Why the Bosh Decision is Important for Oklahoma

When the Oklahoma Supreme Court affirmed its decision in Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, it removed a significant legal barrier that prevented Oklahomans from holding county government accountable when its jailers used excessive force on innocent people. For more information on the decision, see our previous post here.

But why is the Bosh decision necessary to hold county government liable when a remedy exists under federal law? The answer is two-fold:

First, the concept of federalism in the United States recognizes the sovereignty of both the federal and state governments. Unless trumped by federal law, Oklahoma is free to make, create and interpret its own state law as Oklahoma sees fit without interference by the federal government. On the other hand, where the federal government has decided to exercise its own sovereign power, Oklahoma, its citizens, lawmakers and courts must yield to what the federal government says.

Why does this matter in the context of excessive force?

If Oklahoma does not provide any remedy for the use of excessive force, the only other remedy exists under federal civil rights law. Federal civil rights law is not developed by people from Oklahoma, and by failing to create any remedy for excessive force, Oklahoma has surrendered its sovereignty in this area by allowing the federal government to dictate how the right against excessive force takes shape in this state. The continued sovereignty of Oklahoma is an important concept within federalism, and the ability to exercise for ourselves what constitutes excessive force, without interference from the federal government, ensures that Oklahoma remains independent from courts and judges sitting in other states.

The second reason that Bosh is important relates to liability under federal law. Under federal law, the only way to hold county government liable for excessive force in a jail is (1) by demonstrating that the county maintains a policy or practice of using excessive force, (2) by showing that a final-policymaker (e.g. the Sheriff or Trust Authority) was the person or entity who used excessive force, or (3) by establishing that the county knew its jailers were using excessive force, but did nothing in response.

The path for establishing any one of these avenues is exceedingly difficult:  no county will ever adopt an official policy of excessive force, and developing practice evidence requires uncovering multiple episodes of excessive force over a period of time from jailers who are not inclined to document excessive force. The final policy-maker is generally not a frontline jailer, and may actually be some board or entity that only visits the jail infrequently or once annually. Finally, establishing knowledge and consent by the county generally requires an insider willing to blow the whistle on the county, which can always deny knowledge of any wrong-doing, especially where the county is represented by an entity comprised of numerous people.

These limitations, coupled with high turnover rates for jails and poor recordkeeping, combine to make it difficult to gather evidence against a county. As a consequence, innocent victims are left to seek recovery against the individual jailer who, for all practical purposes, is essentially judgment proof, i.e., the jailer could not pay for the damage that he inflicted even if ordered by a court.  This knowledge only serves to embolden jail staff who are prone to use excessive force.

And because federal law does not permit the innocent victim to recover against a jailer’s employer, (i.e. the county) the county is under no obligation to pay for the damage caused by its employee-jailer– even though the county put the jailer in uniform and in position to inflict harm on innocent people. These circumstances often occur where a county has neglected to provide a jail with resources in the form of adequate staffing, hiring procedures or training. In this regard, the county’s failure leads to an unprofessional environment where the state of nature eventually takes control which leads to assaults on innocent victims, and yet the county is free to do this without taking responsibility for its actions.

The Bosh decision changes this paradigm and gives victims a right to recover directly against the county. Importantly, victims of excessive force are no longer left to seek recovery against a judgment-proof jailer. In the past, leaving injured victims without an adequate remedy forced many to seek public assistance, which shifts the cost of the jailer’s misconduct onto the general public. Following Bosh, the liability and responsibility will remain with the county where the conduct occurred.

More importantly, however, county government now has skin in the game. With potential victims now looking towards the county to answer for the actions of its employees, the county has every incentive to reduce future liability by lowering incidents of excessive force. To accomplish this, it is likely that county government will improve its hiring process and the quality of its employees. The counties may increase staffing levels to reduce the need to use force, and they may provide more and better training across the board.

By creating a more professional jail staff, the counties can simultaneously reduce the number of excessive force incidents which reduces their exposure for conduct attributable to its jailers.

If you have questions about Bosh specifically, or excessive force generally, contact the Oklahoma attorneys at Bryan & Terrill Law, 918-935-2777.

****J. Spencer Bryan and Steven J. Terrill represent Daniel Bosh in Bosh v. Cherokee County Governmental Building Authority, Oklahoma Supreme Court decision, 2013 OK 9.