Pegues et al v. Jehle et al

Filing 17

ORDER re 1 Notice of Removal, filed by David Jehle, City of Oklahoma City. The Court agrees with Plaintiffs arguments. Therefore, Defendants motion to dismiss Plaintiffs state constitutional claim against him is DENIED, as more fully set out. Signed by Honorable David L. Russell on 1/14/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARQUIS PEGUES, individually
and by and through his mother
CARLETTE BRADLEY,

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Plaintiff,
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v.
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OFFICER DAVID JEHLE,
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THE CITY OF OKLAHOMA CITY, )
OKLAHOMA, a municipal
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corporation,
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Defendants.
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Case No. CIV-15-1149-R

ORDER
Before the Court is Defendant Officer David Jehle’s motion to dismiss Plaintiff’s
Amended Petition which was filed in state court. The motion seeks dismissal of Plaintiff’s
claim for the use of excessive force under Article 2, § 30 of the Oklahoma Constitution.
Defendant argues that the Oklahoma Supreme Court held in Perry v. City of Norman, 341
P.3d 689 (Okla. 2014) that suits alleging excessive force by police officers could not be
brought pursuant to the Oklahoma Constitution because a plaintiff’s exclusive remedy for
excessive force within the scope of the officer’s employment is, under the Oklahoma
Governmental Tort Claims Act, against the officer’s employer. Defendant further states that
constitutional provisions, including but not limited to Article 2, § 30, are intended to control
or limit state action and prevent the state from infringing an individual’s rights. Plaintiff in
response disagrees with Defendant’s reading of Perry and points out that in Perry, the

Supreme Court said as follows:
[O]ur holding in Bosh v. Cherokee Building Authority, 2013 OK 9, 305 P.3d
994, is applicable to police officers and any other law enforcement personnel
applying excessive force against a citizen. The distinguishing fact here is that
the Bosh plaintiff was barred from bringing an action under the provisions of
the OGTCA, and the plaintiff in this case is not.
Perry, supra, at 692.
Based on this statement, Plaintiff suggests that a cause of action against an individual officer
for bad faith excessive force or excessive force outside the scope of the officer’s employment
exists under the Oklahoma Constitution and Plaintiff asserts that the issue of whether the
force was within or outside the scope of employment is ordinarily a question for the trier of
fact.
The Court agrees with Plaintiff’s arguments. Therefore, Defendant’s motion to
dismiss Plaintiff’s state constitutional claim against him is DENIED.
IT IS SO ORDERED this 14th day of January, 2016.

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