THE OKLAHOMA BAR JOURNAL 22 | SEPTEMBER 2025 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. In September 1990, Morris McGhee was arrested by Volusia County Deputy Hernlen.54 During the booking process, the two exchanged words, and Deputy Hernlen proceeded to grab the handcuffed Mr. McGhee by the throat and kick him with force.55 Mr. McGhee sued the deputy and the sheriff’s department. The trial court dismissed the sheriff’s department on the basis that the deputy’s actions were outside the scope of his employment.56 The Florida Court of Appeals upheld the dismissal, and an appeal was taken to the Florida Supreme Court. Reversing the Court of Appeals, the Florida Supreme Court focused on the nature of the public employee’s actions rather than the heinousness of the conduct. Specifically, the court reasoned: To abuse power is to use it in an extravagant manner, to employ it contrary to the law of its use, or to use it improperly and to excess. The usurpation of power has reference to the unlawful assumption, or seizure and exercise of power not vested in one, or where one interrupts another in the exercise of a right belonging to him.57 Thus, if the public employee is abusing power that has been lawfully delegated to them by the employing agency, the jury can find that conduct to be within the “scope of employment” without regard to the unlawfulness of the actions. For example, the Florida Supreme Court pointed to a decision by the Florida Court of Appeals in Hennagan v. Dept. of Safety and Motor Veh.58 in which a highway patrol officer “arrested” a minor child pretextually and then sexually molested her. The trial court dismissed the ensuing action against the agency on the grounds that the officer’s conduct was beyond the scope of employment and the agency was immunized under Florida’s tort claims act.59 The Court of Appeals reversed, however, finding that the “officer’s conduct though illegal, clearly was accomplished through an abuse of power lawfully vested in the officer, not an usurpation of power the officer did not rightfully possess.”60 Thus, the Florida Supreme Court held that even heinous conduct when undertaken through lawfully delegated power can be within the scope of employment.61 DeCorte Resolved Ultimately, the Oklahoma Supreme Court found that the jury’s determination that Officer Robinson had been “acting within the scope of his employment” was legally consistent with the award of punitive damages in favor of DeCorte.62 In its holding, the Oklahoma Supreme Court started from the proposition that whether an officer was acting within the scope of employment was a question of fact to be determined by the jury.63 Moreover, the jury’s determination of facts would not be disturbed as long as there was any theory supported by competent evidence that could serve as the basis for the verdict.64 Beyond this point, however, the Oklahoma Supreme Court’s basis for its holding becomes less clear as the opinion attempts to harmonize the temporal theory discussed in Nail with the lawful authority theory borrowed from McGhee. The decision in DeCorte argues both theories, holding that at the time Officer Robinson began his pursuit of Mr. DeCorte, he was acting within the authority lawfully granted to him by the Broken Arrow Police Department. Although the court leaves the door open by reasoning that “an individual cannot simultaneously act in good faith and in a malicious manner,” it holds that the jury could have found that Officer Robinson’s actions began within the scope of employment even if it was later found to have exceeded it.65
RkJQdWJsaXNoZXIy OTk3MQ==