June 26, 2016

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.

Tenth Circuit: Unpublished Opinions, 5/26/2016

On Thursday, May 26, 2016, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Betances

United States v. Warren

Gillings v. Banvelos

Benavidez v. Colvin

LaLiberte v. United States Probation

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 5/25/2016

On Wednesday, May 25, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Notbohm

Collier v. Roberts

United States v. Shelton

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 5/24/2016

Tenth Circuit: Unpublished Opinions, 5/23/2016

On Monday, May 23, 2016, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Kerkhoff v. West Valley City District Court

United States v. Rodriguez-Aguirre

Robertson v. Biby

Muniz-Savage v. Addison

United States v. Gonzalez-Chavez

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 5/20/2016

On Friday, May 20, 2016, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Bird v. Wilson

Jones v. Colvin

United States v. Rodriguez-Vejar

Kostich v. McCollum

United States v. Garcia

United States v. Morales

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 5/19/2016

On Thursday, May 19, 2016, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Ryals v. City of Englewood

Craine v. National Science Foundation

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 5/18/2016

On Wednesday, May 18, 2016, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Smith

Kuri v. Matrix Center

Freres v. Xyngular

United States v. Partida-Hernandez

United States v. Herrera-Zamora

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

Tenth Circuit: Article III “In Custody” Requirement Treats Consecutive Sentences as One Continuous Stream

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

Abraham Hagos is incarcerated in Colorado state prison for multiple convictions stemming from two prosecutions. In the first case, he was convicted of first-degree murder, attempted first-degree murder, conspiracy to commit first-degree murder, and two counts of retaliation against a witness (the murder case). In the second, he was convicted of first-degree kidnapping, first-degree burglary, felony menacing, and conspiracy (the kidnapping case). He is serving two consecutive life sentences, one from each case. Hagos appealed his convictions in the kidnapping case, which were affirmed on direct appeal by the Colorado Court of Appeals. The Colorado and United States supreme courts denied certiorari. Hagos then sought state post-conviction relief, which was denied by the district court, court of appeals, and supreme court. He then filed a federal § 2254 petition, which the district court dismissed, concluding it did not satisfy the Article III case or controversy requirement. The district court issued a COA on this issue.

Hagos also appealed his convictions in the murder case. The Colorado Court of Appeals affirmed on direct appeal, and the Colorado and United States supreme courts again denied certiorari. Hagos filed a § 2254 petition in the murder case, which the district court denied. The Tenth Circuit dismissed the matter after denying Hagos’ request for a COA. Hagos then filed a post-conviction motion in state court, which is still pending.

Hagos’ § 2254 petition was pending in the Tenth Circuit when he filed his § 2254 petition in the kidnapping case. The district court sua sponte ordered Hagos to show cause why the kidnapping case proceedings should not be stayed pending the outcome of the murder case proceedings. The court evaluated the “in custody” requirement for habeas relief and decided that even if it invalidated the kidnapping convictions, Hagos would remain incarcerated for life due to the murder convictions. The district court concluded that if granting habeas relief in Hagos’ kidnapping case would not reduce his confinement, the Article III case or controversy requirement was not satisfied. The district court disagreed with Hagos’ arguments against the stay and enforced it during the pendency of the proceedings in the murder case. After the Tenth Circuit dismissed Hagos’ petition and the U.S. Supreme Court denied certiorari, the district court dismissed Hagos’ § 2254 petition in the kidnapping case for the same reasons it outlined in its stay order.

The Tenth Circuit conducted a de novo review of the district court’s dismissal of Hagos’ § 2254 petition. The Tenth Circuit first noted that Hagos is “in custody” for Article III purposes because his two life sentences run consecutively, following Supreme Court precedent that explains that consecutive sentences are to be treated as a continuous stream. The Tenth Circuit found the district court’s reliance on a different case misplaced, since that ruling only affected expired concurrent sentences. The Tenth Circuit further explained that Hagos’ petition satisfied the case or controversy requirement because even though providing habeas relief in the kidnapping case would not affect the duration of his sentence, it could affect his prisoner level and availability of certain prison programs.

The Tenth Circuit reversed and remanded for consideration of Hagos’ § 2254 petition.

Tenth Circuit: “Arguable” Reasonable Suspicion Enough to Support Qualified Immunity

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

Tsutomu Shimomura was at a security checkpoint at DIA when a TSA agent tested his medicine with a test strip. Mr. Shimomura expressed concern about the sterility of the test strips and asked to speak to a supervisor. The supervisor, TSA Agent Kendra Carlson, engaged in a heated exchange with Mr. Shimomura while Denver Police Officer Wade Davis watched. Agent Carlson eventually ordered Mr. Shimomura to “get the hell out of here,” and he turned to leave. As he was leaving, his roller bag may have struck Agent Carlson. Officer Davis immediately arrested Mr. Shimomura. He was detained for approximately 9o minutes, then was issued a summons and complaint, charging him with assault for pushing his roller bag into Agent Carlson. The prosecutor dismissed the criminal complaint after reviewing the charges.

Mr. Shimomura brought suit against Agent Carlson and Officer Davis, alleging 42 U.S.C. § 1983 violations of his Fourth, Fifth, and Fourteenth Amendment rights. The district court granted summary judgment based on qualified immunity to Officer Davis on the Fourth Amendment claims and dismissed the claims against Agent Carlson based on failure to state a claim. The court also dismissed the causes of action based on violations of the Fifth and Fourteenth Amendments for failure to state a claim. Mr. Shimomura appealed.

The Tenth Circuit first determined that Officer Davis was entitled to qualified immunity because he had at least a modicum of reasonable suspicion that Mr. Shimomura had committed a crime. The majority panel determined that probable cause was at least “arguable” as to Officer Davis. The Tenth Circuit evaluated the crime of which Mr. Shimomura was charged, third-degree assault, which requires reckless or intentional commission of assault, which is separately defined as bodily injury, including pain. The majority panel determined that Officer Davis had at least arguable suspicion that Agent Carlson experienced pain, however minor or fleeting, from her contact with the roller bag, and therefore he was entitled to qualified immunity. Chief Judge Tymkovich dissented; he opined that the majority panel disregarded its role by impermissibly finding facts instead of questioning whether a reasonable jury could have taken Mr. Shimomura’s version of the events as true. Judge Tymkovich did not believe Officer Davis was entitled to qualified immunity.

The Tenth Circuit next evaluated the district court’s dismissal of Mr. Shimomura’s claims against Agent Carlson. The Tenth Circuit affirmed the dismissal, finding that even if Agent Carlson fabricated her version of the events, she did so after Mr. Shimomura’s arrest. Because Mr. Shimomura was arrested as a matter of law in the moments after his roller bag may have struck Agent Carlson, any withholding and fabrication of evidence took place after that moment. The Tenth Circuit found Mr. Shimomura’s Fourth Amendment claims against Agent Carlson failed.

The Tenth Circuit then turned to Mr. Shimomura’s conspiracy claims and disregarded them for the same reason. The Tenth Circuit determined that, because any conspiracy would have occurred after Mr. Shimomura’s arrest, his claims could not stand. The Tenth Circuit similarly disposed of Mr. Shimomura’s due process claims, finding that any due process issues related to unlawful arrest must be decided under the Fourth Amendment.

The Tenth Circuit affirmed the district court. Chief Judge Tymkovich dissented as to the claims against Officer Davis.

Tenth Circuit: Unpublished Opinions, 5/17/2016

On Tuesday, May 17, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Arthurs

United States v. Wallace

United States v. Behrens

Reynolds v. Wright

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