* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 14 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KEVIN WINSHIP,

Plaintiff-Appellant,

v.

STEVE LUMPKIN,

Defendant-Appellee.

No. 98-7075

(D.C. No. 97-CV-479-B)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
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Plaintiff Kevin Winship filed a 42 U.S.C. § 1983 action against defendant

Steve Lumpkin, a park ranger for the State of Oklahoma, claiming that defendant

used excessive force against him during a traffic stop in McCurtain County,

Oklahoma. The district court granted defendant’s motion for summary judgment

and dismissed plaintiff’s § 1983 complaint. We exercise jurisdiction under

28 U.S.C. § 1291 and affirm.

The material facts are undisputed. Near sunset on the evening of June 8,

1996, plaintiff was driving his pickup truck on Highway 259 with two other

passengers when the truck ran out of gas. Plaintiff pushed the truck until it began

rolling downhill, then got in the truck bed while one of the passengers steered. 

Defendant came up behind plaintiff’s pickup truck and activated his lights for

plaintiff to pull over. The truck did not immediately pull over, but was steered

into a store parking lot approximately one-quarter mile away, where it came to a

stop.

After the pickup truck stopped, all three passengers got out. Plaintiff

reached into the cab of the pickup to retrieve his wallet. Two rifles were in the

gun rack of the truck and a hand gun was laying in plain view on the seat in the

pickup’s cab. As plaintiff reached into the cab, defendant struck plaintiff on the

arm with a night stick or baton, causing plaintiff to drop his wallet. Plaintiff

conceded that the blow was so slight that he did not even know he had been
-3-

struck. He again reached into the cab to retrieve his wallet and, again, defendant

struck him on the arm, causing him to drop his wallet. Plaintiff concedes this

second blow was also so slight that he did not know he had been struck. Plaintiff

then reached for his wallet a third time and defendant struck him on the back of

his head with his baton. Plaintiff testified this blow hurt and he said “Oh.” 

Plaintiff then ran away, eluding law enforcement officers. Other than the

expression “Oh,” neither the passengers, plaintiff, nor the defendant said anything

to each other during the entire traffic stop. Plaintiff testified he had bruises on

his arm and a lump on his head from the blows, but he did not receive any

medical treatment for any physical or emotional injuries. Plaintiff pled no contest

to one charge of failing to comply with a police officer regulating traffic.

The district court granted summary judgment in favor of defendant, finding

that his actions in striking plaintiff to prevent him from picking up an object from

the cab of the pickup were objectively reasonable in light of plaintiff’s failure to

immediately pull over, the fact that firearms were readily apparent in the cab of

the pickup truck, and the fact that plaintiff repeatedly reached into his vehicle

without ever explaining that he was trying to get his wallet. The district court

concluded that defendant had reasonable justification to conclude his safety was

threatened and therefore, that his use of force was not excessive in light of the

circumstances. 
-4-

We review a grant of summary judgment de novo , applying the same legal

standard as the district court. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir.

1996). Summary judgment is appropriate in a § 1983 action if the plaintiff fails

to present evidence sufficient to support a reasonable inference that the defendant

violated the relevant constitutional standards. Id.

All claims of excessive force are “analyzed under the Fourth Amendment

and its ‘reasonableness’ standard.” Graham v. Connor , 490 U.S. 386, 395 (1989). 

The pertinent question is whether defendant’s decision to strike plaintiff with his

baton was objectively reasonable in light of the facts and circumstances

confronting him. See id. at 397. Relevant factors in determining the

reasonableness of force used by a police officer include “the severity of the crime,

whether the subject posed an immediate threat to the safety of the officer, and

whether the subject was resisting arrest.” Latta v. Keryte , 118 F.3d 693, 701

(10th Cir. 1997).

On appeal, plaintiff argues the district court erred in granting summary

judgment because resolution of whether defendant used excessive force is a fact

question for the jury. Plaintiff argues that no serious crime was being

investigated, that any threat of harm to the defendant was minimal because he was

only reaching for his wallet, and that he did not attempt to evade arrest until after

defendant’s use of force.
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We have reviewed the record, and we agree with the district court that

defendant’s conduct was objectively reasonable and that summary judgment is

appropriate. It is uncontroverted that firearms were visible and readily accessible

in the cab of the pickup. Although plaintiff claims he was only reaching for his

wallet, there is no evidence that defendant was aware of that. Although plaintiff

was only pulled over for a traffic stop and did not attempt to elude defendant until

after defendant’s use of force, it was reasonable from the defendant’s vantage

point at the scene of the traffic stop to use some degree of force to prevent

plaintiff from taking his firearms out of the pickup. We noted in Wilson v.

Meeks, 52 F.3d 1547, 1556 (10th Cir. 1995) that “the first duty of a police officer

is to ensure the safety of the officers and the public.” The use of force must be

judged from the perspective of a reasonable officer “on the scene,” who is “often

forced to make split-second judgments . . . about the amount of force that is

necessary in a particular situation.” Graham , 490 U.S. at 396-97. In addition, an

assessment of the degree of force actually used is critical in the determination of

whether the force was excessive. See Tennessee v. Garner , 471 U.S. 1, 8-9

(1985). Here, the force in question was applied briefly, plaintiff was only aware

of two of the three blows, and his only injury was some minor bruising. Under

these circumstances, plaintiff’s allegations do not establish a constitutional

violation. Therefore, the district court did not err in dismissing plaintiff’s action.
-6-

The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge