Berglund v. Pottawatomie County Board of County Commissioners

FILED
United States Court of Appeals
Tenth Circuit

October 22, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

DELIA BERGLUND and
DARLENE VASQUEZ,

Plaintiffs - Appellants,

v. No. 09-6000
(D.C. No. CV-06-672-D)
POTTAWATOMIE COUNTY (W.D. Okla.)
BOARD OF COUNTY
COMMISSIONERS; KURT SHIREY,
Sheriff of Pottawatomie County,
Oklahoma; DEPUTY SWEARINGEN;
DEPUTY RODRIGUEZ,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

Plaintiffs-Appellants Delia Berglund and her daughter Darlene Vasquez

(“Plaintiffs”) appeal the district court’s grant of summary judgment for

*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously to honor the parties’ request for a decision on
the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore
ordered submitted without oral argument.
Defendants-Appellees Board of County Commissioners of Pottawatomie County,

Pottawatomie County Sheriff Kurt Shirey, Pottawatomie County Sheriff’s Deputy

David Swearingen, and Pottawatomie County Sheriff’s Deputy Anthony

Rodriguez (“Defendants”) on their 42 U.S.C. § 1983 civil rights and state-law tort

claims. 1 We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM the

judgment of the district court.

BACKGROUND 2

On October 13, 2004, James Brand, the police chief of the Town of Asher,

went to the residence that Plaintiffs and other family members shared in an effort

to locate Ms. Vasquez. When Chief Brand arrived, Ms. Berglund was outside the

residence; Chief Brand asked Ms. Berglund about the location of her daughter.

1
Although Plaintiffs’ notice of appeal indicates that they additionally
are appealing the district court’s denial of their Fed. R. Civ. P. 59(e) motion to
amend or alter the judgment, they do not mention this argument in their opening
brief. “Arguments inadequately briefed in the opening brief are waived . . . .”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). Even
assuming the argument was preserved, however, having reviewed the motion,
related filings, and the district court’s order, it is clear that the district court’s
denial of this motion—which contended only that the district court’s judgment
was incorrect based on Plaintiffs’ previous arguments—was not an abuse of
discretion. See Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186
n.5 (10th Cir. 2000) (noting that such a motion should be granted only to present
newly discovered evidence or correct manifest errors of law).
2
As we are reviewing a grant of summary judgment for Defendants,
we resolve all factual disputes and draw reasonable inferences therefrom in favor
of Plaintiffs as the nonmoving parties. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Casey v. City of Fed. Heights, 509 F.3d
1278, 1279 n.1 (10th Cir. 2007).

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According to Chief Brand, Ms. Berglund reacted angrily and would not cooperate

with Chief Brand’s questioning. Chief Brand attempted to restrain and handcuff

Ms. Berglund, but he was unsuccessful; she then quickly walked into the

residence. Ms. Berglund claimed that her neck was injured as a result of her

encounter with Chief Brand. After Ms. Berglund was inside the residence, Chief

Brand called the Pottawatomie County Sheriff’s office to request backup

assistance. Ms. Berglund separately called the sheriff’s office to request

ambulance assistance.

Deputies Swearingen and Rodriguez reported to the scene and talked to

Chief Brand. Neither Sheriff Shirey nor any members of the Board of County

Commissioners were present or took part in the events at the residence. Upon

their arrival at the scene, the deputies approached the residence and asked Ms.

Berglund to come outside. Ms. Berglund told them to come inside if they wanted

to talk to her. Ms. Vasquez was inside the house during these events, and she saw

her stepfather—Ms. Berglund’s husband—open the door and allow the deputies to

enter. The deputies, who did not have a warrant, entered the residence.

After entering the residence, Deputy Swearingen took hold of Ms.

Berglund’s arm and pulled it behind her back. Still holding her arm, he and

Deputy Rodriguez escorted Ms. Berglund out of the house and into Chief Brand’s

car. The deputies did not display or use handcuffs, and she testified that Deputy

Rodriguez did not touch her at any time. The deputies did not curse at Ms.

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Berglund, threaten her, or brandish or use any weapons. When Ms. Berglund was

removed from the residence, Ms. Vasquez, who was standing in the open

doorway, became upset and told the deputies that they should take her instead.

Although Chief Brand then grabbed Ms. Vasquez and put her in his patrol car,

Ms. Vasquez does not allege that the deputies touched, threatened, or frightened

her at any point. After taking Ms. Berglund to the patrol car, neither deputy had

any further contact with Plaintiffs. Chief Brand ultimately arrested both Plaintiffs

for breaching the peace. 3

STANDARD OF REVIEW

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Martinez v. Beggs,

563 F.3d 1082, 1088 (10th Cir. 2009), cert. denied, 78 U.S.L.W. 3059 (U.S. Oct.

5, 2009) (No. 09-87). “In exercising de novo review we afford no deference to

the district court’s interpretation of state law.” Devery Implement Co. v. J.I. Case

Co., 944 F.2d 724, 727 (10th Cir. 1991). A motion for summary judgment should

be granted “if the pleadings, the discovery and disclosure materials on file, and

3
At the time the district court issued its summary judgment order,
Plaintiffs also had claims pending against Chief Brand and the Town of Asher,
who did not file for summary judgment. Plaintiffs then settled their claims
against these two defendants, and they are not parties to this appeal. After all
claims against those two defendants were dismissed with prejudice, the district
court entered final judgment for Defendants-Appellants, and Plaintiffs then filed
their notice of appeal.

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any affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

On Plaintiffs’ § 1983 claims against the deputies, the district court granted

the deputies’ motion for summary judgment based on qualified immunity. Our

review of summary judgment orders deciding qualified immunity questions differs

from our review of other summary judgment decisions. Martinez, 563 F.3d at

1088. “When a defendant asserts qualified immunity at summary judgment, the

burden shifts to the plaintiff to show that: (1) the defendant violated a

constitutional right and (2) the constitutional right was clearly established.” 4 Id.

(citing Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009)). “Qualified

immunity is applicable unless the official’s conduct violated a clearly established

constitutional right.” Pearson, 129 S. Ct. at 816.

Plaintiffs’ argument for reversal is based upon their contention that genuine

issues of material fact remain, and thus summary judgment is inappropriate.

However, because we are reviewing the district court’s summary judgment order

as it pertains to the issue of qualified immunity, Plaintiffs’ focus is misplaced. It

assumes the applicability of the analytic summary judgment approach typically

4
The Pearson Court announced that courts have discretion to
determine “which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). As explained infra, Defendants
did not violate Plaintiffs’ constitutional rights. Thus, we need not address
whether any such rights were clearly established. See Martinez, 563 F.3d at 1088.

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used outside of the qualified immunity context. The Supreme Court has

instructed that when we make our initial qualified immunity inquiry, we “decide

whether the facts that a plaintiff has alleged or shown make out a violation of a

constitutional right.” Id. at 815-16 (emphasis added) (internal citations omitted);

see also Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (noting that

generally in the qualified immunity context in addressing the legal inquiry “we

accept the facts as the plaintiff alleges them”).

It is only if and when the plaintiff succeeds in making this twofold

showing—i.e., satisfies this “heavy two-part burden” of demonstrating that the

defendant is not entitled to qualified immunity—that the burden shifts to the

defendant to make the usual summary judgment showing that there is no genuine

issue as to any material fact and that he or she is entitled to judgment as a matter

of law. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.

2001); Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). Before it is

established that the plaintiff has met his or her burden, factual disputes generally

are not relevant, as all facts are viewed in the light most favorable to the plaintiff.

See Scott v. Harris, 550 U.S. 372, 378 (2007) (“When [a case is decided on

summary judgment and there have not yet been factual findings by a judge or

jury], courts are required to view the facts and draw reasonable inferences in the

light most favorable to the party opposing the [summary judgment] motion. In

qualified immunity cases, this usually means adopting . . . the plaintiff’s version

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of the facts.” (second alteration in original) (citation and internal quotation marks

omitted)); see also Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir. 1988)

(Johnson, J., dissenting) (observing that, even if factual disputes exist, “these

disputes are irrelevant to the qualified immunity analysis because that analysis

assumes the validity of the plaintiffs’ facts”); cf. Gallegos v. City & County of

Denver, 984 F.2d 358, 362 (10th Cir. 1993) (rejecting the district court’s

approach of essentially “requiring the defendants to go to trial before determining

whether or not they are entitled to qualified immunity”).

DISCUSSION

I. Federal Claims

Plaintiffs argue that the deputies’ actions constituted unlawful entry,

unlawful search, unlawful seizure or arrest, and excessive force in violation of the

Fourth Amendment. 5 We address each of these contentions in turn.

Regarding any unlawful warrantless entry by the deputies, “[t]he Fourth

Amendment generally prohibits the warrantless entry of a person’s home, whether

5
Although Plaintiffs’ brief also mentions alleged Fourteenth
Amendment violations by the deputies, their only reference to the Fourteenth
Amendment is in connection with their specific allegations implicating their
Fourth Amendment rights. Such claims are properly considered under the Fourth
Amendment rather than under the more general substantive due process analysis
of the Fourteenth Amendment. Becker v. Kroll, 494 F.3d 904, 919 (10th Cir.
2007). “The more general due process considerations of the Fourteenth
Amendment are not a fallback to protect interests more specifically addressed by
the Fourth Amendment” in the context of the initial stages of a criminal
proceeding. Id.

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to make an arrest or to search for specific objects. The prohibition does not

apply, however, to situations in which voluntary consent has been obtained, either

from the individual whose property is searched, or from a third party who

possesses common authority over the premises.” Illinois v. Rodriguez, 497 U.S.

177, 181 (1990) (internal citations omitted); see Brigham City v. Stuart, 547 U.S.

398, 403 (2006) (“[B]ecause the ultimate touchstone of the Fourth Amendment is

‘reasonableness,’ the warrant requirement is subject to certain exceptions.”). We

examine the totality of the circumstances to determine whether consent was

voluntary or “the product of duress or coercion, express or implied.” Schneckloth

v. Bustamonte, 412 U.S. 218, 227 (1973). In making that determination, we

consider whether certain circumstances were present:

the threatening presence of several officers; the brandishing of
a weapon by an officer; some physical touching by an officer;
use of aggressive language or tone of voice indicating that
compliance with an officer’s request is compulsory; prolonged
retention of a person’s personal effects . . .; a request to
accompany the officer to the station; interaction in a nonpublic
place or a small, enclosed space; and absence of other
members of the public.

United States v. Abdenbi, 361 F.3d 1282, 1291 (10th Cir. 2004) (ellipsis in

original) (internal quotation marks omitted).

As is clear from the fact scenario outlined above, none of these factors was

present when the deputies entered Plaintiffs’ residence save the fact that several

officers were at the scene. Although Plaintiffs argue that any suggestion by Ms.

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Berglund that the deputies come inside the house if they wanted to talk to her was

an invitation only to talk to her, not to actually enter the house, the deputies’

conduct is to be viewed objectively. See, e.g., Brigham City, 547 U.S. at 404.

There is nothing in the record to suggest that the deputies reasonably should have

believed that Ms. Berglund’s consent was limited in this way. Moreover, the

deputies also had the consent of “a third party who possesse[d] common authority

over the premises,” Rodriguez, 497 U.S. at 181, as Ms. Berglund’s husband, who

lived at the house, opened the door for the deputies. Given the totality of the

circumstances, a reasonable officer would have believed he or she had consent to

enter the residence. Thus, the deputies’ entrance into the house did not constitute

a Fourth Amendment violation under the circumstances taken most favorably to

Plaintiffs.

Plaintiffs also appear to assert that the deputies unlawfully searched the

residence without a warrant. Plaintiffs have offered no evidence, however, to

support a claim that the deputies conducted any search of the premises or of their

persons. Thus, Plaintiffs have not carried their burden; specifically, they have not

established the violation of a constitutional right, and the deputies therefore are

entitled to qualified immunity on this claim as well.

Next, Plaintiffs argue that the deputies unlawfully arrested them without a

warrant or probable cause.

A warrantless arrest is permissible when an officer has

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 probable cause to believe that a person committed a crime. An
arrest is distinguished by the involuntary, highly intrusive
nature of the encounter. [T]he use of firearms, handcuffs, and
other forceful techniques generally exceed the scope of an
investigative detention and enter the realm of an arrest.
Probable cause to arrest exists only when the facts and
circumstances within the officers’ knowledge, and of which
they have reasonably trustworthy information, are sufficient in
themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed.

Cortez v. McCauley, 478 F.3d 1108, 1115-16 (10th Cir. 2007) (en banc)

(alteration in original) (citations and internal quotation marks omitted).

As explained above, after failing in his attempt to restrain Ms. Berglund,

Chief Brand requested backup assistance rather than pursuing Ms. Berglund into

the house. When the deputies arrived, they spoke to Chief Brand before

approaching the house and asking Ms. Berglund to come outside. The deputies

challenge the assertion that their conduct with regard to Ms. Berglund amounted

to an arrest. See Aplee. Br. at 13 (“Because the deputies did not threaten

Plaintiffs, draw their weapons, or otherwise use unnecessary force against

Plaintiffs, their actions simply did not constitute an arrest.”). In any event, they

argue that the information provided to them by Chief Brand provided probable

cause for them to believe that Ms. Berglund had committed a crime and,

therefore, grounds to arrest her. In other words, they assert that they reasonably

relied on “facts and circumstances,” as well as “reasonably trustworthy

information” obtained from Chief Brand, in determining that probable cause

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existed to arrest Ms. Berglund. Cortez, 478 F.3d at 1116; cf. Baptiste v. J.C.

Penney Co., 147 F.3d 1252, 1260 (10th Cir. 1998) (“Police work often requires

officers to rely on the observations, statements, and conclusions of their fellow

officers. An officer who is called to the scene . . . is not required to reevaluate

the arresting officer’s probable cause determination . . . .”).

Even viewing the facts in the light most favorable to Plaintiffs, and further

assuming that the seizure constituted an arrest rather than a mere investigative

detention, Plaintiffs’ unconstitutional arrest claim fails. Plaintiffs offer nothing

specific to refute the deputies’ contention that they possessed sufficient

information to give rise to probable cause beyond implying that Chief Brand

supplied false or unreliable information to the deputies. Even if the record does

not establish precisely what Chief Brand said to the deputies, and even if the

information provided by Chief Brand ultimately turned out to be untrue, however,

this would not compel a conclusion that the deputies were unreasonable in relying

upon that information at the time it was conveyed to them. “Even law

enforcement officials who ‘reasonably but mistakenly conclude that probable

cause is present’ are entitled to immunity” where the arrestee seeks to hold the

officials liable under § 1983. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.

1995) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)); see also Anderson v.

Creighton, 483 U.S. 635, 641 (1987) (“[L]aw enforcement officials will in some

cases reasonably but mistakenly conclude that probable cause is present, and . . .

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in such cases those officials . . . should not be held personally liable.”).

Furthermore, it is undisputed that the deputies were aware of, and responding to,

Chief Brand’s request for backup assistance, after he failed to restrain and

handcuff Ms. Berglund.

Plaintiffs have offered no evidence to indicate that the deputies

unreasonably relied on Chief Brand’s information or to suggest that the deputies

had reason to doubt Chief Brand. “[W]hen a warrantless arrest or seizure is the

subject of a § 1983 action, the defendant is entitled to qualified immunity if a

reasonable officer could have believed that probable cause existed to arrest or

detain the plaintiff.” Cortez, 478 F.3d at 1120. On these facts, it is clear that a

reasonable officer could have believed that probable cause existed to arrest Ms.

Berglund. Thus, the deputies are entitled to qualified immunity on this claim.

Regarding Ms. Vasquez, the record establishes that neither of the deputies

ever seized, detained, or arrested her. Ms. Vasquez, however, appears to be

arguing that the deputies participated in her ultimate arrest by Chief Brand

because when they walked Ms. Berglund out of the house, Ms. Vasquez followed

them to the door where Chief Brand then grabbed her. She testified that “the only

thing that [the deputies] did was try to get my attention so that, I guess, [Chief

Brand] can get me and handcuff me and take me to jail.” Aplt. App. at 183. This

speculation does not amount to evidence of the deputies’ personal participation in

the alleged violation of Ms. Vasquez’s rights—an essential element of a § 1983

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claim. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). Even

assuming that the deputies’ conduct could be construed as assisting Chief Brand

in arresting Ms. Vasquez, as discussed above the deputies were relying on Chief

Brand’s information regarding the situation. Plaintiffs offer no evidence to

suggest that such reliance was unreasonable. Thus, none of the actions taken by

the deputies amounts to a violation of Ms. Vasquez’s Fourth Amendment rights.

Finally, Plaintiffs argue that the deputies are not entitled to qualified

immunity on their excessive force claim. An officer using force in the course of a

seizure of a citizen is entitled to qualified immunity where clearly established law

does not show that the level of force violated the Fourth Amendment. See Estate

of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008). The

precise question asked in an excessive force case is “whether the officers’ actions

are ‘objectively reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.” Graham v.

Connor, 490 U.S. 386, 397 (1989). “We assess objective reasonableness based on

whether the totality of the circumstances justified the use of force, and pay

careful attention to the facts and circumstances of the particular case.” Estate of

Larsen, 511 F.3d at 1260 (internal quotation marks omitted). A plaintiff must

demonstrate that the amount of force used was “sufficiently egregious to be of

constitutional dimensions.” Martin v. Bd. of County Comm’rs, 909 F.2d 402, 407

(10th Cir. 1990) (per curiam). The extent of the injury inflicted by any use of

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force is additionally relevant in evaluating an excessive force claim. Id.

Here, the amount of force used by the deputies in effecting Ms. Berglund’s

arrest was minimal and reasonable under the circumstances. The allegation of

excessive force relates to only Deputy Swearingen’s action in pulling and holding

Ms. Berglund’s arm behind her back. Although Ms. Berglund was hospitalized

briefly that night for elevated blood pressure, and she claims that the examination

at the hospital revealed contusions on her neck and wrist, Plaintiffs have not

pointed to any evidence in the record of a specific injury arising from Deputy

Swearingen’s actions.

The actions of Deputy Swearingen upon arriving at the scene and after

consulting with Chief Brand were not objectively unreasonable. Further, the

deputies did not display weapons, threaten, or shout at Plaintiffs. Ms. Berglund

stated that they seemed “very nice” to her. Aplt. App. at 116. Accordingly, the

deputies’ actions did not violate Plaintiffs’ constitutional rights, as these facts,

taken in the light most favorable to Plaintiffs, are insufficient to present a Fourth

Amendment violation.

Plaintiffs have not demonstrated a violation of a constitutional right and

therefore have not met their burden in opposing summary judgment on this claim.

Accordingly, our analysis of this issue ends with our determination that there was

no constitutional violation. See Martinez, 563 F.3d at 1088. The deputies are

entitled to qualified immunity on Plaintiffs’ Fourth Amendment claims.

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II. State-law Claims

Plaintiffs also assert claims under Oklahoma law against certain Defendants

arising from the allegedly tortious conduct of the deputies. More specifically,

they allege that the deputies committed acts of trespass or unlawful entry, assault

and battery, and unlawful or false arrest. For the following reasons, we conclude

that the district court properly granted summary judgment on these claims.

A. Claims Against the Deputies

Generally speaking, pursuant to the Oklahoma Governmental Tort Claims

Act (“GTCA”), the state, its political subdivisions, and their employees are

immune from liability for acts of employees taken within the scope of their

employment. See Okla. Stat. tit. 51, §§ 152.1(A), 153, 163(C). The GTCA

defines “scope of employment” as “performance by an employee acting in good

faith within the duties” of his or her employment. Id. § 152(11). At the

commencement of this action, Plaintiffs brought state tort claims against the

deputies, seeking to hold them individually liable for their tortious conduct, if

they acted outside of the scope of their employment. Aplt. App. at 20 (“That the

defendants, JAMES BRAND AND JOHN DOE(S), are individually liable for

their torts committed outside of their scope of employment.”). Based on the issues

presented in their Opening Brief and their arguments on appeal, Plaintiffs evince

no signs of pursuing on appeal state-law relief against the deputies individually

for their allegedly tortious conduct but rather focus on the alleged liability of

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Sheriff Shirey and the Board for this allegedly tortious conduct. See, e.g., Aplt.

Opening Br. at 5 (noting appellate issue as being “[w]hether or not the Court

correctly ruled on issues of State Law, more particularly[,] whether or not the

Sheriff could be sued for the acts of his deputies” (emphasis added)); id. at 9

(“Plaintiffs’ claim against the individual deputies was for ‘Civil Rights Violation’

of the arrest in violation of the Fourth Amendment requirements.”); id. at 45

(noting in Plaintiffs’ “Proposition 5” that the Board is not entitled to summary

judgment on the state-law claims based on the allegedly tortious conduct of the

deputies).

Indeed, Plaintiffs have conceded that the deputies were acting within the

scope of their employment within the meaning of the GTCA. See id. at 47 (“In

our case, the parties admit that the officers were acting within the scope of their

employment, as defined by the act.”); Aplt. Reply Br. at 17 (“[A]t the time of the

arrest of the Plaintiffs the Defendant Deputies were acting within the course and

scope of their employment . . . .”). This concession alone would prevent

Plaintiffs from securing state-law relief against the deputies individually under

the GTCA for their allegedly tortious conduct. See Okla. Stat. tit. 51, § 153(B)

(“The liability of the state or political subdivision under this act shall be

exclusive and in place of all other liability of the state, a political subdivision, or

employee at common law or otherwise.” (emphasis added)); Hardy v. Bezdicek,

987 P.2d 426, 429 (Okla. Civ. App. 1999) (noting that § 153(B) “substitutes the

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liability of the political subdivision under the Act for that of the employee” but

that it is “limited to situations where the employee is acting within the scope of

employment”); see also Okla. Stat. tit. 51, § 163(C) (noting the proper entity to

name in a GTCA suit and stating that “[i]n no instance shall an employee of the

state or political subdivision acting within the scope of his employment be named

as defendant”); Carswell v. Okla. State Univ., 995 P.2d 1118, 1123 (Okla. 1999)

(“Employees, other than resident physicians and interns, acting within the scope

of employment may not be named as defendants in an action based on the Tort

Claims Act.”); cf. Pellegrino v. State ex rel. Cameron Univ., 63 P.3d 535, 540

(Okla. 2003) (“The GTCA, as a whole, is concerned with liability of the State and

governmental entities, not individuals acting outside the scope of their

employment.” (emphasis added)). Therefore, we uphold the district court’s

judgment on Plaintiffs’ state-law claims insofar as they contemplate relief against

the deputies individually. 6

B. Claims Against Sheriff Shirey

Although Plaintiffs concede on appeal that any claims brought under the

GTCA are not properly brought against Sheriff Shirey, see Okla. Stat. tit. 51, §

6
Even if Plaintiffs were to contend, despite the clear signs of
abandonment evinced by their filings, that they intended to pursue state-law relief
against the deputies individually, the GTCA’s provisions would not be their only
obstacle. More fundamentally, as noted below, the deputies simply did not
commit the allegedly tortious acts.

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163(C), they continue to argue that Sheriff Shirey is liable pursuant to Okla. Stat.

tit. 19, § 547, for certain torts committed by the deputies in the scope of their

employment. Section 547(A) provides in relevant part that “[t]he sheriff shall be

responsible for the official acts of the undersheriff and deputy sheriffs.”

Although the GTCA provides the “exclusive remedy against a governmental

entity” in tort, Franks v. Union City Pub. Sch., 943 P.2d 611, 613 (Okla. 1997),

Plaintiffs contend that a theory of liability under § 547 has not been abrogated by

the exclusive remedy of the GTCA. It is unnecessary to determine the legal

question of whether Sheriff Shirey could be found liable for acts of his deputies

under § 547—viz., we need not decide whether under Oklahoma law § 547

provides a remedy for plaintiffs like these in a tort action against an Oklahoma

government official based upon the allegedly tortious conduct of his or her

subordinates. That is because we conclude that the deputies simply did not

commit the allegedly tortious conduct upon which any purported § 547 liability of

Sheriff Shirey would rest.

First, regarding Plaintiffs’ claim that the deputies’ entry into the house

constituted trespass or unlawful entry, under Oklahoma law, a trespass is “‘an

actual physical invasion of the real estate of another without the permission of the

person lawfully entitled to possession.’” Moore v. Texaco, Inc., 244 F.3d 1229,

1233 (10th Cir. 2001) (emphasis omitted) (quoting Williamson v. Fowler Toyota,

Inc., 956 P.2d 858, 862 (Okla. 1998)). Thus, “a trespasser is one who enters upon

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the property of another without any right, lawful authority, or express or implied

invitation, permission, or license . . . merely for his own purposes, pleasure, or

convenience, or out of curiosity.” Williamson, 956 P.2d at 862 (emphasis added).

As explained above, the undisputed facts are that the deputies entered the house

only following the invitation of Ms. Berglund and that Ms. Berglund’s husband

opened the door to allow them entry. Therefore, the deputies could not be found

liable for trespass.

Next, Plaintiffs assert that although it was Chief Brand who formally

placed them under arrest, the deputies’ conduct in escorting them to the police car

constituted a false arrest. Under Oklahoma law, a tort claim for false arrest arises

from the wrongful detention of a person by an individual acting under the

authority of law. See McGlone v. Landreth, 195 P.2d 268, 271 (Okla. 1948),

overruled in part on other grounds by Parker v. Washington, 421 P.2d 861 (Okla.

1966); cf. Wallace v. Kato, 549 U.S. 384, 389 (2007) (noting that the

constitutional tort of false arrest/false imprisonment stems from unlawful

“detention without legal process” (emphasis omitted)). “[F]alse arrest is the

unlawful restraint of an individual against his will,” and the plaintiff “has the

burden of proving lack of probable cause for bringing a criminal action against

him.” DeLong v. State ex rel. Okla. Dep’t of Pub. Safety, 956 P.2d 937, 938

(Okla. Civ. App. 1998) (internal quotation marks omitted). In other words, if a

plaintiff cannot establish a lack of probable cause, his or her false arrest claim

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must fail. 7 Even assuming that the encounter rose to the level of a “detention,” as

that term is understood in Oklahoma’s law of false arrest, it is clear from the

established facts that Plaintiffs cannot meet their burden of proving that the

deputies lacked probable cause for the same reasons outlined above in connection

with their § 1983 claims. The deputies are entitled to judgment on this claim.

Finally, Plaintiffs cannot prevail on their state-law claims of assault and

battery. The common law of Oklahoma with respect to the torts of assault and

battery references the definitions in the Restatement (Second) of Torts. See

7
In the interest of clarity, we note that Oklahoma has established a
statutory regime that specifically controls the circumstances under which liability
may be imposed on merchants for detaining purported shoppers for suspicion of
theft with regard to the related but distinct claim of false imprisonment. See
Okla. Stat. tit. 22, § 1343 (noting, inter alia, that a merchant may detain a
purported shopper when the merchant “has reasonable grounds or probable cause
to believe that a person has committed or is committing a wrongful taking of
merchandise or money”); Roberts v. Goodner’s Wholesale Foods, Inc., 50 P.3d
1149, 1151 n.3 (Okla. Civ. App. 2002) (noting that “[a]lthough false arrest and
false imprisonment are often used interchangeably,” they are distinct torts). That
statutory scheme sets out circumstances under which probable cause may be
conclusively presumed and creates a statutory defense for merchants in which
probable cause “represents but one element of the three-part test for invocation of
the statutory defense against wrongful detention.” Walters v. J.C. Penney Co., 82
P.3d 578, 583 n.21 (2003); see Okla. Stat. tit. 22, § 1344 (noting that “[a]ny
person concealing unpurchased merchandise . . . shall be presumed to have so
concealed such merchandise with the intention of committing a wrongful taking
of such merchandise” and further providing that such concealment “shall be
conclusive evidence of reasonable grounds and probable cause for the detention in
[1] a reasonable manner and [2] for a reasonable length of time, of such person”
(emphasis added)). That statutory scheme is clearly inapposite here (in a case
that involves law enforcement and not merchants), and its treatment of probable
cause has no bearing on our analysis of Plaintiffs’ false arrest claim.

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Brown v. Ford, 905 P.2d 223, 229 & n.34 (Okla. 1995). An actor is liable for

assault if he or she “acts intending to cause a harmful or offensive contact, . . . or

an imminent apprehension of such a contact,” and “the other [person] is thereby

put in such imminent apprehension.” Id. at 229 n.34. An actor is liable for

battery if he or she “acts intending to cause a harmful or offensive contact, . . . or

an imminent apprehension of such a contact,” and “a harmful contact . . . results.”

Id.

Regarding Ms. Vasquez, her own testimony establishes that neither deputy

ever touched her, let alone physically harmed her; in addition, there is no

evidence to support a claim that either deputy took action to contact her or place

her in apprehension of contact. Similarly, there is no evidence that arguably

supports a claim that Deputy Rodriguez assaulted or battered Ms. Berglund.

Regarding Deputy Swearingen’s actions toward Ms. Berglund, Plaintiffs

presented no evidence that Deputy Swearingen acted with the intent to harm Ms.

Berglund, or that he threatened her with physical harm, such that an assault or

battery claim would lie. Ms. Berglund’s own testimony was that no threats were

made by the deputies and that both deputies seemed “very nice” to her. Aplt.

App. at 116. As discussed above in rejecting Plaintiffs’ excessive force claim,

Ms. Berglund cannot show that she suffered any harmful contact from Deputy

Swearingen’s actions beyond her unsupported assertion of contusions on her neck

and wrist. Plaintiffs cannot prevail on their claims against the deputies.

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Accordingly, there is no actionable wrongdoing under state law by the deputies

upon which to base any conceivable liability of Sheriff Shirey.

C. Claims Against the Board of County Commissioners

Plaintiffs assert a claim under the GTCA against the Board, alleging that it

is liable for the allegedly tortious acts committed by the deputies. Under the

GTCA, a county may be liable for torts committed by its employees while acting

within the scope of their employment. Okla. Stat. tit. 51, §§ 153, 152(10)(c);

DeCorte v. Robinson, 969 P.2d 358, 361 (Okla. 1998). As previously explained,

however, the deputies did not engage in any tortious conduct. Thus, there is no

conduct for which the Board could be held liable; it is entitled to judgment on this

claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

Entered for the Court

Jerome A. Holmes
Circuit Judge

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