News and Publications — OMAG

Matt Love

HB 4156 (Immigration) is Likely Unconstitutional

HB 4156 enacted two new statutes (21 O.S. §1795 and 22 O.S. §988.25) effective July 1, 2024. The first statute established a new State criminal charge which could be filed against any illegal alien who was found within the State. HB 4156 has drawn strong criticism from law enforcement, including expressions of concern about the potential for allegations of racial profiling. The Constitutionality of HB 4156 was also questioned in light of a United States Supreme Court opinion which held that States have no authority to enact State statutes which criminalize violations of Federal immigration laws. Arizona v. United States, 567 U.S. 387 (2012).

A Federal Judge recently issued a preliminary injunction which bars enforcements of the new HB 4156 statutes. United States v. Oklahoma, No. 24-CV-511 (W.D. Okla. June 28, 2024). A preliminary injunction is just that – preliminary (and not final). It will stay in place until a final ruling is issued regarding the constitutionality of HB 4156. It is expected that Oklahoma will appeal the issuance of the preliminary injunction to the 10th Circuit Court of Appeals. It is also expected that the 10th Circuit will not disturb the injunction during the appellate process. While the 10th Circuit has no authority to overrule a United States Supreme Court precedent, the 10th Circuit’s final ruling can be appealed to the United States Supreme Court. It is worth noting that Texas adopted similar legislation and is also involved in similar litigation. A preliminary injunction was issued against Texas in February. Texas’ appeal related to that injunction is pending before the 5th Circuit Court of Appeals.

We may know within the next year whether the United States Supreme Court will agree to hear an appeal related to the Oklahoma and/or Texas legislation. If it does, a final decision may not be issued until late 2025 or early 2026. For time being, HB 4156 is unenforceable.

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McGirt and Castro-Huerta, In A Nutshell

In July 2020, the US Supreme Court issued its opinion in McGirt v Oklahoma, a decision which resulted in serious and substantial questions and litigation regarding a state’s ability to prosecute crimes which occurred on Indian land. In June 2022, the US Supreme Court issued its opinion in Oklahoma v. Castro-Huerta, which drastically altered what we understood McGirt to hold. In Castro-Huerta, the Court ruled that States have criminal jurisdiction over all crimes committed by non-Indians within Indian Country, including crimes involving Indian victims. Prior to Castro-Huerta, we understood that Oklahoma’s criminal jurisdiction over non-Indians for crimes within Indian Country was limited to victimless crimes and crimes with only non-Indian victims: this is no longer the case. Also prior to Castro-Huerta, we understood that the Indian status of the victim(s) was critical to the criminal jurisdiction analysis: this also is no longer the case.

 

Here is a chart that is intended to provide you a snapshot of who has jurisdiction over what crime, taking into consideration both McGirt and Castro-Huerta:

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Liability Coverage for Police K-9s

Liability Coverage for Police K-9s

The responsibility to respond to our members' coverage questions and provide coverage interpretation primary falls on OMAG’s Underwriting and Member Services Departments with support provided by OMAG’s Legal and Risk Management Departments. Providing a clear and consistent response to these inquiries is always our goal.

Our members occasionally ask, “Does the Municipal Liability Protection Plan provide coverage for our police department K-9s? And is there coverage provided when they are off duty?

The OMAG Municipal Liability Protection Plan does provide automatic general liability coverage for your K-9s while on duty. OMAG requires the K-9 and the handler to maintain their CLEET certification. 

One example of how our coverage might work would be: Let’s say the dog is trained to be passive in his response by barking or going on point to indicate he recognizes something, and damage occurs when he jumps on a vehicle. This damage would not be expected, as the normal passive response would not lead to any damage occurring. A third party can file a claim for their damages in this instance.

In another instance, if the dog is trained to respond to drug search in an aggressive manner (by jumping up onto the vehicle to indicate something has been found) and damages the vehicle, then the OMAG policy would not provide coverage.  In this case the officer should take measures (cover paws) if he knows that the dog will respond by jumping on the vehicle. This would be damage that would be expected or intended and is excluded on the policy.

When the K-9 is off duty and being kenneled, it is important to remember that the OMAG policy would respond to a claim filed for bodily injury or property damages only if the K-9 is being kenneled on city property. If the K-9 is being kenneled at a private residence, that individual’s homeowner’s policy would respond, should bodily injury or property damage occur. 

The OMAG policy does not provide coverage for animal mortality, but we do have a market that provides for that type of policy/coverage separately if you should be interested.  

Please contact Randy Stone, Underwriting Director, at (800) 234-9461 or rstone@omag.org if you have questions about this coverage or any other questions about the policies we offer.

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