August 17, 2017

Archives for July 24, 2017

Tenth Circuit: Defendant’s Appeal of Motion to Reconsider Untimely Where Not Appeal of Qualified Immunity Denial

The Tenth Circuit Court of Appeals issued its opinion in Powell v. Miller on March 7, 2017.

Powell was released from death row and sued the prosecutor responsible for his overturned conviction, Miller. Powell charged that Miller had suborned perjury from a key witness at his trial, Derrick Smith, and had hidden from the defense evidence of Miller’s agreement to help Smith with his own criminal charges. Miller filed a motion to dismiss. The district court granted the motion in part, but denied qualified immunity on certain claims. Miller did not appeal the ruling.

Three years later, Miller filed a motion to reconsider the denial of qualified immunity. The district court denied that motion because Miller did not present a substantive basis for the court to change its opinion. Miller appealed the denial of his motion to reconsider.

The Tenth Circuit held that a district court’s pretrial denial of a qualified immunity defense, to the extent it turns on an issue of law, is an appealable final decision. But here, the Tenth Circuit held that Miller did not appeal from the district court’s order denying his qualified immunity defense. Instead, Miller appealed from the district court’s order denying reconsideration of that ruling almost three years later. Therefore, the Tenth Circuit held that it lacked jurisdiction to consider the district court’s order denying Miller’s motion to reconsider. It held that Miller could not use his motion for reconsideration to resurrect his right to appeal the district court’s order denying him qualified immunity.

Therefore, the Tenth Circuit dismissed Miller’s appeal due to lack of jurisdiction.

Tenth Circuit: Unofficial Head of Small Town Police Department Did Not Have Final Policymaking Authority for Department

The Tenth Circuit Court of Appeals issued its opinion in Patel v. Hall on March 1, 2017.

On April 20, 1011, Officers Bubla and Hall arrived at Mr. Austin’s auto-repair business pursuant to a call from Ms. Austin regarding suspicious activity by their landlord, Plaintiff Chetan Patel. The officers were informed that several cars that Plaintiff brought in were missing their Vehicle Identification Number (VIN). Additionally, Mr. Austin told the officers that he suspected the VINs had been switched on certain vehicles.

The officers contacted the County Attorney’s Office after speaking with the Austins and were informed that the officers could permit the Austins to remove their belongings from the premises and seal the building pending a search warrant. The officers also photographed the trucks with missing or replaced VIN plates which Mr. Austin had pointed out to them. The officers sealed the building. The next morning, Mr. and Ms. Austin and their son submitted written statements to the police and swore to their truthfulness in front of a notary. The statements included instances where the Plaintiff told Mr. Austin he needed to remove Plaintiff’s vehicles off the premises “because they were starting to draw the state’s attention.”

Officer Hall was unable to immediately obtain a search warrant, as none of the judges in Big Horn County were available. Officer Hall contacted the County Attorney’s Office to inquire whether there was probable cause to arrest Plaintiff because Officer Hall believed Plaintiff might remove evidence from the premises. The County Attorney determined that there was probable cause to justify a warrantless arrest for felony VIN fraud. Plaintiff was arrested and the county court issued an arrest warrant the next day, along with a search warrant for the premises.

Pursuant to the search warrant, the officers discovered a syringe and white powder on a table in the premises. The officers left the building and obtained a new warrant to search for drugs as well as VIN plates inside the building. In total, the officers seized two loose VIN plates, a truck with switched VIN plates, a truck with a missing VIN plate, and an empty insurance envelope which was found laying on the floor with a claim number written on it. The officers also photographed several documents with VIN numbers written on them.

The charges against Plaintiff for felony VIN fraud were dismissed on October 4, 2011. In April 2014, Plaintiff filed the §1983 complaint. Defendants argued they were entitled to qualified immunity. Plaintiff supplied an affidavit purportedly signed by Mr. Austin. Plaintiff’s two attorneys also submitted affidavits stating they met with Plaintiff and Mr. Austin when Mr. Austin allegedly made statements that differed from his original sworn police witness statement.

The district court granted summary judgment for Defendants and refused to consider the purported Mr. Austin affidavit. The district court also disregarded Plaintiff’s attorneys’ affidavits holding that the affidavits would make the attorneys material witnesses to the case in violation of Rule 3.7 of the Wyoming Rules of Professional Conduct. The district court held that Plaintiff had not shown a constitutional violation relating to the search and seizure because (i) Mr. Austin consented to the initial search, (ii) the officers had probable cause to seize the shop while they obtained a search warrant, (iii) the subsequent search was conducted pursuant to a search warrant, and (iv) there was sufficient probable cause for Plaintiff’s arrest. The district court also rejected Plaintiff’s claim that the search was beyond the scope of the search warrant because Plaintiff had not shown the officer’s actions violated clearly established law. Finally, the district court dismissed Plaintiff’s state law claims with prejudice based on a procedural deficiency by Plaintiff and the state defense of qualified immunity.

The Tenth Circuit first addressed the district court’s grant of summary judgment in favor of Officer Hall on Plaintiff’s official-capacity claim. The claim requires evidence that the municipality “caused the harm through the execution of its own policy or customs or by those whose acts may fairly be said to represent official policy.” The police department at the time had no chief of police, and Officer Hall was the senior officer. The Tenth Circuit laid out the test to decide whether a government employee is a final policymaker whose actions can give rise to municipal liability. First, the employee must be constrained by policies not of his own making. Second, his decisions must be final. Finally, the policy decisions and actions must fall within the realm of the employee’s grant of authority.

The Tenth Circuit held that there was no evidence to indicate whether or not Officer Hall was meaningfully constrained by policies not of his own making, whether or not his decisions were final, or whether his actions fell within the realm of his grant of authority. Therefore, the Tenth Circuit held that Plaintiff failed to satisfy the municipal liability test. Simply because Hall was “in charge” before the new chief took office was not enough. The Tenth Circuit affirmed the district court’s grant of summary judgment on Plaintiff’s official-capacity claims.

The Tenth Circuit next addressed the claims against Defendants in their individual capacities. The Tenth Circuit held that because Defendants asserted qualified immunity, the burden shifted to Plaintiff to establish that the Defendants violated a constitutional right and that the right was clearly established at the time of the violation.

Plaintiff’s first claim was against Officers Hall and Bubla for violation of his Fourth Amendment right when they initially searched the shop without a warrant. The Tenth Circuit held that the search was conducted pursuant to consent. The Austins had actual or apparent authority to consent as both worked at the auto-repair business. Ms. Austin contacted police and both she and Mr. Austin were present when the officers were shown around the shop. Mr. Austin did not protest, and the Tenth Circuit held that this was non-verbal consent.

Next, Plaintiff argued that Officers Hall and Bubla violated his Fourth Amendment rights when they sealed the premises without a warrant or probable cause. The Tenth Circuit held that there was probable cause and therefore Plaintiff’s rights were not violated. Probable cause existed because of what the officers found during their initial search with the Austins, Plaintiff’s suspected criminal conduct, and what Mr. Austin had told the officers about his conversations with Plaintiff. Therefore, the Tenth Circuit held that the officers were justified in sealing the building.

Third, Plaintiff argued that Hall violated his Fourth Amendment rights by arresting him without a warrant. The Tenth Circuit held that the arrest was valid because Hall had probable cause to believe Plaintiff was fraudulently altering VIN Plates. The Tenth Circuit held that the factors justifying the warrantless seizure of the building also supported Plaintiff’s arrest.

Fourth, Plaintiff argues that the warrants to search his shop and for his arrest were defective because they were “procured with reckless insufficient information.” The Tenth Circuit stated that there only needs to be a “substantial probability” that the suspect committed the crime before making an arrest. The Tenth Circuit held that Plaintiff’s evidence did not dispute that there was a substantial probability. Further because the prior search was lawful due to consent, the Tenth Circuit held that there was probable cause for a warrant to search the shop based on the initial findings.

Fifth, Plaintiff argued that the officers exceeded the scope of the search warrant. The Tenth Circuit held that the first two ways alleged by Plaintiff were not supported by evidence. The third allegation was that the officers exceeded the scope by seizing an envelope found on the ground of the shop. The Tenth Circuit held that Plaintiff met his burden of showing that the officers were not entitled to qualified immunity on that issue. The warrant clearly specified what items were to be seized, and by seizing additional items, the officers acted unreasonably for Fourth Amendment purposes.

The Tenth Circuit next addressed the district court’s decision to disregard the affidavit purportedly signed by Mr. Austin and its holding that the attorneys’ affidavits were inadmissible based on Wyoming’s professional conduct lawyer-as-witness rule. The Tenth Circuit held that is did not need to consider whether the district courts holding was accurate because even if the information from Mr. Austin’s purported affidavit was considered, it would not have created a material dispute of fact to defeat the Defendant’s assertion of qualified immunity. Therefore, the Tenth Circuit held that any error by the district court regarding Mr. Austin’s affidavit was harmless.

Finally, the Tenth Circuit held that the district court erred in dismissing Plaintiff’s state law claims with prejudice. Because the district court did not explain why the defendants were entitled to the state qualified immunity, the Tenth Circuit remanded the issue for further consideration by the district court.

In sum, the Tenth Circuit reversed the grant of summary judgment as to the seizure of the envelope, remanded for further proceedings on the state qualified immunity issue, and affirmed the district courts grant of summary judgment in favor of all Defendants on the remaining claims.

Tenth Circuit: Unpublished Opinions, 7/21/2017

On Friday, July 21, 2017, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

United States v. Voog

United States v. Muhtorov

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