King v. Tulsa County Sheriff's Office et al

Filing 96

OPINION AND ORDER by Judge John E Dowdell ; denying 77 Motion for Summary Judgment (Re: 21 Amended Complaint ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

DONALD FRANCIS KING,
Plaintiff,
v.
STANLEY GLANZ, in his Official
Capacity as Sheriff of Tulsa County; and
LAMONT HILL,
Defendants.

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Case No. 12-CV-137-JED-TLW

OPINION AND ORDER
Plaintiff, Donald Francis King, sustained severe injuries resulting from a gunshot fired by
Tulsa County Sheriff’s Deputy Lamont Hill.

At the time of the shooting, Mr. King was

unarmed. King alleges that the shooting was excessive force in violation of the United States
and Oklahoma Constitutions. Hill seeks summary judgment (Doc. 77) on all claims against him.
I.

Background
The following facts, which the Court must view in the light most favorable to King, are

found in the summary judgment record. On December 1, 2010, King’s step daughter, Kasey
Apple, called 911. Apple reported to the 911 dispatcher that her mother, Sherral Dalton, had
reported to Apple by phone that King (Dalton’s husband) was making threats and had broken a
water line at the home where Dalton and King lived on Iroquois Avenue. Apple reported that
King is bipolar and was “off his meds.” In response to the dispatcher’s questions, Apple
reported multiple times that there were no known weapons in the Iroquois Avenue house.
Immediately after Apple’s call to 911, at 3:31 p.m., a “domestic disturbance” dispatch
call went out to the Tulsa County Sheriff’s Office (TCSO) to respond to the Iroquois Avenue

home. The dispatch call stated that King had broken a water line at the house, was threatening to
harm a horse, “there are no known weapons” at the location, and that King was “10-85.” Upon
hearing the dispatch call, Deputy Lamont Hill instructed his trainee, Allen Goodson, to respond
on the radio that they would take the call, with Deputy Brian Walker also responding. The three
TCSO deputies proceeded to the Iroquois Avenue location, with Hill and Goodson in one vehicle
and Walker in another. All three of the deputies understood that the dispatcher’s radio report of
“10-85” meant that King was mentally ill. Upon arrival near the Iroquois Avenue house, Hill
encountered Sherral Dalton (King’s wife), who was standing in the driveway to the home of a
neighbor, Richard Harmon, Jr. Hill spoke to Dalton for about 15 or 20 seconds, and Dalton
informed Hill that King had not hit or otherwise physically injured her. The deputies then drove
toward the house where King was located.
Deputy Walker parked in front of the property, blocking the long driveway leading to the
house. Walker and Goodson positioned themselves closer to talk to King, approximately 25 to
30 yards from King, while Hill stayed back at a distance of 65 to 75 yards. The testimony
conflicts as to where, specifically, King was located when the deputies drove up to the property.
Hill testified that King “ran” and “bolted for the house,” while Deputy Walker and another
witness testified that King was walking toward the house from his yard.
The record contains varying versions of what happened next. At some point, King was
standing in the doorway of the home or just outside on the step leading out from the home, and it
appeared to some witnesses that he was holding something. King was wearing a camouflage
jacket, and was holding or carrying another camouflage jacket. The deputies assert that the
second jacket was draped over both of King’s arms and that the deputies believed that King
could have had a “long gun” under that jacket. Neighbor Harmon testified that he could see both

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of King’s hands and King did not have anything in his hands. Another neighbor, Chester Jones
Jr., testified that it was clear that King did not have anything in his hands, although he did have a
coat, which was folded and draped over King’s left arm. Jones testified that it was not possible
that King had a long gun under that coat:
Q.

Mr. Jones, could [King] have possibly had a long gun under that coat?

A.

No. No. I own four long guns, and I couldn’t - - no. It’d’ve been sticking
way out like this (indicating) or - - couldn’t - - couldn’t hold a long gun,
not. . . You can’t hold a long gun like this (indicating).

Deputy Hill went to the trunk of his vehicle and retrieved his AR-15 rifle, inserted a
magazine in the rifle, and trained his rifle on King. According to Jones, after Hill got his rifle
out of his car and inserted a clip, Hill told Jones “Go back in the house, dog” and then “I thought
I told you, go back in the house, dog. You don’t want to see this.”1
According to some witnesses (including Deputy Walker), Walker asked King to come out
to talk. Walker testified that he told King to “put down whatever he had in his hands and that we
just needed to talk.” In response, King shouted at the deputies to “get back,” “get off my
property,” or “get the fuck off the property.” Some witnesses stated that King said that he had
black powder, while others provided statements that King indicated that he had black powder “in
the house.” Hill asserts that King threatened to “blow you-all’s asses up,” while Walker testified
that King said “I’ve got enough explosives to blow this place up. I’ll - - you don’t know if I’ll do
it. Get off my property.”
According to Deputy Hill’s deposition testimony, immediately before he fired his rifle,
King “raised his hands up closer to his face from his middle of the chest area up here and said,
1

After neighbor Jones went inside the house (in response to Deputy Hill’s directives), he
told his wife “Man, they’re going to kill Don [King]. Don ain’t got no gun. He – he – he going
to get killed out there messing around.”
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‘that’s it, mother fuckers,’” and Hill then fired multiple rounds from his AR-15 rifle. In contrast,
at a TCSO Critical Incident Review Board hearing, Hill stated that, immediately before he shot
him, King yelled “Get on the fucking ground right now. I’m going to kill you right now.” Hill
did not report that King threatened to shoot the deputies:
Q.

So was he also threatening to shoot you?

A.

That I don’t know.

Deputy Walker testified that, immediately before the shooting, King took a step toward
him and Walker continued to yell at him to put down whatever he had in his hands. Neighbor
Harmon testified that King was not making any threatening motions toward the deputies, but was
just standing there in the doorway of the house. Harmon testified that one deputy yelled at King
to show his hands, and King responded by starting to raise his hands, which he did in a manner
that was not threatening. Some witnesses testified that King was off the porch, in the yard, when
he was shot, while others testified that King was on the steps immediately adjacent to the front
door when he was shot and then he fell off the steps after he was hit with the gunfire.
After firing the first shot, Hill did not think King was hit, because King “started to hunker
down” to make himself smaller and more difficult to hit.2 Hill rapidly fired two or three more
shots at King. One of the shots hit King in the side, seriously injuring King and causing
extensive internal injuries.
In his deposition, Hill testified that he shot King because he was in fear for himself and
the other deputies, but his statement to the Review Board again differed. There, Hill reported
that he did not believe King was aware of what Hill was doing, and said, “I really don’t think
[King] saw me, to tell you the truth.” King’s statement to the Review Board indicated that he
2

In a prior statement to the Review Board, Hill testified that, after the first shot, King still
had his hands up rather than starting to “hunker down” to make himself smaller.
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was not afraid for himself, but he didn’t want anything to happen to the other deputies. Neither
of the two deputies standing much closer to King fired their weapons at King, but those deputies
testified that they had their weapons ready to fire. A witness, Lemuel Ray Sayre, testified that,
after he heard the shots, he heard a deputy ask “What’d you do that for? What’d you do that
for?” According to Sayre, the deputy asking that question was the deputy who had just been
trying to talk to King. Immediately after the shooting, deputies hand-cuffed King, then dragged
or moved King across the yard to be transported to a hospital by ambulance. King was unarmed
at the time of the shooting, and no weapons were found in his possession.
In his summary judgment motion, Hill argues that he is entitled to qualified immunity on
King’s claim under 42 U.S.C. § 1983, because Hill’s use of deadly force was reasonable and not
in violation of any clearly established law. With respect to King’s claim under the Oklahoma
Constitution, Hill argues that a person who is not incarcerated has no private right of action to
bring a state constitutional claim for excessive force.
II.

Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “By its terms, [the Rule 56] standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson, 477 U.S. at 247-48 (emphasis in original). “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The

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courts thus determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251-52. The non-movant’s evidence is taken as true, and all justifiable and reasonable
inferences are to be drawn in the non-movant’s favor. Id. at 255.
The Supreme Court recently reiterated that it is reversible error for a court to weigh the
evidence or resolve any disputed issues in favor of the moving party. See Tolan v. Cotton, 572
U.S. ___, 134 S. Ct. 1861, 1866-68 (2014) (per curiam). A district court may not credit the
evidence of the party seeking summary judgment and ignore evidence offered by the nonmovant. Id. Thus, reaching factual inferences that conflict with the non-movant’s evidence is
contrary to the “fundamental principle that at the summary judgment stage, reasonable inferences
should be drawn in favor of the nonmoving party.” Id. at 1868. The reason for this longstanding principle is that “witnesses on both sides come to [the] case with their own perceptions,
recollections, and even potential biases. It is in part for that reason that genuine disputes are
generally resolved by juries in our adversarial system.” Id.
III.

Analysis
A.

Qualified Immunity

The general summary judgment standards apply to motions for summary judgment based
on qualified immunity, and courts accordingly must draw the evidence and reasonable inferences
in favor of the non-moving party. Tolan, 134 S. Ct. at 1866-68; Scott v. Harris, 550 U.S. 372,
377 (2007). In resolving questions of § 1983 qualified immunity at the summary judgment
stage, courts engage in a two-pronged inquiry. Tolan, 134 S. Ct. at 1865. The first prong “asks
whether the facts, ‘[t]aken in the light most favorable to the party asserting the injury, . . . show
the officer’s conduct violated a [federal] right.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201

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(2001)); see also York v. City of Las Cruces, 523 F.3d 1205, 1209 (10th Cir. 2008). “When a
plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the
Fourth Amendment right against unreasonable seizures.” Tolan, 134 S. Ct. at 1865 (citing
Graham v. Connor, 490 U.S. 386, 394 (1989)). The second prong asks “whether the federal
right was clearly established at the time of the violation.” Id. at 1866 (quoting Hope v. Pelzer,
536 U.S. 730, 739 (2002)). Government officials are shielded from liability if their actions did
not violate clearly established federal rights “of which a reasonable person would have known.”
Id. (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). “‘[T]he salient question ... is whether
the state of the law’ at the time of [the] incident provided ‘fair warning’ to the defendants ‘that
their alleged [conduct] was unconstitutional.’” Id. (quoting Hope, 536 U.S. at 741).
The courts have discretion to determine “which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). “But under either prong, courts may not
resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan, 134 S.
Ct. at 1866 (emphasis added). “This is not a rule specific to qualified immunity; it is simply an
application of the more general rule that a ‘judge’s function’ at summary judgment is not ‘to
weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.’” Id. (citation omitted).
1.

First Prong: Violation of a Federal Right

Claims of excessive force in the course of an investigation, arrest, or other “seizure” of a
free citizen are analyzed under the Fourth Amendment’s reasonableness standard. Graham, 490
U.S. at 395. “The inquiry into whether this right was violated requires a balancing of the nature
and quality of the intrusion upon the person’s Fourth Amendment interests against the

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importance of the governmental interests alleged to justify the intrusion. Tolan, 134 S. Ct. at
1865 (citing Tennessee v. Garner, 471 U.S. 1, 8 (1985) and Graham, 490 U.S. at 396).
Evaluation of an excessive force claim requires a court to consider whether the “totality of the
circumstances” justified a particular use of force. See Tennessee v. Garner, 471 U.S. 1, 8-9
(1985); Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004).
The reasonableness of a particular use of force is “judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and the inquiry
“is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Graham, 490 U.S. at 396-97. Thus, an officer’s evil intentions will not make an
objectively reasonable use of force unconstitutional, and good intentions will not make an
objectively unreasonable use of force constitutional. Id. at 397. Determining whether force was
reasonable “requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Id. at 396.
Taken in the light most favorable to Mr. King, the evidence would establish that Deputy
Hill’s actions in shooting King were not “objectively reasonable” under the circumstances. As to
the first of the Graham factors, any possible crime that was being investigated was not
particularly serious, as Deputy Hill testified that he had been advised by Sherral Dalton that Mr.
King had not harmed her, and Hill’s testimony indicates that he did not think that there would be
a basis for arrest at the time the deputies drove up to the Iroquois Avenue house. The Graham
factor of whether there was active resistance to arrest or an attempt to evade arrest is not

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particularly helpful here, as there is no evidence that the deputies were initially there to arrest
King; they were entering the property to investigate and to talk to him, according to Hill,
although King was hand-cuffed immediately after he was shot.
The key Graham factor at issue here is whether King posed an immediate threat to the
safety of the deputies or others. There is conflicting evidence in this case that bears directly on
that issue. For example, the following issues of fact, among others, are in dispute: (1) whether
one or both of King’s hands were, or were not, visible at the time of the shooting; (2) whether a
jacket or coat was draped over one arm or was covering both arms entirely; (3) whether Hill
could have reasonably perceived that King was holding a long gun (as Hill testified was his
belief); (4) whether King was beginning to raise his hands in compliance with Deputy Walker’s
demands to do so; and (5) whether, at the time Hill fired the second shot (which most witnesses
believed was the one to hit King), King was hunkering down to avoid getting shot, such that any
perceived threat may have terminated before the firing of all shots after the first.
In assessing the degree of threat facing an officer, the courts may consider several nonexclusive factors, including: “(1) whether the officers ordered the suspect to drop his weapon,
and the suspect’s compliance with police commands; (2) whether any hostile motions were made
with the weapon towards the officers; (3) the distance separating the officers and the suspect; and
(4) the manifest intentions of the suspect.” Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255,
1260 (10th Cir. 2008).
Application of the Larsen “degree of threat” factors also identifies disputes of fact
preventing summary judgment. As to the first factor, there is some evidence that Deputy Walker
was directing Mr. King to put down whatever was in his hands, but there are differing versions
of what exactly was said to King. Witnesses also testified that, immediately before the shooting,

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Walker was asking King to come out and talk, and it can be inferred from one witness’s
testimony that Walker asked Hill why he shot King immediately following the shooting. While
King did not “comply” with the alleged command to put down whatever may have been in his
hands, he could not have put down a weapon when he did not have one, and some witness
testimony indicated that it was clear that King did not have anything in his hands.
The evidence is also in dispute as to the second factor - whether King made any hostile
motions towards the officers with a weapon. The deputies contend that they believed (albeit
mistakenly) that King may have had a weapon and was moving it under a jacket in a threatening
manner, while yelling threats at the officers. The third factor (distance between the deputies and
King) is not necessarily determinative. However, crediting the witness testimony that it was
clear King had no weapon in his hands, as this Court must do at the summary judgment stage, the
deputies’ distances of between 20 and 75 yards away would certainly impact the reasonableness
of any perceived threat from an unarmed man.
The fourth factor (manifest intentions of King) also presents issues of fact. As noted,
witnesses provided different versions of what King said to the deputies. Verbal threats from an
unarmed person (whom the deputies were informed was mentally ill), from 20 or more yards
away, is not enough, standing alone, for this Court to determine as a matter of law that
reasonable officers would have perceived an immediate threat of physical harm justifying the use
of deadly force, because there would be no reason to believe that King could immediately carry
out any threat from that distance.
The evidence and reasonable inferences, when viewed in favor of King, would establish
that: King had not committed any serious crime or harmed any person at the time the deputies
entered his property; the officers were informed that King was mentally ill and that there were no

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known weapons in the house; King was unarmed at the time of shooting; both of his hands were
visible; he could not have been holding a long gun; and any threats King made about black
powder in the house did not pose any immediate threat to the deputies, who were 20-30 yards
and 65-75 yards away from King, who was standing on the step near the front door of the house
when he was shot. There is also no evidence that King appeared to pose any threat to any
bystanders. In addition to King’s wife, who was watching safely from a neighboring property,
other witnesses were watching the events unfold from nearby, apparently not perceiving any
imminent threat from King. According to one of those witnesses (neighbor Jones), Deputy Hill
directed Jones, twice, to go inside his home so he would not see the shooting, and it is reasonable
to infer therefrom that Jones himself did not feel that he was in danger. Deputy Hill’s own
statements regarding the threat he allegedly perceived were at least somewhat conflicting, as he
indicated at the Review Board hearing that he did not think King even saw Hill and that he shot
King, not because he feared for himself, but because he did not want anything to happen to the
other two deputies. In contrast, in his deposition testimony and summary judgment papers, Hill
alleged that he also shot King because he perceived a threat to himself.
Witness Sayres testified that he heard one of the deputies (the description of whom
matches Deputy Walker’s actions in yelling commands to King) ask immediately following the
shooting, “What’d you do that for? What’d you do that for?” One could infer from that
testimony that Deputy Walker was asking Hill why he shot King, which would also bear on the
overall issue of whether an officer on the scene would have reasonably believed that King posed
a threat of serious physical harm to Hill or the other deputies.
The Court is not determining that Deputy Hill’s actions were unreasonable or
determining that the facts establish a constitutional violation which is compensable. Rather, the

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facts are genuinely disputed on critical issues and must be determined by a jury, which will
weigh the conflicting evidence.

These factual disputes are material to the issue of the

reasonableness of Hill’s actions, and Hill is thus not entitled to judgment as a matter of law based
upon qualified immunity, so long as the law was clearly established under the second prong.
2.

Second Prong: Cleary Established Law

In analyzing the second prong, whether the federal right was clearly established at the
time of the violation, “‘the salient question . . . is whether the state of the law’ at the time of [the]
incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was
unconstitutional.’” Tolan, 134 S. Ct. at 1866 (quoting Hope, 536 U.S. at 741). In Casey v. City
of Federal Heights, 509 F.3d 1278 (10th Cir. 2007), the court discussed the second prong in the
context of claims of excessive force:
“Ordinarily,” we say that for a rule to be clearly established “there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established
weight of authority from other courts must have found the law to be as the
plaintiff maintains.” However, because excessive force jurisprudence requires an
all-things-considered inquiry with “careful attention to the facts and
circumstances of each particular case,” there will almost never be a previously
published opinion involving exactly the same circumstances. We cannot find
qualified immunity wherever we have a new fact pattern. Indeed, the Supreme
Court has warned that “officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S.
730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The Hope decision “‘shifted
the qualified immunity analysis from a scavenger hunt for prior cases with
precisely the same facts toward the more relevant inquiry of whether the law put
officials on fair notice that the described conduct was unconstitutional.’”
We have therefore adopted a sliding scale to determine when law is clearly
established. “The more obviously egregious the conduct in light of prevailing
constitutional principles, the less specificity is required from prior case law to
clearly establish the violation.” Thus, when an officer's violation of the Fourth
Amendment is particularly clear from Graham itself, we do not require a second
decision with greater specificity to clearly establish the law.
509 F.3d at 1284 (citations omitted).

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Deputy Hill argues that “there is no clearly established law sufficient to have put Deputy
Hill on notice that his conduct was unreasonable in the situation he confronted,” and that he is
accordingly entitled to qualified immunity under the second prong. (Doc. 77 at 31). However,
there are disputes as to what was “the situation he confronted.” (Id.). It is undisputed that Hill
used deadly force while King was unarmed, no weapons were found on the property, and Hill
was at a distance of between 65 and 75 yards from King, and the other deputies were at least 20
yards from King, at the time of the shooting. Other material issues are in dispute, and the
conflicting evidence drawn in King’s favor would show that one or both of King’s hands were
visible, that King could not have been holding a long gun as Deputy Hill believed, and King did
not pose a threat of serious physical harm to Hill or anyone at the time of the shooting. As the
Supreme Court recently reiterated in Tolan, under either prong, this Court may not resolve
disputed facts in favor of Deputy Hill and discredit the evidence supporting Mr. King. 134 S. Ct.
at 1866. To grant summary judgment on this second prong, this Court would have to resolve the
evidence in favor of the deputies’ testimony that they had reason to believe that King had a long
gun, while discrediting the evidence of witnesses who allege that it was clear that Mr. King was
not armed and was not posing a threat.
At the time Hill shot King, the law was clearly established that a law enforcement officer
may not use deadly force to seize an unarmed person who is not posing any threat to the officer
or others.

See Garner, 471 U.S. at 11 (“A police officer may not seize an unarmed,

nondangerous suspect by shooting him dead”); Carr v. Castle, 337 F.3d 1221 (10th Cir. 2003)
(where person poses no immediate threat to the officer or others, deadly force was not justified to
apprehend fleeing suspect); Walker v. City of Orem, 451 F.3d 1139, 1159-60 (10th Cir. 2006)
(deadly force is justified if a reasonable officer in the defendant’s position would have had

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probable cause to believe there was a threat of serious physical harm to the officer or others);
Weigel v. Broad, 544 F.3d 1143, 1154 (10th Cir. 2008) (“We do not think it requires a court
decision with identical facts to establish clearly that it is unreasonable to use deadly force when
the force is totally unnecessary to restrain a suspect or to protect officers, the public, or the
suspect himself”).3

Summary judgment on qualified immunity grounds is accordingly

inappropriate.
B.

Bosh Claim under the Oklahoma Constitution

In Count VI of his Third Amended Complaint, King asserts an excessive force claim
under Okla. Const. art. 2, § 30. In Bosh v. Cherokee County Building Auth., 305 P.3d 994, 996
(Okla. 2013), the Oklahoma Supreme Court recognized a private cause of action for such a
claim. However, Deputy Hill argues that there is no “private right of action under the Oklahoma
Constitution for the use of excessive force on non-incarcerated individuals.” (Doc. 77 at 32).
The Court disagrees, for several reasons. First, the language of Bosh expressly applies to nonincarcerated individuals, as Bosh determined that “pre-incarcerated detainees and arrestees” may
maintain excessive force claims under the Oklahoma Constitution. Bosh, 305 P.3d at 1001. By
definition, pre-incarcerated persons are not yet incarcerated.
Second, the language of the Oklahoma Constitutional provision that is the source of the
private right of action found in Bosh provides Oklahoma citizens the protection to be “secure . . .
against unreasonable searches and seizures.” Okla. Const. art. 2, § 30. This language does not

3

The parties here agree that Hill used “deadly force,” even though Mr. King survived the
shooting. This is consistent with the definition of “deadly force,” which is “force that the actor
uses with the purpose of causing or that he knows to create a substantial risk of causing death or
serious bodily harm. Purposely firing a firearm in the direction of another person . . . constitutes
deadly force.” Jiron, 392 F.3d at 415, n.2.
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provide lesser protections to citizens who are not jailed or incarcerated, but protects all citizens
from unreasonable seizures.
Third, Bosh’s reasoning is likewise not limited to incarcerated individuals. In arriving at
the conclusion that art. 2, § 30 of the Oklahoma Constitution provides a private right of action
for excessive force, the court reasoned as follows:
In Washington [v. Barry, 55 P.3d 1036 (Okla. 2002)], we declared that,
notwithstanding the provision of the OGTCA, a private action for excessive force
exists pursuant to the Okla. Const. art. 2, § 9 for incarcerated persons. Having
done so, and having explained that those not yet convicted are assured of even
greater rights, it would defy reason to hold that pre-incarcerated detainees and
arrestees are not provided at least the same protections of their rights, the same
cause of action for excessive force under the Okla. Const. art. 2, § 30.
305 P.3d at 1001 (emphasis added). The court made its pronouncement in Bosh retroactive to
the date that the Oklahoma Court of Civil Appeals determined Bryson v. Oklahoma County, 261
P.3d 627 (Okla. Civ. App. 2011), because the Bosh pronouncement did “not establish a new
principle of law,” but was “foreshadowed by” Washington, as was recognized by the Oklahoma
Court of Civil Appeals in Bryson. Bosh, 305 P.3d at 1002, n.34.
The portions of Washington and Bryson referenced in Bosh, in turn, relied directly upon
Graham v. Connor, 490 U.S. 386, 394 (1989). See Washington, 55 P.3d at 1039; Bryson, 261
P.3d 627, 638-39. Graham involved a plaintiff who claimed that police used excessive force in
the course of an investigatory stop. 490 U.S. at 386. The Court framed the issue as follows:
“This case requires us to decide what constitutional standard governs a free citizen’s claim that
law enforcement officials used excessive force in the course of making an arrest, investigatory
stop, or other ‘seizure’ of his person. We hold that such claims are properly analyzed under the
Fourth Amendment’s ‘objective reasonableness’ standard.” Id. at 388 (emphasis added). The
plaintiff in Graham had an excessive force claim for a violation of the Fourth Amendment, even

15

though he had not been convicted, nor had he been even arrested or taken to jail. The Oklahoma
courts’ reliance upon Graham dispels Deputy Hill’s contention that the Oklahoma Constitution
does not provide a private right of action for excessive force used against “non-incarcerated
individuals.”
Fourth, other Oklahoma federal courts have not limited claims under Okla. Const. art. 2,
§ 30 to claims of excessive force applied against incarcerated persons. In Leonard v. City of
Tulsa, No. 13-CV-256-CVE-FHM, 2013 WL 3216078 (N.D. Okla. June 24, 2013), the court
denied a motion to dismiss a claim under art. 2, § 30. There, the plaintiffs alleged that officers
entered plaintiffs’ home without a warrant or probable cause, handcuffed one plaintiff and threw
him to the floor, ransacked the home, and verbally assaulted plaintiffs. The plaintiffs were not
incarcerated, and were not even arrested; the officers left their home after determining that one of
the plaintiffs was not the suspect they were seeking. Id. The court broadly described the right
of action announced in Bosh: “In Bosh, the Oklahoma Supreme Court found that a plaintiff had a
claim against a municipality based on the acts of an employee that violated plaintiff’s state
constitutional rights, specifically Okla. Const. art. 2, § 30.” Leonard, 2013 WL 3216078, at *3.
In Ibarra v. City of Tahlequah, No. 12-CV-98-JHP, 2013 WL 1991546 (E.D. Okla. May
13, 2013), the court determined that the plaintiff alleged facts sufficient to state a Bosh claim.
The plaintiff in Ibarra alleged that, while attending a cookout, he was informed that his
girlfriend was being hit outside, so he exited the residence and witnessed police officers
assaulting his girlfriend. After he asked one officer about the events unfolding, an officer struck
plaintiff in the head, causing him to fall to the ground, he was then restrained, and officers
continued to hit him. He also claimed that an officer illegally searched and seized money from
plaintiff’s car. All of the events forming the basis for the art. 2, § 30 claim occurred prior to or in

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the course of arrest, before plaintiff was either detained in jail or convicted and incarcerated. In
finding that the plaintiff may maintain a Bosh claim, the court broadly described the right of
action recognized in Bosh: “Article 2, § 30 . . . mirrors the Fourth Amendment of the United
States Constitution. Accordingly, a plaintiff may seek relief under the private right of action
created by Bosh for violations of Article 2, § 30.” Ibarra, 2013 WL 1991546, at *3.
In White v. City of Tulsa, 979 F. Supp. 2d 1246 (N.D. Okla. 2013), the court granted a
plaintiff’s motion to amend his complaint to add claims under Okla. Const. art. 2, § 30 for
unlawful search and seizure. Although his claims did not involve excessive force, the court
found it “unlikely that the Oklahoma Supreme Court would carve out one type of Article 2, § 30
violation and exclude other types of violations” as the foundation for a private right of action
under that provision of the Oklahoma Constitution. In addition to citing the expansive language
of art. 2, § 30, which prohibits (among other things) “unreasonable searches and seizures,” the
court observed that a footnote in Bosh indicates that the Oklahoma Supreme Court “was aligning
itself with those states creating a constitutional tort for violation of citizens’ rights to be secure
against unreasonable searches and seizures, rather than creating a more limited claim for only
those cases involving excessive force.” 979 F. Supp. 2d at 1249-50 (noting Bosh’s citation and
analysis of Binette v. Sabo, 710 A.2d 688 (Conn. 1998)).4
In his reply brief, counsel for Deputy Hill attached a Minute Sheet from another case in
which the court dismissed a Bosh claim based on the arguments made by Hill here. (Doc. 93;

4

Here, the Court need not determine whether Oklahoma citizens have a private right of
action under the Oklahoma Constitution for all violations of their rights to be free from
unreasonable searches and seizures, because this case involves only a claim for excessive force
by a law enforcement officer. Nevertheless, the court’s reasoning in White is persuasive and
supports the analysis in this Opinion and Order.
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Doc. 93-3; see Doc. 77 at 26, in Cook v. Peters, No. 13-CV-107-GKF-FHM). One day after the
hearing and related Minute Sheet in that case, the court reconsidered its initial ruling and stated:
On sua sponte reconsideration of its oral rulings during yesterday’s hearing on
motions for summary judgment, the court hereby reverses itself with regard to its
rulings on the Bosh claim (Claim VI), as plaintiff’s counsel has persuaded the
court that the private right of action for excessive force recognized by the
Oklahoma Supreme Court must apply to all arrestees and pre-incarcerated
detainees who are seized. To do otherwise would afford greater rights (including
no tort limit caps and respondeat superior liability) to . . . prisoners than to those
who are not prisoners, and would run contrary to the text of the Supreme Court’s
language in Bosh. The motions for summary judgment are therefore denied as to
plaintiff’s Bosh claim.
(Apr. 23, 2014 Minute Order, Doc. 134 in Cook v. Peters, No. 13-CV-107-GKF-FHM). This
Court agrees with the reasoned analysis in the Cook v. Peters Minute Order, which rejected the
same argument made by Deputy Hill here.
Mr. King has properly asserted an excessive force claim under art. 2, § 30 of the
Oklahoma Constitution, precluding summary judgment on that claim.
IV.

Conclusion
For the foregoing reasons, defendant Lamont Hill’s Motion for Summary Judgment (Doc.

77) is denied.
DATED this 20th day of June, 2014.

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