SEPTEMBER 2025 | 19 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Supreme Court has held that an act of the employee falls outside the scope if the actions are malicious or in bad faith.25 The decision itself is a matter for the jury unless only one reasonable inference can be drawn from the allegations.26 Under the GTCA, a “suit against a government officer in his or her official capacity is actually a suit against the entity that the officer represents and is an attempt to impose liability upon the governmental entity.”27 If the employee is acting within the scope of employment, it is the government entity that may be sued, not the individual.28 In pursuit of the aims of the GTCA, “an employee of a political subdivision is relieved from private liability for tortious conduct committed within the scope of employment.”29 Critically, however, “such protection does not render such employees immune from liability for willful and wanton negligence or other conduct which places the employees outside the scope of their employment.”30 As a result, claims alleging the excessive use of force or other constitutional deprivations at the hands of law enforcement often result in a tug of war between the officer, the employing agency and the plaintiff as to whether the conduct falls within the “scope of employment.” PUNITIVE DAMAGES: OKLA. STAT. TIT. 23 §9 The purpose of punitive damages is to punish and deter bad conduct. Proof of actual or presumed malice, oppression, fraud or wanton or reckless disregard for another’s rights must be determined by the trial court before the jury can be instructed on punitive damages.31 In such cases, the jury will first be asked to determine whether the defendant’s conduct was within the “scope of employment.” If supported by evidence, the trial court may instruct the jury using instruction 5.6 of the Oklahoma Uniform Jury Instructions, which provides: EXEMPLARY OR PUNITIVE DAMAGES – FIRST STAGE If you find in favor of [Plaintiff], and grant [him/her] actual damages, then you must also find by a separate verdict, whether [Defendant] (acted in reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others). [Plaintiff] has the burden of proving this by clear and convincing evidence ... . [The conduct of [Defendant] was in reckless disregard of another’s rights if [Defendant] was either aware, or did not care, that there was a substantial and unnecessary risk that [his/her/ its] conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another’s rights, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.] [Malice involves either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.] Critically, the instructions given to jurors do not tie the concepts of “scope of employment” and punitive damages in any way. The instructions are merely presented seriatim. Given the stakes at issue between the plaintiff, the officer and the employing agency, the natural question arises whether findings by the jury that the officer’s conduct was within the “scope of employment” can coexist with a finding of reckless indifference or malice. DECORTE’S DILEMMA Off-duty police officer Gary Robinson was driving in his private car with his wife in Tulsa.32 Officer Robinson saw a car that he considered to be driving dangerously and pursued it, reaching speeds of up to 85 mph. Officer Robinson contacted the police department dispatcher by cell phone. The only instruction he received was to stay on the phone. The driver, Mr. DeCorte, realized he was being pursued and stopped his car in a parking lot.33 Although Officer Robinson was informed that an on-duty police officer was en route, he exited his car and approached Mr. DeCorte’s vehicle. Officer Robinson identified himself as an off-duty police officer, drew a handgun, pointed it at Mr. DeCorte and reached into the car to get the key. Mr. DeCorte was either then pulled from or exited the car on his own. After Mr. DeCorte was out of his car, Officer Robinson attempted to subdue him with a “carotid chokehold.”34 When the on-duty officer arrived, he and Officer Robinson subdued and handcuffed Mr. DeCorte. Mr. DeCorte was placed under arrest and was put in the back of the on-duty officer’s patrol car. Mr. DeCorte testified that Officer Robinson then struck him and grabbed him by the throat while he was handcuffed
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