PERRY v. CITY OF NORMAN
2014 OK 119
| Okla. | 2014Background
- On April 27, 2013 Robert Perry alleges Norman police used a choke hold and forcefully restrained him, causing a fractured arm that required surgeries. He sued only the City of Norman (his theory: respondeat superior for officers' alleged excessive force under Okla. Const. art. 2, §30).
- Perry did not name individual officers and did not bring a claim under the Oklahoma Governmental Tort Claims Act (OGTCA).
- The City moved to dismiss, arguing Bosh v. Cherokee County Governmental Building Authority (2013) does not authorize a municipal constitutional excessive-force claim when an OGTCA remedy exists.
- The trial court dismissed Perry's complaint; Perry appealed to the Oklahoma Supreme Court, which retained the case.
- The central question: whether a Bosh-based private constitutional excessive-force claim against a municipality (as applied to police) is available when an OGTCA cause of action exists.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bosh creates a private constitutional excessive-force cause of action against a municipality for police conduct when OGTCA relief is available | Bosh authorizes art. 2, §30 excessive-force claims against employers of officers; applies here | Bosh should not apply because Perry has an alternative remedy under the OGTCA | Bosh-based constitutional claim against a municipality is not available when OGTCA provides a remedy; dismissal affirmed |
| Whether Bosh was limited to detainees/jailers or extends to police and other law enforcement | Bosh's reasoning extends to police and law enforcement | Even if it extends, Bosh applies only where the OGTCA bars any remedy | Court: Bosh rationale applies to police, but Bosh was intended for plaintiffs left without an OGTCA remedy |
| Whether respondeat superior can support municipal liability for officers' excessive force | Perry: respondeat superior applies when officer acts within scope of employment | City: municipal liability governed by OGTCA scope/scope-of-employment rules | Court: municipal liability for officer force is governed by OGTCA where that statute permits recovery |
| Whether OGTCA immunities would render constitutional protections meaningless if applied broadly | Perry: constitutional remedy required to prevent immunity from nullifying rights (invoking Bosh) | City: OGTCA does not provide blanket immunity; where OGTCA permits suit, plaintiff must proceed there | Court: OGTCA cannot be construed as blanket immunity, but where OGTCA provides a cause, Bosh does not displace it |
Key Cases Cited
- Bosh v. Cherokee County Governmental Building Authority, 305 P.3d 994 (Okla. 2013) (held art. 2, §30 provides a private excessive-force action for detainees when OGTCA bars relief)
- Washington v. Barry, 55 P.3d 1036 (Okla. 2002) (recognized private constitutional excessive-force actions for incarcerated persons)
- Vanderpool v. State, 672 P.2d 1153 (Okla. 1983) (abrogated blanket governmental immunity and acknowledged legislative role in sovereign immunity)
- Nail v. City of Henryetta, 911 P.2d 914 (Okla. 1996) (police conduct possibly within scope of employment can expose municipality to liability)
- Tuffy's, Inc. v. City of Oklahoma City, 212 P.3d 1158 (Okla. 2009) (municipal liability where officers' actions may be within scope of employment)
- Morales v. City of Oklahoma City ex rel. Oklahoma City Police Dept., 230 P.3d 869 (Okla. 2010) (OGTCA does not provide blanket immunity for police acts within scope of employment)
- Fuller v. Odom, 741 P.2d 449 (Okla. 1987) (examples of officer-related tort liability including vehicular accidents)