Clark v Colbert et al.

Clark appealed summary judgment on his excessive force, state tort, disability and inadequate medical treatment claims. The panel affirmed. It held that no reasonable juror could find excessive force when officers shot Clark with pepper balls as he was in a psychotic state, had attacked his caretaker with a large knife, field to drop the knife when instructed to do so and failed to obey a call to submit to arrest. It affirmed as to the state tort claims a Clark did not challenge two of the grounds relied upon by the district court. It affirmed on the disability claim as Clark did not challenge the district court ruling that the officers who fired the pepper balls were not agents of the county Clark sued. It finally affirmed as to the medical claim holding there was no obvious condition that would make the provider’s failure to deliver Clark for follow up with a physician reckless particularly as Clark did not ask for a referral and there was no evidence the provider’s lack of referral created an excessive risk of injury.

United States v. Leaverton

Leaverton appealed his enhanced sentence arguing his Oklahoma manslaughter conviction was not a violent crime under 18 USC 3559(c). The panel reversed and remanded for resentencing. It held the modified categorical approach was appropriate given congressional reference to the federal manslaughter statute and the presence of an elements provision and the fact the Oklahoma statute was divisible based on the pattern jury instructions, that 3959(c) statute includes generic manslaughter offenses in the definition of violent crimes and held Oklahoma’s statute does not match the generic offense because it require the heat of passion destroy the ability to form intent to kill.