What Is a Bosh Claim, and Why Can't You Bring One Anymore?

I was one of the lawyers for Daniel Bosh. On May 17, 2011, jailers at the Cherokee County Detention Center attacked him while he stood at the booking desk with his hands restrained behind his back.

His case produced Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994. For about a year, people beaten by jailers had a state court remedy they never had before. Then the Legislature took it away.

The gap Bosh filled

Before Bosh, a person beaten in a county jail ran into two walls.

The first was state law. The Governmental Tort Claims Act exempts government entities from tort suits arising out of running a jail.

The second was federal law. Under Monell, a county isn't automatically responsible under § 1983 for what its employees do. You have to prove a county policy or custom caused the harm. A jailer could beat a restrained man, and the county could argue none of it was its responsibility.

What the court decided

The Oklahoma Supreme Court held that:

• Article 2, Section 30 of the Oklahoma Constitution provides a private cause of action for excessive force, notwithstanding the limits of the Tort Claims Act.

• The cause of action applies retrospectively, so Daniel's own claim counted.

• The employer is liable when its employees use excessive force within the scope of their employment.

That last holding mattered most. The Court applied ordinary respondeat superior instead of the federal Monell limits. A family no longer had to prove a countywide policy, only that the jailer used excessive force on the job.

How fast it ended

The counties understood what Bosh meant for them. In 2014, the county commissioners' association listed a bill on its legislative agenda under Bosh's name. The Legislature passed it with an emergency clause, and it took effect April 21, 2014. Laws 2014, c. 77. The amendment brought constitutional claims under the Tort Claims Act, which put them back behind the same immunities and the same jail exemption Bosh had gotten around. I said at the time that the bill was an attempt to undo the decision, and that is exactly what it did.

The Supreme Court confirmed the result. In Barrios v. Haskell County Public Facilities Authority, 2018 OK 90, 432 P.3d 233, two estates asked the Court to extend Bosh to jail medical care claims. The Court refused, holding that the amended Act's jail exemption bars them. In Payne v. Kerns, 2020 OK 31, 467 P.3d 659, the Court let a state constitutional claim go forward because the conduct happened, and the suit was filed, before the 2014 amendment took effect.

Where that leaves people today

In practice, the Bosh claim is gone. Any claim that could still use it would have to come from conduct before April 21, 2014, which puts it outside nearly every filing deadline today.

Someone hurt or killed in an Oklahoma jail now has one main path: a federal civil rights case under 42 U.S.C. § 1983. That brings back the Monell burden Bosh let families avoid. You have to prove how the jail really operates: its training, its staffing, what supervisors knew, and what happened to people before your family member. The evidence that proves a custom is the same evidence that disappears, so these cases have to move fast.

Bosh opened a door for people who had none, and the counties had it shut within about a year. The federal route is harder, but it's the route that remains, and it's the one I use.

If you or someone in your family was hurt in custody, call (918) 221-6190 or use the consultation form. The first conversation is free.

This article is general information, not legal advice. Every case turns on its own facts.