FILED

United States Court of Appeals

Tenth Circuit

APR 16 2002

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT LAMPKIN,

OKMULGEE COUNTY BOARD OF

Plaintiff - Appellant/Cross-Appellee, COMMISSIONERS, State of

Oklahoma a/k/a Board of

v. County Commissioners of

Okmulgee County, Oklahoma,

JIM LITTLE, individually and as a

commissioned officer of Okmulgee Defendant - Appellee.

County,

Defendant - Appellee/Cross-Appellant,

and

OKMULGEE COUNTY BOARD OF COMMISSIONERS,

State of Oklahoma a/k/a Board of

County Commissioners of Okmulgee

County, Oklahoma,

Defendant - Appellee.

---------------------------------------------------

ROBERT LAMPKIN,

Plaintiff - Appellee/Cross-Appellant,

v.

JIM LITTLE, individually and as a

commissioned officer of Okmulgee

County,

Defendant - Appellant/Cross-Appellee,

and

No. 01-7018

No. 01-7019

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D. Ct. No. 96-CV-500-P)

Submitted on the briefs:(1)

Carol Seacat of Seacat & Seacat, Okmulgee, Oklahoma, for Appellant/Cross-Appellee

and Appellee/Cross-Appellant Robert Lampkin.

L. Susan Work and Kevin Dellinger, Muscogee (Creek) Nation, Okmulgee, Oklahoma,

for Appellee/Cross-Appellant and Appellant/Cross-Appellee Jim Little.

Chris J. Collins and Michael L. Carr of Collins, Zorn, Wagner & Gibbs, P.C., Oklahoma

City, Oklahoma, for Appellee Okmulgee County Board of Commissioners.

Before TACHA, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

A jury found Defendant Officer Jim Little liable in his individual capacity to

(1) After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Plaintiff Robert Lampkin for the use of excessive force during an arrest of Lampkin.

Little applied for an order that the Board of County Commissioners of Okmulgee County

("County") indemnify him and pay the judgment to Lampkin, pursuant to the Oklahoma

Governmental Tort Claims Act. Okla. Stat. tit. 51,  162. The district court denied

Little's application, and Lampkin and Little both appealed this determination. We

exercise jurisdiction pursuant to 28 U.S.C.  1291 and VACATE and REMAND.

I. Background

Robert Lampkin filed an action under 42 U.S.C.  1983 against Jim Little and the

County.(1) Lampkin claimed that Little, a police officer for the Muscogee (Creek) Nation

who also held a commission from the Okmulgee County Sheriff's Office, violated

Lampkin's civil rights by using excessive force against him during a traffic stop and

arrest. Lampkin also claimed that the County had failed to provide adequate training and

supervision.(2) The court dismissed the claim against Little in his official capacity and the

claim against the County. A jury returned a verdict against Little in his individual

capacity. Little then filed an application for an order requiring indemnification from the

County pursuant to title 51, section 162 of the Oklahoma Statutes. The district court denied this application, holding that several of the statutory requirements had not been

satisfied.

II. Discussion

We review the district court's determination of state law de novo. Salve Regina

College v. Russell, 499 U.S. 225, 231 (1991). When the highest state court has not ruled

on a question of state law, our task is to predict how that court would rule on the issue.

Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574 (10th Cir. 1984).

Under Oklahoma's Governmental Tort Claims Act ("GTCA"), a political

subdivision can only be required to indemnify an employee for a judgment if the court

"determine[s] by a preponderance of the evidence that [all of the statutory requirements

are satisfied]." Okla. Stat. tit. 51,  162(B)(4). This appeal involves the following

statutory requirements for indemnification:

that:

. . .

c. the employee, in committing the acts or omissions upon which a

judgment or settlement has been rendered was acting in good faith and

within any applicable written administrative policies known to the

employee at the time of the omissions or acts alleged;

d. the employee was acting within the scope of employment at the time that

the acts or omissions upon which a judgment or settlement has been

rendered were committed by the employee . . . .

Id.  162(B)(4)(c)-(d).(3) The GTCA requires that these elements "shall be tried to the

(1) Other defendants in the case either settled with the plaintiff or were granted

summary judgment.

(2) The facts alleged by Lampkin are recited in Lampkin v. Little, 203 F.3d 835,

2000 WL 158939, at **1 (10th Cir. Feb. 15, 2000) (unpublished). In that decision, we

dismissed for lack of jurisdiction Little's appeal of the district court's denial of summary

judgment.

(3) The satisfaction of the other prerequisites, Okla. Stat. tit. 51, 162(B)(4)(a)-(b),

(e)-(f), is undisputed.

court, sitting without a jury." Id.  162(B)(1).

The district court ruled that Little was not entitled to indemnification, because (1)

he did not act in good faith in committing the acts that constituted excessive force; (2) he

was aware of and did not comply with written policies that prohibit the use of excessive

force; and (3) he did not act within the scope of his employment. Lampkin and Little

object that the district court's factual findings were flawed and inadequate to support its

denial of indemnification. They argue that the district court erred in relying on jury

findings and its own denial of qualified immunity when it found that Little did not act in

good faith. In addition, they argue that the district court erroneously relied upon materials

that were not admitted as evidence at trial, without holding a separate evidentiary hearing.

Finally, they argue that the court ignored relevant stipulations when it made its findings.

We consider each of the three required statutory findings in turn.

A. Good Faith

First, the district court found that Little did not act in good faith in committing the

acts of excessive force, as required by subsection 162(B)(4)(c). In making this

determination, the district court relied on the jury verdict and the court's ruling denying

qualified immunity. The court stated:

A jury has determined that Defendant Little was not acting in good faith

when he used excessive force against Plaintiff, and this court denied

Defendant Little qualified immunity. "If a plaintiff alleges a police officer

has used excessive force in violation of the Fourth Amendment, the

qualified immunity inquiry becomes indistinguishable from the merits of

the underlying action." Guffey v. Wyatt, 18 F.3d 869, 873 (10th Cir. 1994).

"The majority of other circuits have taken a similar position. An officer

cannot have an objectively reasonable belief that the force used was

necessary (entitling the officer to qualified immunity) when no reasonable

officer could have believed that the force used was necessary (establishing a

Fourth Amendment violation) Wilson v. Spain, 209 F.3d 713, 716 (8th Cir.

2000)." [sic](4)

Equating the jury's finding of excessive force with the court's denial of qualified

immunity with findings of bad faith, the court concluded: "Accordingly, consistent with

the evidence and testimony at trial, the jury determination and this court's prior rulings,

the court finds Defendant Little was not acting in good faith when he used excessive

force against Robert Lampkin." The court stated no other basis for its finding.

The trial court erred in relying on the jury verdict and the court's earlier denial of

qualified immunity. The court's reliance on the jury's findings contradicts the GTCA's

requirement that the court determine "without a jury" whether an employee is entitled to

indemnification. Okla. Stat. tit. 51,  162(B)(1). Moreover, even if the statute permitted

the court to rely upon jury findings, the jury's determination that Little used excessive

force against Lampkin did not require a finding of bad faith. Rather, excessive force

requires an inquiry into the objective reasonableness of an official's actions, Medina v.

Cram, 252 F.3d 1124, 1131 (10th Cir. 2001) (citing Graham v. Connor, 490 U.S. 386, 395

(4) No part of the second internal quotation comes from Guffey v. Wyatt or Wilson

v. Spain. The sentence beginning, "An officer cannot . . ." comes from Katz v. U.S., 194

F.3d 962, 969 (9th Cir. 1999), which the Supreme Court reversed in Saucier v. Katz, 121

S. Ct. 2151, 2154 (2001) (holding that "the ruling on qualified immunity requires an

analysis not susceptible of fusion with the question whether unreasonable force was used

in making the arrest").

(1989)), as opposed to an inquiry into the official's state of mind.

Nor did the court's ruling denying qualified immunity to Little require a finding of

bad faith. An official is not entitled to qualified immunity if he "knew or reasonably

should have known that the action he took within his sphere of official responsibility

would violate the constitutional rights of the [plaintiff], or if he took the action with the

malicious intention to cause a deprivation of constitutional rights or other injury . . . ."

Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (alteration in original) (quoting Wood v.

Strickland, 420 U.S. 308, 322 (1975)). The standard "focuses on the objective legal

reasonableness of an official's acts," id. at 819, and a denial of qualified immunity does

not require a finding that the official acted without good faith, which is a subjective

inquiry. Moreover, the district court specifically relied on the jury's verdict of excessive

force when it denied Little qualified immunity. For these reasons, it is clear that the court

did not make a finding of bad faith when it ruled on qualified immunity.

Neither the qualified immunity inquiry nor the excessive force inquiry is

coterminous with the questions of good faith and entitlement to indemnification. The

excessive force inquiry grows out of the Fourth Amendment right to be free from

unreasonable searches and seizures. Saucier v. Katz, 121 S. Ct. 2151, 2157 (2001). In

contrast, "the goal of qualified immunity" is "to `avoid excessive disruption of

government and permit the resolution of many insubstantial claims on summary

judgment.'" Id. at 2156 (quoting Harlow, 457 U.S. at 818). Finally, a policy of

indemnification aims to lessen the burdens of personal liability that employees may face

as a result of their acts as employees. These distinctions demonstrate that the district

court's reasoning, which assumed that the three inquiries are equivalent, was erroneous.

When faced with an application for indemnification, the court is required to

determine by a preponderance of the evidence and without a jury whether the employee

acted in good faith. Okla. Stat. tit. 51,  162(B)(1), (4). The district court did not make

such an independent determination here. It relied on jury findings, and it improperly

equated objective findings of excessive force and qualified immunity with the subjective

finding of bad faith. We must therefore remand for the court to make a finding based on

the evidence.

B. Compliance with Written Administrative Policies

Next, the district court found that Little did not act in compliance with applicable

written administrative policies of which he had knowledge, and that he therefore failed to

satisfy the second requirement of subsection 162(B)(4)(c). The court based this

conclusion on the Okmulgee County Sheriff's Office's policy manual, which states that

"no officer will use more force in any situation than is reasonable and necessary under the

existing circumstances. Any force used will be in accordance with state law and

established departmental policies." In addition, the court noted that Little was certified by

the Council on Law Enforcement Education and Training ("CLEET"), which has a policy

that defines and prohibits excessive force. Lampkin and Little argue that the court erred

in relying on this evidence, because it was not presented at trial or at a separate

evidentiary hearing.

The Oklahoma Supreme Court has not addressed whether, when considering an

application for indemnification, the court may rely on new evidence without holding an

evidentiary hearing, and our task is to predict how that court would rule on the issue.

Daitom, 741 F.2d at 1574. In Groseclose v. City of Tulsa, the Oklahoma Supreme Court

held that, when considering an application for indemnification, the court may rely solely

on evidence that was presented at trial and need not hold a new evidentiary hearing. 990

P.2d 828, 833 (Okla. 1998). The court reasoned that a new evidentiary hearing was

unnecessary because the judge had heard the evidence presented at trial. Id. This is not

true of new evidence, however, and Groseclose's reasoning persuades us that the

Oklahoma Supreme Court would require a hearing if new evidence is required for

purposes of an indemnification application.

We therefore hold that the district court improperly relied upon new evidence.(5) On

remand, the court should hold an evidentiary hearing if this new evidence is necessary to

its determination of whether to grant or deny the application for indemnification.

C. Scope of Employment

Finally, the district court concluded that Little did not act in the scope of his

(5) The County argues that it was established at trial that Little was CLEET-certified.

This point is of little significance, however, because no evidence of CLEET's written

policies was introduced.

employment, as required by the indemnification provision of the GTCA. Okla. Stat. tit.

51,  162(B)(4)(d). The GTCA defines "scope of employment" as "performance by an

employee acting in good faith within the duties of his office or employment or of tasks

lawfully assigned by a competent authority . . . ." Id.  152(9). Good faith, then, is

crucial to the definition of scope of employment. In its indemnification ruling, the district

court did not make an adequate determination of bad faith, but concluded: "As this court

found during the trial in this matter, Defendant Little's actions were constrained by

policies not of his own makings [sic]. The use of excessive force was not within the

realm of his grant of authority and was not exercised in good faith."

The district court's reasoning seems to rely again on jury findings and the court's

qualified immunity ruling. For the same reasons indicated above, we conclude that, to the

extent that it relied upon these two rulings, the district court failed to make the required

determination that bad faith removed Little from the scope of his employment. See also

Overall v. State ex rel. Dep't of Pub. Safety, 910 P.2d 1087, 1093 (Okla. Ct. App. 1995)

(holding that a finding of good faith for the purposes of determining whether an officer

has acted in the scope of employment is not necessarily inconsistent with a determination

that the officer's conduct did not satisfy another, objective standard).

We also note that the inquiry into whether the employee acted in good faith for

purposes of the scope of employment and the inquiry into whether the employee acted in

good faith in committing particular acts are not identical. For purposes of determining

the state's or political subdivision's liability for its employees' acts under the GTCA,

Okla. Stat. tit. 51,  153, a finding that an officer "at some time during the episode . . .

went beyond the bounds of good faith . . . is not necessarily inconsistent with" a finding

that the officer acted within the scope of his employment. DeCorte v. Robinson, 969 P.2d

358, 362 (Okla. 1998) ("Robinson's initial actions may well have been taken on behalf of

his employer, and been within the scope of his duties. However, the jury obviously

determined that during the course of events his actions exceeded that scope.").(6)

Subsection 162(B)(4)(d) of the indemnification provision relies upon the same definition

of scope of employment that is used in section 153 for purposes of liability. In contrast,

subsection 162(B)(4)(c) requires good faith with respect to the specific acts or omissions

for which an officer has been found liable. Therefore, we find that the rule of DeCorte

applies, and a finding that Little committed particular acts in bad faith would not preclude

a finding that he acted within the scope of his employment.

Finally, appellants argue that, because the County stipulated that Little acted in

good faith within the "scope of his authority," the County is precluded from contesting

whether Little acted within the scope of employment for indemnification purposes. We disagree. The district court held in a prior ruling that the County had admitted that Little

was "acting in his official capacity" and "as an employee" of the County.(7) The court

ruled that the County was bound by this admission and therefore could not argue at a later

stage in the proceedings that Little was not a County employee. The court based its ruling

in part on the County's adoption of the undisputed facts, arguments, and authorities in

Little's brief supporting his motion for summary judgment. Attached to Little's motion

was an affidavit in which Little stated that, during the arrest, he "was acting in good faith

. . . and within the scope of [his] commission from the Okmulgee County, Oklahoma

Sheriff's Office." The primary issue in the summary judgment motions was whether

Little was acting in an objectively reasonable manner that entitled him to qualified

immunity, not whether he had acted in good faith.(8) Moreover, "scope of employment"

carries a specific meaning under the GTCA. We therefore find the County's position in

its summary judgment motion insufficient to compel the conclusion that Little was acting

within the scope of his employment.

(6) The Oklahoma Supreme Court has also held that an officer cannot have acted in

the scope of his employment if he committed an offense that requires malice or bad faith.

Parker v. City of Midwest City, 850 P.2d 1065, 1068 (Okla. 1993) (citing with approval

Houston v. Reich, 932 F.2d 883, 890 (10th Cir. 1991)). Excessive force claims, however,

are judged by a standard of objective reasonableness. Medina, 252 F.3d at 1131 (citing

Graham, 490 U.S. at 395). Parker, which the court distinguished in DeCorte, 969 P.2d at

362, is therefore inapplicable.

(7) An "employee" under the GTCA "means any person who is authorized to act in

behalf of a political subdivision or the state whether that person is acting on a permanent

or temporary basis, with or without being compensated or on a full-time or part-time basis

. . . ." Okla. Stat. tit. 51, 152(5). Little was employed as a police officer for the

Muscogee (Creek) Nation but also held a commission from the Okmulgee County

Sheriff's Office. This commission authorized him to assist law enforcement agencies

outside Indian country in emergency situations.

(8) For this reason, and because of the generality of the statement in Little's

affidavit, we also reject the contention that the County has admitted, for purposes of

subsection 162(B)(4)(c), that Little acted in good faith when he committed the particular

acts giving rise to the claim.

For these reasons, we remand for a new factual finding on the scope of

employment question.

III. Conclusion

A court acts as fact finder when it decides whether to grant an application for

indemnification. In this case, however, the court has not made the factual determinations

regarding good faith and scope of employment that the GTCA requires. To the extent

that it made a finding regarding compliance with applicable written policies, the court

impermissibly relied on evidence that was not presented at trial or in a separate

evidentiary hearing. We therefore VACATE the decision below and REMAND for

further proceedings consistent with this opinion.

Nos. 01-7018, 01-7019, Lampkin v. Little

MURPHY, Circuit Judge, dissenting.

I fully agree with the majority that if the district court had merely relied upon the

jury verdict and the qualified immunity ruling, its determination that Little acted in bad

faith would constitute error. The district court did not, however, rely upon the jury

verdict and its earlier qualified immunity ruling. Rather, it made an independent

assessment of the evidence presented at trial in making its determination. Because this

independent assessment satisfies Oklahoma law and is not clearly erroneous, the district

court was correct in denying Little indemnification. Accordingly, I respectfully dissent.

As noted by the majority, Little is entitled to indemnification under the Oklahoma

Governmental Tort Claims Act ("GTCA") only if the district court determines by a

preponderance of the evidence that he satisfies all the requirements of Okla Stat. tit. 51, 

162(B)(4). Majority Op. at 4. Among these requirements is that Little acted in good

faith. Okla Stat. tit. 51,  162(B)(4)(c). In determining that Little did not act in good

faith, the district court stated, "Accordingly, consistent with the evidence and testimony at

trial, the jury determination and this court's prior rulings, the court finds Defendant Little

was not acting in good faith when he used excessive force against Robert Lampkin."

Dist. Ct. Op. at 4 (emphasis added). The majority interprets that statement to mean that

the district court relied on the jury verdict of excessive force and the earlier denial of

Little's qualified immunity summary judgment motion. See Majority Op. at 6-9. The

district court, however, did not say "relying on," but rather "consistent with." Simply

because the district court believed its own finding of bad faith was consistent with the

jury's verdict and the denial of qualified immunity does not mean the court felt compelled

to find bad faith by these earlier rulings. Given that bad faith is a factual finding, the only

reading of the district court's statement that it found bad faith is that it weighed the

evidence presented at trial. See Nail v. City of Henryetta, 911 P.2d 914, 917-18 (Okla.

1996) (holding scope of employment, including good faith requirement, is a factual

question).

Furthermore, it is customary to assume the district court properly performed its

review of the record. See, e.g., Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)

(assuming district court reviewed magistrate's report de novo). That assumption is

verified here by the district court's express statement that it did so, a proposition which

this court should not question. See Clark v. Poulton, 963 F.2d 1361, 1368 (10th Cir.

1992). In addition to the district court's explicit statement that it considered "the

evidence and testimony at trial," the remainder of the district court's discussion of the

indemnification requirements reveals that it was primarily concerned with the evidence

presented at trial. The district court began its evaluation of the indemnification factors by

noting that under Oklahoma law it was empowered to "rely on the evidence from trial in

making findings relating to [the indemnification] requirements." Dist. Ct. Op. at 3 (citing

Groseclose v. City of Tulsa, 990 P.2d 828, 832-33 (Okla. 1998)). Furthermore, in

discussing two other indemnification requirements, the district court found that Little had

satisfied the requirements "based on the evidence."

Throughout its opinion the court focused on the evidence presented at trial and

explicitly stated that it considered the evidence in finding bad faith. I am at a loss for

what more is necessary to establish the district court's independent finding of lack of

good faith. Since, the record does not indicate that the court's finding of bad faith is

clearly erroneous,(1) the court's judgment should be affirmed.

(1) There was evidence presented at trial that Little spat on Lampkin; told Lampkin

that "We're the police, we do whatever we want"; said to Lampkin that the police would

take his car and damage it; informed Lampkin that "[you're] never going to make it

through Okmulgee again that we won't have a piece of your ass"; put "his crotch against

[Lampkin's] and hunched [Lampkin] three to four times"; held Lampkin close to on-

coming traffic; dropped Lampkin on the ground from mid-air; placed Lampkin in a

chokehold, telling him "good, I mean to"; stated that he hoped Lampkin would die; and

kicked Lampkin.