OK AG Opinion 24-15 October 30, 2024

Did Oklahoma's 2023 House Bill 2537 quietly make it impossible to prosecute peace officers for using excessive force?

Short answer: No. The Oklahoma DA for the 7th District asked the AG whether HB 2537's amendment to 22 O.S. § 34.1(A), which says peace officers using excessive force are subject to criminal laws 'if excessive force is established as an element of any alleged violation,' implicitly bars prosecutions because no Oklahoma criminal offense has 'excessive force' as a statutory element. The AG said the amendment requires the prosecution to prove excessive force beyond a reasonable doubt as an additional fact in any prosecution under § 34.1, not that it limits prosecution to nonexistent crimes.

Disclaimer: This is an official Oklahoma Attorney General opinion. Under Oklahoma law (74 O.S. § 18b), public officials must generally act in accordance with an AG opinion unless or until set aside by a court; opinions concluding a statute is unconstitutional are advisory only. This summary is for informational purposes only and is not legal advice. Consult a licensed Oklahoma attorney for advice on your specific situation.

Subject

Attorney General Opinion concerning the prosecution of peace officers who use excessive force in light of House Bill 2537 (2023).

Plain-English summary

Oklahoma's 22 O.S. § 34.1, on the books since 1992, says peace officers who use excessive force in their duties are subject to the state's criminal laws "to the same degree as any other citizen." House Bill 2537 in 2023 added a clause: "if excessive force is established as an element of any alleged violation under the criminal laws of this state."

The Oklahoma County DA noticed a problem. No Oklahoma criminal offense has "excessive force" as a statutory element. Read literally, the amendment could mean peace officers can never be prosecuted under § 34.1 because the precondition (excessive force as a statutory element) never exists. That would silently legalize police use of excessive force, which the Legislature plainly didn't intend.

The AG resolved the puzzle by reading the amendment as a procedural requirement, not a jurisdictional bar. When the State prosecutes a peace officer for an offense involving excessive force, the State must prove the excessive force beyond a reasonable doubt in addition to all other elements of the charged offense. The amendment puts the burden of proving excessive force on the prosecution rather than treating reasonable force as an affirmative defense for the officer to establish.

The AG anchored this reading in three points: (1) the Legislature kept the original language subjecting officers using excessive force to criminal laws (so it didn't intend immunity); (2) reading the amendment to limit prosecution to offenses with "excessive force" as an element would render the entire statute superfluous, which Oklahoma courts disfavor (Taylor v. State); and (3) the bill's Senate sponsor explicitly told colleagues during floor debate that the bill "establish[ed] excessive force as an element of any alleged violation of criminal law by a peace officer," meaning the State must now prove it.

What this means for you

For Oklahoma district attorneys prosecuting peace officers for use of force

You can still bring excessive force prosecutions. The change is in what you have to prove: in any case where the alleged conduct involves a peace officer using excessive force in their duties, the State has to prove excessive force beyond a reasonable doubt as an additional fact, on top of the elements of the charged underlying offense (assault, battery, manslaughter, murder, etc.). Plan your case accordingly: develop the use-of-force evidence early, anticipate expert testimony on what reasonable force would have been, and build the case for why the force used exceeded what the circumstances required.

You can no longer rely on internal department policies as the standard for excessive force. HB 2537 eliminated that prong. The new test is whether the force was "reasonably necessary under the circumstances at the time that the peace officer used force" (22 O.S.Supp.2023, § 34.1(B)).

For peace officers facing criminal charges

The amendment shifts the burden of proof on excessive force to the State. In a § 34.1 prosecution, the State has to prove beyond a reasonable doubt that you used excessive force. That is a high bar. Your defense remains the same in substance (the force was reasonably necessary), but the State has to disprove that as part of its prima facie case rather than waiting for you to raise it as an affirmative defense.

For law enforcement agencies

HB 2537 separates two things that used to overlap. Your internal policies still govern your employment relationship with officers (you can still discipline or terminate for policy violations). What changed is criminal liability: an officer can no longer be charged with a crime simply for violating the agency's internal use-of-force policy. The criminal standard is now a single statewide objective test of reasonableness.

This also creates an asymmetry. An officer in Oklahoma City and an officer in Tulsa using identical force in identical circumstances now face the same criminal liability analysis even if their departments' written policies differ.

For criminal defense attorneys representing peace officers

The new procedural posture means you can challenge the prosecution's burden directly. If the State doesn't put on enough evidence that the force was excessive (as opposed to merely violating policy or being unwise), you can move for directed verdict on the excessive-force element specifically.

For trial courts handling these prosecutions

The opinion notes (in footnote) that crafting jury instructions is the trial court's role under 22 O.S. §§ 831 and 856, with uniform instructions developed by the OUJI-CR Committee under 12 O.S. §§ 577.1, 577.2. The Court of Criminal Appeals already directed the Committee to develop a uniform instruction for "future homicide prosecutions in this state involving the use of deadly force by a police officer" in Sweeney v. State (2022). Pending that uniform instruction, the AG opinion suggests the appropriate approach is to instruct on excessive force as an additional fact the State must prove beyond a reasonable doubt, in addition to elements of the underlying offense.

For civil rights litigants and advocates

This opinion preserves criminal accountability for peace officer excessive force in Oklahoma; it does not change federal § 1983 civil liability, which remains a separate vehicle. The AG opinion explicitly notes that immunizing officers from criminal prosecution would leave only "potential employment consequences and federal 1983 lawsuits" as accountability mechanisms.

Common questions

Why did the AG read the statute against its literal text?

Because the literal text would render the entire statute meaningless and contradict the Legislature's stated purpose. Oklahoma courts disfavor absurd-result interpretations (Taylor v. State; Lewis v. City of Oklahoma City). The Legislature didn't repeal § 34.1; it amended it. The amendment must do something other than secretly nullify the statute. The AG also points out that the Legislature could have written "shall not be subject to the criminal laws" with a single word ("not") if it wanted to immunize officers, and chose not to.

Is the prosecution element of excessive force the same as the underlying offense?

No. The State must prove (1) all elements of the underlying offense (e.g., assault and battery) and (2) excessive force as an additional fact, both beyond a reasonable doubt. The two are separate inquiries.

What about prosecutions where excessive force is naturally part of the charge (like Child Abuse Murder)?

The AG noted that some statutes contain "unreasonable force" or "ordinary force" language (21 O.S. § 701.7(C); § 711; § 844), but none use the specific phrase "excessive force" as a statutory element. Even if these provisions could be stretched to encompass § 34.1's requirement, limiting prosecution to those narrow offenses would still defeat the statute's purpose. The amendment's "element" language is a procedural requirement of proof, not a list of qualifying crimes.

Does this affect grand jury proceedings?

The opinion doesn't address grand jury procedure directly, but the same logic applies: the prosecution will need evidence supporting excessive force at the indictment stage to sustain a charge.

What about the "failure to report" rule under § 34.2?

The companion statute, 22 O.S. § 34.2, makes it a crime for a peace officer to fail to report another officer's use of excessive force. HB 2537 didn't amend § 34.2 in a way that's discussed in this opinion. The reporting duty and its criminal penalty remain in place.

Background and statutory framework

The 1992 statute (HB 2300) established that peace officers using excessive force could be prosecuted under existing criminal laws "to the same degree as any other citizen." The original definition of "excessive force" included force exceeding either statutory permission or "the policies and guidelines of the law enforcement entity." This created the anomalous result the bill's sponsor described: identical force in identical circumstances might be a crime in one Oklahoma city and not another, depending on internal policy.

HB 2537 in 2023 made two main changes:
1. Eliminated the internal-policy prong of the excessive-force definition. The new § 34.1(B) defines excessive force based on whether the force was "reasonably necessary under the circumstances," a single statewide objective test.
2. Added the "element" clause to § 34.1(A): peace officers using excessive force are subject to criminal laws "if excessive force is established as an element of any alleged violation."

The "element" clause is the source of the puzzle this opinion resolves. The Senate sponsor's floor explanation (Sen. Todd Gollihare) was that the bill "establish[ed] excessive force as an element of any alleged violation of criminal law by a peace officer": phrased as creating a new procedural requirement, not as limiting which crimes can be charged.

The AG opinion adds the mandatory canon: "Construing a statute designed to penalize and prevent police brutality in a manner that would effectively legalize the use of excessive force leads to an absurd result and would be contrary to the Legislature's intent."

Citations

22 O.S. § 34.1 (excessive force by peace officers; as amended by HB 2537)
22 O.S. § 34.1(A) (subjects officers to criminal laws if excessive force is an element)
22 O.S. § 34.1(B) (defines excessive force; reasonable-necessity test)
22 O.S. § 34.2 (duty to report excessive force; criminal penalty for failure)
22 O.S. §§ 831, 856 (trial court jury instruction authority)
12 O.S. §§ 577.1, 577.2 (Court of Criminal Appeals uniform jury instructions)
21 O.S. § 99a (definition of peace officer)
21 O.S. § 643(3-5) (justified use of force)
21 O.S. § 648 (peace officer)
21 O.S. § 701.7(C) (Child Abuse Murder; "unreasonable force")
21 O.S. § 711 (First-Degree Manslaughter; "perpetrated unnecessarily")
21 O.S. § 844 (parental discipline; "ordinary force")
42 U.S.C. § 1983 (federal civil rights remedy)
74 O.S. § 18b(A)(5) (AG cannot resolve fact-intensive questions)
House Bill 2300, 1992 Okla. Sess. Laws ch. 146, § 1 (original enactment)
House Bill 2537, 2023 (amendment under analysis)
State ex rel. Pruitt v. Steidley, 2015 OK CR 6, 349 P.3d 554 (statutory construction)
State ex rel. Mashburn v. Stice, 2012 OK CR 14, 288 P.3d 247
Taylor v. State, 1962 OK CR 161, 377 P.2d 508 (avoid absurd result)
Lewis v. City of Oklahoma City, 2016 OK CR 12, 387 P.3d 899
Whirlpool Corp. v. Henry, 2005 OK CR 7, 110 P.3d 83 (use of bill title)
Stricklen v. Multiple Injury Tr. Fund, 2024 OK 1, 542 P.3d 858 (grammar yields to construction)
Sweeney v. State, No. F-2020-5 (Okla. Cr. App. Apr. 28, 2022) (uniform instruction request)

Source

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2024-15

Vicki Zemp Behenna, District Attorney
Office of the District Attorney 7th District
320 Robert S. Kerr Ave., Suite 505
Oklahoma City, OK 73102

October 30, 2024

Dear District Attorney Behenna:

This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:

Whether the amendments to House Bill 2537 (2023) to title 22, section 34.1 prohibit the prosecution of peace officers who use excessive force?

I. SUMMARY

House Bill 2537's amendments to section 34.1(A) of title 22 should not be construed to prohibit the prosecution of peace officers who utilize excessive force. The amendments to section 34.1(A) should instead be read to require the prosecution to establish that excessive force was used beyond a reasonable doubt in addition to all other elements of the charged offense.

II. BACKGROUND

Since its enactment in 1992, section 34.1 of title 22 of the Oklahoma Statutes has subjected peace officers using excessive force while performing their law enforcement duties to the criminal laws of this state. Until 2023, peace officers could ostensibly be convicted for using force that violated only their law enforcement agency's internal policies and guidelines. At least theoretically, this created the anomalous situation where, for example, an Oklahoma City police officer who used a certain degree of force may have committed a crime while a Tulsa police officer who used the identical amount of force under precisely the same circumstances, would not have committed a crime if their respective department's policies differed.

Enter House Bill 2537 in 2023. Passed with significant support in both chambers, House Bill 2537 eliminated the reference to internal policies and guidelines as a basis for prosecuting a peace officer for using excessive force. Now, a peace officer cannot be charged and tried for violating his or her law enforcement agency's policies and guidelines. All peace officers in Oklahoma accused of utilizing excessive force are now judged using the same test: Was the force reasonably necessary under the circumstances at the time that the peace officer used force? 22 O.S.Supp.2023, § 34.1(B).

However, another amendment in House Bill 2537 prompts this request, specifically the Legislature's insertion of the following emphasized language in section 34.1(A):

Any peace officer, as defined in Section 648 of Title 21 of the Oklahoma Statutes, who uses excessive force in pursuance of such officer's law enforcement duties shall be subject to the criminal laws of this state to the same degree as any other citizen, if excessive force is established as an element of any alleged violation under the criminal laws of this state. As used in this section and Section 34.2 of this title, "law enforcement duties" means duties carried out while acting as a peace officer pursuant to Section 99a of Title 21 of the Oklahoma Statutes.

22 O.S.Supp.2023, § 34.1(A) (emphasis added). Crucially, your question centers on the statute's use of the word "element." More specifically, you inquire (1) whether this new language requires a criminal offense to already include excessive force as an element of the offense or (2) if the State has to additionally prove that the officer used excessive force. Following an exhaustive review of the Oklahoma Statutes, this office did not identify any offenses within Oklahoma's criminal code that contain an independent element of "excessive force." As a result, the rules of statutory construction will be applied to ascertain the statute's purpose and intent.

III. DISCUSSION

The Legislature did not alter the pre-existing language in section 34.1(A). The language still holds peace officers who utilize excessive force "subject to the criminal laws of this state to the same degree as any other citizen . . . ." The amendatory language after the word 'citizen,' clarifies that the use of "excessive force" must be proven by the prosecution beyond a reasonable doubt but does not limit the prosecution of peace officers who use excessive force to offenses that contain "excessive force" as an independent element.

Three considerations require this conclusion. First, the Legislature retained language contained within section 34.1 subjecting peace officers who utilize excessive force to Oklahoma's criminal laws, indicating a desire not to legalize the use of excessive force. Second, to avoid rendering section 34.1 useless and superfluous, the added language cannot be read in a vacuum to limit prosecutions only when the offense committed contains "excessive force" as an independent element. Third, the only reasonable construction consistent with the purpose of the statute and with Oklahoma public policy, as expressed by the Legislature in enacting 22 O.S.Supp.2023, § 34.1, is to permit the prosecution of the small number of peace officers who violate the law by utilizing excessive force. Construing a statute designed to penalize and prevent police brutality in a manner that would effectively legalize the use of excessive force leads to an absurd result and would be contrary to the Legislature's intent.

"Statutes are to be construed to determine the intent of the Legislature, reconciling provisions, rendering them consistent and giving intelligent effect to each." State ex rel. Pruitt v. Steidley, 2015 OK CR 6, ¶ 12, 349 P.3d 554, 557. To ascertain the intention of the Legislature in the enactment of a statute, we may look to each part of the statute, to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation.

If the Legislature desired to prohibit the prosecution of peace officers who utilize excessive force, it could have easily accomplished this policy shift with a one-word amendment to section 34.1(A). By inserting the word "not" after the word "shall," the amendment could have read, "Any peace officer . . . who uses excessive force in pursuance of such officer's law enforcement duties shall not be subject to the criminal laws of this state." In doing so, the Legislature could have simply and definitively legalized the use of excessive force by peace officers. It did not.

Even more, restricting the prosecution of peace officers to offenses that independently contain an excessive force element would render the entire statute useless and superfluous by effectively legalizing peace officers' use of excessive force contrary to both the pre-existing, unaltered statutory text and the primary purpose of the statute. Conceptually, similar provisions exist in other statutes, but the specific phrase "excessive force" is unique to section 34.1(A). Further, an analogous concept also appears in Oklahoma Statutes setting forth affirmative defenses to crimes. Another statute employs the term "ordinary force," not as an element but to clarify and limit the definition of child abuse. In common, none of these statutes creates a statutory element of "excessive force." Even if the "unreasonable force" element of Child Abuse Murder or the "perpetrated unnecessarily" element of First-Degree Manslaughter were stretched to encompass section 34.1's "excessive force" requirement, limiting prosecution of police brutality to Child Abuse Murder or First-Degree Manslaughter would frustrate the statute's purpose. Crucially, defining the boundaries of an affirmative defense differs distinctly from imposing a statutory element.

Finally, the Oklahoma Court of Criminal Appeals (OCCA) disfavors construing statutes in a manner that leads to an absurd result. Taylor v. State, 1962 OK CR 161, ¶ 15, 377 P.2d 508, 511; Lewis v. City of Oklahoma City, 2016 OK CR 12, ¶ 2, 387 P.3d 899, 900. Construing section 34.1(A) as limiting prosecution of police brutality to offenses that contain an independent element of "excessive force" leads to an absurd result because, as discussed above, no existing offenses contain that specific element. Requiring excessive force to be an element would effectively immunize Oklahoma peace officers from prosecution in instances of police brutality. If immunized from criminal prosecution, the only barriers to dissuade the bad apples among the peace officer ranks are potential employment consequences and federal 1983 lawsuits. See 42 U.S.C. § 1983.

This result becomes even more absurd considering the Legislature's purpose in enacting this particular statute. Section 34.1 came into existence in 1992 with the adoption of HB 2300, 1992 Okla. Sess. Laws ch. 146, § 1. House Bill 2300's bill title summarized the act's subject matter, in part, as "PROVIDING SANCTIONS FOR PEACE OFFICERS USING EXCESSIVE FORCE . . . ."

House Bill 2300 additionally clarified that peace officers who utilize excessive force are subject to criminal prosecution. It also mandated that peace officers must report other peace officers who they witness employ excessive force. 21 O.S.2021 § 34.2. Failure to report also carries a criminal sanction. Id. Clearly, the Legislature has expressed its intent that officers using excessive force and the officers who shield them from accountability act contrary to public policy.

The Legislature did not repeal section 34.1. The Legislature did not amend section 34.1 to exempt peace officers from criminal prosecution. House Bill 2537's amendatory language clarifying that the prosecution must prove the use of "excessive force" beyond a reasonable doubt to the trier of fact should not be construed in a manner that defeats the very purpose of the Legislature's enactment of section 34.1.

Having established that construing House Bill 2537's amendments to section 34.1 should not be construed as an implicit repeal of the very statute it amends, the obvious question becomes how should the amendments be construed? The use of the word "element" in the amendatory language of section 34.1 is unusual. Normally, courts are tasked with determining the elements of offenses based on their construction of a criminal statute. Doing so aids jurors and the parties in determining what facts must be proven to support a conviction for violating a particular statute.

While limited examples specifying what is not an element of an offense and what evidence is not required to satisfy a particular element of an offense exist in Oklahoma statutes, imposing a specific element of an offense like section 34.1's amendatory language is unique. By employing the word "element," the Legislature apparently chose to require that the prosecution prove "excessive force" to the trier of fact beyond a reasonable doubt rather than impose any burden of production on a defendant to demonstrate that the force used was reasonable through an affirmative defense.

As a result, the most logical, and perhaps only, way to give intelligent effect to both section 34.1's unaltered pre-existing language and House Bill 2537's added language is to instruct the trier of fact on the prosecution's burden to prove "excessive force" beyond a reasonable doubt in addition to the elements of the charged offense in prosecutions subject to section 34.1.

It is, therefore, the official Opinion of the Attorney General that:

Prosecution of peace officers for using excessive force is not limited to offenses that independently contain an "excessive force" element. When a peace officer is prosecuted for a crime involving the use of excessive force in pursuance of the officer's law enforcement duties, the State must prove, beyond a reasonable doubt, that the officer utilized excessive force in addition to the elements of the charged offense.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

THOMAS R. SCHNEIDER
DEPUTY GENERAL COUNSEL

JIMMY R. HARMON
SENIOR DEPUTY ATTORNEY GENERAL