Tahlequah Daily Press

February 25, 2013

Oklahoma Supreme Court addresses Bosh case

By JOSH NEWTON
Staff Writer

TAHLEQUAH — The Oklahoma Supreme Court has answered several questions posed by the U.S. District Court for the Eastern District of Oklahoma, where a civil case alleges employees at the Cherokee County Detention Center used excessive force on a detainee nearly two years ago.

According to OSC Justice Yvonne Kauger’s formal response, the U.S. District Court in Muskogee was seeking clarification “concerning the remedies available to a plaintiff who brings an excessive force lawsuit... .”

Four questions were submitted to the Oklahoma Supreme Court, which reformulated the questions into three, according court documents.

The questions were posed as part of the court proceedings brought by Daniel Bosh against the Cherokee County Governmental Board Authority, Cherokee County Detention Center, and two CCDC employees.

Bosh alleges he was the victim of excessive force when he was being booked in at CCDC May 17, 2011. He claims he suffered severe injuries as a result of the incident, but was denied medical attention for several days.

In this month’s filing, Oklahoma Supreme Court justices wrote that “the facts presented by the parties in this Court are very limited and offer very little detail.”

The first issue addressed by justices relates to an alleged conflict between the Oklahoma Constitution, which protects citizens from unreasonable seizures; and the Oklahoma Governmental Tort Claims Act, which appears to allow CCGBA to “elude tort liability when its employees beat and injure a citizen who is detained at one of its facilities.”

CCGBA previously argued it cannot be held responsible for employees who exert excessive force against detainees, citing the tort-claims act that theoretically grants the authority immunization. Bosh argues that regardless of the tort-claim act, the state’s constitution protects citizens from being physically abused by employees of the state.

OSC justices acknowledged in their ruling that the OGTCA immunizes the state, counties and municipalities from liabilities arising out of the operation of a jail facility.

“This does not mean that injured tort victims are at the mercy of their captors to be beaten, assaulted, and left without medical attention without any remedy to deter such conduct,” the justices wrote.

Justices said the Oklahoma Governmental Tort Claims Act cannot be construed as providing complete immunization for violations of citizens’ constitutional rights.

They declared the Oklahoma constitution provides a private cause of action for excessive-force claims, despite requirements and limitations set forth by the OGTCA.

“[To provide complete immunization from liability] would not only fail to conform to established precedent which refused to construe the OGTCA as providing blanket immunity, but would also render the constitutional protections afforded the citizens of this state as ineffective, and a nullity,” justices said.

A second question addressed to the Oklahoma Supreme Court justices focused on whether their first answer should be applied to litigation filed before this month’s answer.

The Supreme Court decided to apply the decision retroactively to “help to maintain a proper balance” that allows law enforcement officials to constrain detainees as needed, but “without using unnecessary excessive force that can cause permanent injuries to detainees.”

“Retroactive application will only further and advance proper behavior,” justices wrote.

Justices also ruled that the common-law theory “respondeat superior” – which holds an employer liable for employees’ actions – should apply to municipal corporations under state law.