May 30, 2017

Tenth Circuit: No Fourth Amendment Violation Where Person with Apparent Authority Consented to Search

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tenth Circuit: 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.

SB 17-035: Increasing Penalties for Tampering with Oil and Gas Equipment or Facilities

On January 11, 2017, Sen. Jerry Sonnenberg introduced SB 17-035, “Concerning Tampering with Equipment Associated with Oil and Gas Gathering Operations.”

There is a current crime of tampering with equipment associated with oil or gas gathering operations. The bill includes placing another at risk of death or serious bodily injury as part of the crime and increases the penalty from a class 2 misdemeanor to a class 6 felony.

The bill was introduced in the Senate and assigned to the Agriculture, Natural Resources, & Energy Committee. It was amended in committee and referred to the Senate Committee of the Whole for Second Reading. The bill was amended on Second Reading and laid over.

HB 17-1127: Exempting Feminine Hygiene Products from Sales Tax

On January 26, 2017, Rep. Susan Lontine and Sen. Beth Martinez Humenik introduced HB 17-1127, “Concerning a Sales Tax Exemption for Feminine Hygiene Products.”

The bill creates a state sales tax exemption, commencing January 1, 2018, for all sales, storage, and use of feminine hygiene products. The bill further specifies that local statutory taxing jurisdictions may choose to adopt the same exemption by express inclusion in their sales and use tax ordinance or resolution.

The bill was introduced in the House and assigned to the Finance and Appropriations committees. The bill is scheduled for hearing in the House Finance Committee on February 13, 2017, at 1:30 p.m.

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.

Congratulations to 2016 Colorado LGBT Bar Association Foundation Award Winners

ColoradoLGBTbar-LogoOn Wednesday, August 10, 2016, the Colorado LGBT Bar Association announced the 2016 winners of its Ally of the Year Award and LGBT Attorney of the Year Award.

The recipient of the 2016 Ally of the Year Award is Rathod Mohamedbhai LLC and its attorneys.

As one of Colorado’s most preeminent civil rights and plaintiffs employment law firms, Rathod Mohamedbhai LLC advocates for the rights of employees in the workplace, and for the civil rights of all individuals against government and institutional abuses of power. Rathod Mohamedbhai is a friend and ally to Colorado’s LGBT community, ensuring accountability and positive social reform as it pertains to the protection of civil rights for all of Colorado’s communities. Following the recent tragedy at the Pulse Nightclub in Orlando, named partner Qusair Mohamedbhai was instrumental in gathering Colorado’s Muslim leaders to condemn the violence and speak out in support of the LGBT community.

The Colorado LGBT Bar Association and the Colorado LGBT Bar Foundation proudly recognizes Rathod Mohamedbhai LLC and its 10 attorneys and staff as their 2016 Ally of the Year.

The recipient of the 2016 LGBT Attorney of the Year Award is Patricia Jarzobski, current CBA President.

As the 2016-2017 Colorado Bar Association President, Jarzobski is the fifth woman to be president of the CBA in 119 years and the first in a decade. Former president of the Colorado Women’s Bar Association (CWBA) in 2012, some of Jarzobski’s other leadership roles include being appointed to the 17th Judicial District Judicial Nominating Commission (2013–19) and serving as vice chair of Planned Parenthood of the Rocky Mountains’ Board of Trustees (2013–present). She has been a CAMP mentor, and her law practice has been named a Legal Aid Foundation Leadership Law Firm.

In her role as CBA president, Jarzobski seeks to build engagement through real relationships that are focused on mentoring and sponsorship. With a  focus on diversity and inclusiveness in the law, Jarzobski seeks to bring a fresh perspective and create a community rooted in inclusive growth.Jarzobski promises to bring to the role of CBA president the grit and poise of someone who has worked her way up the ranks. Having waited tables and cleaned houses, she imparts the perspective of someone who genuinely understands people from disparate walks of life. She will also contribute the perspective of a gay woman of Lebanese and Polish descent. Jarzobski knows what it is like to be treated differently and unfairly but believes that society can change to be more accepting by making inclusiveness the new normal.

The Colorado LGBT Bar Association and the Colorado LGBT Bar Foundation proudly recognized Patricia Jarzobski as their 2016 LGBT Attorney of the Year.

The Colorado LGBT Bar Association will recognize the award winners at the Colorado LGBT Bar Foundation Dinner on October 20, 2016 at the Brown Palace. Tickets are available for individuals or groups; click here for more information or to order tickets. If you plan to purchase a sponsorship or a table, please register as a “group” and you will be able to quickly and easily invite your table attendees to register with your group or sponsor organization. If you are purchasing an individual ticket, consider becoming a “Summit Sponsor” to help directly fund the Summit Scholarship. The recipient of the Summit Scholarship will also be recognized at the dinner.

For questions about the event or for more information, contact the Foundation.

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: “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: Jurisdiction Lacking Where Denial of Summary Judgment Based on Genuine Issues of Material Facts

The Tenth Circuit Court of Appeals issued its opinion in Henderson v. Glanz on Monday, December 28, 2015.

Aleshia Henderson was an inmate at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma. She was in a holding cell of the medical unit in handcuffs and leg restraints awaiting medical treatment when Detention Officer (DO) Johnson unlocked the door in view of Inmate Jessie Earl Johnson, a violent offender who was considered extremely high risk for escape and required “extreme caution.” DO Thomas, unaware that the holding cell door was unlocked, left the medical unit to respond to a medical emergency. When a nurse returned with another emergency patient, DO Johnson left the medical unit to assist the nurses.

During this time, Inmate Johnson reported to Inmate Williams that he was going to make sexual contact with Henderson. He left his unlocked holding cell and entered Inmate Henderson’s unlocked holding cell, exiting about 10 minutes later. Both DO Johnson and DO Thomas observed Inmate Johnson leaving Henderson’s cell. DO Johnson immediately confronted Inmate Johnson, who denied being in Henderson’s cell. DO Johnson then interviewed Inmate Henderson, who would not speak but nodded when asked if Inmate Johnson had sexually assaulted her. She was taken to a hospital, where an examination showed bruising, swelling, and a midline vaginal tear consistent with forcible sexual conduct. Inmate Johnson was subsequently charged with rape, though the charge was dismissed when Henderson briefly recanted out of fear for her mother’s safety.

DO Johnson and Thomas told their immediate supervisor, Sergeant Pirtle, about the incident, and the Tulsa County Sheriff’s Office (TCSO) conducted an investigation. TCSO determined that department policy was violated when the DOs left their posts, failing to maintain the required two officers in the medical unit, and when they failed to maintain the log book. When asked later how she could have been unaware of the risk to Henderson, DO Johnson stated, “I don’t know how to answer that.”

Henderson brought suit under 42 U.S.C. § 1983 against DO Johnson, DO Thomas, and Tulsa County Sheriff Glanz, asserting violations of her Eighth Amendment rights. Defendants moved for summary judgment based on qualified immunity because Henderson could not show a constitutional violation. The district court denied summary judgment as to DO Johnson and DO Thomas, concluding there were genuine issues of material fact regarding whether DO Johnson and DO Thomas were aware of the risk of assault. The district court denied summary judgment to Sheriff Glanz because there were genuine issues of material fact regarding whether he was aware of the risk of assault to Henderson. Defendants appealed.

On appeal, the Tenth Circuit first determined it lacked jurisdiction to consider DO Johnson’s and Sheriff Glanz’s appeals. The Tenth Circuit noted that the district court’s denial of summary judgment was not ripe for interlocutory appeal because it was not a final order and did not fall into any of the exceptions allowing interlocutory appeal. The Tenth Circuit also noted that the district court found facts sufficient to support its denial of summary judgment, concluding that by viewing the facts in the light most favorable to Henderson, a reasonable jury could find a constitutional violation.

As to DO Thomas, the Tenth Circuit found it had jurisdiction to assess the district court’s denial of summary judgment. Because DO Thomas did not know DO Johnson had unlocked Henderson’s cell door and was not there when DO Johnson left the unit, he was not subjectively aware of a substantial risk of bodily harm to Henderson. The Tenth Circuit reversed the district court’s denial of qualified immunity to DO Thomas.

The Tenth Circuit dismissed the appeals of DO Johnson and Sheriff Glanz for lack of jurisdiction, and reversed the district court’s denial of summary judgment to DO Thomas.

Qusair Mohamedbhai Recognized with 2015 Davis Award

Qusair Mohamedbhia Bio PicOn January 21, 2016, Davis Graham & Stubbs held its annual Richard Marden Davis Award Dinner. The guest of honor and recipient of the 2015 Davis Award was Qusair Mohamedbhai, founder of Rathod Mohamedbhai LLC, a civil rights and plaintiff’s employment firm in Denver. Mohamedbhai is a member of the Board of Directors for CLE in Colorado, is a frequent speaker at our programs, and writes for The Practitioner’s Guide to Colorado Employment Law. In his practice, he advocates for the rights of employees in the workplace and for the civil rights of all people against governmental and institutional abuses of power. In addition to his law practice, Mohamedbhai is an adjunct professor at the University of Denver Sturm College of Law, where he teaches constitutional litigation.

Mohamedbhai has received many other prestigious awards in his career. In addition to the 2015 Davis Award, Mohamedbhai received the 2015 Leonard Wein­glass in Defense of Civil Lib­er­ties Award from the American Association of Justice; received the 2013 and 2014 Case of the Year awards from the Colorado Trial Lawyers Association; and is a Legal Advisor to the Government of Mexico. He also received 5280 Magazine‘s “Top Lawyer” award for 2016 in the area of civil rights, Law Week Colorado‘s “Barrister’s Best” award in 2015 for Best Plaintiff’s Employment Lawyer, a “Super Lawyer” designation for 2014 and 2015 in the area of plaintiff’s employment law, and was named in Best Lawyers in the 2016 edition for employment law.

The Richard Marden Davis Award is given annually to a lawyer under 40 years old who combines excellence as a lawyer with civic, cultural, educational, and charitable leadership. The award was created in honor of Richard Marden Davis, a founding partner of Davis Graham & Stubbs, who was a skilled attorney who also made time for community service. The Davis family, Davis Graham & Stubbs, and the Denver Bar Foundation established the award in memory of Richard Marden Davis in 1993 to honor his belief that great lawyers should also be professional and community leaders. Past recipients of the Davis Award include Justice Monica Marquez of the Colorado Supreme Court, Justice Richard Gabriel of the Colorado Supreme Court, Judge Gilbert Roman of the Colorado Court of Appeals, and former governor Bill Ritter.

For more information about the award, click here. Congratulations, Qusair!

Tenth Circuit: Plaintiff Bears Burden to Prove Constitutional Violation of Clearly Extant Law in Qualified Immunity Case

The Tenth Circuit Court of Appeals issued its opinion in Cox v. Glanz on Tuesday, September 8, 2015.

Charles Jernegan surrendered at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma in July 2009, and was asked several questions related to his physical and mental health as part of the intake process by the booking officer and nurse Faye Taylor. He reported that he was taking medication for paranoid schizophrenia but did not express any suicidal ideation. The next day, he filed a medical request through the jail’s kiosk system, reporting he needed to “speak to someone about problems.” Two days later, healthcare employee Sara Sampson attempted to check on him but because he had been moved to a different cell block she never contacted him. That same morning, Jernegan hanged himself and was found dead in his cell.

His mother, Carolyn Cox, brought a 42 U.S.C. § 1983 action against the Tulsa County Sheriff, Stanley Glanz, in his individual and official capacities, and also against the company that provided healthcare services to the jail and several of the jail’s healthcare employees, including Sampson and Taylor. As relevant to Sheriff Glanz, Ms. Cox alleged that his failure to provide adequate and timely mental health screening and care constituted deliberate indifference to Jernegan’s serious medical needs in violation of the Eighth Amendment. For the individual capacity claim, Ms. Cox relied on a supervisory-liability theory, alleging Glanz failed to properly train and supervise jail employees, including Sampson and Taylor. For the official capacity claim, Ms. Cox averred that Glanz had promulgated and administered an unconstitutional policy of providing insufficient mental health evaluation and treatment.

The sheriff moved for summary judgment, contending he was entitled to qualified immunity on the individual capacity claim because Ms. Cox had not established that any jail employee acted with deliberate indifference to Jernegan’s medical needs, he had not acted with the requisite state of mind to support a deliberate indifference claim, and he had not created any policy that produced constitutional harm. The district court denied Glanz’s motion, ruling that genuine issues of material fact precluded summary judgment. The district court did not explicitly focus on the framework of qualified immunity in its ruling. Glanz filed an interlocutory appeal.

The Tenth Circuit first addressed whether it had jurisdiction to entertain the sheriff’s interlocutory appeal, acknowledging that Ms. Cox’s jurisdictional arguments had merit because the district court did not follow the settled mode of decision-making regarding qualified immunity. Because the sheriff accepted Ms. Cox’s version of the facts as true, the Circuit had jurisdiction to evaluate the legal issues presented by the agreed-upon facts. The Tenth Circuit noted that the appropriate two-fold test for qualified immunity was whether there was a constitutional violation and whether that constitutional violation was grounded in clearly established law. The Tenth Circuit commented that neither party adequately briefed the question of whether the law was clearly established at the time of Jernegan’s suicide.

Turning to the merits of the appeal, the sheriff argued the district court committed reversible error when it denied him qualified immunity on his individual capacity claim and when it denied him summary judgment on his official capacity claim. The Tenth Circuit declined to reach the second argument, noting it lacked jurisdiction and declined to exercise pendent appellate jurisdiction. The Tenth Circuit dismissed the sheriff’s appeal on the official capacity claim.

As to the individual capacity claim, the Tenth Circuit elected to review whether clearly established law prohibited the constitutional violation suffered by Jernegan, i.e., whether an inmate’s right to proper suicide screening was clearly established in 2009. The Tenth Circuit noted that Ms. Cox failed to produce any case law support for her proposition, but conducted an independent review. The Tenth Circuit noted that its standard for the requisite state of mind for deliberate indifference was established in the mid-1990s and had not changed by 2009. The trend in the circuit was to require inmate-specific knowledge of suicide risk, and the circuit declined to hold jail officials responsible when the inmate did not demonstrate a particularized risk of suicide. Because Jernegan did not present a specific risk of suicide, no jail employee could have been found to have acted with deliberate indifference, so the sheriff could not be found to have acted with deliberate indifference under a supervisor liability theory. The Tenth Circuit held that Ms. Cox failed to satisfy the clearly-extant law prong of the qualified immunity analysis, and therefore the sheriff was entitled to qualified immunity on the individual capacity claim.

The Tenth Circuit reversed the district court’s denial of qualified immunity on the individual capacity claim against the sheriff and remanded with instructions to enter judgment in favor of the sheriff, and dismissed the part of the appeal related to the official capacity claim.