Bosh decision clarified by Oklahoma Supreme Court

Since the Oklahoma Supreme Court issued its decision in Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994, granting citizens civil rights under the state constitution, state and federal courts have struggled to determine the general application of that decision. Does Bosh apply to any case implicating a state constitutional right?  Or is the decision more limited?

In Perry v. City of Norman, 2014 OK 119, the Oklahoma Supreme Court clarified Bosh and affirmed that the right to proceed under the state constitution applies where the Legislature has eliminated a cause of action to enforce state constitutional rights.

In Perry, the plaintiff filed suit alleging excessive force by a police officer.  Under the Oklahoma Governmental Tort Claim Act, the plaintiff was free to pursue that claim. Because the Oklahoma Governmental Tort Claims Act recognized a cause of action in that particular circumstance, the Oklahoma Supreme Court held that resort to Bosh was unnecessary.

This theory of state constitutional liability views Bosh as a type of backstop preventing the government from escaping liability entirely for conduct that violates the state constitution.

The Perry decision is important because it recognizes that governmental entities may not escape liability merely because the Legislature has granted immunity from suit under the OGTCA.  Where state constitutional rights are implicated, Perry gives the government a choice: it may either face liability under the OGTCA or the state constitution, but it cannot avoid state-based liability altogether.

If you have questions about the Bosh decision, Oklahoma state civil rights, excessive force, or police misconduct, contact the injury attorneys at Bryan & Terrill Law, 918-935-2777.