Joshua Shaw v. City of Oklahoma City

Oklahoma City, Oklahoma, personal injury lawyer represented the Plaintiff who sued on a false arrest theory.

Joshua Shaw (Plaintiff or Shaw) appeals an order granting the summary judgment motion filed by Defendant Oklahoma City, Oklahoma (City) on Plaintiff's petition filed pursuant to Oklahoma's Governmental Tort Claims Act (GTCA) alleging false arrest, assault and intentional infliction of emotional distress (IIED) against City and four unnamed police officers. Upon review of the evidentiary material submitted to the trial court and applicable law, we AFFIRM the judgment.

According to Plaintiff's petition, he was an off-duty McLoud police officer on December 10, 2012, when he met a female friend, a fellow CLEET trainee, at Henry Hudson's Pub on Memorial Road in Oklahoma City. While eating, Plaintiff and his friend were "discussing going to the gun range and shooting their weapons." An off-duty Village police officer, who was sitting near them, overheard parts of their conversation, and "became concerned the couple was discussing terroristic acts." The Village police officer discussed his concerns with the bartender, who explained the conversation was not "criminal in nature" and "the pair were also officers." Despite that information, the Village police officer called Oklahoma City Police Department (OKCPD), reported what he heard, and requested OKCPD to send someone to the location.

¶21 In Oklahoma, 76 O.S. 2011 § 6 provides that "[e]very person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm." Title 22 O.S. 2011 § 196 provides, in relevant part: "a peace officer may, without a warrant, arrest a person 1) [f]or a public offense, committed or attempted in his presence or 2) [w]hen the person arrested has committed a felony, although not in the officer's presence."

¶22 "False arrest is an unlawful restraint of an individual's personal liberty or freedom of locomotion" or "an arrest without proper legal authority." Overall v. State ex rel. Dept. of Public Safety, 1995 OK CIV APP 107, ¶ 22, 910 P.2d 1087, 1091.7 The Court in Overall examined the tort of false arrest and held:

A good faith, warrantless arrest by an officer without due and legal process, i.e., probable cause, is a false arrest. As such the arrest is tortious. The mental intent of the officer in making the arrest is irrelevant. There is no inference of bad faith, ill will, or malice to be drawn from the actions of the officer making the arrest."8 (Emphasis added.)

Overall, ¶ 25, 910 P.2d at 1091.

¶23 In this case, City defends against Shaw's false arrest theory arguing the officers' had probable cause for either 1) a violation of 21 O.S. Supp. 2012 § 1272.1 or 2) investigation of a reported crime. Under § 1272.1, it "shall be unlawful" to carry or possess a weapon in any establishment where low-point beer or alcoholic beverages "are consumed." To support probable cause "to detain Shaw" under § 1272.1, City relies on Shaw's admissions during his deposition that 1) he was in an establishment that sold low point beer and alcoholic beverages, 2) he was carrying a pistol or revolver on his person at the time, 3) he was not on duty as a police officer at the time, 4) he informed the officers he was carrying a weapon, and 5) there were alcoholic beverages in front of him and his friend at the bar when the officers entered the establishment.

¶24 Shaw's response focuses primarily on opposing City's § 1272.1 argument, identifying in his response only two "Disputed Material Facts": 1) "[t]here is no evidence Plaintiff was drinking," and 2) "[t]he officers did not know Plaintiff was a police office or that he was carrying a weapon at the time they approached or responded to the call." Both of Shaw's disputed material facts cite to City's corresponding "undisputed fact" by number.

¶25 Concerning Shaw's first "Disputed Material Fact," he argues there is no evidence he was drinking while at Henry Hudson's and he testified he ate dinner. Concerning the second, Shaw also argues "pursuant to § 1272.1, he could carry a weapon in a bar."9

¶26 Lastly, City argues Shaw was not arrested as a result of this incident, he was not handcuffed or placed in the back of a police vehicle, and no arrest report was made. City contends "[Shaw] was briefly inconvenienced while the officers investigated a report of a possible crime." It then quotes Abraham v. State, 1998 OK CR 29, ¶ 4, 962 P.2d 647, for holding "even when there is no probable cause to make an arrest, if an officer has 'reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then [an investigative] stop may be made to investigate that suspicion.'" (Emphasis added.) Based thereon, City argues, even if the officers lacked probable cause to investigate a violation of § 1272.1, they had reasonable suspicion to detain him in order to investigate the eyewitnesses report that [Shaw] and his friend were "discussing terroristic acts."

Summary judgment in favor of the Defendant.

Affirmed