April 27, 2017

Tenth Circuit: Random Drug Test for County Employee Acceptable When Employee Holds Safety-Sensitive Position

The Tenth Circuit Court of Appeals issued its opinion in Washington v. Unified Government of Wyandotte County, Kansas on February 6, 2017.

Roberick Washington was a lieutenant at the Wyandotte Country Juvenile Detention Center in Kansas City, Kansas. The position entailed Washington interacting with residents, conducting disciplinary hearings for residents, driving the County van to take juveniles to the intake assessment center, and being present if a fight broke out. Wyandotte County has a random drug testing policy that applies to employees in “safety sensitive positions.” The county’s Policy on Substance Abuse and Drug and Alcohol Testing lists Washington’s position, “juvenile lieutenant,” as a safety sensitive position. The policy states that a failed drug or alcohol test is grounds for discipline, including discharge.

Sheriff Donald Ash terminated Washington after he tested positive for cocaine following a random drug test. Pursuant to the Human Resource Guide, Washington Appealed Ash’s decision to the administrator of the Juvenile Detention Center. This grievance was denied, and Washington appealed to the County Administrator’s Office. After a hearing, an assistant county administrator upheld the termination. Washington claims that he sought an evidentiary hearing and a name-clearing hearing, but was denied both.

Washington alleged three violations of 42 U.S.C. § 1983, namely that the drug test was an illegal search in violation of his Fourth and Fourteenth Amendment rights, he was deprived of his property interest in continued employment without due process, and defendants failed to provide him with a name-clearing hearing. Additionally, Washington claimed the county breached an implied contract created by its written disciplinary policies in violation of state contract law. The district court granted summary judgment for the defendants on all counts.

The Tenth Circuit first addressed Washington’s § 1983 claims. Municipalities are not protected by qualified immunity, so to grant summary judgment in favor or a municipality, the pleadings and supporting materials must establish there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. A plaintiff must identify an unconstitutional policy that caused the claimed injury in order for a municipality to be liable under § 1983. A plaintiff must establish that the municipal employee causing the harm violated the plaintiff’s constitutional rights.

The Tenth Circuit first addressed Washington’s claim that the county’s random drug test violated the Fourth Amendment’s probable cause and warrant requirements. Ordinarily, a search must be based on individualized suspicion of wrongdoing. However, when the government asserts a special need beyond ordinary crime detection, the Tenth Circuit has found suspicionless drug testing reasonable if the government’s interests outweigh the individual’s privacy interests. Courts have held that when drug use among the individuals tested would threaten the workplace or public safety, the government’s concerns are real. Additionally, courts have held that random drug tests are effective at detecting and deterring drug use.

The Tenth Circuit held that the county had a legitimate special need because the random drug tests to juvenile lieutenants ensured the safety and welfare of the children housed in the juvenile detention center. The juvenile lieutenant position involved interactions with residents, and drug use would impair his ability to interact with the youth. Additionally, the random testing minimized the possibility that employees would evade detection and maximized deterrence. Therefore, the Tenth Circuit found a legitimate special need for the random drug testing.

The Tenth Circuit then weighed the special need against Washington’s privacy interests to determine if the tests were reasonable. The Tenth Circuit held that as a correctional employee, Washington’s expectation of privacy was diminished. Additionally, the drug testing was minimally invasive, as Washington provided a sample behind a closed door with no supervision.

Next, the Tenth Circuit held that the county presented two interests that were important enough to justify testing Washington. The first was that Washington was working with juveniles in an educational setting, and an employee’s illegal drug use presented a risk of harm to minors. Second, if an employee has law enforcement duties and access to direct contact with inmates, that employee’s illegal use of drugs presents a significant threat to inmates and the security of the facility. The Supreme Court has held that suspicionless drug testing of employees in certain safety sensitive positions was reasonable. In this case, the county’s policy lists “juvenile lieutenant” as a safety sensitive position. The Tenth Circuit held that this classification was reasonable to Washington’s position based on the duties that he performed. Therefore, the Tenth Circuit held that in this specific instance, the county’s interests were more important and outweighed Washington’s diminished privacy rights, and thus the random drug test was reasonable. Consequently, neither Sheriff Ash nor the county could be subject to § 1983 liability.

Next, the Tenth Circuit addressed Washington’s claim that the county’s personnel policies established he had a protected property interest in his continued employment at the Juvenile Detention Center. The Tenth Circuit stated a two-part inquiry to determine whether a plaintiff was denied procedural due process. First, the plaintiff must have a protected interest to which due process is applicable. The second inquiry is whether the plaintiff was afforded an appropriate level of due process.

Here, the Tenth Circuit looked to Kansas state law to determine if Washington had a protected property interest. The Tenth Circuit determined that Kansas law established that public employment is presumptively at-will, and that Washington did not provide evidence to rebut this presumption. The Tenth Circuit held that personnel policies alone were insufficient to create an implied employment contract. Therefore, the Tenth Circuit affirmed the district court’s grant of summary judgment on this claim.

The Tenth Circuit affirmed the district court’s grant of summary judgment for Washington’s claim that he was entitled to a name-clearing hearing because Washington’s pretrial order did not reference any damaged liberty interest.

Finally, the Tenth Circuit holds that because Washington failed to establish that there was an implied employment contract, the county was entitled to summary judgment on his breach of contract claim.

Tenth Circuit: Reasonable Person Would Not Have Felt Free to Leave When Stopped by Officers

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hernandez on Thursday, February 9, 2017.

Phillip Hernandez was charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C § 922(g)(1). The district court granted his motion to suppress the evidence, as it was obtained in violation of the Fourth Amendment’s prohibition against unlawful seizure during his encounter with two police officers. The government appealed, claiming that the court should apply the subsequent decision in Utah v. Streiff, and arguing that the district court failed to properly apply the Spence factors to the seizure.

On October 20, 2014, two police officers observed Phillip Hernandez walking near a construction site in a known high crime area. The uniformed officers asked Hernandez if they could speak to him, and began asking him questions while driving along side him in their marked police car as Hernandez continued walking. The officers eventually asked Hernandez to stop so they could ask him additional questions. While questioning Hernandez, the officers discovered an active warrant against him and that Hernandez was in possession of a firearm. Hernandez filed a motion to suppress the firearm evidence, which the district court granted.

On appeal, the government asserted that the Supreme Court’s decision in Utah v. Streiff should apply to this case. In Streiff, the Supreme Court ruled that courts may admit illegally obtained evidence as long as the link between the evidence and the illegal method is sufficiently remote, in a case where the evidence in question was obtained by police officers who illegally stop someone and later discover an existing warrant against that person. The Tenth Circuit, however, rejected the application of the decision in Streiff, agreeing with Hernandez that the government had waived the right to present this argument as they had failed to assert it at the district court level.

The court next turned to the government’s argument that the lower court improperly applied the Spence factors to Hernandez’s encounter with the two officers because officers are free to approach individuals and question them. The court stated that the crucial test to determine if an unlawful seizure has occurred is if the officer’s conduct would lead a reasonable person under similar circumstances to believe they were not free to ignore the police presence and leave the situation. The court agreed with the district court’s application of the factors enumerated in United States v. Spence, stating that once the police officers asked Hernandez to stop, because there were two uniformed police officers in a police car at night without other witnesses present, a reasonable person would not have felt he could walk away.

Finally, the court addressed if the officers had reasonable suspicion to justify an investigative detention. In considering the reasonableness of the detention, the court looked at if there were “specific and articulable facts and rational inferences drawn from those facts” that gave the officers reasonable suspicion that Hernandez was involved in criminal activity. The court looked at the officer’s stated reasons for suspicion, including that Hernandez was walking near a construction site where there had been prior thefts, Hernandez was in a high crime area, Hernandez chose not to walk on the side of the street with a sidewalk, and Hernandez was dressed in all black clothing and carrying two backpacks. The court ultimately determined that, although the level of suspicion required for a Terry stop is less than that required for an arrest, the circumstances in this case did not rise to the requisite level for the officers to stop Hernandez.

Justice Briscoe dissented, stating that he believed the encounter between Hernandez and the officers was more along the lines of a consensual encounter and did not constitute an unlawful seizure considering the circumstances.

The Tenth Circuit affirmed the district court’s grant of a motion to suppress the evidence.

Tenth Circuit: Officers Reasonably Believed Use of Deadly Force was Necessary

The Tenth Circuit Court of Appeals issued its opinion in Carabajal v. City of Cheyenne, Wyoming on February 6, 2017.

This case arose out of an instance involving the Plaintiffs, Mathew Carabajal and his son, V.M.C., being pulled over by several officers, including Officer Thornton and Officer Sutton. On September 19, 2011, Mr. Carabajal was driving a vehicle containing his infant son, V.M.C., and two others. A police vehicle with its lights and sirens activated followed him, but he continued to drive for approximately six blocks, obeying the speed limit. After Mr. Carabajal pulled over, Officer Thornton, one of two officers who later arrived at the scene, stood in front of the vehicle, while a police vehicle was positioned behind Mr. Carabajal’s vehicle and two other vehicles were parked in front of Mr. Carabajal’s. Officer Thornton shouted at Mr. Carabajal, “Don’t start the car or I’ll shoot.” Mr. Carabajal’s vehicle began to move forward and, after three seconds, Officer Thornton fired two rounds from his shotgun at Mr. Carabajal, injuring him. The car then stopped and Officers Thornton and Sutton removed Mr. Carabajal from the vehicle. Mr. Carabajal fell to the ground and Officers Sutton and Thornton slowly dragged Mr. Carabajal out of the vehicle.

Plaintiffs sued the City of Cheyenne, Wyoming, its police department, and four officers, including Officers Thornton and Sutton, in their individual capacities. The district court dismissed V.M.C.’s claim that he was unlawfully seized when Officer Thornton shot into the vehicle he was an occupant in. The district court granted summary judgment on Mr. Carabajal’s excessive force claims, finding that the officers were entitled to qualified immunity. The district court also held that the complaint did not plead a negligence claim against the City based on the alleged hiring of Officer Thornton, due to a lack of evidentiary support.

The Tenth Circuit first addressed Mr. Carabajal’s challenge of the district court’s grant of qualified immunity on his excessive force claims. In this case, the events were captured on video, and the Tenth Circuit states that it relied on that evidence. The Tenth Circuit articulated the two-part analysis required when a defendant asserts qualified immunity. First, the plaintiff must allege facts to demonstrate that a violation of a constitutional right occurred. Second, if that demonstration is made, the court must determine whether the right at issue was “clearly established” at the time of the incident. The plaintiff must show both of these factors.

Mr. Carabajal alleged that Officers Thornton and Sutton violated his Fourth Amendment rights through the use of excessive force.  The Fourth Amendment protects individuals against “unreasonable searches and seizures.” A “seizure” must have occurred and the plaintiff must prove that is was “unreasonable.” Mr. Carabajal made two claims of excessive force.

Mr. Carabajal’s first excessive force claim regarded Officer Thornton’s shooting of Mr. Carabajal. The district court held that the use of force in this case was reasonable. The Tenth Circuit agreed. The Tenth Circuit cited the facts that Mr. Carabajal had eluded police for several blocks, was ordered not to start the vehicle, and that Mr. Carabajal appeared to deliberately drive his vehicle in Officer Thornton’s direction. Additionally, because of the positions of the three police vehicles, in those close quarters, the Tenth Circuit held that a reasonable officer could conclude that his life was in danger and employ deadly force to stop the vehicle. It was reasonable for Officer Thornton to have perceived that Mr. Carabajal’s driving was deliberate. Therefore, Officer Thornton’s conduct was reasonable.

Next, the Tenth Circuit held that, even if Officer Thornton’s conduct was excessive under the Forth Amendment, it was not clearly established that his conduct was unlawful at the time of the shooting. The Tenth Circuit addresses a circuit split regarding the issue and a lack of Supreme Court precedent to hold that the unlawfulness of Officer Thornton’s conduct was not clearly established.

Therefore, the Tenth Circuit held that qualified immunity was warranted regarding Mr. Carabajal’s first excessive force claim.

Mr. Carabajal’s second excessive force claim regarded Officers Thornton and Sutton’s removal of Mr. Carabajal from the vehicle after he was shot. The Tenth Circuit held that the video evidence revealed that the officers did not use an unreasonable amount of force, nor was it unreasonable to remove Mr. Carabajal from the vehicle under those circumstances. When Mr. Carabajal was removed, the officers were aware that he had been non-compliant with police instructions at least twice. Accordingly, the Tenth Circuit held that Mr. Carabajal did not demonstrate a violation of a constitutional right and that Officers Thornton and Sutton were entitled to qualified immunity regarding Mr. Carabajal’s second excessive force claim.

The Tenth Circuit next addressed V.M.C.’s claim that he was unlawfully seized by Officer Thornton when he shot into the vehicle that V.M.C. occupied. The Tenth Circuit held that even if V.M.C. did plead a plausible unreasonable seizure claim, Officer Thornton would have been entitled to qualified immunity because the law does not clearly establish whether firing a weapon into a car constitutes a Fourth Amendment seizure.

Finally, the Tenth Circuit addressed the district court’s dismissal of the Plaintiffs’ negligent hiring claim against the City. A plaintiff must show that the City was reckless or negligent in its employment of improper persons in work that posed a risk of harm to others, for the City to be liable. Here, the City engaged in an extensive investigation into Officer Thornton that demonstrated he qualified under Wyoming standards for employment as a police officer. The Plaintiffs presented no evidence that the City was on notice that Officer Thornton was likely to use unnecessary or excessive force against a member of the public. Thus, the Tenth Circuit held that the City owed no legal duty to protect Plaintiffs as they alleged.

Colorado Court of Appeals: 42 U.S.C. § 1983 is Not State Employers’ Liability Law

The Colorado Court of Appeals issued its opinion in City of Lakewood v. Safety National Casualty Corp. on Thursday, March 9, 2017.

42 U.S.C. § 1983—Indemnification—Defense Costs—Insurance—Employer Liability Law.

A City of Lakewood (City) police officer was killed by friendly fire, and his widow filed a lawsuit under 42 U.S.C. § 1983, alleging that the City and various fellow officers had violated the deceased officer’s rights under the U.S. Constitution. The City sought indemnification for its own defense costs and those of the officers named in the lawsuit, which the City has an independent statutory duty to cover. The insurance company, Safety National Casualty Corporation, denied coverage. The district court concluded that a § 1983 claim did not arise under an employer liability law of any state and granted summary judgment for the insurance company.

On appeal, the City contended that the district court erred in granting summary judgment to the insurance company because the policy unambiguously covers all defense costs incurred by the City in connection with the § 1983 lawsuit. Specifically, the City argued that the § 1983 municipal liability claim must be covered by the employers’ liability portion of the policy because it is a claim based on work-related injuries that falls outside the ambit of the workers’ compensation laws. However, this overstates the scope of the coverage under the policy. By the policy’s plain terms, the common law claims must arise under the laws of Colorado or “other State(s).” Section 1983 is not a law of Colorado or any other state. Therefore, the City’s defense costs, which were sustained because of liability imposed as a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employers’ liability law and were not covered by the policy.

Next, the City contended that it was entitled to reimbursement for amounts it paid to cover the fellow officers’ defense costs. The policy’s definition makes clear that the term “Employee” refers to the injured employee, not to an employee potentially responsible for the injury. “Loss” means payments by the City to the injured employee and the employee’s dependents. Therefore, the City’s indemnification payments to the officers named in the lawsuit do not qualify as losses under the policy and the City is not entitled to reimbursement from the insurance company.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trustee’s Loss in Recall Election Did Not Arise from Town’s Misconduct

The Colorado Court of Appeals issued its opinion in Jones v. Samora on Thursday, December 30, 2016.

Summary Judgment—Identity of Persons Casting Votes—Colo. Const. Art. VII, § 8—Standing—§ 1983 Claim—Law of the Case—Issue Preclusion.

Residents of the Town of Center (Town) organized a recall election to oust the trustees, including Jones, from their positions. Voters either turned in mail ballots or voted in person. All of the ballots had numbered stubs and, based on these stubs, the town clerk, Samora, had a list that showed which voter had received which ballot. He used the list to ensure that each voter had voted only once. To ensure voter secrecy, the stubs were removed before they were tallied. These procedures were used for all in-person ballots that were cast. But the procedures were not followed at all times for the mail-in ballots. At some point, the election judges realized that they had not removed the stubs from some ballots, but decided to continue tallying the ballots before removing the stubs. Because they could see the identifying numbers on the stubs when tallying the votes, the judges could have determined the identity of the voters by consulting the voter list.

Jones and Citizen Center, a nonprofit, filed this lawsuit including five state law claims and a § 1983 claim. The state law claims were severed from the § 1983 claim. A bench trial was held on the state law claims. The court found that the procedural errors were unintentional, that no voter identity had been disclosed when tallying the ballots, and that the election was fundamentally untainted by any substantive intentional error of procedure. However, the court concluded that tallying the mail-in ballots had violated Article VII, § 8 of the Colorado Constitution. Even though no voter identities had been revealed, the opportunity to discover them had been available and this violated Colorado’s constitutional and statutory guarantee of a secret ballot. The court voided the results of the recall election and ordered the Town to hold a new recall election within 30 to 90 days.

The Town appealed. The Colorado Supreme Court reversed the trial court’s decision and reinstated the recall election results, concluding that the stubs were on the ballots because a statute required them to be there; there was no violation of the Colorado Constitution; and the trial court erred in concluding that the election had been void.

The § 1983 claim was still at issue. Following the Supreme Court’s decision, both sides moved for summary judgment. The court granted the Town’s motion and denied plaintiffs’ motion.

On appeal, the Town asserted that plaintiffs did not have standing to file the case. As to the trustee, the Colorado Court of Appeals held that because the loss of the trustee’s position did not arise from the Town’s conduct, the trustee could not satisfy the injury requirement. In addition, because the trustee suffered no injury, he did not have third-party standing, and because he failed to allege his tax dollars were used in an unconstitutional manner, he did not have taxpayer standing.

Although the trustee lacked standing, the court found that Citizen Center had organizational standing because one or more of its members had voted in the recall election by mail-in ballot, and therefore their right to cast a secret ballot had allegedly been violated; the interests Citizen Center sought to protect were germane to its purpose; and the claim asserted and relief requested did not require that individual members of the organization participate in the case.

Regarding its summary judgment motion, the Town asserted that the law of the case barred Citizen Center’s claim. Here, the state law claims proceeding and the § 1983 proceeding were severed and were not the same case. In addition, the law of the case doctrine applies only to a court’s decisions of law, not to its resolution of factual questions. Whether the Town actually violated voter secrecy rights is a question of fact. Thus the law of the case doctrine does not apply.

The Town also asserted that issue preclusion barred Citizen Center’s claim. Issue preclusion bars relitigating factual matters that a court has previously litigated and decided. Here, the factual issue in the state proceeding was identical to the § 1983 factual issue: whether the mail-in voters’ secrecy rights were actually violated. Citizen Center was involved in the state claims case and that case ended in a final judgment. Citizen Center also had a full and fair opportunity to litigate the factual issue of whether the mail-in voters’ secrecy rights were violated. Therefore, issue preclusion barred Citizen Center from relitigating whether the mail-in voters’ secrecy rights were violated.

On the § 1983 claim, the court concluded that there was no genuine issue as to any material fact and the trial court properly granted the Town’s motion for summary judgment. Further, applying the issue preclusion doctrine, the election judges did not infringe on Citizen Center’s members rights, and the Town did not deprive those members of their constitutional rights.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Facts Existed to Support District Court’s Denial of Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Durkee v. Minor on Monday, November 14, 2016.

James Durkee was an inmate at the Summit County Corrections Center in Colorado. After being threatened by a notoriously violent inmate, Ricky Michael Ray Ramos, Durkee expressed concern about Ramos’ aggression and a deputy issued an incident report stating that Durkee and Ramos were not allowed to attend any programs together, be in the hallways together or in passing, or be in the booking area together. The report was signed by the jail staff, including Defendant Hochmuth. On December 28, 2012, Plaintiff Durkee was in the jail’s professional visitation room, when Ramos was escorted into the booking area by Hochmuth. Plaintiff saw both Defendant and Ramos, and Ramos saw plaintiff, but Hochmuth reported that he did not see plaintiff despite the large glass window between the rooms. When defendant removed Ramos’ shackles, he ran into the visitation room and attacked plaintiff, leaving him with severe facial fractures.

Plaintiff sued Hochmuth and the Summit County Sheriff, Defendant Minor, in their individual capacities under 42 U.S.C. § 1983 for violations of his Eighth Amendment rights. Both defendants moved for summary judgment based on qualified immunity. The district court denied summary judgment and the defendants appealed.

On appeal, the Tenth Circuit evaluated whether the district court found facts sufficient to support plaintiff’s claim that the defendants violated clearly established law. The Tenth Circuit found that, as to Hochmuth, the plaintiff had to prove sufficient facts that the defendant knew of and disregarded a substantial risk to plaintiff. Hochmuth does not dispute that he knew Ramos posed a substantial risk of harm to plaintiff “generally,” but argued he did not know plaintiff was in the unlocked room adjacent to the booking room. The Tenth Circuit noted that the success of the defendant’s defense may turn on whether the jury finds his testimony credible that he did not see plaintiff in the next room.

As to Minor, the Tenth Circuit did not find facts sufficient to prove that in his individual capacity as the director of the jail he knew of and disregarded a substantial risk of harm to plaintiff. The Tenth Circuit found that plaintiff could not show Minor’s direct personal responsibility for the harm suffered by plaintiff. The Tenth Circuit could not find a policy dilemma, since unshackling inmates in the booking area had not been a problem for anyone prior to the incident with plaintiff.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Jurisdictional Time Limit Not Tolled When Rule 4(a)(4)(A) Requirements Not Met

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Akers on Tuesday, September 20, 2016.

George Rouse hanged himself shortly after being booked into the Grady County Law Enforcement Center in Oklahoma. His mother, Regina Williams, brought suit under 42 U.S.C. § 1983, arguing the defendants knew he was suicidal but failed to inform jail staff of that fact. Defendants asserted qualified immunity and moved to dismiss Williams’ § 1983 claim. The district court denied the motion on October 8, 2014, concluding Williams’ complaint adequately alleged facts showing defendants’ violated Rouse’s clearly established Fourth Amendment rights.

Eight months later, defendants filed a motion to reconsider the district court’s denial of their motion to dismiss. The district court denied the motion on July 31, 2o15. Defendants then filed an appeal of the October 2014 motion with the Tenth Circuit. Noting the jurisdictional defect, the Tenth Circuit requested additional briefing from the parties on August 24, 2015. Defendants argued that because their notice of appeal was filed only four days after the district court denied their motion to reconsider, it was timely filed as to the October 2014 motion to dismiss.

The Tenth Circuit disagreed. The Tenth Circuit noted that Fed. R. App. P. 4(a)(4)(A)(vi) allows a party to enlarge the 30-day time limit for filing an appeal if that party timely files a Rule 60(b) motion, in which case the time limit is tolled until 30 days after the entry of the order disposing of the motion for reconsideration. The Tenth Circuit remarked that it appears that defendants believed they could enlarge the time for filing their notice of appeal from the October 2014 order by filing a motion for reconsideration. However, because the motion for reconsideration was not filed within Rule 4(a)(4)(A)’s mandated 30-day time limit, the notice of appeal was not timely.

The Tenth Circuit also addressed the defendants’ attempt to change the focus of the appeal after the Tenth Circuit requested additional briefing on jurisdiction. Although the Tenth Circuit could look to the notice of appeal, the docketing statement, and the request for the district court to stay proceedings as evidence of defendants’ intent, the Tenth Circuit found only an intent to appeal the October 2014 order, not the July 2015 order. Due to the untimeliness of the appeal from the October 2014 order, the Tenth Circuit lacked jurisdiction to consider the defendants’ arguments.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Tenth Circuit: State of Residence Cannot Support Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in Vasquez v. Lewis on Tuesday, August 23, 2016.

Peter Vasquez was driving eastbound on I-70 through Kansas at 2 a.m., traveling from Colorado to Maryland. Officer Lewis and Officer Jimerson could not read Vasquez’s temporary tag through his car’s tinted windows so they initiated a traffic stop. Jimerson observed blankets and a pillow in the front passenger seat and back seat of the car as he approached, and assumed something was obscured by the blankets in the back seat. Vasquez responded that there was no one else in the car. Jimerson took Vasquez’s license and proof of insurance and returned to the patrol car, where he told Lewis that Vasquez appeared nervous. Jimerson sent Lewis to gauge Vasquez’s nervousness and “get a feel for him.” Upon his return, Lewis responded that Vasquez looked “scared to death.” Jimerson checked the insurance and discovered that Vasquez had insurance for two newer vehicles. Suspecting that Vasquez was transporting illegal drugs, Jimerson called for a drug sniffing dog.

Lewis returned to Vasquez’s vehicle and asked where he worked, why he wasn’t driving the newer car, and why he didn’t have more belongings in his vehicle if he was moving. Eventually, Lewis issued a warning and started to walk away, then walked back and asked Vasquez if he could ask a few more questions. Lewis asked Vasquez if there were any illegal drugs in the vehicle, which Vasquez denied. Lewis then asked to search the vehicle but Vasquez refused. After he refused, Lewis detained Vasquez and searched the vehicle, aided by the drug dog. The search revealed nothing illegal.

Vasquez brought suit against the officers under 42 U.S.C. § 1983, arguing they violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. The district court initially denied the officers’ motion to dismiss, but after discovery, it granted the officers’ motion for summary judgment based on qualified immunity, holding that Vasquez could not show the officers violated a clearly established right. Vasquez timely appealed.

The Tenth Circuit remarked that it has repeatedly admonished that once an officer establishes a temporary tag is valid, the officer should explain the reason for the initial stop and let the motorist continue on his or her way. The officers argue their extended seizure was justified by reasons other than the temporary tag. The Tenth Circuit considered only whether the search and dog sniff were valid based on Vasquez’s challenge.

The officers contended their suspicions were valid because Vasquez was driving alone late at night; he was driving from Colorado, a “drug source area”; he was driving on I-70, a “known drug corridor”; he did not have enough items in his car to support his assertion that he was moving; the items in the backseat were obscured from view; he had a blanket and pillow in his car; he was driving an older car despite owning a newer one; there were fresh fingerprints on his trunk; and he seemed nervous. The Tenth Circuit was troubled by the officers’ justification that because Vasquez was from Colorado it should establish reasonable suspicion. The Tenth Circuit strongly cautioned that

It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.

The Tenth Circuit continued that the continued use of state of residence as justification is impermissible.

The Tenth Circuit also found that nervousness could not be used as justification, and found that the officers’ reasoning was contradictory at points. The Tenth Circuit similarly disregarded the argument that because Vasquez was driving on I-70 there should be suspicion, noting it would be suspicious if he were driving from Colorado to Maryland and not using I-70. The Tenth Circuit concluded the officers violated Vasquez’s constitutional rights by searching his car.

Turning to whether the right to be free of unconstitutional searches was clearly established at the time of the incident, the Tenth Circuit found precedent to support that it was. In fact, the Tenth Circuit found that the same officer, Officer Jimerson, was the subject of a strikingly similar case in which the Tenth Circuit found no reasonable suspicion for the driver’s detention.

The Tenth Circuit reversed the district court’s summary judgment and remanded for further proceedings. Judge McHugh dissented; he would not have found a constitutional violation and would have distinguished the other case involving Officer Jimerson.

Tenth Circuit: Findings of Fact Needed to Determine Whether Termination Caused by Employer’s Belief that Employee Engaged in Protected Activity

The Tenth Circuit Court of Appeals issued its opinion in Bird v. West Valley City on Monday, August 8, 2016.

Karen Bird was hired at West Valley City’s animal shelter in 2001, and was promoted to manager by Kelly Davis, her direct supervisor, in 2002. In 2005, West Valley City’s human resources manager, Shirlayne George, investigated the shelter and reported several negative comments about Ms. Bird by fellow employees. Mr. Davis was also the subject of several complaints, especially by women, and Ms. George investigated him in 2009. Most of the women who complained about Mr. Davis were either fired or voluntarily left the animal shelter shortly after complaining. Ms. Bird and Mr. Davis had a disagreement in 2009, and their already strained relationship deteriorated thereafter, to the point where Ms. Bird would not look Mr. Davis in the eye and could not stand to be in the same room as him.

In October 2011, the Salt Lake Tribune published an article about a cat that had endured two failed euthanasia attempts in the shelter’s gas chamber. About a week later, a reporter called the shelter after receiving an anonymous tip about a planned mass-euthanasia due to overpopulation. Both Layne Morris, the Community Preservation Department Director and Mr. Davis’s direct supervisor, and Mr. Davis believed that the anonymous tip had come from Ms. Bird, although she denied it. Ms. Bird was notoriously against using the gas chamber for euthanasia and was one of the few individuals privy to the information about the shelter’s overpopulation. Shortly after this incident, Ms. Bird emailed Ms. George that she could not take any more of Mr. Davis’s harassment. She filed a formal complaint on November 3, 2011.

Less than a week later, Mr. Davis issued two letters of reprimand to Ms. Bird regarding unauthorized use of overtime pay, despite the shelter’s usual practice of issuing less formal warnings before the letters of reprimand. On November 14, in response to Ms. Bird’s complaint, Ms. George undertook an investigation of the entire shelter. She received several complaints regarding both Ms. Bird and Mr. Davis, but more against Ms. Bird. Mr. Morris reviewed the results of the investigation and decided to discipline Ms. Bird for insubordination and failure to be courteous to the public or other shelter employees. He sent Ms. Bird a letter advising of the discipline on November 16, and ultimately terminated her employment on November 29. Mr. Morris testified that his decision to terminate Ms. Bird was not only based on the November 2011 investigation, but rather because of the deterioration of the relationship between Ms. Bird and Mr. Davis. Mr. Morris also testified that he had considered terminating Ms. Bird in December 2010 but Mr. Davis stayed his hand.

Ms. Bird unsuccessfully appealed her termination to Ms. George, then the city’s human resources director, and finally to the West Valley City Appeals Board. When all three appeals were unsuccessful, Ms. Bird filed a complaint in district court, alleging the city terminated her in violation of Title VII as a result of gender discrimination and subjected her to a hostile work environment; the city violated § 1983 because it terminated her as a result of gender discrimination in violation of the Equal Protection Clause; and both the city and Mr. Davis violated § 1983 because they terminated her in retaliation for exercising her First Amendment rights concerning the anonymous tip to the reporter. Ms. Bird maintained that she did not provide the anonymous tip, but because she was perceived as doing so, the termination in retaliation violated her First Amendment rights. Ms. Bird also brought state law claims for breach of contract and breach of the covenant of good faith and fair dealing. The district court granted summary judgment to defendants on all claims.

On appeal, the Tenth Circuit first considered Ms. Bird’s Title VII gender discrimination and hostile work environment claims. Applying the McDonnell Douglas burden-shifting framework, the Tenth Circuit evaluated Ms. Bird’s claim that the shelter had a pattern and practice of discriminating against female employees. However, Mr. Morris provided two legitimate, non-discriminatory reasons for terminating Ms. Bird: insubordination and failure to be courteous and cooperative with fellow employees. The Tenth Circuit evaluated Ms. Bird’s proffered reasons why Mr. Morris’s explanation was pretextual. She first contended that the reasons he outlined for terminating her differed from those offered in his deposition. The Tenth Circuit disagreed; the Circuit noted that Mr. Morris had offered specific examples in his deposition but his stated reasons for Ms. Bird’s termination were always insubordination and failure to be courteous. Ms. Bird also contended that the individuals to whom she appealed her termination offered different reasons, but the Tenth Circuit found that they merely offered different instances of her conduct. The Tenth Circuit held that no reasonable juror could determine that the city’s reason for terminating her was pretextual.

The Tenth Circuit similarly disposed of Ms. Bird’s hostile work environment claims. Although Mr. Davis’s conduct was deplorable, the Circuit did not find any evidence that his behavior was gender-based. Ms. Bird pointed to several statements, but the statements were generalized and did not point to specific instances. The Tenth Circuit refused to consider vague and conclusory statements as evidence of gender discrimination.

Turning next to the § 1983 Equal Protection claims, the Tenth Circuit found that because Ms. Bird alleged the same facts to prove her Equal Protection claim as she asserted to prove her Title VII claims, the Equal Protection argument failed for the same reasons. The Tenth Circuit also disposed of Ms. Bird’s state law breach of contract and breach of fiduciary duty claims. Ms. Bird relied on the employee handbook to argue her claims based on violation of the “Workplace Violence” section and the unwritten anti-retaliation policy. The Tenth Circuit found that the large disclaimer on the handbook eliminated all contractual liability for the city.

Finally, the Tenth Circuit evaluated Ms. Bird’s § 1983 First Amendment retaliation claims. Although Ms. Bird continued to argue that she did not make the anonymous tips to the reporters, she alleged that she was terminated in retaliation because the city believed she had made the tips. The Tenth Circuit found that the Supreme Court’s decision in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), controlled its analysis. The lower court did not evaluate Ms. Bird’s First Amendment claims because she could not show that she engaged in protected activity. The Tenth Circuit remanded for a determination of whether Ms. Bird raised a genuine issue of material fact that the city’s belief motivated its decision to terminate her employment.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the Title VII gender discrimination and retaliation claims, the § 1983 Equal Protection Claims, and the state law contractual claims. The Tenth Circuit reversed and remanded on the § 1983 First Amendment claims.

Tenth Circuit: Arrest Can Be Justified Based on Any Crime an Officer Believes Suspect Committed

The Tenth Circuit Court of Appeals issued its opinion in Culver v. Armstrong on Tuesday, August 9, 2016.

Late one night in a small town in Wyoming, Sergeant Shannon Armstrong saw a white Chevrolet pickup truck driving erratically and followed it. When the vehicle finally stopped, only the driver, Reed, and not the passenger, was found. Sergeant Armstrong ordered Reed to sit on the hood of his car while he searched for the other guy. Plaintiff Thomas Culver suddenly appeared out of the dark, and Sergeant Armstrong asked him if he had been in the vehicle. Culver repeatedly answered “Why?” when Armstrong questioned him about whether he had been in the vehicle, and became obstreperous with Armstrong. Armstrong eventually told Culver to move on if it did not concern him, but Culver refused and instead continued to harass Armstrong, drawing him further away from Reed. After several minutes of “verbal jousting,” Armstrong arrested Culver for public intoxication. The charges were later dropped.

Culver sued Armstrong in district court, alleging that Armstrong violated his Fourth Amendment rights in violation of § 1983 by unlawfully arresting him. Armstrong moved for summary judgment based on qualified immunity, which the district court granted. The district court found that the facts recorded on Armstrong’s dash cam and body cam supported the possible arrest of Culver for both public intoxication and interference with a police officer. Culver appealed.

The Tenth Circuit determined that Armstrong had reasonable probable cause to arrest Culver, noting “[p]laintiff seriously misunderstands the nature of our qualified immunity inquiry.” Culver argued that a warrantless arrest without probable cause has been unlawful from time immemorial, but the Tenth Circuit found that Culver’s argument “casts way too high a level of generality over our inquiry.” The Tenth Circuit noted that the officer need only possess reasonable probable cause for an arrest based on any crime the officer could have reasonably believed the suspect committed. After reviewing Wyoming Supreme Court precedent on the issue, the Tenth Circuit found that Armstrong could have had an objectively reasonable belief that Culver was interfering with his detention of Reed in violation of Wyoming law. The Tenth Circuit held that it was inconsequential that Culver was only arrested for public intoxication, and Armstrong was entitled to qualified immunity.

The Tenth Circuit affirmed the district court’s grant of summary judgment.

Tenth Circuit: Malicious Prosecution Claims Under § 1983 Supported by Fourth Amendment Violations

The Tenth Circuit Court of Appeals issued its opinion in Sanchez v. Hartley on Monday, January 11, 2016.

Four detectives and an investigator investigating a 2009 burglary and sexual assault of an 8-year-old girl interviewed Tyler Sanchez, an 18-year-old with significant cognitive disabilities. Even though Mr. Sanchez did not fit the description provided by the victim, the detectives and investigator conducted lengthy interviews, in which Mr. Sanchez eventually confessed to the burglary but not the sexual assault. The district attorney decided to charge Mr. Sanchez with both crimes, and he was detained for several months after multiple judges found probable cause based on the confession.

Mr. Sanchez argues his confession was false, noting that because of his disabilities he did not understand what was happening during the interviews. A medical examination supported his explanation, and the district attorney dropped the charges in 2012. Mr. Sanchez then sued under 42 U.S.C. § 1983, arguing the defendants committed malicious prosecution in violation of the Fourth Amendment by using a false confession to initiate legal prosecution and lengthy pretrial detention. The defendants moved for dismissal based on qualified immunity, but the district court denied the motion. Defendants then brought an interlocutory appeal, arguing they were entitled to qualified immunity and also that Mr. Sanchez’s claims were barred by the statute of limitations.

The Tenth Circuit conducted a de novo review of whether Mr. Sanchez adequately stated a claim that the defendants violated his constitutional rights by using a confession they knew to be false. Defendants set forth five reasons why Mr. Sanchez’s complaint failed to show a constitutional violation, which the Tenth Circuit disposed of in turn. First, defendants argued that § 1983 does not support a claim for malicious prosecution in violation of the Fourth Amendment. The Tenth Circuit disagreed, finding that § 1983 could support both Fourth and Fourteenth Amendment violations.

Next, the defendants argued the complaint failed to set forth sufficient allegations that defendants knew the confession was untrue or recklessly disregarded its truth. The Tenth Circuit found that Mr. Sanchez alleged several facts to support his claim, for example: (1) the description of the attacker given by the victim did not match Mr. Sanchez’s physical appearance in several key ways, including age, size, hair color, and tattoos; (2) Mr. Sanchez has severe cognitive difficulties that affect his behavior in noticeably unusual ways; (3) Mr. Sanchez had significant difficulties understanding and answering questions during the interviews with defendants; (4) Mr. Sanchez’s unusual behaviors during the interview were amplified by fatigue, as the defendants kept him up for over 30 hours during the interviews, and he answered with his eyes closed by the end of the interview; (5) the defendants noticed Mr. Sanchez’s unusual behavior, and asked him whether he was just saying what they wanted to hear and whether he was intoxicated; and (6) Mr. Sanchez was unable to give any details about his involvement to the crime, and instead agreed to everything the defendants proposed, including details that defendants knew were false. The Tenth Circuit found that these facts and others supported an inference that the defendants knew Mr. Sanchez’s confession was false.

Defendants also argued that the initial warrantless arrest invalidated Mr. Sanchez’s claim for malicious prosecution, and that he could only argue a claim for false imprisonment. The Tenth Circuit again disagreed, pointing out that its prior precedent supported claims for malicious prosecution based on seizures that occur after warrantless arrests. Defendants also argued the malicious prosecution claim was confined to the district attorney, but again the Tenth Circuit disagreed, finding no support for defendants’ argument.

Finally, the defendants argued that Mr. Sanchez did not show facts that would shock the conscience. However, the Tenth Circuit held that the shock the conscience standard does not apply to Fourth Amendment claims, only to substantive due process claims. The Tenth Circuit held that Mr. Sanchez had pleaded facts sufficient to show a violation of his constitutional rights.

Turning next to the question of whether those rights were clearly established at the time of the violation, the Tenth Circuit held that they were. At least five years prior to 2009, the Tenth Circuit had decided cases that should have alerted the defendants to the fact that the knowing or reckless use of a false confession would violate the Fourth Amendment. The Tenth Circuit found that each of defendants’ three arguments was invalid because defendants violated the Fourth Amendment regardless of their awareness of Mr. Sanchez’s cognitive disabilities, the contours of malicious prosecution claims do not affect whether defendants violated Mr. Sanchez’s constitutional rights, and in 2009 case law suggested that both Fourth and Fourteenth Amendment violations could support a § 1983 claim.

The Tenth Circuit declined to exercise its pendant appellate jurisdiction to address the statute of limitations claim. The Tenth Circuit affirmed the district court’s denial of qualified immunity and remanded for further proceedings.

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.