October 23, 2017

Archives for May 31, 2016

Bills Regarding County of Residence for Judicial Nominees, Veterans’ Property Tax Exemptions, and More Signed

On Thursday, May 26, and Friday, May 27, 2016, the governor signed five bills into law. To date, the governor has signed 204 bills this legislative session. The bills signed last week include a bill modifying the definition of “disabled veteran” as it relates to the property tax exemption, a bill encouraging judicial nominating commissions to give preference to licensed attorneys who reside in the county where the vacancy is to occur, and more. Last week’s bills are summarized here.

  • HB 16-1462 – Concerning a Modification to the Provisions Enacted in House Bill 11-1155 to Authorize Combining the Full-Time Equivalent Employment of the Lieutenant Governor and the State Chief Operating Officer, by Rep. Dickey Lee Hullinghorst and Sens. Lucia Guzman & Cheri Jahn. The bill allows the Lieutenant Governor to serve as the state’s Chief Operating Officer (COO) through the end of the current term of office, January 10, 2019.
  • HB 16-1289 – Concerning Incentives for Local Education Providers to Encourage High School Students to Successfully Complete Career Development Course Work, by Reps. Crisanta Duran & Daneya Esgar and Sens. Larry Crowder & Leroy Garcia. The bill creates the Career Development Success Pilot Program, which is designed to provide financial incentives for participating districts and charter schools to encourage high school students to enroll in and successfully complete qualified industry-certificate programs, internship or preapprenticeship programs, and advanced placement courses.
  • HB 16-1444 – Concerning the Definition of a “Qualifying Disabled Veteran” as it Relates to a Property Tax Exemption for Such Individuals, by Reps. Su Ryden & Terri Carver and Sens. Andy Kefalas & Larry Crowder. The bill expands the definition of “Qualifying Disabled Veteran” for the Colorado property tax exemption to include veterans with a full medical retirement.
  • SB 16-134 – Concerning Professional Licensing for Military Veterans in Certain Professions, by Sens. Rollie Heath & Leroy Garcia and Reps. Jessie Danielson & Daniel Kagan. The bill requires that a military veteran’s service experience be considered toward commercial driver’s license qualifications, and the Department of Revenue must consider a military veteran’s training, education, or experience during the CDL licensing process, and may provide credit toward a CDL for those qualifications.
  • SB 16-153 – Concerning Nominees for County Court Judges, by Sen. Larry Crowder and Rep. Jim Wilson. The bill encourages judicial nominating commissions to give preference for judicial vacancies to licensed attorneys who reside within the county in which the vacancy occurs.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Application Period Open for Washington County Court Vacancy

On Friday, May 27, 2016, the Colorado State Judicial Branch announced a vacancy on the Washington County Court, created by the appointment of Hon. Carl S. McGuire, III, to the district court bench. The vacancy will occur on July 1, 2016.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of Washington County at the time of investiture and must have graduated from high school or attained the equivalent. Application forms are available from the State Judicial website or from Justice Gabriel, the ex officio chair of the Thirteenth Judicial District Nominating Commission. Application forms must be received no later than 4 p.m. on July 6, 2016, and anyone wishing to nominate another must do so no later than 4 p.m. on June 29, 2016.

For more information about the vacancy, click here.

Tenth Circuit: Officers’ Theft During Warrant Execution Does Not Justify Blanket Suppression of Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Webster on Tuesday, January 5, 2016.

Kansas City police officers became suspicious that Ricky Webster was manufacturing and distributing crack cocaine out of his residence and obtained a no-knock search warrant. The Kansas City officers executed the warrant, with a five-minute lead on their entry by three members of the Selective Crime Occurrence Reduction Enforcement (SCORE) unit, special officers whose role was to enter and secure residences prior to the execution of search warrants. The police officers discovered more than 100 grams of crack cocaine, drug paraphernalia, a small amount of marijuana, and numerous pills during the search. They also found eighteen firearms, two of which were located in close proximity to drugs. Webster was indicted on numerous charges, and he pleaded guilty to a conspiracy count and possession of a firearm in furtherance of a drug trafficking crime and agreed to a sentence of 180 months in exchange for the government agreeing to forego filing for a sentence enhancement on Webster’s prior felony drug conviction, which would have required a mandatory minimum 20-year sentence.

Prior to accepting the plea agreement, Webster informed the court he had recently become aware that his wife had filed a complaint with the Kansas City police, claiming that the SCORE officers had stolen several items of personal property during the search, including a Flip camcorder, a Playstation, an iPhone, and $100 in cash. Webster asked for a continuance so he could discuss the theft with his attorney and reconsider the plea. Webster’s trial counsel informed the court that he believed it was against Webster’s best interest to withdraw the plea, but he nevertheless filed a motion to withdraw the plea after the court granted the continuance. At the next sentencing hearing, the district court denied Webster’s motion to withdraw the plea and sentenced him to 180 months pursuant to his plea agreement. Webster filed a pro se notice of appeal, which the Tenth Circuit dismissed as untimely.

The next day, the Kansas City Police Department and the FBI conducted a sting that caught several members of the SCORE unit stealing personal property during execution of a search warrant. The Flip and Playstation were subsequently discovered at the house of one of the SCORE unit members. Three officers were charged with conspiring to steal property from Webster’s wife and others, and all three pleaded guilty. Based on the indictments, Webster filed a pro se § 2255 petition to vacate his convictions, arguing his trial counsel was constitutionally ineffective for failing to file a motion to suppress all evidence seized during the search of his house.

The district court held that the SCORE officers’ theft amounted to flagrant disregard of the scope of the warrant and found that the egregious conduct justified a blanket suppression of all evidence seized during the search. The district court found that defense counsel’s failure to investigate the claims of theft or file a motion to suppress was unreasonable, and therefore Webster was prejudiced by his counsel’s deficient conduct. The district court vacated the judgment entered pursuant to the plea agreement and denied the government’s subsequent motion to reconsider. Webster then filed a motion to suppress all evidence obtained in the search in the reinstated criminal case, which the district court granted. The government appealed the grant of habeas relief and grant of the motion to suppress.

The Tenth Circuit first considered the motion to suppress, reasoning that the grant of habeas relief was contingent on its success. The Tenth Circuit examined precedent requiring blanket suppression pursuant to the exclusionary rule, specifically addressing the cases on which the district court relied in issuing its order. The Tenth Circuit noted that blanket suppression is an extreme remedy only appropriate in the rarest circumstances, and distinguished its prior cases allowing blanket suppression. Here, the district court made specific findings that the police officers were unaware of the SCORE officers’ conduct, whereas in other cases there was a conspiracy among all involved officers. Further, in prior cases, the officers took vast amounts of property in blatant disregard of the scope of the warrant, whereas here the SCORE officers took only a few high-value items. The Tenth Circuit implied that blanket suppression is only justified when officers take numerous items outside the scope of the warrant, rather than when members of the team executing the warrant commit crimes.

Addressing Webster’s argument that blanket suppression was necessary in deterrence, the Tenth Circuit found that there could be no greater deterrent than criminal prosecution. The Tenth Circuit declined to address the habeas petition, since its reversal of suppression negated the basis for the petition.

The Tenth Circuit reversed the district court.

Tenth Circuit: Without Seizure of Defendant, Excessive Force Claims Cannot Stand

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Norton on Tuesday, December 29, 2015.

Utah Highway Patrol Officer Swenson was involved in a high-speed chase with a vehicle, which eventually ran off the road in a remote desert area of the Ute Tribe’s Uncompahgre Reservation. Two tribal males exited the vehicle, the driver and passenger Todd R. Murray, and ran in opposite directions. Swenson pursued the driver and eventually arrested him. Three nearby officers, off-duty City of Vernal Police Detective Vance Norton, Utah Highway Patrol Trooper Craig Young, and Uintah County Sheriff’s Deputy Anthoney Byron, responded to the chase and began searching the desert for Murray. The search ended when Murray sustained a gunshot wound to the head.

Plaintiffs, Murray’s parents, contended that Detective Norton shot Murray, but Detective Norton countered that Murray shot himself. Norton testified that as he crested a hill, he saw Murray and ordered him to the ground. Murray started running toward Norton and fired a shot that landed near his feet, so Norton fired two shots at Murray from about 140 yards away. Norton retreated back up the hill and tried to call dispatch. He testified that as he was calling, Murray put the gun to his head and fired, crumpling to the ground immediately. Deputy Byron and Trooper Young testified that they heard noise and saw Norton standing on the top of a hill. They also said they saw Murray walking and swinging his arms, but were not sure if he was carrying a gun. Byron and Young testified that they were about 200 yards from Murray and 400-500 yards from Norton. They reached Norton and descended the hill together to where Murray lay, bleeding from a gunshot wound to the head. They pushed Murray on his side and handcuffed him but made no effort to perform first aid.

Murray was transported to a hospital, where he was pronounced dead. Deputy Byron accompanied the ambulance to the hospital and was joined there by two other officers. The three proceeded to engage in what they called “evidence collection”: taking photographs of Murray’s body, gathering his clothing in bags, and putting bags over his hands. They also ordered blood drawn, which was done by the hospital staff. Deputy Byron placed his index finger in both the entrance and exit wounds on Murray’s head. Experts later testified that this was highly unusual and potentially harmful to the investigation. Even defense experts opined there was no reason for the removal of clothing, turning of the body, and contaminating the wounds.

Murray’s body was taken to a mortuary, where the police ordered the collection of more blood. The apprentice who performed the blood draw did so via a jagged cut on Murray’s neck. Plaintiffs contend this was done as a threatening message. Murray’s body was next taken to the Utah State Office of the Medical Examiner where Dr. Leis performed an examination. Dr. Leis did not perform a full autopsy, despite a request to do so by FBI Agent Ashdown. Dr. Leis concluded that Murray died of a self-inflicted gunshot wound to the head, and further concluded that the gun was close to the skin when it discharged.

Plaintiffs strongly disagreed with Norton’s testimony. They believe that Norton shot Murray at close range, “execution style,” and then planted a gun near him. Plaintiffs pointed out that although Murray was right handed, the entrance wound was on the left side of his head. Plaintiffs also pointed to many instances of destruction of evidence, including that no forensic tests were conducted on the weapon attributed to Murray, nor that of Norton; no tests were conducted to examine whether gunshot residue was present on Murray’s hands or clothing; no evidence was collected regarding whether there was any splash back from the shot onto Murray’s hands or clothing; and the gun, clothing, and other evidence were destroyed before being examined.

Plaintiffs filed a civil suit in Utah state court, which included numerous claims. The State of Utah, no longer a party, removed the case to federal court. The district court entered several rulings, including granting summary judgment to the mortuary on Plaintiffs’ claims of intentional infliction of emotional distress; ruling that the United States’ treaty with the Ute Tribe did not recognize a private right of action against municipalities or individuals enforceable through § 1983; granting summary judgment to all individual and municipal defendants; dismissing the state tort claims; dismissing plaintiffs’ motion for partial summary judgment as moot; and denying all of plaintiffs’ requests for sanctions. Plaintiffs appealed.

The Tenth Circuit divided the plaintiffs’ claims into six groups: (1) § 1983 claims for unlawful seizure, excessive force, and failure to intervene in the violation of constitutional rights; (2) § 1983 claim for violation of rights under the Ute Treaty; (3) § 1985 claim for conspiracy to violate civil rights; (4) state law tort claims for intentional infliction of emotional distress, wrongful death, and assault and battery; (5) spoliation sanctions; and (6) taxation of costs. The Tenth Circuit addressed the first group of claims first.

The district court granted summary judgment to defendants on the § 1983 claims for unlawful seizure, excessive force, and failure to intervene. On de novo review, the Tenth Circuit affirmed. The Tenth Circuit first found that the officers had reasonable suspicion to pursue Murray, but that no seizure had occurred because Murray had run from the officers. Although plaintiffs alleged he paused momentarily when exiting the car, the Tenth Circuit reviewed the videotape and perceived no pause. Without a pause, there was not a seizure as a matter of law. Plaintiffs also argued there was a seizure in the moments before Murray was shot, when Norton ordered him to stop, but again the Tenth Circuit disagreed, finding instead that the evidence illustrated that Murray was charging toward Norton and never submitted to authority. Finally, plaintiffs contended that Norton seized Murray when he shot him at point-blank range. However, the Tenth Circuit found that the evidence tended to show that Norton was at least 100 yards away from Murray when the gun discharged, so the only person who could have shot him at point-blank range was himself. Without a seizure, there could be no Fourth Amendment violation and therefore no individual liability for defendants. The Tenth Circuit similarly disposed of the plaintiffs’ claim of excessive force in violation of the Fourteenth Amendment’s Due Process Clause. The Tenth Circuit found that it was reasonable for Norton to return fire after Murray shot at him, and as for the officers brandishing their weapons after Murray sustained his head wound, he was unconscious and would not have been aware of the weapons. The Tenth Circuit found nothing about the way the officers handled Murray shocked the conscience or was arbitrary.

The Tenth Circuit next addressed plaintiffs’ Ute Treaty claims. The district court dismissed plaintiffs’ Ute Treaty claims because the treaty does not confer the right for plaintiffs to assert § 1983 claims against individuals, but rather provides a mechanism within the treaty itself for claims against the United States. The Tenth Circuit evaluated the treaty’s “bad men” clause and affirmed the district court’s ruling.

Turning to the plaintiffs’ § 1985 conspiracy claims, the Tenth Circuit again affirmed. The district court granted summary judgment to defendants on both of plaintiffs’ claims, finding no showing of specific invidious discriminatory animus. Although the officers were likely aware of Murray’s race, they did not pursue him because of his race but rather because of the car chase.

The Tenth Circuit turned next to plaintiffs’ state law claims. Plaintiffs asserted intentional infliction of emotional distress claims against the funeral home employee and asserted claims of wrongful death against Norton. The Tenth Circuit noted that plaintiffs who are absent during the commission of the act underlying the emotional distress claims must prove that the person performing the act did so with the intent to injure plaintiffs. Because plaintiffs were not present when the funeral home employee made the incision on Murray’s neck, plaintiffs’ claims failed because they could not show the employee intended to harm plaintiffs. After the district court dismissed plaintiffs’ emotional distress claims, it declined to retain jurisdiction over plaintiffs’ wrongful death claims and dismissed them without prejudice. The Tenth Circuit found no evidence that the district court abused its discretion in declining to retain jurisdiction.

Plaintiffs sought sanctions in the form of default judgment and adverse inferences against all defendants for spoliation of evidence, including (1) Murray’s testimony, because the officers failed to administer first aid; (2) the .380 caliber firearm attributed to Murray; (3) Norton’s .40 caliber weapon; and (4) any trace evidence that could have been recovered from the scene, Murray’s body and clothes, or Norton’s body, clothes, or vehicle on the day of the shooting. Plaintiffs believe this evidence would have tended to show that Norton shot Murray, and asked the court to find that defendants acted in bad faith by destroying or allowing the destruction of the evidence. With respect to Murray’s life, the district court found the medical testimony that Murray’s wound was not survivable to be persuasive, and the Tenth Circuit found no reason to disturb the district court’s ruling. As to the .380 caliber weapon, the destruction of the weapon was outside defendants’ control since it was destroyed by the FBI. Although the Tenth Circuit agreed that Norton’s weapon was not examined for evidence, it found no prejudice to defendants from this failure because Norton admitted firing his weapon. The plaintiffs also requested spoliation sanctions regarding the evidence on Murray’s body and clothes, the scene of the shooting, and Norton. The Tenth Circuit found that the plaintiffs’ strongest case was against Deputy Byron, who stuck his fingers in the holes in plaintiffs’ head, removed Murray’s clothes which were later lost, and tampered with Murray’s body, all before the medical examiner was present. The Tenth Circuit found Byron’s conduct disturbing, sloppy, and unorthodox, but did not find that the district court abused its discretion by denying sanctions.

Finally, the plaintiffs sought review of the district court’s taxation of costs against them. The Tenth Circuit noted that the district court never ruled on the costs issue; a clerk entered costs based on a magistrate judge’s memorandum. Plaintiffs had 14 days in which to object to the magistrate’s decision and failed to do so. The Tenth Circuit found it lacked jurisdiction over the issue.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 5/27/2016

On Friday, May 27, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Gomes-Olivas

United States v. Silicani

United States v. Meacham

Wille v. Davis

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.