Brown v. Flowers and ACCO: Sexual Abuse by Jailers as Outside the “Scope of Duties” in Oklahoma Governmental Self‑Insurance Coverage

I. Introduction

In Brown v. Flowers, No. 25‑7009 (10th Cir. Dec. 24, 2025), the Tenth Circuit confronted the intersection of civil rights damages, garnishment procedure, and the coverage terms of an Oklahoma governmental self‑insurance pool.

Plaintiff Brittney Brown, a pretrial detainee in Pontotoc County, Oklahoma, obtained a $75,000 judgment under 42 U.S.C. § 1983 against former jailer Roger Flowers after a jury found that he coerced her into nonconsensual sexual intercourse on two occasions, in violation of her Fourteenth Amendment rights. Flowers did not satisfy the judgment. Brown then pursued garnishment against the Association of County Commissioners of Oklahoma Self‑Insured Group (“ACCO” or “the Group”), which provided liability coverage to Pontotoc County under a “Liability Coverage Agreement.”

The central legal question: did ACCO’s coverage agreement require it to indemnify Flowers for the § 1983 judgment (and associated fees and costs)? That question in turn depended on whether Flowers was a covered “Plan Member” acting within the contractually defined “Scope of Duties,” and whether exclusions—particularly those relating to sexual abuse and criminal/malicious acts—barred coverage.

The Tenth Circuit affirmed the district court’s denial of Brown’s motion to enforce a writ of garnishment. The panel held that, as a matter of contract interpretation under Oklahoma law, Flowers’s coercive sexual conduct was outside the “Scope of Duties” and therefore he was not a covered “Plan Member” at all. This conclusion mooted most exclusion arguments and led the court to reject Brown’s claims about jury fact questions and the reasonable‑expectations doctrine.

Though issued as a nonprecedential “Order and Judgment,” the opinion has significant persuasive value for several reasons:

• It draws a bright conceptual line between acting “under color of law” for § 1983 purposes and acting within the “Scope of Duties” for coverage under a governmental self‑insurance plan.
• It confirms that Oklahoma public‑entity risk pools may, by contract, categorically place sexual abuse by employees outside the scope of coverage, even when the entity itself retains some coverage for such claims.
• It clarifies the limited role of the reasonable‑expectations doctrine in the context of governmental cooperative insurance plans under Oklahoma law.

II. Summary of the Opinion

A. Procedural Posture

• Brown sued Flowers and others under § 1983, alleging that Flowers raped her while she was a pretrial detainee, in violation of her constitutional rights.
• After earlier interlocutory and post‑judgment appeals (Brown I and Brown II), a jury returned a verdict in Brown’s favor against Flowers and awarded $75,000 in compensatory damages.
• Flowers never paid, and Brown initiated garnishment proceedings against ACCO, which had issued a Liability Coverage Agreement to Pontotoc County and had defended Flowers under a full reservation of rights.
• The district court denied Brown’s motion to enforce the writ of garnishment, holding that Flowers was not a covered Plan Member because his conduct was outside the contractually defined Scope of Duties and, in any event, the sexual‑abuse exclusion applied.
• Brown appealed. The Tenth Circuit treated the ruling as a final, appealable decision under 28 U.S.C. § 1291 and reviewed the denial de novo under summary‑judgment standards.

B. Core Holdings

1. No coverage because Flowers was not a “Plan Member.”
   The Liability Coverage Agreement only covers “Plan Members,” and county employees are Plan Members only while “performing and acting within the Scope of Duties.” The Agreement defines “Scope of Duties” as “performance by an Employee acting in good faith within the duties of the Employee’s office or employment.” Coercive sexual intercourse with a detainee cannot, as a matter of law, constitute good‑faith performance of a jailer’s duties. By returning a verdict for Brown under instructions requiring a finding of coercion, the jury necessarily determined Flowers coerced Brown into sex. That conduct, being criminal and coercive, was outside the Scope of Duties. Therefore, Flowers was not a Plan Member and had no coverage.
2. The “Bodily Injury” coverage grant cannot be invoked without Plan Member status.
   Brown argued that because “Bodily Injury” was broadly defined and not expressly limited to acts within the Scope of Duties, ACCO was obligated to indemnify Flowers for bodily‑injury damages regardless of his status as a Plan Member. The court rejected this: the coverage grant indemnified only “Plan Members” for sums they are legally obligated to pay. Since Flowers was not a Plan Member for the acts at issue, the Bodily Injury provisions never came into play.
3. No improper resolution of a jury question.
   Brown contended that whether Flowers acted within the Scope of Duties was a factual question for a jury, not a judge on summary judgment/garnishment. The court held that even if the issue were fact‑sensitive, the prior jury verdict necessarily included a finding of coercion, leaving no genuine dispute of material fact: coercive sexual conduct could not be within the Scope of Duties under the Agreement’s “good faith” requirement.
4. Reasonable‑expectations doctrine inapplicable.
   Brown argued that the district court’s reading rendered sexual‑abuse coverage illusory and that the reasonable‑expectations doctrine should be used to find coverage. The court held:
   • The Liability Coverage Agreement is part of a governmental cooperative insurance plan, not a typical adhesion contract.
   • The relevant provisions were neither ambiguous nor hidden nor couched in obscure technical language; they plainly excluded employee sexual abuse from Scope of Duties and added specific sexual‑abuse exclusions.
   • Coverage for sexual‑abuse claims against counties remained in certain circumstances (e.g., where the county neither participates in nor knowingly ignores abuse), so coverage was not illusory.
   • Accordingly, the reasonable‑expectations doctrine did not apply.

III. Detailed Analysis

A. Legal and Structural Framework

1. Garnishment under Oklahoma law

The court begins by grounding the case in Oklahoma’s garnishment law, because Federal Rule of Civil Procedure 69(a)(1) requires that proceedings to enforce a judgment follow the procedure of the state where the federal court sits. Under Oklahoma law:

• A garnishment proceeding is a separate action from the underlying lawsuit establishing liability (Fleeger v. General Ins. Co. of America, 453 F.2d 530 (10th Cir. 1972)).
• The judgment creditor “stands in the shoes” of the judgment debtor and can assert no greater rights against the garnishee than the debtor himself possesses (Culie v. Arnett, 765 P.2d 1203, 1205 (Okla. 1988)).

Here, Brown, as judgment creditor, could only recover from ACCO if Flowers himself had coverage rights under the Liability Coverage Agreement. If Flowers lacked coverage, Brown’s garnishment claim necessarily failed.

2. Governmental cooperative self‑insurance

The Group (ACCO) is a “governmental cooperative insurance plan,” formed under the Interlocal Cooperation Act, Okla. Stat. tit. 74, § 1001, and operating in conjunction with the Oklahoma Governmental Tort Claims Act (OGTCA), Okla. Stat. tit. 51, § 169. The plan:

• Pools self‑insured reserves, claims, and losses of participating counties.
• “Shares little in common with commercial enterprises that sell insurance for a profit to their shareholders” (Bd. of Cnty. Comm’rs of Delaware County v. ACCO Self‑Insured Group, 339 P.3d 866, 868 (Okla. 2014)).
• Involves “substantially more freedom to contract” among public participants, who all share an interest in preserving pooled resources.

This framework affects interpretive approaches: while Oklahoma insurance‑contract rules (e.g., contra proferentem) may still inform analysis, the court is less inclined to treat the Agreement as a traditional adhesion policy sold by a commercial insurer to an unsophisticated consumer.

3. Oklahoma contract and insurance‑interpretation rules

The court applies general Oklahoma contract law, including rules summarized in Max True Plastering Co. v. U.S. Fidelity & Guaranty Co., 912 P.2d 861 (Okla. 1996) and reaffirmed in Crown Energy Co. v. Mid‑Continent Casualty Co., 511 P.3d 1064 (Okla. 2022):

• Parties are free to contract for coverage of whatever risks they see fit, and courts must “effectuate the intent of the parties as expressed in the terms of the contract”; courts cannot rewrite the policy.
• Ambiguities are construed against the insurer; coverage provisions are read broadly and exclusions narrowly, but only where ambiguity exists.
• Contracts should be interpreted to be fair and reasonable where possible, and terms are given their ordinary or popular meaning.
• If an insurer (or risk pool) wishes to limit liability, it must use clear language (Broom v. Wilson Paving & Excavating, Inc., 356 P.3d 617, 627 (Okla. 2015)).

The key move in the court’s reasoning is to find that the ACCO Agreement is clear and unambiguous in two critical respects: (1) who is a covered “Plan Member,” and (2) how “Scope of Duties” is defined. Once clarity is found, the interpretive canons favoring the insured and the reasonable‑expectations doctrine have little work to do.

B. Precedents and Authorities Cited and Their Influence

1. The underlying civil rights litigation: Brown I and Brown II

• Brown I – Qualified Immunity Appeal (Brown v. Flowers, 974 F.3d 1178 (10th Cir. 2020))
  In Brown I, Flowers appealed the denial of qualified immunity. The Tenth Circuit:
  • Characterized sexual abuse of prisoners as a subset of excessive‑force claims under the Fourteenth Amendment for pretrial detainees.
  • Held that Brown needed only to show that Flowers’s conduct was “objectively harmful enough” – a standard met by “nonconsensual, coerced sex.”
  • Affirmed the district court’s conclusion that a reasonable jury could find Flowers coerced Brown into sex, and held that such nonconsensual sexual coercion by a jailer violated clearly established law.

  These determinations are crucial in the garnishment context because they frame the factual and legal nature of Flowers’s conduct as coercive sexual abuse, not merely an ambiguous form of “excessive force.”

• Brown II – Post‑Judgment Appeal (Brown v. Flowers, No. 23‑7006, 2023 WL 6861761 (10th Cir. Oct. 18, 2023))
  In Brown II, Brown challenged the denial of punitive damages and the dismissal of claims against the sheriff and jail administrator. The Tenth Circuit affirmed:
  • There was insufficient evidence to support punitive damages against Flowers.
  • There was insufficient evidence of supervisory liability against Sheriff Christian and Administrator Sinnett.

  Brown tried to leverage this in the garnishment proceedings, arguing that the failure to find punitive‑damages‑worthy conduct or supervisory liability precluded characterizing Flowers’s acts as criminal, malicious, or outside his duties. The panel rejects this: punitive‑damages standards and supervisory liability elements do not constrain the separate contract‑interpretation question of whether Flowers’s coercive sexual abuse can be “good‑faith” performance of official duties.

2. Garnishment and “standing in the shoes” – Fleeger and Culie

• Fleeger v. General Ins. Co. of America, 453 F.2d 530 (10th Cir. 1972):
  Cited to emphasize that garnishment is a separate action from the liability suit. The garnishment court looks at the garnishee’s obligation to the judgment debtor, not at the underlying tort liability.
• Culie v. Arnett, 765 P.2d 1203 (Okla. 1988):
  Articulates the “standing in the shoes” principle: the judgment creditor (Brown) has no greater rights against ACCO than Flowers would have had. If Flowers has no coverage, Brown has no recoverable interest via garnishment.

3. Governmental cooperative insurance – Delaware County v. ACCO

In Board of County Commissioners of Delaware County v. ACCO Self‑Insured Group, 339 P.3d 866 (Okla. 2014), the Oklahoma Supreme Court explained that ACCO’s plan is a governmental cooperative, not a standard commercial insurer. As a result:

• All contracting counties are on essentially equal footing.
• They jointly decide what risks to pool and what exclusions to impose, with an eye to protecting public funds.
• The plan is not a classic contract of adhesion.

This authority supports the panel’s skepticism toward applying the reasonable‑expectations doctrine and its willingness to enforce clear contractual exclusions, particularly those tightly tailored to sexual abuse by employees.

4. Insurance‑contract interpretation – Max True, Crown Energy, Broom, Haworth

• Max True Plastering Co. v. U.S. Fidelity & Guaranty Co., 912 P.2d 861 (Okla. 1996)
  Provides the canonical list of interpretive canons for insurance policies, including:
  • Ambiguities construed against insurer.
  • Coverage clauses read broadly; exclusions strictly.
  • Reasonable‑expectations doctrine applied in ambiguous or deceptive situations.
  The panel notes these canons but finds them largely inapplicable where the Agreement’s language is clear.
• Crown Energy Co. v. Mid‑Continent Casualty Co., 511 P.3d 1064 (Okla. 2022)
  Reiterates that parties are free to contract for coverage of whatever risks they choose and that courts must not rewrite policies. The panel invokes this principle to uphold ACCO’s deliberate choice not to cover employee sexual abuse as within the Scope of Duties.
• Broom v. Wilson Paving & Excavating, Inc., 356 P.3d 617 (Okla. 2015)
  Emphasizes that limitations of coverage must be clearly expressed, which the panel finds satisfied by ACCO’s explicit definition of Scope of Duties and its sexual‑abuse exclusion.
• Haworth v. Jantzen, 172 P.3d 193 (Okla. 2006)
  Cited in a footnote for the concept that ambiguity can arise from contradictory exclusions. The panel distinguishes this, finding no contradiction between ACCO’s coverage for some sexual‑abuse‑related county liability and its denial of coverage to employees who actually commit sexual abuse.

5. Scope of employment vs. color of law – Maryland Casualty and Jojola

• Maryland Casualty Co. v. Farmers Alliance Mut. Ins., 566 P.2d 168 (Okla. Civ. App. 1977)
  The plaintiff invoked this case to suggest a broad understanding of “scope of employment.” There, a carpenter caused an explosion by lighting a cigarette after activating a propane tank. The Oklahoma court held the carpenter acted within the scope of employment for insurance‑coverage purposes because:
  • He was on the premises performing his trade and seeking profit for the employer.
  • Smoking was an ordinary, foreseeable workplace habit.
  The Tenth Circuit distinguishes Maryland Casualty on two grounds:
  • The ACCO Agreement here explicitly narrows Scope of Duties to “good faith” performance, and expressly excludes dishonest, criminal, reckless, wanton, malicious, and sexual‑abuse acts as “not fairly and naturally incident” to the business.
  • In the law‑enforcement context, even if “excessive force” is a known risk, parties to a governmental cooperative have enhanced freedom to exclude such conduct from coverage – particularly where it involves sexual abuse.
• Jojola v. Chavez, 55 F.3d 488 (10th Cir. 1995)
  The court uses Jojola to highlight the difference between § 1983’s “under color of law” requirement and the contract’s Scope of Duties requirement:
  • “Under color of law” means the defendant misused power “possessed by virtue of state law” with a “real nexus” to that state authority.
  • Scope of Duties, by contrast, looks to good‑faith performance of job duties – an internal standard set by the contract, not by § 1983 jurisprudence.
  Thus, the fact that Flowers acted “under color of law” for § 1983 liability says nothing about whether he was within the contractual Scope of Duties for indemnity coverage. They are analytically distinct categories.

6. Summary judgment and garnishment – Saber Acceptance

The court references Saber Acceptance Co. v. Curran, 352 P.3d 716 (Okla. Civ. App. 2014), to confirm that Oklahoma permits garnishment issues to be resolved via summary judgment. This supports the procedural propriety of deciding coverage as a matter of law based on an undisputed record rather than sending the scope‑of‑duties issue to a jury.

C. The Court’s Legal Reasoning

1. Plan Member status as a threshold: Scope of Duties and good faith

The Liability Coverage Agreement differentiates between:

• Named Plan Members: the participating counties, such as Pontotoc County.
• Additional Plan Members: county employees, but only “while performing and acting within the Scope of Duties for a Named Plan Member.”

“Scope of Duties” is defined as:

performance by an Employee acting in good faith within the duties of the Employee’s office or employment.

Critically, this definition “expressly does not include”:

• “any dishonest, criminal, fraudulent, bad faith, reckless, wanton or malicious act”; and
• “any act that results in a Claim of alleged Sexual Abuse,” because such acts “are not fairly and naturally incident to any Plan Member’s business.”

“Sexual Abuse” is broadly defined to encompass actual, attempted, or alleged sexual acts causing physical or mental injury, including “sexual assault,” “sexual advances of any kind (welcome and unwelcome),” “rape,” and “any other sexual act or alleged sexual injury.”

Given these definitions:

• Nonconsensual, coercive sexual acts by a jailer plainly fall outside “good faith” performance.
• The Agreement itself characterizes sexual abuse as not fairly and naturally incident to the counties’ business and removes such acts from Scope of Duties.

The panel consults ordinary‑language definitions of “good faith” (Black’s Law Dictionary; Merriam‑Webster) and concludes that coercing a detainee into sex is inherently dishonest and unlawful, incompatible with “honesty or lawfulness of purpose” or “faithfulness to one’s duty.”

2. Use of the prior jury verdict to establish coercion and criminality

Brown tried to reframe the underlying verdict as a generic “excessive force” finding that did not necessarily require coercion or criminality. The panel rejects this characterization by carefully reviewing the trial record:

• The pretrial order framed the central issue as whether Flowers “rape[d]” Brown and whether he acted in a coercive manner.
• The jury instructions:
  • Identified Brown’s claim as whether “Flowers raped her on two separate occasions.”
  • Instructed that Brown’s Fourteenth Amendment right was “to be secure in her bodily integrity and free from sexual intercourse imposed upon her by jailers through coercion while held in custody.”
  • Directed the jury that to find a constitutional violation it had to find that Flowers “coerced [Brown] to engage in sexual intercourse with him”; if intercourse was consensual, no violation could be found.
  • Defined “coercion” to include nonphysical pressure or influence designed to manipulate Brown into agreeing to sex.

Because the jury found for Brown, it necessarily found that:

• Flowers coerced Brown into sex (i.e., the conduct was nonconsensual and manipulative), and
• Such coercion violated her Fourteenth Amendment right.

Coupled with Flowers’s state‑court guilty pleas to second‑degree rape (for the same underlying incidents), the court views the conduct as both coercive and criminal. That combination categorically negates “good faith” and thus places Flowers outside the Scope of Duties for coverage purposes.

3. Distinguishing “under color of law” from “Scope of Duties”

Brown argued that because the parties stipulated that Flowers acted “under color of law” in the § 1983 action, he must also have been within his Scope of Duties. The panel finds this conflation erroneous.

For § 1983:

• “Under color of law” asks whether the defendant misused power derived from state authority, with a real nexus between the conduct and his official status.
• A police officer’s off‑duty assault, for example, may or may not be under color of law depending on whether he invoked or used state authority.

For the ACCO Agreement:

• Scope of Duties asks whether the employee was acting in good faith within the duties of his office.
• It is a contractual and internal standard that can be narrower than tort “scope of employment” or broader than some technical job descriptions, depending on how the parties drafted it.

Thus, conduct can simultaneously:

• Qualify as “under color of law” (misuse of official power sufficient for § 1983 liability), and
• Be outside the contractual “Scope of Duties” because it is dishonest, criminal, or malicious acts that the risk pool explicitly chose not to cover.

This conceptual separation is one of the opinion’s most significant contributions for practitioners dealing with public‑entity liability policies and civil rights claims.

4. Rejection of the Bodily Injury argument

Brown tried a structural argument based on the Agreement’s definitions:

• “Bodily Injury” is defined broadly to include bodily injury, mental injury, mental anguish, sickness, disease, and related loss of services.
• Unlike “Personal Injury,” the Bodily Injury definition does not expressly limit injuries to those caused by employees acting within the Scope of Duties.
• Therefore, Brown argued, ACCO owed indemnity for any Bodily Injury caused by Flowers, regardless of Scope of Duties.

The court rejects this as a misreading of the coverage structure:

• The Agreement’s coverage grant obligates ACCO to pay sums that a Plan Member becomes legally obligated to pay as damages because of Bodily Injury.
• Thus, “Bodily Injury” is a type of covered harm; it does not itself expand who is a Plan Member or override the Plan Member/Scope of Duties limitations.
• Because Flowers was not a Plan Member for these acts, the Bodily Injury grant does not apply to him at all.

In other words, the analysis is two‑step: (1) Is the actor a Plan Member for the act? (2) If yes, does the claim involve a covered type of harm (e.g., Bodily Injury) subject to exclusions? Brown tried to collapse step (1) into step (2), but the contract prevented that.

5. Was Scope of Duties a jury question?

Brown argued that whether Flowers acted within the Scope of Duties was a fact question reserved for the jury, and that the district court usurped that role by granting summary judgment to ACCO.

The panel effectively takes a two‑pronged approach:

• Procedural point: Oklahoma law allows garnishment issues to be resolved via summary judgment, and federal courts follow state procedure under Rule 69. Thus, there is nothing inherently improper about a judge deciding coverage questions when material facts are undisputed.
• Substantive point: Here, the underlying jury already resolved the core factual predicate—whether Flowers coerced Brown into sex. Given:
  • The coercion finding embedded in the verdict, and
  • The clear contractual definition of Scope of Duties requiring good‑faith performance and excluding criminal and sexual‑abuse acts,

  there was no “genuine dispute” of material fact left. Under Rule 56, summary judgment was appropriate.

Even if certain Scope‑of‑Duties disputes could be jury questions in other circumstances, this record made the issue one of law: coercive sexual abuse by a jailer cannot, as a matter of reasonable interpretation, be “good‑faith” performance of duty.

6. Reasonable‑Expectations doctrine and alleged “illusory” coverage

Brown’s final line of attack was doctrinal. She argued that the Agreement’s facial coverage for sexual‑abuse claims was illusory if, as the district court held, employee sexual‑abuse acts were always outside Scope of Duties. She urged application of the reasonable‑expectations doctrine to salvage coverage.

The court’s response has several layers:

1. Adhesion and governmental cooperatives.
   The reasonable‑expectations doctrine is primarily designed for adhesion contracts where a powerful insurer drafts complex terms and a less sophisticated insured has little bargaining power. ACCO’s governmental cooperative is different:
   • All participants are public entities with substantial freedom to negotiate coverage terms.
   • They share an interest in limiting exposure to extreme misconduct that could drain public resources.
   While the court does not absolutely foreclose applying reasonable expectations to such plans, it is clearly more cautious.
2. No ambiguity and no hidden or technical exclusions.
   Under Max True, the doctrine applies where policies are ambiguous or where exclusions are masked by technical language or buried obscurely. Here:
   • The Scope of Duties definition expressly excludes criminal and sexual‑abuse acts.
   • The sexual‑abuse exclusion clearly denies coverage where there is a final adjudication or admission that a Plan Member participated in sexual abuse or knowingly failed to stop ongoing abuse.
   • The provisions are straightforward and prominently part of the Agreement’s definitional and exclusionary sections.
   Therefore, there is nothing deceptive or ambiguous to justify overriding the policy language.
3. Coverage is not truly “illusory.”
   Coverage is illusory when, in effect, it never provides any real protection for the category ostensibly covered. The panel points out:
   • The Agreement denies coverage to employees who commit sexual abuse by placing their acts outside Scope of Duties.
   • However, it still provides coverage to counties (Named Plan Members) for certain sexual‑abuse claims, except where a final adjudication or admission establishes the county’s own participation or knowing failure to intervene.
   As a result, the plan does not “exclude 100% of sexual misconduct claims,” as Brown contended. It covers some, denies others – by design.
4. Freedom to allocate risks.
   Relying on Crown Energy, the court underscores that parties to a governmental cooperative can decide that:
   • Counties will be protected to some degree for sexual‑abuse‑related liabilities, while
   • Individual perpetrators will not receive indemnity for their sexual misconduct, particularly where it is criminal and coercive.
   The court declines to “rewrite” the Agreement to extend coverage to Flowers contrary to the parties’ expressed allocation of risk.

IV. Complex Concepts Simplified

1. Garnishment

Garnishment is a process by which a judgment creditor (the person who won a lawsuit) attempts to collect on a judgment by reaching assets or debts held by a third party for the judgment debtor. Typical examples include:

• Garnishing wages from an employer.
• Garnishing bank accounts from a bank.
• As here, garnishing an insurer or self‑insurance pool that may owe indemnity to the judgment debtor.

Critically, the creditor cannot obtain more from the garnishee than the debtor could. Brown could only recover from ACCO if Flowers himself had coverage rights.

2. Governmental self‑insured groups and risk pools

Instead of purchasing ordinary commercial insurance, counties can form risk‑sharing pools under state law. Each county pays contributions, and the pool:

• Pays covered claims up to agreed limits.
• Can impose exclusions and conditions to protect pooled public funds.
• Is governed collectively by its members, not by private shareholders seeking profit.

ACCO is such a pool. It is essentially a cooperative insurance arrangement among counties.

3. “Under color of law” vs. “Scope of Duties”

• Under color of law (for § 1983): The question is whether the official’s conduct is “fairly attributable” to the state because he used or misused power granted by his governmental position.
• Scope of Duties (for coverage here): The question is whether the employee’s conduct is a good‑faith performance of his job duties, according to the contract’s definition. Acts defined as criminal, dishonest, malicious, or sexually abusive are expressly carved out.

The same act can be both under color of law (for liability) and outside Scope of Duties (for coverage).

4. Reasonable‑expectations doctrine

In insurance law, the reasonable‑expectations doctrine allows courts to:

• Uphold the coverage that an objectively reasonable insured would expect,
• Even if literal policy language might allow the insurer to deny coverage,
• But only in limited circumstances—typically where there is ambiguity, hidden exclusions, or complex language that reasonably misleads a policyholder.

Here, the doctrine was inapplicable because the Agreement’s sexual‑abuse‑related language was clear and not deceptive, and the insureds (counties) were sophisticated public entities.

5. Illusory coverage

Coverage is “illusory” when a policy provision appears to grant coverage for a category of risk but, in practice, other terms or exclusions eliminate coverage in all or virtually all imaginable cases. Brown argued the sexual‑abuse coverage was illusory because:

• Sexual abuse was excluded from Scope of Duties for employees, and
• The sexual‑abuse exclusion further limited coverage.

The court disagreed, noting that counties still enjoy some coverage for sexual‑abuse claims unless they are directly implicated by final adjudications or admissions. Thus, the coverage is limited, but not illusory.

6. Law of the case

The “law of the case” doctrine generally holds that once an appellate court decides an issue, that decision governs the same issue in later stages of the same case. Brown argued that because Brown II upheld the denial of punitive damages and supervisory liability, the record could not support findings of malice or criminality necessary to invoke exclusions.

The panel implicitly rejects this application, because:

• Punitive damages and supervisory liability involve different legal standards than contract coverage.
• Law of the case does not prevent a court from characterizing conduct as criminal or outside good‑faith duties where the underlying jury already found coercive sexual abuse and there were criminal convictions.

V. Impact and Broader Implications

1. For victims of custodial sexual abuse

This decision underscores a stark reality: obtaining a civil rights judgment against an individual jailer does not guarantee that the judgment will be collectible from the public risk pool, even when the pool defended the employee at trial under a reservation of rights. Specifically:

• Where the coverage agreement defines Scope of Duties to exclude criminal and sexual‑abuse conduct, the perpetrating employee may be judgment‑proof from an indemnity standpoint.
• The risk of non‑collection may shift victims’ focus toward:
  • Pursuing direct claims against the county under Monell‑style theories or state‑law tort claims (where available), and
  • Carefully examining the coverage terms applicable to the entity itself, not only to the individual wrongdoer.

2. For counties and public‑entity risk managers

The opinion is favorable to counties and risk pools in several respects:

• It validates the use of narrow Scope of Duties definitions and explicit exclusions to avoid indemnifying employees for egregious misconduct such as sexual abuse, while still providing some coverage to counties.
• It emphasizes that counties, as sophisticated parties in a cooperative, have broad freedom to sculpt their risk allocation.
• It discourages courts from artificially expanding coverage via the reasonable‑expectations doctrine where policy language is clear.

At the same time, counties should be mindful that:

• Limiting employee coverage may indirectly affect recruitment, retention, and morale if employees perceive that they bear more personal risk.
• Politically and ethically, the public may expect counties to ensure that victims have some realistic recourse to public funds when abuse occurs in public custody, even if the employee is not indemnified personally.

3. For drafting and litigating coverage agreements

The case offers clear drafting lessons:

• Definitions matter. Explicitly defining “Scope of Duties” and carving out criminal, malicious, or sexual‑abuse acts is an effective way to limit employee coverage.
• Structure matters. Making Plan Member status a threshold requirement ensures that coverage grants (e.g., Bodily Injury) cannot be used to back‑door coverage for excluded actors.
• Reservation of rights. ACCO’s early reservation of rights letter, coupled with ongoing defense “as a courtesy,” helped preserve its ability to deny indemnity after judgment.

For litigators:

• It is critical to obtain and scrutinize all coverage agreements early in the litigation, particularly in custodial abuse cases.
• When seeking garnishment, plaintiffs must be prepared to confront:
  • Threshold Plan Member or insured status questions.
  • Definitions of scope of duties/employment,
  • And specific exclusions for criminal or sexual misconduct.

4. Distinguishing liability triggers from coverage triggers

A conceptual lesson is that the conditions for:

• Liability (e.g., acting under color of law, violating clearly established constitutional rights), and
• Coverage (e.g., being an insured/Plan Member acting in good faith within duties, absent excluded conduct)

are separable. Courts may:

• Happily impose liability on a public employee for misuse of power under § 1983,
• Yet enforce a risk pool’s decision not to indemnify that misuse, especially where the conduct is criminal or egregious.

This separation is particularly important in civil rights litigation, where public‑entity indemnification is often assumed but is in fact governed by contract and statutory schemes with their own limitations.

5. Persuasive but not binding precedent

The panel designates its decision as an “Order and Judgment” not binding except under the law‑of‑the‑case, res judicata, and collateral‑estoppel doctrines. It may, however, be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

In practice, this means:

• District courts in the Tenth Circuit may look to this opinion as a well‑reasoned guide to similar coverage disputes involving governmental self‑insurance pools and employee sexual misconduct.
• Attorneys can cite it in analogous contexts to argue:
  • That coercive sexual conduct by a correctional officer is per se outside good‑faith Scope of Duties under similar contract language, and
  • That reasonable‑expectations arguments should not override explicit and unambiguous sexual‑abuse exclusions.

VI. Conclusion

The Tenth Circuit’s decision in Brown v. Flowers resolves a difficult but increasingly common intersection of civil rights liability, public‑sector insurance arrangements, and garnishment procedure. The court makes three critical moves:

1. It treats the ACCO Liability Coverage Agreement as a clear, non‑adhesive contract among sophisticated public entities, and enforces its explicit decision to place sexual abuse by employees outside the Scope of Duties and therefore outside employee coverage.
2. It distinguishes § 1983’s “under color of law” standard from the contractual “Scope of Duties,” thereby confirming that an officer may act under color of law yet outside the ambit of coverage because his act is criminal, coercive, and inconsistent with good‑faith performance.
3. It refuses to invoke the reasonable‑expectations doctrine or illusory‑coverage concerns to rewrite an unambiguous allocation of sexual‑abuse risk between counties and their employees.

For victims, the opinion highlights the importance of targeting county and institutional liability rather than relying solely on individual‑officer judgments. For counties and their risk pools, it validates a contractual approach that protects public funds from indemnifying the most egregious employee misconduct, while still allowing some coverage for institutional liability. And for the law more broadly, it offers a persuasive, carefully reasoned model for how courts can honor both civil rights principles and the parties’ freedom to structure public‑entity coverage for high‑risk misconduct.