be inspected by a Firearms Instructor prior to initial

issuance to the receiving deputy.
M.2
All firearms and less lethal weapons issued to a deputy will be

inspected periodically by the deputys supervisor to assure that it is
clean and in operable order, in accordance with Policy 5-03, Line
and Staff Inspections.
M.3
All firearms and less lethal weapons issued to a deputy will be

inspected annually by a certified firearms or weapons instructor.
M.4
Any time a weapon is discharged or used it will be inspected by a

supervisor 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 review

concerning the incident where the spray was used.
M.7
If, during the course of any inspection, a weapon is found to be

unsafe, it will be removed from duty as soon as practical and turned
in for exchange or replacement by the Quartermaster Office. The
Quartermaster Office will notify the Training Sergeant of the unsafe
weapon as soon as possible.
N.
Off-Duty Carrying of Firearms. Since deputies remain subject to 24hour call, they are permitted, but not required, to carry an approved
firearm while off duty. Off-duty weapons must meet the same
requirements as weapons used on-duty, including training, approval and
authorization.
O.
Lost, Stolen and Replacement Weapons:

O.1
If any authorized weapon is lost, stolen or disposed of, the

employee must immediately notify the Training Sergeant, and the
Sheriff via the chain of command.
Issued 06/03/96 (Revised 10/19/05)

Chapter 4, Policy 6
O.2
P.
6.5
If a deputy is given a replacement weapon it should be of the same

type and caliber they qualified with previously.
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 while
carrying 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 weapons

must use the approved holster, as outlined in Policy 6-01, Uniforms
and Equipment, and must have the Sheriff's Office badge
prominently displayed if the weapon being worn is not concealed.
P.3
No deputy may consume any alcoholic beverage when in

possession of a weapon unless it is necessary in the line of
undercover duty.
P.4
When not being worn, deputies must take the necessary measures
to ensure that their weapons are kept in a safe and secure place,
out of reach of children, and inaccessible to anyone other than the
deputy.
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 Sheriffs
Office during the course of law enforcement duties.
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.
Issued 06/03/96 (Revised 10/19/05)
STATE OF OKLAHOMA
COUNTY OF TULSA
)
)
)
ss.
Affidavit of Michael L. Hardison

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
I am over the age of 18 and of sound mind.

I have personallmowledge of the matters stated in this Affidavit.
For fourteen (14) years, I worked as an aircraft maintenance technician
with American Airlines. I hold an Airframe and/or Powerplant (A&P)
certificate issued by the Federal Aviation Administration (FAA).
In 2003, I obtained an Associate's Degree in gunsmithing from the
Colorado School of Trade.
I also hold a federal firearms license.
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").
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.
I worked for 2A from its inception.
I negotiated my salary with Brewster before I began work for 2A.
I was the only gunsmith at 2A.
I went on salary with 2A in August 2011 and was there until March 10,
2016.
My duties and responsibilities as gunsmith at 2A included, care and
cleaning of guns and rentals. I also brought in walk-in business. It was
my responsibility to keep the rental guns in safe working condition.
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 Deputy with 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.
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.
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 of force required) and significantly
reduce that number.
3

J
16.
17.
18.
19.
20.
21.
22.
23.
24.
I initially told Eric "okay". We had no further conversation on the

Bates matter that day.
On or about March 9, I came to work at 2A and saw a Smith and
Wesson .357 model 340 on a desk. The .357 was still in the box.
Clearly, the .357 had been ordered by 2A.
After seeing the gun, I asked Eric whether it was the gun for the Bates
trial we discussed earlier. Eric said "yes".
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 that
would be evidence in trial. I noted that it was improper to modify a
"duty weapon". It was part of my training (armor tr,aining and
Colorado School of Trade) - one should never modify a duty weapon. I
asked Eric, "Why don't they use the actual gun [used to shoot Eric
Harris] as evidence [at the trial]?"
Eric told me that the "jury [in the Bates trial] too stupid to figure it
out." My impression from this was that the trigger was to be modified
in order to fool or manipulate the jury in the Bates trial.
I told Eric, "I can't do that".
Rick Phillips heard the last part of this conversation with Eric. Phillips
stated, "Bob [Bates] shooting that guy was an accident."
I finished out the work day on March 9.
I came back to 2A the next day, March 10, and resigned. I told Eric, "I
resign." I spent that day moving tools out. Eric asked, "where are
replacement springs to do the trigger job" for the .357? I gave Eric the
springs and left.
Anything further, affiant saith not.
DATED this 8th day of April, 2016.
Signed and sworn to before me this 8th day of April, 2016, by Michael L.
Hardison.
My Commission Expires:
(SEAL)
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,
v.
(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.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 16-CV-007

ATTORNEY LIEN CLAIMED
JURY TRIAL DEMANDED
PLAINTIFFS MOTION FOR EXPEDITED BRIEFING AND RULING ON

HER EMERGENCY MOTION FOR ORDER COMPELLING THE
TULSA COUNTY SHERIFFS 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 Plaintiffs Emergency Motion for Order Compelling the Tulsa County Sheriffs
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
Page 1 of 2
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 Plaintiffs Emergency Motion for Order Compelling the
Tulsa County Sheriffs Office to Produce Bates Revolver for Expert Testing (Dkt. # 19).
Respectfully submitted,
/s/Daniel E. Smolen
Daniel E. Smolen, OBA#19943
Donald E. Smolen, II, OBA#19944
Robert M. Blakemore, OBA#18656
SMOLEN, SMOLEN & ROYTMAN, 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 the
foregoing 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 in
this case.
/s/Daniel E. Smolen
Page 2 of 2

Emergency Motion Exhibits

Diunggah oleh

Informasi Dokumen

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Emergency Motion Exhibits

Diunggah oleh

Hak Cipta:

Format Tersedia

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

IN THE UNITED STATES DISTRICT COURT

Case No. 16-CV-007-JED-FHM

PLAINTIFFS EMERGENCY MOTION FOR ORDER COMPELLING THE

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 2 of 13

STATEMENT OF RELEVANT FACTS

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 3 of 13

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

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 5 of 13

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 6 of 13

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 7 of 13

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 8 of 13

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 9 of 13

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 10 of 13

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 11 of 13

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

Case 4:16-cv-00007-JED-FHM Document 19 Filed in USDC ND/OK on 04/13/16 Page 12 of 13

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

Case 4:16-cv-00007-JED-FHM Document 19-1 Filed in USDC ND/OK on 04/13/16 Page 1 of 8

Tulsa County Sheriff's Office

Weapons Training and Qualification

To provide guidelines regarding the weapons and ammunition authorized to be

See Glossary for terms.

A deputy or reserve deputy may only carry a weapon if they receive

The weapon must meet the proper specifications and be inspected

To be considered approved, a weapon must initially be:

Issued to the deputy by the Sheriffs Office; or

Issued 06/03/96 (Revised 10/19/05)

Review Date: November

Case 4:16-cv-00007-JED-FHM Document 19-1 Filed in USDC ND/OK on 04/13/16 Page 2 of 8

Approved by the Sheriff or designee for use by the deputy in

Issuance and Storage of Sheriffs Office Weapons. The Sheriffs

The Quartermaster Office will maintain all firearms in a safe

Ammunition for firearms will be stored in the Quartermaster

Access to the secure placement of firearms and ammunition

The Quartermaster Office will store TASERs in a

The Quartermaster Office will store TASER cartridges in a

Access to the secure placement of the TASERs and the

O. C. Spray. The Quartermaster Office will store all O.C. Spray in

Approved Weapons. A weapons specification sheet will be completed

Issued 06/03/96 (Revised 10/19/05)

Review Date: November

Case 4:16-cv-00007-JED-FHM Document 19-1 Filed in USDC ND/OK on 04/13/16 Page 3 of 8

Approved firearms include:

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

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

Glock Model 21C, 22C, 30, and 36;

Remington-12 gauge pump shotgun Model #870;

Smith and Wesson Model #457;

Approved models are:

M-1 Carbine 30 Caliber.

The approved rifles will not be provided by the Sheriff's

Approved ammunition includes:

230 Grain Gold Dot Ammunition:

00 Buckshot (12 Gauge);

Slugs (12 Gauge);

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

Issued 06/03/96 (Revised 10/19/05)

Review Date: November

Case 4:16-cv-00007-JED-FHM Document 19-1 Filed in USDC ND/OK on 04/13/16 Page 4 of 8

Rifle ammunition, issued by the Sheriff's Office, will be

All certified deputies are issued 50 rounds of service ammunition

Deputies must account for all missing ammunition. If a deputy is

Other approved weapons include: