August 21, 2019

Archives for March 13, 2014

Tenth Circuit: Denver Police Officers Not Entitled to Qualified Immunity on Excessive Force Claims at Summary Judgment Stage

The Tenth Circuit Court of Appeals published its opinion in Estate of Marvin L. Booker v. Gomez on Tuesday, March 11, 2014.

Denver police arrested Marvin Booker on a warrant for failure to appear at a hearing regarding a drug charge. During booking, Mr. Booker died while in custody after officers restrained him in response to his alleged insubordination. Several officers pinned Mr. Booker face-down to the ground, one placed him in a chokehold, and another tased him. After the officers sought medical help for Mr. Booker, he could not be revived.

Mr. Booker’s estate sued Deputies Faun Gomez, James Grimes, Kyle Sharp, Kenneth Robinette, and Sergeant Carrie Rodriguez (collectively “Defendants”) under 42 U.S.C. § 1983, alleging they used excessive force against Mr. Booker and failed to provide him with immediate medical care, which resulted in Mr. Booker’s untimely death. The Defendants moved for summary judgment on qualified immunity grounds. The district court denied their motion because disputed facts precluded summary judgment. Defendants appealed.

42 U.S.C. § 1983 allows an injured person to seek damages against an individual who has violated his or her federal rights while acting under color of state law. Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials  from damages actions unless their conduct was unreasonable in light of clearly established law. Generally, when a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant’s unlawful conduct.

The court discerned five issues from the Defendants’ appeal: (A) whether the district court erred by considering Plaintiffs’ excessive force claim under both the Fourth and the Fourteenth Amendment standards; (B) whether the district court erred in failing to conduct an individualized analysis of each Defendant’s actions; (C) whether the district court erred in denying qualified immunity on Plaintiffs’ excessive force claim; (D) whether the district court erred in denying qualified immunity on Plaintiffs’ claim for failure to provide medical care; and (E) whether the district court erred in failing to grant qualified immunity to Sergeant Rodriguez on the Plaintiffs’ supervisory liability claim.

(A)   The District Court Did Not Err by Considering Plaintiffs’ Excessive Force Claim Under Both the Fourth and the Fourteenth Amendments

Determining which amendment applies to an allegation of excessive force requires consideration of where the plaintiff finds himself in the criminal justice system. It is well-established that the Fourteenth Amendment governs any claim of excessive force brought by a “pretrial detainee.” On the other hand, the Fourth Amendment governs excessive force claims arising from treatment of an arrestee detained without a warrant and prior to any probable cause hearing. The Tenth Circuit concluded the district court did not err in considering Plaintiffs’ excessive force claim under both the Fourth and Fourteenth Amendments. Rather, the district court did what many courts do: it analyzed the case under more than one legal rule and made alternative rulings, holding that Defendants were not entitled to qualified immunity on Plaintiffs’ excessive force claim under either the Fourth or Fourteenth Amendment.

The court held the Fourteenth Amendment applied to Plaintiffs’ excessive force claim in any event, because Mr. Booker was a pre-trial detainee.

(B) Individualized Analysis of Each Officer’s Use of Force

Defendants argued the district court should have assessed their actions individually, rather than judging the conduct of all the deputies as a whole. The Tenth Circuit disagreed and concluded that individualized analysis was not necessary at the summary judgment stage: all Defendants actively and jointly participated in the use of force, and even if a single deputy’s participation did not constitute excessive force, that deputy could be liable under a failure-to-intervene theory. The court concluded that the district court did not err in failing to consider each officer’s use of excessive force individually.

(C)   Qualified Immunity on Plaintiffs’ Excessive Force Claim

The Defendants were entitled to qualified immunity unless the Plaintiffs could show  (a) a reasonable jury could find unconstitutional the deputies’ use of force—a carotid restraint, pressure on Mr. Booker’s back, and application of a taser—once Mr. Booker was fully restrained; and (b) this use of force violated clearly established law.

The Tenth Circuit concluded Plaintiffs met both burdens. The court looked to these three factors in evaluating the excessive force claim under the Fourteenth Amendment: (1) the relationship between the amount of force used and the need presented; (2) the extent of the injury inflicted; and (3) the motives of the state actor.

The evidence, when viewed in the light most favorable to the Plaintiffs, showed the deputies used various types of force—including substantial pressure on his back, a taser, and a carotid neckhold—on Mr. Booker while he was not resisting. Because Mr. Booker was handcuffed and on his stomach, the court concluded the force was not proportional to the need presented. Second, the autopsy report concluded that Mr. Booker died of cardiorespiratory arrest as a result of restraint. A reasonable jury could conclude this evidence of Mr. Booker’s cause of death supported the Plaintiffs’ claim of excessive force. Next, the subjective intent standard for an excessive force due process violation is force inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness. A reasonable jury could conclude that the Defendants’ use of substantial pressure on Mr. Booker’s back, a two-minute carotid hold on his neck, and a taser while Mr. Booker was subdued and struggling to breathe in a prone position demonstrated the requisite level of culpability for a due process violation. The Tenth Circuit held that the Plaintiffs met their burden to show the Defendants violated Mr. Booker’s constitutional rights because a reasonable jury could conclude the Defendants engaged in excessive force in violation of the Due Process Clause.

Second, the legal norms underlying the three-factor due process analysis—proportionality, injury, and motive—were clearly established at the time of Mr. Booker’s death. The court therefore affirmed the district court’s denial of summary judgment on Plaintiffs’ excessive force claim.

(D)   Defendants Were Not Entitled to Qualified Immunity on Plaintiffs’ Claim for Failure to Provide Medical Care

Prison doctors and prison guards may be liable under § 1983 for indifference manifested in their response to the prisoner’s needs or by intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed. This standard applies to pretrial detainees. First, the detainee must produce objective evidence that the deprivation at issue was in fact sufficiently serious. A medical need is sufficiently serious if it is one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. Second, under the subjective component, the detainee must establish deliberate indifference to his serious medical needs by presenting evidence of the prison official’s culpable state of mind.

First, Plaintiffs’ experts provided sufficient evidence for a jury to conclude that the Defendants’ delay in seeking medical care contributed to Mr. Booker’s death, which was without doubt, sufficiently serious to meet the objective component necessary to implicate the Fourteenth Amendment. Second, the disputed facts regarding Mr. Booker’s condition after the use of force ended precluded summary judgment.

There is little doubt that deliberate indifference to an inmate’s serious medical need violates a clearly established constitutional right. The court stated that any reasonable officer in the Defendants’ position (and with their training) would have known that failing to check Mr. Booker’s vital signs, perform CPR, or seek medical care for three minutes when he was limp and unconscious as a result of the Defendants’ use of force could violate the Constitution.

(E)    Sergeant Rodriguez Was Not Entitled to Qualified Immunity on the Plaintiffs’ Supervisory Liability Claim

A plaintiff must satisfy three elements to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities: (1) personal involvement; (2) causation; and (3) state of mind.

The court held that a reasonable jury could find Sergeant Rodriguez actively participated in—and failed to intervene and prevent—the use of excessive force to satisfy the first and second elements. Similarly, the court’s earlier conclusion that a reasonable jury could find Sergeant Rodriguez exhibited excessive zeal—by using the taser on Mr. Booker for 60 percent longer than the recommended time period when he was no longer resisting and fully subdued by handcuffs, and the carotid neck hold, satisfied the third element. Finally, the court’s previous conclusion regarding clearly established law, also precluded summary judgment on this claim.


Tenth Circuit: Defendant’s Sentence for Mail and Wire Fraud to be Recalculated

The Tenth Circuit Court of Appeals published its opinion in United States v. Evans on Tuesday, March 11, 2014.

Defendant-Appellant Thomas Evans pled guilty to one count of conspiracy to commit mail and wire fraud and was sentenced to 168 months’ imprisonment and five years’ supervised release. He appealed his sentence.

Mr. Evans challenged the district court’s loss calculation methodology and its failure to award him a third one-level acceptance of responsibility reduction. The Tenth Circuit found the district court erred on both points.

U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) provides sentencing enhancements for fraud based on the amount of loss caused by the criminal conduct. In making that calculation, the fact that the securities had lost value due to a poor or unsustainable business model would not be chargeable to Mr. Evans. Mr. Evans was also correct that the district court should have considered the effect and foreseeability of non-fraud factors in determining loss. The court held this case called for a single, more complex inquiry: the reasonably foreseeable amount of loss to the value of the securities caused by Mr. Evans’ fraud, disregarding any loss that occurred before the fraud began, and accounting for the forces that acted on the securities after the fraud ended. On remand, the Tenth Circuit instructed the district court to determine whether Mr. Evans’ fraud was a “but for” cause of the investors’ loss, and whether it was the legal cause. In considering the latter, the district court had to account for the effect and  foreseeability of non-fraud factors, including the actions of the receiver to prolong the investments and the effect of the housing market on the value of the securities and the underlying properties. The court further instructed the district court to determine in the first instance the proper assignment of the burden of production regarding these non-fraud factors.

Next, Mr. Evans argued that the district court erred in refusing to award him a one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). On the record before the court, the government’s decision to refuse to request an acceptance of responsibility reduction was not rationally related to any legitimate government end. The court therefore concluded that the district court committed clear error in accepting the government’s refusal to request a third one-level sentence reduction under § 3E1.1(b), and that Mr. Evans was entitled to a three-level reduction for acceptance of responsibility, instead of a two-level reduction.

Because the district court erred in calculating loss, and failing to award an offense level reduction for acceptance of responsibility, the Tenth Circuit REMANDED for the district court to VACATE the sentence and RESENTECE.

Tenth Circuit: $2.92 Million Jury Award in Utah Trade Secret Case Affirmed

The Tenth Circuit Court of Appeals published its opinion in Storagecraft Technology Corporation v. Kirby on Tuesday, March 11, 2014.

James Kirby said the jury’s award against him was too much. True, he helped start and served as a director of StorageCraft, a computer software company. True, after a falling out with his colleagues he stole the computer source code on which the company’s products depended. True, he shared the source code with NetJapan, a rival company that quickly produced a competing software product much like StorageCraft’s. But he said the jury’s $2.92 million trade secret misappropriation award was still too much. Too much, Mr. Kirby said, because he never used the secret for his own personal profit. And too much because StorageCraft never sought to prove at trial that NetJapan made commercial use of its trade secret. Maybe he was angry about how his former colleagues had treated him, maybe he disclosed the trade secret to a rival out of vengeance. But without firmer proof that someone profited from his misdeed, Mr. Kirby insisted the jury’s verdict should be overturned.

The trouble was, Utah law doesn’t distinguish between a misappropriator’s motives. When someone steals a trade secret and discloses it to a competitor, he effectively assumes for himself an unrestricted license in the trade secret. And that bears its costs. After all, what value does a trade secret hold when it’s no longer a secret from the trade? The misappropriator may act with a wish to line his pockets or satisfy a vendetta or for some other purpose still. All the same, Utah’s trade secret statute holds him to account for the full value of the license he arrogated to himself. Just as the district court held.

Utah’s trade secret statute, Utah’s Uniform Trade Secrets Act, Utah Code Ann. § 13-24-4(1), the law governing Mr. Kirby’s case, expressly allows a reasonable royalty measure of damages when the misappropriator uses or discloses the trade secret. And no one disputed that Mr. Kirby did at least that — disclosed the secret to NetJapan. Nothing in the state’s trade secret statute categorically restricts the availability of reasonable royalty damages to cases in which the misappropriator used a trade secret commercially rather than disclosed it to others.

Mr. Kirby still argued the jury’s award was unreasonable based on the facts. The court stated it is important when setting a reasonable royalty award to account for the scope of the license the defendant assumed for himself, to aim at a price that reflects the particular use of the trade secret made by the defendant. While a defendant in Utah can’t avoid reasonable royalty damages because he disclosed the trade secret to others without anyone making commercial use of it, the amount of reasonable royalty damages he must pay depends on what he did with the secret — what uses he made of it. Even acknowledging all this, however, did nothing to help Mr. Kirby. His problem lied in the record. The evidence at trial showed that Mr. Kirby took StorageCraft’s trade secret and intentionally disclosed it to NetJapan, aware that NetJapan was an able competitor, and aware that NetJapan could well use the secret to compete with StorageCraft.

Judgment AFFIRMED.

Tenth Circuit: Unpublished Opinions, 3/11/2014

On Tuesday, March 11, 2014, the Tenth Circuit Court of Appeals issued five published opinions and eight unpublished opinions.

United States v. Behrens

Nicholls v. Bigelow

B.S.C. Holding v. Lexignton Insurance Company

Garcia v. Bernalillo County Sergeant Escalante

Hinzo v. New Mexico Corrections Department

Malloy v. Commerce Bank

United States v. Gomez-Gomez

Singh v. Holder

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

SB 14-146: Allowing Municipalities to Conduct Traffic Studies for CDOT Review

On February 13, 2014, Sen. Gail Schwartz and Rep. James Wilson introduced SB 14-146 – Concerning Information that the Department of Transportation may Consider when Conducting a Traffic Investigation for the Purpose of Determining the Appropriate Speed Limit for a Portion of a State Highway for which a Municipality has Proposed a Speed Limit Alteration. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law requires that the department of transportation (CDOT) approve any change to a speed limit on a portion of a state highway that is within a municipality and requires CDOT to conduct any traffic investigation needed for the determination of a safe and reasonable speed limit if a municipality with a population of 5,000 or fewer people requests that it do so. The bill allows CDOT to receive traffic and engineering data from the city or county engineer of the affected municipality when conducting such a traffic investigation.

The bill is assigned to the Transportation Committee.

Since this summary, the bill was amended in the Transportation Committee and referred to the consent calendar for the Senate Committee of the Whole.

SB 14-147: Authorizing a Study by the Water Engineer

On February 17, 2014, Sen. Scott Renfroe and Rep. Randy Fischer introduced SB 14-147 – Concerning a Study to Determine the Impact of Increased Alluvial Well Pumping in District 2 of Water Division 1. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill authorizes the state engineer to conduct a study to determine the impact of increased alluvial well pumping in district 2 of water division 1 on surface stream flows in the South Platte River and alluvial levels in the South Platte alluvial aquifer.

The bill is assigned to the Agriculture, Natural Resources, & Energy Committee.

SB 14-148: Modifying Market Conduct Examination Standards for Insurance Commissioner

On February 17, 2014, Sen. Bill Cadman and Rep. Jerry Sonnenberg introduced SB 14-148 – Concerning Market Conduct Examinations Conducted by the Commissioner of Insurance. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill modifies the standards pursuant to which the commissioner of insurance conducts market conduct examinations by:

  • Focusing on the activities of insurers that cause actual harm to insurance consumers rather than administrative errors and specifying that unless extraordinary circumstances, demonstrated by clear and convincing evidence, indicate that an imminent risk to consumers requires immediate action, insurers are not subject to a market conduct examination more frequently than once every five years;
  • Requiring the pre-examination conference to be conducted in accordance with the pre-examination provisions of the national association of insurance commissioners’ market conduct examiner’s handbook and specifying the issues that the parties must discuss during the pre-examination conference; and
  • Requiring all fines and penalties to be rationally related to actual harm suffered by consumers as a result of actions, errors, or omissions of the insurer; specifying that the aggregate total amount of fines cannot exceed one year of reported profit earned by the insurer; and, requiring the commissioner, when imposing fines or penalties, to consider actual harm suffered by insurance consumers and prohibiting the commissioner from considering administrative errors or infrequent or unintentional random errors that do not cause significant consumer harm.

The bill is assigned to the State, Veterans, & Military Affairs Committee.

SB 14-152: Standardizing Financial Transaction Requirements Applicable to Insurers

On February 28, 2014, Sen. Cheri Jahn introduced SB 14-152 – Concerning the Standardization of Financial Transaction Requirements Applicable to Insurers. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill modifies the requirements applicable to insurance companies’ investments in derivative transactions by expanding the definitions of “derivative instrument” and “income generation” and by imposing caps on the percentage of an insurance company’s admitted assets that an insurance company may commit to various types of derivative instruments.

The bill updates existing law relating to insurance company holding systems by enacting a model act adopted by the national association of insurance commissioners. The model act:

  • Authorizes the commissioner of insurance to participate in one or more supervisory colleges with other state, federal, and international insurance regulatory agencies for the purpose of reviewing insurance company holding systems’ enterprise risk and compliance with the financial transaction requirements in the model act; and
  • Uses an expansive definition of “control” to require the commissioner’s review and approval of a wide variety of financial transactions that affect control over an insurance company or market competitiveness standards.

The bill is assigned to the Business, Labor, & Technology Committee.

SB 14-153: Authorizing Per Diem Payments and Expense Reimbursement for General Assembly Members Who Serve on State Entities

On March 7, 2014, Sen. Rollie Heath and Rep. Brian DelGrosso introduced SB 14-153 – Concerning Compensation of Members of the General Assembly Appointed to and Serving on State Entities. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes uniform payments of per diem and the reimbursement of expenses to current members of the general assembly who are appointed to serve on state entities created or authorized by statute on which members of the general assembly are statutorily required to be appointed to serve. When the general assembly is in session and legislative member s attend meetings of a state entity to which they are appointed, legislative members will only receive the per diem lodging and expense allowances and travel expenses that they receive as legislative members. When the general assembly is not in session or is in recess for more than three days and legislative members attend meetings of a state entity to which they are appointed, legislative members will receive the same per diem and travel and subsistence expenses received by legislative members for necessary attendance at meetings or functions or to legislative matters during the legislative recess or interim.

The bill is assigned to the State, Veterans, & Military Affairs Committee.