August 22, 2019

Archives for July 2018

Tenth Circuit: Excess Insurer Should Have Provided Coverage for Claims Against Insured’s Own Work Product

The Tenth Circuit Court of Appeals issued its opinion in Black & Veatch Corp. v. Aspen Insurance (UK) LTD; Lloyd’s Syndicate 2003 on February 13, 2018.

This case is an insurance coverage dispute between Black & Veatch Corporation (B&V) and Aspen Insurance (UK) Ltd. and Lloyd’s Syndicate 2003 (collectively, Aspen). The issue is whether Aspen must reimburse B&V for the costs B&V incurred due to damaged equipment that its subcontractor constructed at power plants in Ohio and Indiana. The district court held that Aspen need not pay B&V’s claim under its commercial general liability insurance policy because B&V’s expenses arose from property damages that were not covered “occurrences” under the Policy. Because the only damages involved were to B&V’s own work product arising from its subcontractor’s faulty workmanship, the court concluded that the Policy did not provide coverage and granted Aspen’s motion for partial summary judgment.

B&V appealed. Because the Tenth Circuit predicted that the New York Court of Appeals would decide that the damages here constitute an “occurrence” under the Policy, it vacated the district court’s summary judgment decision and remanded for further consideration in light of this opinion.

B&V is a global engineering, consulting, and construction company. A portion of its work involves engineering, procurement, and construction contracts (EPC contracts). In 2005, B&V entered into an EPC contracts with American Electric Power Service Corporation to engineer, procure, and construct several jet bubbling reactors (JBRs), which eliminate contaminates from the exhaust emitted by coal-fired power plants. For at least seven of these JBRs, B&V subcontracted the engineering and construction of the internal components to Midwest Towers, Inc. (MTI). Deficiencies in the components procured by MTI and constructed by MTI’s subcontractors caused internal components of the JBRs to deform, crack, and sometimes collapse. After work on three of the JBRs was completed, and while construction of four others was ongoing, AEP alerted B&V to the property damage arising from MTI’s negligent construction. AEP and B&V entered into settlement agreements resolving their disputes relating to the JBRs at issue here. Under the agreements, B&V was obligated to pay more than $225 million in costs associated with repairing and replacing the internal components of the seven JBRs.

B&V had obtained several insurance policies to cover its work on these JBRs. Zurich American Insurance Company provided the primary layer of coverage for up to $4 million for damage to completed work. Under the CGL policy at issue here, Aspen provided the first layer of coverage for claims exceeding the Zurich policy’s limits. The policy limits coverage to up to $25 million per occurrence and $25 million aggregate. Following the basic insuring agreement, the Policy then scales back coverage through several exclusions, two of which are relevant here. The first, known as the “Your Work” exclusion, or “Exclusion F,” excludes coverage for property damage to B&V’s own completed work. The “Your Work” exclusion is subject to an exception that restores some coverage. The second exclusion, known as “Endorsement 4,” excludes coverage for property damage to the “particular part of real property” that B&V or its subcontractors were working on when the damage occurred. This exclusion pertains only to ongoing, rather than completed, work. In other words, the policy does not cover property damage to B&V’s own completed work unless the damage arises from faulty construction performed by a subcontractor. The court of appeals referred to this as the “subcontractor exception.”

B&V submitted claims to its liability insurers for a portion of the $225 million it cost to repair and replace the defective components. After B&V recovered $3.5 million from Zurich, its primary insurer, it sought excess recovery from Aspen. Aspen denied coverage. B&V sued Aspen in federal district court for breach of contract and declaratory judgment as to B&V’s rights under the policy. B&V sought coverage for approximately $72 million, a portion of the total loss. On cross-motions for partial summary judgment on the coverage issue, the court sided with Aspen, holding that damage arising from construction defects was not an “occurrence” under the policy unless the damage occurred to something other than B&V’s own work product.

The threshold question was whether the New York Court of Appeals would hold that the policy’s basic insuring agreement covered the property damage to the JBRs as an “occurrence.” The Tenth Circuit concluded that the damages constituted an “occurrence” under the policy because they were accidental and harmed a third party’s property.

The Tenth Circuit Court of Appeals began by addressing whether, under New York contract law, B&V sought payment from Aspen for a covered “occurrence” — the first step necessary for obtaining coverage under a CGL insurance policy. An occurrence triggers coverage. The damages at issue here satisfy the Policy’s accidental requirement.

The Policy covers costs arising from property damage. When AEP claimed damages against B&V, the separation of insureds clause rendered AEP a third party with respect to its claims for property damage against B&V. The principle risk B&V faced as an EPC contractor, and thus a main reason for obtaining CGL insurance, was the potential for claims alleging damages made by the property owner, AEP. Thus, the property damage to the JBRs constituted an “occurrence” under the policy. Furthermore, concluding otherwise would violate the New York Court of Appeal’s rule against surplusage. In other words, Aspen’s interpretation of “occurrence” as excluding the damages at issue here would render several Policy provisions meaningless in violation of New York contract interpretation rules.

Under the Policy, the damages at issue here were caused by a coverage-triggering “occurrence.” First, the damages were accidental and resulted in harm to a third-party’s property, thus meeting the policy’s definition of an “occurrence.” Second, the district court’s interpretation would violate New York’s rule against surplusage by rendering the “subcontractor exception” meaningless. Third, the changes ISO has made to standard-form CGL policies demonstrate that the policies can cover the damages at issue here. Fourth, the overwhelming trend among state supreme courts has been to recognize such damages as “occurrences.” Fifth, New York intermediate appellate decisions are distinguishable, outdated, or otherwise inapplicable. For the foregoing reasons, the Tenth Circuit vacated the district court’s summary judgment decision and remanded for reconsideration in light of this opinion.

Tenth Circuit: Unpublished Opinions, 7/30/2018

On Monday, July 30, 2018, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Baldwin

Van Duzer v. Simms

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

Tenth Circuit: Disqualification of Expert Testimony Within Sound Discretion of District Court

The Tenth Circuit Court of Appeals issued its opinion in Hall v. Conoco, Inc. on April 10, 2018.

The appeal questioned the causation and exclusion of expert testimony. The district court excluded testimony from two of Hall’s causation experts and granted summary judgment to ConocoPhillips.

The first testimony that was excluded was that of Dr. Gore. Dr. Gore rendered a differential diagnosis for the cause of Ms. Hall’s leukemia. Dr. Gore considered three potential causes: benzene, smoking, and idiopathic (unknown) causes. Dr. Gore stated the cause was benzene because he ruled out smoking. However, he did not expressly rule out the possibility of idiopathic causes.

The district court concluded that Dr. Gore’s differential diagnosis, while an acceptable method for determining cause, was not reliable because he failed to justify benzene as the cause and he failed to rule out “idiopathic causes” for Ms. Hall’s leukemia. This reasoning was in the discretion of the district court.

The Tenth Circuit began its review by assuming, as the district court did, that benzene emissions could have caused Ms. Hall’s acute myeloid leukemia with inverse 16. Ms. Hall bore the burden of proving that benzene emissions from ConocoPhillips actually caused her disease.

One of Ms. Hall’s experts, Dr. Mitchell, created an air model to estimate benzene concentrations near where Ms. Hall had lived. Dr. Gore used Dr. Mitchell’s estimations and the number of years she lived near the refinery to calculate Ms. Hall’s cumulative exposure to benzene. He used this calculation to opine that benzene was the cause of Ms. Hall’s leukemia. The district court, acted within its discretion and identified two flaws with Dr. Gore’s methodology: Dr. Gore could not reliably use the highest hourly average-emission level to calculate Ms. Hall’s cumulative exposure to benzene, and Dr. Gore’s calculation was based on mistakes involving the extent of Ms. Hall’s exposure to benzene.

For the first flaw, Dr. Gore used the highest hourly average-emission level provided by Dr. Mitchell air model, but he did not provide adequate support for using the highest level. Dr. Gore claimed Dr. Mitchell instructed him to use the highest level, but Dr. Mitchell’s testimony states that he was not qualified to determine which level should be used and that the level would best be determined by an oncologist. Dr. Gore did not have any other support for using the highest level, except for his claim that Dr. Mitchell assured him that the highest level was the metric used in the industry.

The district court concluded that neither Dr. Gore nor Dr. Mitchell were qualified to choose the concentration level and that neither could defend the use of the highest hourly average-emission level. Without support for using the highest level of exposure, Dr. Gore’s calculation was questioned, and in turn his ability to rule that benzene was the potential cause was reasonably questioned by the district court. The Tenth Circuit concluded that the district court acted within its discretion relation to the reliability of Dr. Gore’s decisions to use the highest average-emission level.

In the district court’s opinion, Dr. Gore’s omission for ruling out any possible idiopathic causes was a fatal error in the differential diagnosis.

Ms. Hall made the following arguments, which the Tenth Circuit rejected. Ms. Hall argued that the district court misunderstood the concept of “idiopathic” causes. Ms. Hall defined “idiopathic” as a diagnosis by exclusion, meaning only if all known factors are ruled out, leaving no known plausible factors, can the leukemia be considered idiopathic. Using this view, the Tenth Circuit stated that it would be illogical for Dr. Gore to “rule out” idiopathic causes.

Ms. Hall also argued that the Tenth Circuit did not require differential diagnoses to rule out idiopathic causes. The Tenth Circuit Court of Appeals found that the district court could have regarded Dr. Gore’s differential diagnosis as unreliable, and that the district court did not abuse its discretion in excluding Dr. Gore’s opinion based on his differential diagnosis.

In addition to the exclusion of two experts, Ms. Hall also challenged the district court’s granting of summary judgment to ConocoPhillips by arguing that the circumstantial evidence was sufficient to avoid summary judgment. The circumstantial evidence presented by Ms. Hall failed to create a genuine issue of material fact on causation because of the need for expert testimony on the link between her disease and benzene exposure, and quantification of Ms. Hall’s exposure to benzene.

The Tenth Circuit determined that circumstantial evidence was not a sole justification for avoiding a summary judgment. The Circuit determined that Ms. Hall’s theory would require both expert testimony and quantification of her exposure to benzene. Because the expert testimonies of Dr. Gore and Dr. Calvey were excluded, Ms. Hall lacked both of these requirements, and the district court did not err in granting summary judgment to ConocoPhillips on causation.

The Tenth Circuit Court of Appeals upheld the district courts’ exclusion the testimony of Dr. Gore and Dr. Calvey and the summary judgment on causation issued to ConocoPhillips.

Tenth Circuit: Unpublished Opinions, 7/27/2018

On Friday, July 27, 2018, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Cohee v. Yates

United States v. Kundo

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

Tenth Circuit: States Have Legitimate Interest in Regulating Election Processes

The Tenth Circuit Court of Appeals issued its opinion in Utah Republican Party v. Cox on March 20, 2018.

The Utah Republican Party (URP) sued Utah Lieutenant Governor Spencer Cox in his official capacity, alleging that two aspects of the Utah Elections Amendments Act of 2014, commonly known as SB54, violated URP’s freedom of association under the First Amendment, as applied to the states by the Fourteenth Amendment. The two challenged sections (1) require parties to allow candidates to qualify for the primary ballot through either the nominating convention or by gathering signatures, or both (the “Either or Both Provision”); and (2) require candidates pursuing the primary ballot in State House and State Senate elections through a signature gathering method to collect a set number of signatures (the “Signature Requirement”). In two separate orders, the United States District Court for the District of Utah balanced URP’s First Amendment right of association against the state’s interest in managing and regulating elections, and rejected URP’s claims. Reconducting that balancing de novo on appeal, the Tenth Circuit affirmed.

There were two lawsuits associated with this issue. For the first lawsuit, URP was joined by the Constitutional Party of Utah (CPU) and they sought an injunction and declaratory judgement that the SB54 law was unconstitutional as applied to URP and challenging the Signature Requirement. The district court denied URP and CPU and ruled that none of the alleged constitutional burdens were severe save for the Unaffiliated Voter Provision, which was not yet ripe for review, and the court denied the request for a preliminary injunction. This ruling invalidated the law’s Unaffiliated Voter Provision, but upheld the Signature Requirement, the Either or Both Provision, and all other aspects of SB54. The rulings of the first lawsuit were not addressed in this appeal.

In the second lawsuit, URP sought declaratory and injunctive relief that SB54 was unconstitutional, arguing that it violated its freedom of association under the First and Fourteenth Amendments, and claiming that the state should be judicially estopped from advancing an interpretation of the Either or Both Provision that differed from the one it advanced in the first lawsuit. The Utah Democratic Party (UPD) intervened as co-plaintiff, defending against the possibility that portions of the law would apply to one party but not the other, and arguing that URPs bylaws violated SB54.

In February 2016, the district court certified two questions of state law to the Utah Supreme Court. The first requested that court’s interpretation of the Either or Both Provision, asking whether that provision meant the candidate member or the party had the right to choose which—or both—of the qualification processes to use. The Utah Supreme Court replied that the Either or Both Provision allows the candidate member, not the party, to select which of those two paths to follow in an effort to be certified to the primary ballot. The second question, certified at the request of UDP, was what would happen if a party elects to become a QPP under Utah law, but fails to comply with the requirements of that status. The Utah Supreme Court declined to answer the second question, finding it not ripe for review because it was not yet clear whether URP was going to comply with SB54.

After the Utah Supreme Court answered the certified questions, the district court ruled on the remaining issues relating to the Either or Both Provision. It first held that URP was not precluded from challenging the constitutionality of the Either or Both Provision, and that the Either or Both Provision—as interpreted by the Utah Supreme Court—did not infringe on URP’s First Amendment right of association. Finally, the court rejected URP’s claim that SB54 was the result of impermissible viewpoint discrimination, and then the court granted summary judgment for the state. URP timely appealed the district court’s grant of summary judgment. UDP subsequently cross-appealed, challenging the district court’s denial of judgment on the pleadings based on assertions of claim preclusion, issue preclusion, and claim splitting, and also the portions of the district court’s opinion which purport to invalidate URP’s bylaws and constitution to the extent those provisions conflict with SB54. The Tenth Circuit consolidated the related appeals and exercised jurisdiction under 28 U.S.C. § 1291.

For this appeal, two primary issues were presented. First, URP challenged the district court’s decision to uphold the Either or Both Provision as a constitutional electoral regulation. Second, URP argued that the district court erred in concluding that the number of signatures required in the signature requirements for State House and State Senate are not unconstitutionally burdensome. The district court granted summary judgment for the state and against URP on both these issues pursuant to Rule 56(f). On appeal, the Tenth Circuit addressed claims raised by UDP, and the conduct of URP counsel Marcus Mumford.

The Tenth Circuit reviewed the district court’s summary judgment de novo. The Tenth Circuit affirmed the district court’s grant of summary judgment for the Lieutenant Governor on both the Either or Both Provision and the Signature Requirements, concluded that UDP’s claims were not ripe for review, and declined to pursue sanctions against Mr. Mumford.

For the “Either or Both Provision,” SB54 states that a political party that decides to register as a Qualified Political Party (QPP), and is eligible to maintain its caucus system, must also allow its members to “seek the . . . party’s nomination for any elective office by the member choosing to seek the nomination by either or both of the following methods: (i) seeking the nomination through the [the party’s] convention process . . . (ii) seeking the nomination by collecting signatures.” Utah Code § 20A-9-101(12)(c) (emphasis added). On appeal, URP argued that this provision creates an unconstitutional burden on its freedom of association under the First and Fourteenth Amendments.

The Tenth Circuit took “great care to scrutinize any electoral regulation” that would appear to restrict access to the ballot and the ballot box thereby hindering individual freedoms and separation of powers. The Constitution grants states the right to prescribe “[t]he Times, Places and Manner of Holding Elections for Senators and Representatives,” Art I, § 4, cl. 1, and the Supreme Court has held that states enjoy similar authority to regulate their own elections. The Tenth Circuit acknowledged that regulations invariably impose burdens.

This case addressed the method by which a QPP selects its nominee to appear on the general election ballot for state and federal offices, which impacts the constitutional interests of both the political party and the state. The political parties’ First Amendment rights of association have to be balanced against the state’s role in structuring and monitoring the election process. URP argued that SB54 infringes on its First Amendment associational rights by forcing it to adopt a candidate-selection process that differed from its preferred process. However, the Supreme Court has recognized that when political parties become involved in a state-administered primary election, the state acquires a legitimate interest in regulating the manner in which that election unfolds—subject only to the same interest-balancing that occurs throughout the Court’s electoral jurisprudence. States have a manifest interest in a party’s actual nomination and election of an individual because that individual will swear to protect the Constitution, not the Party, and to represent all residents in his or her district. The Supreme Court has recognized the role of the state in primary elections and held that state-administered primary elections are subject to congressional and state regulations.

The Tenth Circuit determined that SB54 does not regulate URP’s internal process, and determined that the “Either or Both Provision” was only minimally burdensome, especially since URP’s traditional caucus systems were maintained as part of a compromise when SB54 was passed. The Circuit did not find that the “Either or Both Provision” left the party vulnerable to a nominee with whom it does not agree.

The Circuit concluded that “SB54 does not impose a severe burden on the URP by potentially allowing the nomination of a candidate with whom the URP leadership disagrees. Therefore, in recognition of the Supreme Court’s repeated and un-recanted dicta, we hold that the Either or Both Provision is at most only a minimal burden on the URP’s First Amendment associational rights.”

The Circuit also evaluated the state’s interest and stated “When an electoral provision ‘places no heavy burden on associational rights,’ as we hold the Either or Both Provision does not, ‘a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.’”

When balancing the burden on the Party against the interest of the State, the Circuit found that the state’s interests in promulgating SB54 predominated over the minimal burdens imposed upon URP. The Tenth Circuit affirmed the district court’s holding that the “Either or Both Provision” is a constitutional exercise of the state’s regulatory authority.

The second aspect of the appeal related to the “Signature Gathering Requirement.” URP argued that SB54 was unconstitutional because of overly burdensome signature requirements for State House and State Senate. The Circuit concluded “that the Signature Requirements—while a burden—are not unconstitutional under the Anderson-Burdick balancing test as applied to the URP.”

The Circuit found that the “Signature Requirement” was constitutional because it provided two methods (at the nominating caucus or by gathering signatures) for candidates to qualify for the primary ballot for a QPP.

URP also argued that the number of signatures required “severely burden[ed] its right of association with potential candidates of its party and cannot be saved as reasonably calculated to serve a compelling state interest.” The Circuit found that petition requirements are a constitutional method of serving a state’s legitimate interest in illustrating candidate support before adding the candidate to a ballot. When the Circuit evaluated at the total Utah Election Code, it did not find that URP’s First Amendment right of association was violated. The Tenth Circuit Court of Appeals upheld that Utah’s legitimate interest in requiring a candidate to demonstrate a minimum degree of support in terms of gathering 1,000 or 2,000 signatures on a petition before being placed on the primary ballot for the State House or State Senate was sufficient to outweigh the provision’s minimal burdens on the URP. Therefore, it affirmed the district court’s ruling that the challenged Signature Requirements do not constitute an unconstitutional burden on the URP.

UPD intervened as a plaintiff to ““ensure [the State] appl[ied] the laws equally to all Utahns, no matter what political party, if any, they choose to join.” The Circuit did not reach merits of UPD’s claim because it had already determined URP’s constitutional claims failed.

Lastly, the Tenth Circuit addressed the conduct of Mr. Mumford, an attorney for URP, who had been placed on notice that “the judges assigned to decide this appeal on the merits may wish to address in greater depth counsel’s noncompliance with the court’s rules.” Mr. Mumford violated a series of procedural and timeliness requirements. The Circuit determined that if Mr. Mumford’s conduct continued in future appeals, it would be forced to take action against Mr. Mumford.

The Tenth Circuit concluded that states must have flexibility to enact reasonable, common sense regulations designed to provide order and legitimacy to the electoral process. SB54, as modified in the first lawsuit, struck an appropriate balance between protecting the interests of the state in managing elections and allowing the URP and all other political associations and individuals across Utah to express their preferences and values in a democratic fashion and to form associations as protected by the First Amendment. Accordingly, the Tenth Circuit Court of Appeals affirmed.

Chief Judge Tymkovich concurred in part and dissented in part. Judge Tymkovich stated, “In this case, the Utah Republican Party claims that Utah’s 2014 election law reforms purposely try to change the substantive type of candidates the Party nominates, all the while masquerading as mere procedural reform. If true, such a project would severely burden the Party’s associational rights, and without compelling justifications, it would be unconstitutional. Because that is exactly what Utah has tried to do and because Utah has not provided adequate justification for placing such a burden on the Party’s associational rights, I would hold Utah’s election law violates the First Amendment. Though I dissent for this reason, I concur with the majority that the number of signatures required by the law’s signature-gathering provision does not violate the Constitution.”

Tenth Circuit: Unpublished Opinions, 7/26/2018

On Friday, July 26, 2018, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

James v. Ivens

United States v. Love

Burden v. Coffman

United States v. Purify

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

The End of Horatio Alger

“I know perfectly well that men in a race run at unequal rates of speed.
I don’t want the prize given to the man who is not fast enough to
win it on his merits, but I want them to start fair.”

~Teddy Roosevelt

In economic terms, a fair start is about equal opportunity. There’s no more enduring version of that particular ideal than the rags-to-riches story codified into the American Dream by Horatio Alger, Jr. during the Gilded Age of Andrew Mellon, John D. Rockefeller, Cornelius Vanderbilt, Andrew Carnegie, and the rest of the 19th Century Robber Barons. If they can do it, so can the rest of us, given enough vision, determination, hard work, and moral virtue — that was Alger’s message. And according to Roughrider Teddy and politicians like him, government’s job is to guarantee equal opportunity for all, then get out of the way and let the race to riches begin.

These days, however, it seems as though the notion of a fair start is a thing of the past — so says Richard V. Reeves in his book Dream Hoarders, which we looked at briefly last time. Reeves begins by confessing that his disenchantment over the demise of the Horatio Alger ideal will no doubt seem disingenuous because he didn’t grow up American and is now a member of the Red Velvet Rope Club himself:

As a Brookings senior fellow and a resident of an affluent neighborhood in Montgomery County, Maryland, just outside of DC, I am, after all, writing about my own class.

I am British by birth, but I have lived in the United States since 2012 and became a citizen in late 2016. (Also, I was born on the Fourth of July.) There are lots of reasons I have made America my home. But one of them is the American ideal of opportunity. I always hated the walls created by social class distinctions in the United Kingdom. The American ideal of a classless society is, to me, a deeply attractive one. It has been disheartening to learn that the class structure of my new homeland is, if anything, more rigid than the one I left behind and especially so at the top.

My new country was founded on anti-hereditary principles. But while the inheritance of titles or positions remains forbidden, the persistence of class status across generations in the United States is very strong. Too strong, in fact, for a society that prides itself on social mobility.

Reeves also wrote a Brookings Institute monograph called Saving Horatio Alger: Equality, Opportunity, and the American Dream, in which he said the following:

Vivid stories of those who overcome the obstacles of poverty to achieve success are all the more impressive because they are so much the exceptions to the rule. Contrary to the Horatio Alger myth, social mobility rates in the United States are lower than in most of Europe. There are forces at work in America now — forces related not just to income and wealth but also to family structure and education — that put the country at risk of creating an ossified, self-perpetuating class structure, with disastrous implications for opportunity and, by extension, for the very idea of America.

The moral claim that each individual has the right to succeed is implicit in our “creed,” the Declaration of Independence, when it proclaims “All men are created equal.”

There is a simple formula here — equality plus independence adds up to the promise of upward mobility — which creates an appealing image: the nation’s social, political, and economic landscape as a vast, level playing field upon which all individuals can exercise their freedom to succeed.

Many countries support the idea of meritocracy, but only in America is equality of opportunity a virtual national religion, reconciling individual liberty — the freedom to get ahead and “make something of yourself” — with societal equality. It is a philosophy of egalitarian individualism. The measure of American equality is not the income gap between the poor and the rich, but the chance to trade places.

The problem is not that the United States is failing to live up to European egalitarian principles, which use income as a measure of equality. It is that America is failing to live up to American egalitarian principles, measured by the promise of equal opportunity for all, the idea that every child born into poverty can rise to the top.

There’s a lot of data to back up what Reeves is saying. See, e.g., this study from Stanford, which included these findings:

Parents often expect that their kids will have a good shot at making more money than they ever did.

But young people entering the workforce today are far less likely to earn more than their parents when compared to children born two generations before them, according to a new study by Stanford researchers.

A new study co-authored by Stanford economist Raj Chetty describes an economic portrait of the fading American Dream; growing inequality appears to be the main cause for the steady decline

Reeves and Stanford’s researchers aren’t the only ones who feel that way. We’ll hear from a couple others next time.


Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning. Check out his latest LinkedIn Pulse article: “Rolling the Rock: Lessons From Sisyphus on Work, Working Out, and Life.”

Colorado Court of Appeals: Announcement Sheet, 7/26/2018

On Thursday, July 26, 2018, the Colorado Court of Appeals issued nine published opinions and 35 unpublished opinions.

People v. Loris

People v. Murray

People v. Donald

People v. Yeadon

People v. Senette

Does #1-9 v. Colorado Department of Health and Environment

Prospect Development Co. v. Holland & Knight, LLP

Twilight Ridge, LLC v. Board of County Commissioners

Boudette v. State of Colorado

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 7/25/2018

On Wednesday, July 25, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Park v. First American Title Insurance Co.

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

Tenth Circuit: Officers Not Entitled to Qualified Immunity for Use of Excessive Force After Suspect Subdued

The Tenth Circuit Court of Appeals issued its opinion in McCoy v. Meyers on April 10, 2018.

Mr. DeRon McCoy sued three of the officers who participated in his arrest—Tyson Meyers, Darrin Pickering, and Brice Burlie (collectively, Appellees)—under 42 U.S.C. § 1983, alleging that they violated his Fourth Amendment right to be free from excessive force during his arrest on March 22, 2011. Appellees moved for summary judgment on qualified immunity grounds. The district court granted the motion, determining that (1) Appellees had acted reasonably under the circumstances, and (2) the relevant law was not clearly established at the time of Appellees’ alleged conduct.

Mr. McCoy appealed the district court’s decisions. The Tenth Circuit affirmed in part and reversed in part, finding Appellees were entitled to qualified immunity for their conduct before Mr. McCoy’s arms and legs were bound while he was unconscious, but not for their conduct after this point.

On March 20, 2011, Mr. McCoy, his infant daughter, and his sister checked into the Budget Inn in Hutchinson, Kansas. Later, Leanna Daniels, the mother of Mr. McCoy’s daughter, and Gwendolyn Roby, Ms. Daniels’s friend, arrived at the motel. Ms. Roby called the police when Mr. McCoy did not allow Ms. Daniels to take her daughter, and stated that Mr. McCoy had a gun. In response to the call, Hutchinson police arrived at the Budget Inn around 4:38 p.m. and were unable to get Mr. McCoy to respond or exit the room. Around 6:40 p.m., the police requested assistance from the Emergency Response Team (ERT), a special law enforcement unit trained to respond to unusually dangerous circumstances, including hostage situations. In response to this request, Officers Meyers, Pickering, and Burlie, all ERT members, reported to the Budget Inn with the rest of the ERT. Around 9:05 p.m., the five-member team entered Mr. McCoy’s motel room with a master key. As the door opened, Appellees and several other officers heard Mr. McCoy yell “[g]et back.” The team then entered in a “stack” formation, one after another, with Officer Pickering leading. When the team entered the room, Mr. McCoy was on the bed with his sister and his daughter, and each of the five officers saw Mr. McCoy holding a gun that he alternated between pointing in his sister’s direction and pointing at the first three officers to enter, including Officers Pickering and Burlie. Officer Meyers was holding back with a ballistic blanket, and heard several officers shouting, “Drop the gun, drop the gun,” immediately after they entered the room. Approximately 30 to 45 seconds after the officers first shouted out “drop the gun,” Mr. McCoy dropped the gun and it was removed from the room by an officer. After the gun was removed, Officer Burlie jumped onto the bed, attempting to arrest Mr. McCoy. After Mr. McCoy’s sister and daughter were removed from the room, Officer Burlie pulled Mr. McCoy off the bed to arrest him. Officer Burlie perceived that Mr. McCoy was reaching for his duty weapon and yelled out, “He’s grabbing my gun.”

To this point, Mr. McCoy does not allege that the Appellees used any excessive force. He alleges their use of force became excessive only after Mr. Burlie pulled him onto the ground. The Tenth Circuit divided its legal analysis into two periods and referred to the two periods as “pre-restraint” and “post-restraint.”

During the pre-restraint period, Mr. McCoy was on the ground, lying face-down with his hands behind his back, and Officer Pickering “immediately” placed him in a carotid restraint. Unidentified officers “simultaneously” pinned Mr. McCoy down and hit him in the head, shoulders, back, and arms. Officer Pickering maintained the carotid restraint for approximately five to ten seconds and increased pressure, even though Mr. McCoy was not resisting, thereby causing Mr. McCoy to lose consciousness. While Mr. McCoy was unconscious, the officers handcuffed his hands behind his back and zip-tied his feet together.

Officer Meyers entered the motel room while Mr. McCoy was unconscious to perform a revival technique known as a “kidney slap,” which consists of “a slight tap to the lower back.” Officer Meyers positioned himself behind Mr. McCoy, moved Mr. McCoy into a sitting position, and performed the kidney slap. As Mr. McCoy regained consciousness, unidentified officers again struck him—more than 10 times—on his head, shoulders, back, and arms. Mr. McCoy tried to shield himself but realized he was handcuffed and zip-tied. Officer Meyers then placed Mr. McCoy, who was not resisting, in a second carotid restraint for less than 10 seconds, maintaining pressure until Mr. McCoy lost consciousness again. Mr. McCoy was then removed from the motel room and put into a police car outside. Less than ten minutes had elapsed between the five-member team’s entry into the room and Mr. McCoy’s removal.

Before being taken to the police station, Mr. McCoy was transported to the hospital, where doctors determined that nothing was broken or twisted. His arms, shoulders, and back were visibly bruised and cut.

Mr. McCoy sued the Appellees under 42 U.S.C. § 1983 in the U.S. District Court for the District of Kansas, alleging violations of his Fourth Amendment rights by using excessive force in effecting his arrest. After the parties completed discovery, Appellees moved for summary judgment, asserting qualified immunity. The district court granted summary judgment for Appellees, holding that Mr. McCoy had failed to show a Fourth Amendment violation, and that in any event, the law was not clearly established at the time of the Appellees’ alleged violation.

Mr. McCoy appealed, alleging four acts of excessive force: Appellees’ strikes and Officer Pickering’s carotid restraint before he was handcuffed and zip-tied, and Appellees’ strikes and Officer Meyers’ carotid restraint after he was handcuffed and zip-tied.

The Circuit’s qualified immunity analysis relied heavily on three Tenth Circuit decisions that applied the Graham balancing test. For each of these three cases, all of which involved excessive force allegations against law enforcement officers under § 1983, the court applied the Graham test and held that the plaintiff had shown sufficient facts to plead a Fourth Amendment violation.

In the case at hand, Mr. McCoy contended that Appellees’ use of force both before and after he was handcuffed and zip-tied violated clearly established Fourth Amendment law. The Tenth Circuit agreed with him in part, concluding that the pre-restraint force did not violate clearly established law, but the post-restraint force violated Mr. McCoy’s clearly established right to be free from the continued use of force after he was effectively subdued.

Appellees were entitled to qualified immunity as to Mr. McCoy’s pre-restraint excessive force claims based on lack of clearly established law. When applying the two-prongs, the Circuit

skipped prong one of the qualified immunity analysis because Mr. McCoy’s failure to show clearly established law provided a sufficient basis to affirm. For the second prong, Mr. McCoy failed to show clearly established law because no reasonable jury could conclude that Mr. McCoy was effectively subdued in the pre-restraint period, and preexisting precedent would not have made it clear to every reasonable officer that using the force employed here on a potentially dangerous individual—who had not yet been effectively subdued—violated the Fourth Amendment.

According to Mr. McCoy’s testimony, as soon as he hit the ground, Officer Pickering “immediately” placed him in a carotid restraint while, “simultaneously,” unidentified officers hit him in the head, shoulders, back, and arms. Even if Mr. McCoy was lying face down with his hands behind his back and with several officers pinning him, a reasonable officer in Appellees’ position could conclude that he was not subdued when the allegedly excessive force occurred. Under these circumstances, the preexisting precedent would not have made it clear to every reasonable officer that striking Mr. McCoy and applying a carotid restraint on him violated his Fourth Amendment rights. Based on the foregoing, Mr. McCoy failed to show clearly established law prohibiting the Appellees’ pre-restraint use of force. Appellees were therefore entitled to qualified immunity for the pre-restraint force as to Mr. McCoy’s claims based on this conduct.

The Appellees are not entitled to qualified immunity as to Mr. McCoy’s post-restraint excessive force claims because the post-restraint force violated Mr. McCoy’s clearly established right to be free from the continued use of force after he was effectively subdued. For the first prong of the qualified immunity analysis, when viewing the evidence in the light most favorable to Mr. McCoy, a reasonable jury could conclude that the post-restraint force violated his Fourth Amendment rights. A reasonable jury could conclude based on this record that the Appellees should have been able “to recognize and react to the changed circumstances.”

In this case, viewing the evidence in the light most favorable to Mr. McCoy, any resistance on his part had fully ceased by the time of the post-restraint force. Even if Appellees had previously perceived that Mr. McCoy pointed a gun at them and reached for Officer Burlie’s duty weapon, Mr. McCoy had been rendered unconscious, handcuffed, and zip-tied before he was revived. And as he regained consciousness, even though he did not resist, the Appellees struck him more than 10 times and placed him in a carotid restraint with enough pressure to render him unconscious again. The cessation of active resistance on Mr. McCoy’s part weighs in favor of finding that the post-restraint force was unreasonable.

Viewing the evidence in the light most favorable to Mr. McCoy, preexisting Tenth Circuit precedent made it clear to any reasonable officer in the Appellees’ position that the post-restraint force was unconstitutional.

In sum, qualified immunity applied to Mr. McCoy’s claims based on the pre-restraint force, due to the lack of clearly established law, but not to the claims based the post-restraint force, which violated Mr. McCoy’s clearly established right to be free from continued force after he was effectively subdued.  The Tenth Circuit affirmed in part and reversed in part the district court’s grant of summary judgment on qualified immunity grounds and remanded for further proceedings consistent with this opinion.

Tenth Circuit: Unpublished Opinions, 7/23/2018

On Monday, July 23, 2018, the Tenth Circuit Court of Appeals issued six published opinions and no unpublished opinion.

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

Application Period Open for Pueblo County Court Vacancy

On Friday, July 20, 2018, the Colorado State Judicial Branch announced an upcoming vacancy on the Pueblo County Court in the 10th Judicial District. The vacancy will be created by the resignation of Hon. Valerie Haynes, effective August 17, 2018.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of Pueblo County at the time of investiture and must have been admitted to practice law in Colorado for five years. Application forms are available from the State Judicial website or from the ex officio chair of the 10th Judicial District Nominating Commission, Justice Monica Márquez. Applications must be received by 4 p.m. on August 13, 2018; anyone wishing to nominate another must do so no later than 4 p.m. on August 6.

For more information about the vacancy, click here.