Date: 04-04-2003

Case Style: Lance Mixon v. Shane Franics, West Side Gentleman's Club, Jerry Pennington and The Board of County Commissioners of Tulsa County, Oklahoma

Case Number: 01-CV-658

Judge: Sven Eric Holmes

Court: United States District Court for the Northern District of Oklahoma

Plaintiff's Attorney: Michael A. Pollard of Joyce & Pollard, Tulsa, Oklahoma

Defendant's Attorney: Assistant District Attorneys James E. Brandon and Gordon Edwards for Deputy Shane Francis and The Board of County Commissioners of Tulsa County, Oklahoma

Jim Beckert of Beckert & Associates, Tulsa, Oklahoma for West Side Gentleman's Club. Charles R. Cox, Tulsa, Oklahoma for Jerry Pennington

Description: Excessive use of force and assault and battery claims by patron of the West Side Gentleman's Club in Tulsa, Oklahoma who claimed that he was initially assaulted by club security guard Jerry Pennington on September 2, 2000. Lance Mixon went to the club early the previous evening and struck up a conversation with one of the Club's dancers. He claimed that they agreed to meet after closing to go to the Village Inn for breakfast.

He was ordered off of the property by Pennington because the owner of the West Side Gentleman's Club did not want patrons hanging around after closing when the dancers left the club to go home. Mixon obeyed the order but later returned where Pennington confronted him again. Pennington claimed that Mixon hit him with his car before Pennington broke out the driver's side window on Mixon's car hitting Mixon in the face with a MagLite. Pennington also turned off the ignition and opened the door of Mixon's car.

Deputy Shane Francis was flagged down by another club employee and intervened in the altercation between Pennington and Mixon. Sometime during the process of subduing Mixon, who Francis thought was the aggressor, Mixon suffered an orbital fracture below his left eye and other injuries. His medical expenses were about $4,500. He also claimed $500 in damages to his automobile caused by Pennington, who, he claimed, was acting within the scope and course of his employment with the West Side Gentleman's Club.

Pennington claimed that he was acting in self defense. The West Side Gentleman's Club denied that Pennington was acting within the scope and course of his employment at the time of the altercation. Deputy Shane Francis and The Board of County Commissioners of Tulsa County denied that Deputy Francis used excessive force in arresting Mixon.

Outcome: Plaintiff's verdict in favor of Lance Mixon and against Pennington and the West Side Gentleman's Club for $19,501 for the assault and battery by Pennington and the damage to Plaintiff's automobile. The jury returned a defendants' verdict in favor of Francis and the County. The jury also found that Pennington was acting within the scope of his employment at the time of the incident.

Plaintiff's Experts: Dr. Gerard Hunter, Tulsa, Oklahoma, treating opthamologist

Defendant's Experts: Unknown

Comments: Editor's Note: There is some question whether the award to Mixon, assuming that it withstands post-trial motions, is collectible. Pennington was subsequently arrested and convicted of drug possession and was in drug treatment for a time and was last known to be working part time. The injury to his leg impedes his ability to walk and to work. The ownership of the West Side Gentleman's Club has changed and the status of the corporation that owned it makes it equally unlikely that the Plaintiff will ever collect any portion of any judgment entered against it collectible.

This case clearly shows how difficult it is to prevail in a case like this. Plaintiff took a number of depositions. Engaged in extensive discovery against the County in an effort to prove that the County should not have placed Deputy Francis in the position of a patrol deputy. Dr. Hunter charged $400 an hour for his time to testify for his patient at the trial. The case consumed 3.5 days of the Court's time and resulted in a $19,501 verdict that may never the collected.