August 27, 2016

Tenth Circuit: Officer, School Officials Entitled to Qualified Immunity for Arresting “Class Clown” for Burping in Class

The Tenth Circuit Court of Appeals issued its opinion in A.M. v. Holmes on Monday, July 26, 2016.

In May 2011, F.M. was a student at Cleveland Middle School in Albuquerque when his teacher radioed a request for assistance over her school-issued radio because F.M. was burping loudly in class and disrupting the other students. Officer Acosta, an Albuquerque police officer who was assigned to the school, answered the teacher’s radioed call for help. When Officer Acosta approached the classroom, he saw F.M. sitting on the floor in the hallway while the teacher stood in the classroom doorway. The teacher informed Officer Acosta that F.M. had interrupted class by burping loudly, and even when she ejected him from the room, he continued to lean into the class and burp, making the other students laugh and stopping the teacher from continuing her planned lessons. Officer Acosta escorted F.M. to the office, where he arrested F.M. under N.M. Stat. Ann. § 30-20-13(D), which provides that interfering with the educational process is a petty misdemeanor offense. Officer Acosta informed the principal, Ms. LaBarge, of his intent to arrest F.M., and Ms. LaBarge attempted to contact F.M.’s mother and also prepared a slip for a one-day suspension of F.M. Officer Acosta then transported F.M. to a juvenile detention facility, where he was picked up by his mother. F.M. did not argue with Officer Acosta and was rated a -2 out of 10 on the detention center’s risk assessment. F.M. did not return to Cleveland Middle School for the rest of the year. A.M. spoke publicly about F.M.’s arrest, and there was a good deal of publicity about the incident.

The following year, A.M., F.M.’s mother, re-enrolled him at Cleveland. On November 8, 2011, a student approached a teacher to report witnessing a drug transaction. Officer Acosta retrieved the school’s surveillance videos and, with Ms. LaBarge and an assistance principal, identified the five students involved in the transaction. F.M. was identified as one of the students. All of the students were searched individually in a conference room next to Ms. LaBarge’s office with several adults presents. All of the searches except F.M.’s were audio recorded.

None of the students had drugs on them, but F.M. had $200 cash. He relayed to the adults present that the cash was a birthday present. The assistant principal asked F.M. if he had anything he was not supposed to have, and he said he had a belt buckle in his bag with a marijuana leaf imprint. A search of his backpack revealed the belt buckle and a red bandanna, among other things. F.M. was wearing several layers of clothing, which he removed at the request of the school officials. A male teacher flipped down the waistband of F.M.’s athletic shorts, which revealed a pair of boxers underneath. The teacher did not touch F.M.’s boxers. During the search, A.M. contacted the school and was informed of the events of the morning. A.M. confirmed that F.M. had left the house carrying $200 in cash that morning. F.M. received a three-day suspension for the bandanna and belt buckle because they violated the school’s policies against “gang-related” clothing and “inappropriate messages or symbols.” Later that day, A.M. met with Ms. LaBarge, but according to Ms. LaBarge, A.M. “stormed out” of the office and said her attorney would contact the school.

A.M. sued Officer Acosta, Ms. LaBarge, and the assistant principal in state court, alleging Fourth Amendment violations relating to the May 2011 and November 2011 incidents. A.M. objected to F.M.’s handcuffing in May 2011, opining that a reasonable officer should have known that burping was not a crime and no force was necessary to effectuate an arrest of the compliant child. A.M. also alleged that Ms. LaBarge’s strip search of F.M. in November 2011 was unreasonable. Defendants removed the action to federal court and moved for summary judgment, asserting qualified immunity. The district court granted summary judgment to Ms. LaBarge, agreeing that she was entitled to qualified immunity. While the claims were still pending, A.M. filed another state court lawsuit against the assistant principal, alleging Fourth and First Amendment violations related to the strip search and retaliation for A.M.’s speaking to the media. The assistant principal removed the action to district court and argued collateral estoppel. The court granted summary judgment to the assistant principal. The district court also granted summary judgment to Officer Acosta, finding qualified immunity applicable. A.M. appealed.

The Tenth Circuit addressed A.M.’s claims regarding Officer Acosta first. A.M. contended that the district court sua sponte granted qualified immunity to Officer Acosta, but the Tenth Circuit noted that A.M. devoted most of her reply brief to the issue of qualified immunity and therefore was on notice that the defense had been raised. A.M. also contended she was deprived of the opportunity to present evidence of injuries F.M. suffered by being handcuffed, but the Circuit noted that in Officer Acosta’s response brief, he noted that any injury suffered would have been de minimus, therefore affording A.M. a chance to respond.

The Tenth Circuit next addressed the district court’s grant of qualified immunity to Officer Acosta on the claim that he arrested F.M. without probable cause in violation of the Fourth Amendment. The Tenth Circuit evaluated the New Mexico statute in question and found that Officer Acosta had arguable probable cause to arrest F.M. under the statute banning interference with the educational process. A.M. argued that burping in class did not rise to the level of seriousness contemplated by the statute, and F.M. was at worst being a class clown, conduct that “would have subjected generations of school boys to an after-school detention, writing lines, or a call to his parents.” The Tenth Circuit rejected A.M.’s contentions and determined that the broad language of the statute seemed to encompass F.M.’s conduct. The Tenth Circuit found that A.M. could not carry her burden regarding clearly established law, since the statute appeared to condemn F.M.’s conduct. The Tenth Circuit found that Officer Acosta possessed reasonable probable cause when he arrested F.M. Likewise, the Tenth Circuit agreed with the district court’s reasoning that A.M. had not shown that Officer Acosta committed a constitutional violation when he arrested F.M. The district court determined that A.M. failed to present evidence of an actual physical or psychological injury.

The Tenth Circuit next turned to A.M.’s claims against the assistant principal. The district court found that the assistant principal was entitled to qualified immunity on A.M.’s First, Fourth, and Fourteenth Amendment claims, and the Tenth Circuit agreed. Because the November 2011 search of F.M. was arguably justified at its inception, the assistant principal did not violate the Fourth Amendment by beginning the search of F.M. Likewise, because the search continued to be reasonable in its scope, it was within the strictures of the Fourth Amendment. The Tenth Circuit also dismissed A.M.’s claim that the assistant principal executed the search in retaliation for A.M.’s protected First Amendment activity, referring to its first finding that the search was reasonable at its inception and throughout its duration. A.M. also alleged a Fourteenth Amendment Equal Protection violation because the assistant principal searched F.M. more extensively than the other four students. The Tenth Circuit found that A.M. failed to set forth a legally cognizable Fourteenth Amendment claim because F.M. was not similarly situated to the other students.

Finally, A.M. argued the district court committed reversible error by granting qualified immunity to Ms. LaBarge on A.M.’s unreasonable search claim. A.M. incorporated her arguments against the assistant principal into the brief on Ms. LaBarge’s claim, and the Tenth Circuit decided to follow its previous reasoning in rejecting A.M.’s position.

The Tenth Circuit upheld the grants of qualified immunity as to all three defendants. Judge Gorsuch wrote a compelling dissent; he would have followed a previous New Mexico opinion that limited the statute in question to behavior much more serious than burping in class.

Tenth Circuit: ERISA Plan Consultant Did Not Act as ERISA Fiduciary When Calculating Benefits

The Tenth Circuit Court of Appeals issued its opinion in Lebahn v. National Farmers Union Uniform Pension Plan on Monday, July 11, 2016.

Trent Lebahn contacted a consultant hired by his company’s employee pension plan for information regarding his monthly distribution amount. The consultant told Mr. Lebahn that he would receive $8,444.18 per month and verified the amount when Mr. Lebahn asked her to double-check. He retired and began receiving the monthly payments, only to be informed a few months later that he had been being overpayed by nearly $5,000 per month. The plan’s attorney told Mr. Lebahn that he would need to return over $43,000 in overpayments. Unable to retire on the plan’s true monthly distribution, Mr. Lebahn tried to go back to work, but could not find a job. Mr. Lebahn and his wife sued under ERISA, arguing that the plan, the pension committee, and the consultant’s employer incurred liability under theories of breach of fiduciary duty and equitable estoppel. The defendants moved for dismissal based on failure to state a claim, which the district court granted, and the Lebahns appealed.

On appeal, the Tenth Circuit first addressed the Lebahns’ claims for breach of fiduciary duty. The district court dismissed the claims because the consultant had not acted as an ERISA fiduciary when calculating the pension benefits. The Tenth Circuit agreed, finding that because the consultant lacked discretionary authority in administering the pension plan, she was not a plan fiduciary and therefore the district court properly dismissed the claims.

The Tenth Circuit found that the district court also correctly dismissed the Lebahns’ equitable estoppel claims. The district court found that the Lebahns had failed to plead facts to satisfy two of the five prongs of equitable estoppel: awareness of the true facts and justifiable reliance. The Lebahns failed to adequately address justifiable reliance on appeal and therefore forfeited their argument.

The Tenth Circuit affirmed the district court’s dismissal of the Lebahns’ claims.

Tenth Circuit: Unpublished Opinions, 8/8/2016

On Monday, August 8, 2016, the Tenth Circuit Court of Appeals issued three published opinions and one unpublished opinion.

United States v. Smith

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

Tenth Circuit: Speedy Trial Objections Must Be Asserted Frequently and Forcefully

The Tenth Circuit Court of Appeals issued its opinion in United States v. Black on Monday, July 26, 2016.

The government charged multiple defendants, including James Black, with conspiracy to distribute cocaine in late 2007. After withdrawing and reasserting indictments, Black was eventually charged with conspiring to distribute cocaine, using a telephone in committing the conspiracy, and possessing with intent to distribute cocaine in the government’s Fifth Superseding Indictment. A jury convicted Black on all charges and he was sentenced to 360 months’ imprisonment.

On appeal, Black argued that the trial court plainly erred in calculating his Guidelines range at 360 months to life. The government conceded the error, and the Tenth Circuit agreed. Black should have been sentenced with a total offense level of 34, not 37, reducing his Guidelines range to 262 to 327 months’ imprisonment. The Tenth Circuit remanded for resentencing.

Black also argued that his Sixth Amendment speedy trial rights were violated. The Tenth Circuit evaluated the delays, finding a total delay of 23 and a half months. The Tenth Circuit considered the Barker factors, and found that the length of the delay weighed strongly in Black’s favor. The Tenth Circuit then dissected each delay, attributing portions to Black for the periods of time in which he filed motions or requested continuances and to the government for periods in which they did not vehemently prosecute Black. After carefully considering each time period, the Tenth Circuit determined that the government was responsible for about 7 months of the delay and Black was responsible for about 12 months. The Tenth Circuit next assessed whether the delays were purposeful attempts by the government to strategically position itself and agreed with Black’s concession that they were not. Next, the Tenth Circuit considered whether Black forcefully and frequently asserted his speedy trial rights, and found that only one of his speedy trial assertions was forceful. The Tenth Circuit noted that Black’s counsel’s speedy trial objections were especially weak when he remarked that he was only asserting speedy trial to preserve his previous motion. Finally, the Tenth Circuit found that Black could not show he was prejudiced by the delay. After balancing all the factors, the Tenth Circuit found that the majority weighed in favor of the government.

The Tenth Circuit remanded for resentencing but found no violation of Black’s constitutional right to a speedy trial.

Tenth Circuit: Search of Emails by Semi-Public Entity Required Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ackerman on Friday, August 5, 2016.

Walter Ackerman used his AOL account to send an email with four attachments. AOL’s server identified the hash value of one of the attachments as child pornography and forwarded the email to the National Center for Missing and Exploited Children (NCMEC). The NCMEC opened all four attachments and discovered they were all child pornography. Ackerman was indicted on charges of possession and distribution of child pornography by a federal grand jury. He pleaded guilty, reserving the right to appeal the district court’s denial of his motion to suppress the fruits of NCMEC’s investigation.

On appeal, Ackerman argued that NCMEC’s actions amounted to an unreasonable search of his email and its attachments because no one obtained a warrant or invoked a lawful basis for failing to obtain one. The Tenth Circuit first addressed whether NCMEC qualified as a governmental entity or agent and not a private party. The Tenth Circuit next questioned whether the NCMEC simply repeated the search conducted by AOL or exceeded the scope of AOL’s investigation.

The Tenth Circuit evaluated whether NCMEC is a private party or a governmental entity, noting that when a party is endowed with law enforcement powers beyond those enjoyed by a private citizen, generally police powers are engaged. The Circuit found that NCMEC’s powers extended far beyond those enjoyed by private citizens. NCMEC was created by statute to operate as a clearinghouse for missing and exploited children and to provide forensic technical assistance to law enforcement. The Circuit found that the NCMEC’s creation and functions proved it was acting as a governmental entity when it opened Ackerman’s email and viewed the attachments. The Tenth Circuit further found that even if it had determined NCMEC was a private entity, its searches may still be subject to the Fourth Amendment if the entity is acting as a government agent. The Circuit found that NCMEC was acting as an agent in this case. The Tenth Circuit rejected the government’s contention that it could reverse only if the district court clearly erred, finding that the argument advanced on appeal was a legal one regarding the definition of agency.

After determining that the NCMEC was a governmental entity or agency, the Tenth Circuit turned to whether the NCMEC’s search exceeded the scope of the search performed by AOL. The Circuit found that it did. AOL only identified one of the attached images on Ackerman’s email as child pornography, whereas NCMEC opened all four images and the email. Because NCMEC could have learned private and protected facts when it opened the email, and because Ackerman had a reasonable expectation of privacy in his email, the Tenth Circuit found that NCMEC impermissibly exceeded the scope of AOL’s intrusion.

The Tenth Circuit reversed the district court’s denial of Ackerman’s motion to suppress and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 8/5/2016

On Friday, August 5, 2016, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Flanders v. Lawrence

United States v. Smith

United States v. Oviedo-Tagle

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

Tenth Circuit: Unpublished Opinions, 8/4/2016

On Thursday, August 4, 2016, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

United States v. Gutierrez-Toledo

DiCesare v. McAnally

United States v. Reulet

Oceguera v. Colvin

United States v. Juanico

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

Tenth Circuit: Attorney-Client Privilege Belongs to Party who Hires Attorney, Not its Executives

The Tenth Circuit Court of Appeals issued its opinion in United States v. Merida on Tuesday, July 12, 2016.

Jason Merida was the executive director of construction for the Choctaw Nation. After an investigation revealed he had engaged in several acts of fraud to the detriment of the Nation, he was charged with several counts related to embezzlement, conspiracy, and failing to report income on his tax returns. Prior to trial, Choctaw’s attorney interviewed Merida. At the beginning of the interview, the attorney informed Merida that he was the attorney for the Nation and the interview was covered by the attorney-client privilege.

The Nation allowed portions of the interview to be used at trial to impeach Merida. When the impeachment testimony was admitted, Merida’s counsel objected and requested a bench conference. He moved for a mistrial, arguing the transcript was protected by the attorney-client privilege because the Nation’s attorneys were acting as Merida’s attorneys during the interview. The district court denied the motion, finding that any privilege belonged to the Tribe. The trial proceeded. After several hours of jury deliberations, the jury delivered to the court a note stating, “We can’t agree on a single count. What are your directions?” The court provided a modified Allen instruction and suggested that they adjourn for the evening and reconvene in the morning. The jury requested to be allowed to vote before adjourning, and quickly returned verdicts of guilty on six counts and not guilty on one count. Merida was sentenced accordingly and appealed, contesting only the court’s denial of his motion for mistrial.

The Tenth Circuit found no error in the district court’s determination that any privilege belonged to the Nation, and further found that its precedent required that determination. The Circuit noted that the Nation’s attorney did not aver that he was Merida’s attorney, but rather said that he was representing the Nation and any conversation was covered by the attorney-client privilege. Merida argued he reasonably believed the attorney was working for him, but the Circuit disagreed, noting that the privilege only applies where the client has sought out the attorney’s services. Since Merida was summoned by the Nation and had not requested the attorney’s services, the privilege did not apply to him.

The Tenth Circuit further evaluated any error that may have been caused, and determined it was harmless beyond a reasonable doubt. The evidence of Merida’s guilt was overwhelming, whereas the questioning that provoked Merida’s motion for a mistrial was only a few pages of the 5,000 page transcript. Merida also argues that it was a “close case” based on the jury’s note that it could not agree on a single count, but the Tenth Circuit found that the circumstances of the case strongly supported a reading that the jury had agreed on six of the seven counts but could not agree on the seventh—a “single” count.

The Tenth Circuit affirmed the district court’s denial of a mistrial because the attorney-client privilege belonged to the Nation. Judge Lucero wrote a separate concurrence to emphasize that Merida could not have subjectively believed the attorney-client privilege to apply to him.

Tenth Circuit: Unpublished Opinions, 8/3/2016

On Wednesday, August 3, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Brown v. Chappelle

Chavez-Ochoa v. Lynch

Tomelleri v. MEDL Mobile, Inc.

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

Tenth Circuit: Liability Limit Applies Per Accident, Not Per Covered Auto

The Tenth Circuit Court of Appeals issued its opinion in ACE Fire Underwriters Insurance Co. v. Romero on Monday, August 1, 2016.

Jesse Hale of Finney Farms was driving a tractor-trailer rig in rural New Mexico in the pre-dawn hours of March 24, 2011, when the trailer detached from the tractor. Before he could reattach it, Jose Chavez’s vehicle collided with the trailer, killing Chavez. Romero, the personal representative of Chavez’s estate, brought a wrongful death action against Finney Farms and Hale, and its insurer, ACE, settled with the estate. The parties conditioned settlement on litigating the policy limits applicable to the accident. ACE maintained that it had a $1 million per accident policy limit, but the estate argued that the limit was $1 million per covered auto, and because both the tractor and trailer had limits of $1 million, the liability limit for the accident should be $2 million.

The district court found that the policy unambiguously provided for a limit of $1 million per accident. However, following the district court’s order, the New Mexico Court of Appeals issued its opinion in Lucero v. Northland Ins. Co. (Lucero I), 326 P.3d 42 (N.M. Ct. App. 2014), rev’d, 346 P.3d 1154 (N.M. 2015), a case dealing with a similar policy, in which it reached the opposite conclusion. The estate filed a motion to reconsider in this case, arguing that the New Mexico Court of Appeals’ opinion controlled because the Northland policy was “virtually identical” to the ACE policy. The district court recognized the non-binding nature of the state court opinion, but reasoned that the New Mexico Supreme Court would probably follow the court of appeals, and amended its judgment to reflect the $1 million per auto limit.

The New Mexico Supreme Court accepted certiorari in Lucero I. ACE requested a stay of the district court’s order and reconsideration, which the district court denied. ACE appealed, and the Tenth Circuit held the appeal in abeyance during the pendency of the Lucero appeal. The New Mexico Supreme Court ultimately reversed the court of appeals, finding the policy language unambiguous that the liability limit applied per accident regardless of the number of covered vehicles.

The Tenth Circuit lifted the stay of the ACE appeal following the Lucero II decision. ACE argued that the policy at issue in Lucero II was substantially similar to its policy, while the estate argued that the ACE policy differed because of a table showing covered vehicles and premium amounts. The Tenth Circuit noted that although the table was not included in the Lucero opinion, it well could have been part of the Northland policy. The Tenth Circuit disagreed that the table rendered the policy ambiguous, finding instead that the plain language of the policy supported ACE’s interpretation. The Tenth Circuit found that Lucero II controlled, and reversed the district court.

Tenth Circuit: Unpublished Opinions, 8/2/2016

On Tuesday, August 2, 2016, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Eyring v. Fondaco

In re Behrends: Lofstadt v. Oletski-Behrends

Herrera v. Falk

Drury v. BNSF Railway Co.

Johnson v. Dash

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

Tenth Circuit: A Reasonable Jury Could Credit Plaintiff’s Version of Events, So Summary Judgment Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Foster v. Mountain Coal Co., LLC on Tuesday, July 26, 2016.

Eugene Foster worked at Mountain Coal’s West Elk Mine in Colorado when he turned his head suddenly on February 5, 2008, and injured his neck. He sought treatment the following day at a local ER and received a return-to-work form from the ER doctor saying he could return on February 8. However, due to a previously scheduled hernia repair surgery, he did not return to work until March 31. Mountain Coal held a meeting with Foster on February 10 to discuss the injury where his managers rejected the ER doctor’s return to work form and instead told Foster that he needed to have a doctor complete Mountain Coal’s return to work form. Foster said he would try to have it completed during his hernia surgery.

Foster was unable to have a hospital doctor complete the Mountain Coal return to work form, so he dropped it off with his regular doctor. Foster testified in his deposition that sometime in early March, he delivered the form to the Mountain Coal offices, where he left it on the HR person’s desk. When she told Foster she did not receive the form, he obtained another form from his personal doctor and delivered it to Mountain Coal on March 18. Foster continued to receive care for his neck injury at Mountain Coal’s direction.

On March 31, Foster returned to work with a Mountain Coal return to work form completed by his hernia doctor. On April 3, the general manager of Mountain Coal held a meeting with Foster and an HR employee. During the meeting, the manager confronted Foster about not seeing his personal physician for the neck injury. Foster confirmed that he hadn’t seen his personal physician, and averred that he told the managers that but they continued to request that he have the personal physician complete the return to work form. Foster was supposed to have retraining the following day but requested at the April 3 meeting that it be rescheduled to accommodate his appointment with a doctor about scheduling surgery for his neck. Foster was suspended indefinitely during the meeting. According to his account, it was for not seeing the personal physician before receiving the return to work form. According to Mountain Coal, it was because Foster lied about delivering the earlier return to work form.

Foster saw the specialist on April 4, who opined that he would not recommend surgery because Foster’s work was aggravating the neck condition. On April 9, Foster saw his personal physician, who opined that Foster should not return to his regular work activities. Foster received a letter from his personal physician on April 11 memorializing the doctor’s conclusions that Foster was unable to return to work, and immediately called Mountain Coal to inform them of the letter. He spoke to his direct supervisor.

Two Mountain Coal managers testified that they had decided to terminate Foster on April 9 because he had lied about leaving a return to work form on the HR person’s desk, while a third testified that Foster had not provided a return to work form with the correct dates for his release “and stuff.” On April 14, Foster received a letter advising him of his termination. Although the letter was dated April 11, it stated that the termination was effective April 9. The letter advised that Foster was being terminated for false information regarding a return to work slip.

After Mountain Coal terminated his employment, Foster filed a charge of discrimination with the EEOC and Colorado Civil Rights Division. He received a right-to-sue letter from the EEOC, and filed a complaint in district court in December 2012, seeking relief under the ADA and Colorado law. The district court entered summary judgment for Mountain Coal, and Foster appealed.

The Tenth Circuit first concluded that genuine issues of material fact existed regarding whether Foster had proved his ADA retaliation claim. Foster claimed that his requests for accommodation on April 3 and April 11 were protected activity, and his termination was a retaliatory adverse employment action. The Tenth Circuit evaluated Foster’s claims of requests for accommodation and found them sufficient to apprise Mountain Coal of his needs. Although the district court held that Foster’s April 3 remarks were not sufficiently direct and specific to constitute a request for accommodation, the Tenth Circuit found that the remarks conveyed a need to meet with the doctor in order to schedule surgery, which was sufficiently specific to trigger accommodations. The Tenth Circuit noted that Foster’s deposition testimony could be clearer, but it was clear enough to survive summary judgment. The Tenth Circuit also found that Foster’s April 11 request was clear, and found Mountain Coal’s attempt to retroactively terminate Foster disingenuous. The Tenth Circuit noted the discrepancies between Mountain Coal’s stated reasons for suspending and terminating Foster, and found that the suspicious timing could lead a reasonable fact-finder to infer that Mountain Coal learned of Foster’s request for accommodation and terminated him because of it.

The Tenth Circuit reversed the district court’s grant of summary judgment to Mountain Coal.