A bill filed last week would seem to make it harder to sue law enforcement officers for using excessive force, making “excessive force” a term not subject to the policies of an individual agency.
House Bill 2328, authored by Rep. Kevin McDugle, R-Broken Arrow, and Josh West, R-Grove, would amend Oklahoma’s current statute defining excessive force and removes a portion that holds peace officers subject to state law “to the same degree as any other citizen.”
The current law states that excessive force “shall be presumed when a peace officer continues to apply physical force in excess of the force permitted by law or said policies and guidelines to a person who has been rendered incapable of resisting arrest.”
In the bill, that portion would be changed to remove references to law enforcement policies and guidelines, making it so the violation of a particular agency’s excessive force statute would not “in and of itself” constitute unreasonable force.
Information on police excessive force complaints is scarce. Like with police shootings, much of the information is kept within local precincts, rather than state or national databases.
Spencer Bryan, a Tulsa attorney with experience in filing excessive force cases, called the proposed change to the law “very disingenuous.”
Bryan said the change would essentially take away legal remedies for people injured by a law enforcement officer who was violating policy.
“It’s pretty interesting that they want to strip this language out. Bryan said. “It seems obvious what they want to do. They want to inject this more elastic language … to justify more policy violations
Neither McDugle nor West responded to requests for comment on the bill.
The bill would make it so excessive force would mean only “physical force which exceeds the degree of physical force permitted by law.” Bryan said that would mean if an officer violated policy in a violent encounter with a citizen, but was not charged criminally, the incident could not be considered excessive force.
In Okmulgee in 2017, a woman named Amanda Morrow was a passenger in a car and was shot in the neck by Okmulgee Police Chief Joe Prentice.
Prentice said he believed the car, which was attempting to drive around a roadblock, was being used as a weapon by the driver, 32-year-old Michael David Sanchez.
Prentice fired up to six shots at the car, records show, none of which hit Sanchez. Also in the car at the time was a 3 year-old toddler, who was uninjured.
While Prentice was cleared of criminal charges by then-Okmulgee County District Attorney Rob Barris, Bryan, who represents Morrow, said the case represented a clear policy violation.
“Okmulgee had a policy that you were not to discharge your weapon unless you’re reasonably sure you’re not endangering an innocent person’s life,” Bryan said. “But it was a clear policy violation, and we had the ability to correct the record in civil court.”
Records show the case was settled in civil court last year.
Bryan said the language change in the bill would remove the ability for people like Morrow to sue for damages following an excessive force incident.
“This language gives you a way to bless a policy violation and deny someone a remedy who was wronged,” he said. “That’s just like the really cynical aspect of it. You know that a policy was violated and someone was hurt, yet you deny them any opportunity for legal remedy.
Bryan said the current law regarding excessive force has been unchanged since 1992.
“I can’t tell you a single time a DA has prosecuted someone for a policy violation,” he said. “This (proposed change) is all about lawsuits.”
Civil suits, like the one filed by Morrow, present a glimpse into allegations of excessive force against officers.
In August 2017, a Tulsa man named Jack Morris alleged he was beaten by Tulsa Police officers who were searching for a man who had fled from them in a foot pursuit. Officers believed the suspect might have been hiding in one of Morris’ horse barns.
Morris, who was not related to the suspect and was not home at the time, drove to the barn after being alerted by a neighbor that the police presence had spooked one of his horses, which might have broken its leg.
Morris arrived at the property as police were still circling the barn, and said he was trying to catch the horse to calm it. Officers later said that Morris was given commands by “at least three” officers to stop, but became angry, cursing at police while still trying to access the property.
Morris’ daughter, Melissa, said that her father was telling officers that he just needed to catch the injured horse and that he would remain out of the officers’ way.
Either way, the story ended with Morris maced, bruised, soaked in his own blood and arrested, accused of assaulting two officers and resisting arrest. The lawsuit later filed by Morris against TPD states that he suffered a fractured elbow, two orbital bone fractures, two fractures to his nose and “numerous contusions and scrapes.”
The lawsuit states that while Morris ended up hospitalized and charged with multiple felonies, the actual suspects pursued that day by police escaped with relatively little consequence. Officers arrested Antonio Luna, the passenger in the vehicle police pursued that day, and he was ultimately charged with joyriding. He pleaded guilty, court records show, and received a one-year suspended sentence.
Meanwhile, the lawsuit claims that although Luna identified the driver of the vehicle as Hunter Brown, a teenager with a lengthy arrest record, Brown was never arrested or charged.
Prosecutors later dropped the felony charges against Morris, who pleaded guilty to misdemeanor charges of resisting arrest and obstructing an officer and received a since-completed one-year deferred sentence.
Morris’ civil case remains pending.