April 18, 2015

Tenth Circuit: Unpublished Opinions, 3/24/2015

On Tuesday, March 24, 2015, the Tenth Circuit Court of Appeals issued four published opinions and four unpublished opinions.

Washington v. Washington

Garcia v. Holder

Rott v. Oklahoma Tax Commission

United States v. Powell

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 3/23/2015

On Monday, March 23, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Arizmendi-Moreno

Al Fatlawi v. Holder

United States v. Dowell

Marquez v. Line

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Use of Force Against Physically and Mentally Unstable Person Excessive so No Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Aldaba v. Pickens on Wednesday, February 4, 2015.

Johnny Leija went to a hospital in Oklahoma and was diagnosed with dehydration and severe pneumonia in both lungs, causing hypoxia (low oxygen levels, known to cause altered mental status). He was pleasant when he was admitted at 11 a.m., but by 6 p.m. his behavior had changed—he was complaining of extreme thirst and a nurse discovered he had disconnected his oxygen and cut his IV, and he was bleeding from the arms. The nurse reconnected the IV and the oxygen, but Leija seemed confused and anxious. Leija became increasingly aggressive and disoriented, the doctor was increasingly concerned for his health due to the behavioral and mental status changes, and eventually law enforcement was called “for help with a disturbed patient.”

Leija, who had willingly come to the hospital, exited his hospital room and was walking toward the exit when law enforcement arrived. The doctor expressed concern that Leija could die if he left the hospital, given the severity of his symptoms. The officers tried to persuade Leija to return to his room, but he was agitated and insisted the nurses were trying to kill him. The officers repeatedly tried to get Leija to his knees and warned him they would use a taser. Leija removed his IVs and shook his arms, stating “this is my blood.” A deputy fired the taser, striking Leija in the torso, but it appeared ineffectual and a struggle ensued. The officers shoved Leija face-first against the wall and tased him again, this time making direct contact with Leija’s skin, but again the taser appeared ineffectual. A deputy shoved his leg into the back of Leija’s knee, bringing all three officers and Leija down. The officers handcuffed Leija while the doctor administered calming medications, but at that point Leija became limp and the doctors began CPR. Leija died that evening. The medical examiner testified that the cause of death was pneumonia, but the taser shots “certainly could have increased Leija’s need for oxygen,” and the treating physician testified that the position Leija was forced into by the officers made it difficult for him to breathe.

Erma Aldaba, Leija’s mother and next of kin, brought a 42 U.S.C. § 1983 action against the officers. The district court granted summary judgment to the officers, deciding that Leija was lawfully seized, since probable cause existed for taking him into protective custody due to his altered mental status. However, the district court denied qualified immunity on the excessive force claim, holding that several material disputes existed about the reasonableness of the force used against Mr. Leija. The officers filed an interlocutory appeal.

The Tenth Circuit first analyzed the constitutional violation regarding the officers’ use of excessive force against Leija. The Tenth Circuit first enumerated the Graham factors for determining whether force was excessive, then added factors relating to the reasonableness of using force against a person who is to be taken into protective custody for mental health reasons. The Tenth Circuit found that where, as here, the person has committed no crime and poses a threat only to himself, it is especially egregious to use force to take the person into protective custody. The Tenth Circuit also admonished against the use of force or positional restraints when a person has special characteristics making him especially susceptible to harm, such as known medical conditions. Weighing the factors, the Tenth Circuit found the first factor weighed for the use of some force in restraining Mr. Leija, since he was clearly mentally disturbed and could die if he left the hospital. However, the rest of the factors weighed against the use of force, and particularly against the use of a taser.

Mr. Leija’s altered mental status and compromised physical condition weigh against the use of any force in restraint. Perhaps more importantly, weighing against the use of force was the fact that Mr. Leija committed no crime and voluntarily arrived at the hospital for medical treatment. Finally, the Tenth Circuit found disputed material facts regarding the last Graham factor—whether the defendant resisted seizure. Here, testimony varied on whether Mr. Leija complied with the officers’ orders to get down on his knees. Surveillance video showed no struggle from Leija, who simply continued walking when the officers commanded him to kneel. The deputy made the initial showing of force by tasing Mr. Leija. The officers were not justified in using the level of force shown on the surveillance video. The Tenth Circuit found the officers were not entitled to summary judgment on the excessive force claim, and that the law was clearly established at the time of the violation.

The Tenth Circuit affirmed the district court’s denial of summary judgment to the officers.

Tenth Circuit: Unpublished Opinions, 3/20/2015

On Friday, March 20, 2015, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Rojas v. Heimgartner

Medina-Chimal v. Holder

Hernandez-Torres v. Holder

United States v. Ferguson

United States v. Murillo

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

Tenth Circuit: Unpublished Opinions, 3/19/2015

On Thursday, March 19, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Palacios

Clowdis v. Colorado HI-TEC Moving & Storage, Inc.

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

Tenth Circuit: Unpublished Opinions, 3/18/2015

On Wednesday, March 18, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Nixon v. Pryor

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

Tenth Circuit: Unpublished Opinions, 3/17/2015

On Tuesday, March 17, 2015, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Taylor v. Tulsa Welding School

Barnett v. Maye

Marjenhoff v. New Mexico State Police

Loggins v. Fisher

United States v. Strahan

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

Tenth Circuit: Statutory Language Requires Separate Uses of Weapon During Crime to Support Multiple Charges

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rentz on Tuesday, February 3, 2015.

Philbert Rentz fired one shot that injured one person and killed another. He was charged with two crimes of violence (assault and murder) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He moved to dismiss the second § 924(c) count and the district court granted the motion. The government appealed the dismissal, and a panel of the Tenth Circuit reversed. Rentz petitioned for en banc rehearing, which was granted.

The Tenth Circuit, in an opinion written by Judge Gorsuch, examined the language of § 924(c)(1)(A). Judge Gorsuch diagrammed the sentence, illustrating that the verbs, “uses, carries, or possesses,” necessarily must modify each crime of violence. Because Rentz only “used” the weapon one time, there could only be one charge under § 924(c)(1)(A).

The Tenth Circuit also noted the vastly increased sentences for second offenses under § 924(c) as support for the argument that the statute was not intended to mandate multiple punishments for the same offense. And, to the extent the statute was ambiguous, the Tenth Circuit resolved the ambiguity in favor of Rentz, noting “the tie goes to the presumptively free citizen and not the prosecutor” as it applied the rule of lenity. The Tenth Circuit opinion did not address the double jeopardy issue, since it found Rentz’s conduct could only support one § 924(c) charge.

The Tenth Circuit opinion also addressed a potential circuit split on the issue based on the Eighth Circuit’s opinion in United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010). In Sandstrom, the Eighth Circuit, relying on Tenth Circuit precedent, allowed multiple charges under § 924(c) for a single gun use. However, the Tenth Circuit noted that Sandstrom did not directly address what the government must prove for each successive charge under a single statute.

The Tenth Circuit reversed the panel opinion and reinstated the district court’s dismissal of the second § 924(c) charge. Judge Matheson wrote a detailed concurrence regarding units of prosecution and the rule of lenity, and also addressed prior Tenth Circuit precedent leading to the previous panel’s decision. Judge Hartz wrote a second concurrence, and Judge Kelly dissented.

Tenth Circuit: Unpublished Opinions, 3/16/2015

On Monday, March 16, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Jones v. McHugh

United States v. Cuevas-Bravo

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

Tenth Circuit: Unpublished Opinions, 3/13/2015

On Friday, March 13, 2015, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

United States v. Benoit

United States v. Douglas

Vigil v. Morgan

Cook v. Peters

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

Tenth Circuit: Unpublished Opinions, 3/12/2015

On Thursday, March 12, 2015, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Rouse v. State of New Mexico Corrections Department

Peak v. Central Tank Coatings, Inc.

Haik v. Salt Lake County Board of Health

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

Tenth Circuit: Protected Communications Did Not Cause Employee’s Termination

The Tenth Circuit Court of Appeals issued its opinion in Meyers v. Eastern Oklahoma County Technology Center on Wednesday, January 28, 2015.

Donna Meyers was the adult education coordinator for the EMT program at Eastern Oklahoma County Technology Center. The school lost the records of tuberculosis tests for six students, and a teacher, Ms. Gonzales-Palmer, an Air Evac medic, offered to retest the six instead of asking them to absorb the cost of testing. Ms. Meyers believed the medic had stolen testing materials from Air Evac and instructed her not to test the students. Later, Ms. Meyers discovered the medic had disobeyed her orders. Ms. Meyers contacted Air Evac and agreed to cooperate in their investigation, then met with Ms. Gonzales-Palmer about the incident. Ms. Meyers terminated Ms. Gonzales-Palmer at the meeting.

Ms. Gonzales-Palmer contacted the school superintendent about her termination. The superintendent reinstated Ms. Gonzales-Palmer and warned Ms. Meyers that she lacked authority to terminate employees. The superintendent also admonished Ms. Meyers not to retaliate against Ms. Gonzales-Palmer or discuss the testing with anyone. Shortly thereafter, Ms. Meyers met with the Air Evac supervisor regarding the testing. The superintendent learned of the communication and warned Ms. Meyers that if she continued to discuss the testing or if she retaliated against Ms. Gonzales-Palmer she could be terminated.

Four days later, Ms. Meyers removed Ms. Gonzales-Palmer as a c0-instructor of two classes without consulting her supervisor. When the superintendent learned of this action, he met with Ms. Meyers and informed her she was suspended. The next day, the supervisor learned Ms. Meyers had failed to renew the school’s certification as an EMT training site, and recommended her termination. Ms. Meyers made a written complaint with the Oklahoma Department of Health the same day about the tuberculosis testing. The superintendent wrote a letter advising Ms. Meyers he was recommending her termination and she could appeal his decision, even though she had no right to appeal. Ms. Meyers appeared at the appeal hearing before the school’s board with counsel, but the board voted to terminate her at the end of the hearing.

Ms. Meyers sued under § 1983, alleging denial of the right to free speech regarding her report about the tuberculosis testing and deprivation of due process based on the board’s alleged bias during the hearing. The district court granted summary judgment to the school and superintendent on these claims. Ms. Meyers appealed.

Ms. Meyers claimed that her discussions with the Oklahoma State Board of Health and Air Evac regarding the testing were protected speech and she was wrongfully terminated for engaging in the speech. The district court, and the Tenth Circuit, agreed that the speech was protected but found that Ms. Meyers was not terminated for engaging in the protected speech. The Tenth Circuit applied the five-pronged Garcetti-Pickering test and found that, regarding the Oklahoma State Board of Health, Ms. Meyers’ claim of retaliation failed at the fourth prong because the superintendent did not know about the communication at the time he recommended Ms. Meyers’ termination.

As for the communication with Air Evac, the district court and Tenth Circuit found the retaliation claim failed at the fifth prong, because the superintendent would have recommended Ms. Meyers’ termination regardless of the communication with Air Evac based on  her retaliation against Ms. Gonzales-Palmer. The superintendent had specifically advised her to consult her supervisor before taking any action against Ms. Gonzales-Palmer, so removing her as an instructor was a direct disregard of orders.

The Tenth Circuit next addressed Ms. Meyers’ claim of deprivation of due process and found the claim failed as a matter of law. Ms. Meyers had no protected interest in the meeting with the board.

The district court’s grant of summary judgment to the superintendent and school was affirmed.