September 24, 2016

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

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

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

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

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

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

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Residual “Crime of Violence” Definition in INA is Unconstitutionally Vague

The Tenth Circuit Court of Appeals issued its opinion in Golicov v. Lynch on Monday, September 19, 2016.

Constantine Fedor Golicov, a lawful permanent resident, was convicted in Utah state court of failing to stop at a police officer’s command, a third-degree felony. He was sentenced to five years’ imprisonment. While serving his sentence, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear, charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his Utah conviction constituted an aggravated felony under the Immigration and Nationality Act (INA). Golicov denied the charge and moved to terminate removal. An immigration judge agreed with Golicov, denying the charge and terminating removal proceedings. DHS appealed, and the BIA reversed the immigration judge and remanded to the IJ to “explore Golicov’s potential eligibility for relief.”

On remand, Golicov moved to terminate the proceedings on the grounds that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), effectively rendered unconstitutional and improper for use in immigration proceedings the definition of “crime of violence” contained in 18 U.S.C. § 16(b). The IJ rejected his argument on remand, and the BIA affirmed the IJ. Golicov appealed to the Tenth Circuit.

The Tenth Circuit noted that the Due Process Clause of the Fifth Amendment requires specificity in order to properly apprise ordinary people of the conduct that is prohibited. The government initially argued that because a removal proceeding is civil, the criminal law holding in Johnson should not apply. The Tenth Circuit disagreed, noting that because deportation proceedings can strip non-citizens of their rights, statutes that impose the penalty of deportation are subject to Fifth Amendment vagueness challenges.

The Tenth Circuit reviewed Johnson‘s holding that the residual clause in the Armed Career Criminal Act was void for vagueness, and noted the similarity between the ACCA residual clause and the INA’s residual definition of “crime of violence.” The Tenth Circuit remarked that two circuits have addressed the identical issue and both determined that the INA residual definition was void for vagueness, and two other circuits addressed the issue in a criminal context and also determined the INA’s definition was unconstitutionally vague. The Tenth Circuit agreed with its sister circuits that the INA’s residual “crime of violence” definition is void for vagueness.

The Tenth Circuit vacated the order of removal and remanded to the BIA for further proceedings.

Colorado Supreme Court: Corporate Defendant Not “Essentially At Home” in Colorado, Therefore Jurisdiction Did Not Attach

The Colorado Supreme Court issued its opinion in Magill v. Ford Motor Co. on Monday, September 12, 2016.

Constitutional Law—Personal Jurisdiction—General Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Supreme Court issued a rule to show cause to review the trial court’s  conclusion that defendant Ford Motor Company (Ford) is subject to general personal  jurisdiction in Colorado and that venue was proper in Denver County. The Court  concluded that, under Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014), the record does not support a finding that Ford is “essentially at home” in Colorado. Therefore, Ford is not subject to general personal jurisdiction in Colorado. Because the trial court did not  determine whether Ford was subject to specific jurisdiction, the Court did not reach that issue. The Court also held that maintaining a registered agent in the state does not convert a foreign corporation to a resident. Because none of the parties reside in Denver and the accident did not occur there, venue was not appropriate in Denver County.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Confrontation Clause Rights Not Violated by Video Conference Deposition

The Colorado Court of Appeals issued its opinion in People v. Hebert on Thursday, September 8, 2016.

Michelle Ann Hebert convinced an elderly gentleman to give her loans totaling several hundred thousand dollars and did not repay him. The elderly gentleman called the police, and Hebert was charged with theft from an at-risk adult. A public defender was appointed for Hebert, and the prosecution moved that same day to depose the victim. The prosecution requested that the victim be deposed from his own home via video conference due to his failing health. The defense argued that allowing a video conference deposition would violate Hebert’s Confrontation Clause rights, and that his assistance would be ineffective because he did not have time to prepare. The district court granted the prosecution’s motion after a hearing, but ordered that the deposition be held in five weeks in order to give the defense time to prepare. Six weeks later, the victim was deposed via video conference and the deposition was recorded. The victim died before trial, so the recorded deposition was admitted at trial.

After the deposition but before trial, Hebert retained private counsel. Shortly thereafter, the People charged Hebert with additional tax-related offenses, and her private counsel moved to withdraw. Hebert requested appointed counsel, but the public defender’s office determined she was ineligible. She represented herself at trial and was convicted on all counts. She appealed, arguing that the district court erred in failing to make its own findings after the district court found her ineligible for appointed counsel, and by admitting the recorded deposition at trial.

The Colorado Court of Appeals first addressed Hebert’s contention about appointed counsel. In her application, Hebert contended she had meager assets, was responsible for three children, and was separating from her husband. On her joint tax return, she claimed approximately $76,000 in income for that year. The district court considered the tax return and Hebert and her husband’s testimony. Her husband testified that they had never separated, and Hebert admitted she had only claimed they were separating so she could qualify for a public defender. The district court considered the evidence and determined Hebert was not qualified for a public defender. The court of appeals determined the district court’s findings were supported by evidence and therefore there was no abuse of discretion.

The court of appeals next evaluated Hebert’s claims that she was denied a fair trial when the district court admitted the video testimony before her counsel had adequate time to prepare for the deposition. The court of appeals perceived no error. The district court specifically postponed the deposition so that counsel would be able to prepare prior to the deposition.

Hebert also argued her Confrontation Clause rights were violated because she did not have the opportunity to confront her accuser face-to-face. The court of appeals noted that the right to confront an accuser face-to-face is not absolute, and when public policy concerns warrant and the reliability of testimony is otherwise assured, testimony may be obtained other than face-to-face. The court found that the victim in this case was medically unavailable due to his fragile health, crediting two letters and an affidavit from the victim’s doctor that stated that being in the same room with Hebert would cause the victim’s blood pressure to rise to a potentially fatal level. The court of appeals agreed with the district court that the victim’s fragile health necessitated a video conference deposition from the victim’s home. The court found the video reliable, because he gave testimony under oath, was contemporaneously cross-examined by Hebert’s counsel, and the jury was able to assess his demeanor in the video. The court also found no Crawford violation from the video testimony, because the victim was deceased at the time of trial and Hebert was fully able to cross-examine him during the deposition.

The court of appeals affirmed the conviction and sentence.

Colorado Court of Appeals: Officer Justified in Conducting Pat-Down Search Before Allowing Person to Enter his Vehicle

The Colorado Court of Appeals issued its opinion in People v. Gow on Thursday, August 25, 2016.

Tommy Gow was walking in a residential neighborhood at about 2:15 a.m. when a police officer approached him. Gow told the officer he had just purchased an iPad from a friend, and, when the officer verified that Gow had no outstanding warrants, he told Gow he was free to leave. Gow started to leave, but then flagged down the officer and asked for a ride to another house a few blocks away. The officer told Gow he would have to pat him down to check for weapons before Gow could enter his car, and also wanted to look in the iPad box. When Gow opened the box, two small baggies fell to the ground, which Gow told the officer contained “speed.” Gow was arrested and ultimately convicted of possession of methamphetamine and possession of a schedule I controlled substance. He appealed, arguing the officer’s pat-down search violated his Fourth Amendment rights and therefore the evidence should have been suppressed.

On appeal, the Colorado Court of Appeals evaluated Gow’s claim that the pat-down search, including the search of the box, was unconstitutional because under People v. Berdahl, 2012 COA 179, “an officer may not, in the course of providing a courtesy ride, search the individual to be transported without a reasonable, articulable suspicion that the individual is armed and dangerous.” Because the officer in this case did not have a reasonable suspicion that Gow was armed and dangerous, the pat-down search was unconstitutional and the resulting evidence should have been suppressed. The trial court did not cite Berdahl, but its holding that the pat-down was reasonable was directly at odds with Berdahl‘s holding that Colorado does not recognize an “officer safety” exception to the rule that an officer must have a reasonable, articulable suspicion before searching a person.

The court of appeals disagreed with Berdahl, finding that the out of state cases relied on by the division in Berdahl did not stand for the position that an officer may never conduct a pat-down search without reasonable suspicion. The court concluded that the reason for the search was determinative, and in cases where the officer was conducting a pat-down search for his or her own safety prior to transporting individuals in his or her car, it was reasonable for the officer to conduct a pat-down for weapons. The court found it would be illogical to require an officer to compromise his or her safety by allowing individuals in his or her car without patting them down for weapons, and the unintended result would be that officers would be reluctant to offer courtesy rides. The court noted that the Berdahl division was rightly concerned about eroding Fourth Amendment protections, but noted that by only permitting pat-down searches prior to allowing individuals to receive rides, the Fourth Amendment would not be violated.

The court of appeals affirmed the trial court’s denial of Gow’s suppression motion.

Tenth Circuit: State of Residence Cannot Support Reasonable Suspicion

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

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

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

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

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

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

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

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

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

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

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

Tenth Circuit: No Constitutional Violation Where Court Denied Counsel’s Request for Review of Classified Documents

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lustyik on Monday, August 15, 2016.

Robert Lustyik was an FBI agent who tried to help his friend and business partner, Michael Taylor, with Taylor’s security business, American International Security Corporation (AISC). The Department of Defense offered AISC a contract in 2007 to provide training to Afghan Special Forces, and in 2010 the United States began investigating AISC for fraud and money laundering related to the 2007 DOD contract. The United States filed a civil forfeiture action against AISC’s assets in 2011, resulting in the seizure of more than $5 million from Taylor’s bank account. Lustyik attempted to impede the government’s investigation of Taylor by using his status as an FBI agent, including trying to establish Taylor as a confidential source. Taylor assured Lustyik that he would receive financial compensation for his assistance.

In 2012, a federal grand jury indicted Lustyik, Taylor, and their middle-man on charges of conspiracy, honest services wire fraud, obstruction of justice, and obstruction of agency proceedings. The United States disclosed over one million pages of unclassified discovery, plus 10,000 pages of classified information. Despite revocation of his security clearance, Lustyik was allowed to review nearly 7,000 pages of the classified material. Through his counsel, Lustyik filed a Classified Information Procedures Act (CIPA) motion, identifying which classified information they wished to present at trial. The court denied Lustyik’s motion after an ex parte meeting with defense counsel. During the first few days of Lustyik’s trial, Lustyik pleaded guilty to all eleven counts with no plea agreement. After pleading guilty but before sentencing, Lustyik’s lead counsel withdrew and the court appointed new counsel. Lustyik filed a motion to obtain security clearance for the new attorney, which a magistrate denied.

At sentencing, the court addressed counsel’s inability to access the classified information, noting that it would not add to counsel’s ability to argue for his client. Defense counsel presented significant mitigating evidence and obtained a downward variance from the Guidelines range of 151 to 188 months, and Lustyik was sentenced to 120 years imprisonment. He appealed, arguing his constitutional rights were violated when his counsel was denied access to the confidential materials.

The Tenth Circuit evaluated Lustyik’s claim of a Sixth Amendment violation under de novo review. The Circuit noted that the right to counsel is presumptively violated only where the circumstances are so likely to prejudice the accused that the cost of litigation is unjustified. Lustyik claimed his counsel’s limited ability to review classified materials fatally undercut his effectiveness and prevented him from adequately testing the government’s position. The Tenth Circuit disagreed, finding the presumption of prejudice inapplicable. Because Lustyik failed to show that the district court’s denial created a constitutional violation, the Tenth Circuit reviewed for abuse of discretion and found none. The Tenth Circuit found ample record support for the district court’s conclusions regarding the classified information.

The government conceded on appeal that Lustyik’s sentence may have been illegal, so the Tenth Circuit remanded for sentencing clarification. The Tenth Circuit otherwise affirmed the denial of security clearance.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tenth Circuit: 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: 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.