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Oklahoma Jailers Not Immune from Excessive Force Claims

The Oklahoma Supreme Court has held that jail officials are not immune from liability for excessive force claims under the Oklahoma Governmental Tort Claims Act (OGTCA).

On May 17, 2011, Daniel Bosh was detained at the Cherokee County Detention Center for failure to pay a traffic ticket. Video surveillance showed him standing at the booking desk with his hands cuffed behind his back.

Bosh reportedly complained to guard Gordon Chronister, Jr. that his handcuffs were too tight; in response, Chronister grabbed him from behind and slammed his head onto the booking desk. He then placed Bosh’s head under his arm and fell backwards, causing Bosh to strike the top of his head on the floor.

According to the video footage, other guards quickly joined the attack. They moved Bosh to a shower area outside the camera’s view, where they continued to assault him for an undisclosed period of time.

“The video speaks for itself,” said Bosh’s attorney, Mitchell Garrett.

Guards then left Bosh to languish in a cell without medical treatment for two days before taking him to a local hospital. Having suffered fractured vertebrae, Bosh required surgery to fuse several discs along his spinal cord.

Chronister later claimed that he thought Bosh was going to spit on him; based on that assertion, and the fact that Bosh had a long criminal history that damaged his credibility, prosecutors did not pursue criminal charges against Chronister or other guards involved in the incident.

On September 29, 2011, Bosh filed a 42 U.S.C. § 1983 action in state court against the Cherokee County Governmental Building Authority (“Authority”), which operates the jail, and against Assistant Jail Administrator T.J. Girdner and the guards who had assaulted him. The defendants removed the case to federal court.

The federal district court dismissed Bosh’s state tort claims as being barred by the OGTCA, 51 O.S. 2011 §§ 151 et seq., which “appears to allow the state, or, in this case the Authority, to elude tort liability when its employees beat and injure a citizen who is detained at one of its facilities.”

Nevertheless, the district court allowed Bosh “to amend his complaint to assert a claim of excessive force” under Article 2, § 30 of the Oklahoma Constitution. The defendants moved to dismiss the constitutional claim, arguing that it too was barred by the OGTCA. On August 30, 2012, the federal court certified three questions of law to the Oklahoma Supreme Court related to the scope and application of the OGTCA.

In answering those questions, the Supreme Court first found that Article 2, § 30 “provides a private cause of action for excessive force, notwithstanding the requirements and limitations of the OGTCA.” Construing the OGTCA “as providing blanket immunity ... would ... render the Constitutional protections afforded the citizens of this State as ineffective, and a nullity,” the Court explained. Thus, excessive force claims brought under Article 2, § 30 are not barred by the OGTCA.

The Supreme Court then held that the cause of action it recognized with respect to excessive force claims under Article 2, § 30 applies retroactively “to all matters which were in the litigation pipeline, state and federal, when Bryson v. Oklahoma County, 2011 OK CIV APP 98, 261 P.3d 627 [(Okla. Ct. App. 2011)] was decided as well as any claims which arose when Bryson was decided.”

Finally, the Court found that in regard to such claims under Article 2, § 30 of the Oklahoma Constitution, “respondeat superior applies to hold municipal corporations liable for the actions of their employees where those employees are acting within the scope of their employment.”

Although the ruling was superficially amended and corrected on June 28, 2013, the outcome remained the same. See: Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994 (Okla. 2013), rehearing denied.

Bosh’s suit alleging excessive force claims remains pending before the federal district court, though it is now being litigated by his estate. On March 17, 2014, Bosh’s wife notified the court that he had died. See: Bosh v. Cherokee County Governmental Building Authority, U.S.D.C. (E.D. Okla.), Case No. 6:11-cv-00376-JHP.

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