Posted in Civil Rights on June 14, 2017
A McAlester news outlet is reporting former police officer Jerry “Jay” Lynn Gragg, Jr., 40, of Savanna, OK was arrested for sexually assaulting a motorist during a traffic stop in January 2017.
A woman alleges Gragg said if she’d perform sex acts and/or allow him to perform acts, he wouldn’t write her a ticket. After her complaint, the Oklahoma State Bureau of Investigation investigated charges surrounding forcible sodomy, sexual battery and an officer attempting a bribe. With DNA evidence to support the allegations, Gragg was booked by the Pittsburg County Sheriff’s deputies.
The allegation implicates conduct that potentially violates the Fourth and Fourteenth Amendments.
Is this an Employment Issue Under OK Law?
But it also raises scope of employment questions- was the officer was acting in the capacity of a police officer at the operative moment?The City will argue that exchanging sex for leniency does not fall within the officer’s job duties.
City will tell the victim that its not responsible for the officer’s actions; even while he was on duty, dressed in uniform, and carrying on the City’s business.
Scope of employment defenses are typical in egregious civil rights cases, and establishing state action is not always straight-forward; it can be wrought with pitfalls.
Just last year the Tenth Circuit held that a parking enforcement officer was not acting within the scope of employment while falsely reporting an assault with a vehicle.
Establishing state action here means showing that Savanna’s officer was sufficiently cloaked with the authority of the state at the time of the unlawful conduct. A number of factors will bear on that question, and resolving them requires a working knowledge of how courts view the state action requirement.