December 11, 2018

Tenth Circuit: Age of Rental Car Driver Inconclusive to Support Tort Claims Against Rental Company

The Tenth Circuit Court of Appeals issued its opinion in Amparan v. Lake Powell Car Rental Companies on February 13, 2018.

Edmundo and Kimberly L. Amparan appeal from the district court’s grant of summary judgment in favor of Lake Powell Car Rental Companies on the Amparans’ claims for negligent entrustment and loss of consortium. The claims arose from a vehicle accident involving a motorcycle operated by Mr. Amparan and a Ford Mustang rented by Lake Powell to Denizcan Karadeniz and operated by Mevlut Berkay Demir. Because the Amparans failed to come forward with evidence from which the jury could find an essential element of their claim for negligent entrustment, the appeals court affirmed.

On July 14, 2014, a group of Turkish nationals, including Mr. Karadeniz, visited Lake Powell to rent two vehicles. Mr. Karadeniz produced a valid Turkish driver’s license and a valid credit card. Mert Tacir, another member of the group, produced a valid Turkish driver’s license. The owner and operator of Lake Powell, Paul Williams, asked the remaining individuals in the group if they possessed valid driver’s licenses. Mr. Demir responded that he possessed a valid driver’s license. At the time of the rental, all three individuals were 21 years old. Although Mr. Williams recognized that Mr. Karadeniz and Mr. Tacir were under the age of 25, he nonetheless agreed to rent to rent a Dodge Caravan and a Ford Mustang to Mr. Karadeniz and to permit Mr. Tacir as an additional authorized driver for the Ford Mustang. None of the other members of the group, including Mr. Demir, completed an “Additional Driver Application/Agreement.” However, Mr. Demir testified that he understood Mr. Williams’ inquiry into whether he possessed a driver’s license as a signaling that he had Lake Powell’s implicit permission to operate the vehicles. Because a reasonable jury could adopt Mr. Demir’s understanding, the Tenth Circuit proceeded under the assumption that Lake Powell implicitly entrusted the rental vehicles to Mr. Demir. Evidence in the record supports the conclusion that Mr. Williams’ decision to rent two vehicles to an individual under the age of 25 and to permit an additional driver under the age of 25 violates internal policies propagated by Lake Powell’s licensor, Avis Rent A Car Systems, LLC.

During the course of the rental, Mr. Demir operated the Ford Mustang. Mr. Demir, unfamiliar with the traffic rules governing left turns at intersections, turned left on a solid green light without yielding to oncoming traffic. Mr. Amparan, traveling in the oncoming direction, unsuccessfully attempted to swerve to avoid hitting the turning vehicle operated by Mr. Demir and the two vehicles collided. As a result of the collision, Mr. Amparan alleges he suffered multiple broken bones, a punctured lung, and various other injuries.

The Amparans filed complaint in New Mexico state court, naming Mr. Demir, Mr. Karadeniz, and Avis as defendants. Avis removed the action to federal court, where, after an initial round of discovery, the district court granted the Amparans leave to amend their complaint to add Lake Powell as a defendant. The amended complaint raised claims against Lake Powell for negligent entrustment, loss of consortium, and negligent supervision and training. Lake Powell moved for summary judgment, arguing, in part, that even if it implicitly entrusted the Mustang to Mr. Demir, it neither knew nor should have known that Mr. Demir was likely to operate the vehicle in such a manner as to create an unreasonable risk of harm to others. In response to Lake Powell’s motion for summary judgment, the Amparans filed a notice of testifying expert on both the risk posed by young drivers and standards of care in the car rental industry. The Amparans also contested Lake Powell’s motion for summary judgment, arguing in part that Lake Powell’s violation of internal policies regarding renting to, or approving as additional drivers, individuals under age 25 constituted sufficient evidence to permit the finding that Lake Powell knew or should have known that Mr. Demir was likely to operate the Ford Mustang in such a manner as to create an unreasonable risk of harm to others.

The district court indicated it would not consider factual assertions in the Amparans’ response to summary judgment that did not comply with District of New Mexico Local Rule of Civil Procedure 56.1(b) and Federal Rule of Civil Procedure 56(c)(1)(A). The district court denied Lake Powell’s motion to strike as moot. The district court deemed the motions to strike moot based on its conclusion that the Amparans’ evidence regarding Lake Powell’s alleged violation of internal policies was insufficient, on its own, to permit a reasonable jury to conclude that Lake Powell knew or should have known that Mr. Demir was likely to operate the Mustang in such a manner as to create an unreasonable risk of harm to others. The district court concluded that the disputes of fact with respect to whether Lake Powell entrusted the Mustang to Mr. Demir and whether Lake Powell violated any internal policies were not material because resolution of the disputes in favor of the Amparans did not alter the summary judgment decision.

On appeal, the Amparans argued that the district court failed to perform a proper analysis, in that a New Mexico court would view evidence of a violation of internal policies, which are also allegedly industry standards, sufficient to advance a claim for negligent entrustment. Alternatively, the Amparans urged the Tenth Circuit to address the merits of Lake Powell’s motions to strike. The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of Lake Powell on the Amparans’ claims for negligent entrustment and loss of consortium.

In an effort to overcome the extensive body of case law supporting the conclusion that the New Mexico Supreme Court would reject the proposition that evidence of a car rental company’s violation of internal policies is sufficient to establish the third element of a claim for negligent entrustment even where the entrustee possesses a valid driver’s license, the Amparans argued that their expert witness would testify on car rental industry standards regarding rentals to individuals under age 25. But the fact that evidence of a violation of an internal policy is probative on the question of negligence does not establish that the evidence is sufficient to make out a prima facie case of negligence. It cannot be said that the driver’s young age, on its own, makes it likely that the driver will cause an accident, will operate the vehicle in an incompetent manner, or will operate the vehicle in such a manner as to create an unreasonable risk of harm to others. For, if such were true, no individual in New Mexico could grant a person under the age of 25 permission to drive a vehicle without facing liability for negligent entrustment based solely on the entrustee’s youthful age.

Accordingly, the Tenth Circuit held that the New Mexico Supreme Court would conclude that evidence of a car rental company’s violation of internal policies on the minimum age of renters and drivers is, on its own, insufficient to establish the third element of a claim for negligent entrustment of a motor vehicle. Thus, the Amparans failed to advance sufficient evidence to make out a prima facie case of negligent entrustment.

The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of Lake Powell on the Amparans’ claims for negligent entrustment and loss of consortium.

Tenth Circuit: Under New Mexico State Law, Defendants Were Responsible for Timeliness of Arraignments

The Tenth Circuit Court of Appeals issued its opinion in Moya v. Garcia on Tuesday, April 24, 2018.

On August 27, 2014, a bench warrant was issued for Mr. Moya after he failed to appear for his scheduled arraignment. He was subsequently arrested on the outstanding bench warrant and booked into the Santa Fe County Adult Correctional Facility (SFCACF) on September 15, 2014. Mr. Moya was not brought before the district court for an arraignment until November 17, 2014—63 days after he was detained.

On July 21, 2015, a bench warrant was issued for Mr. Petry after he failed to appear for his scheduled arraignment. He was arrested the following day on unrelated charges and booked into the SFCACF. On July 27, 2015, shortly before he was to be released on the unrelated charges, Mr. Petry was served with the July 21 bench warrant and further detained by SFCACF. Mr. Petry was not brought before the district court for an arraignment until August 21, 2015—30 days after he was first detained.

These arraignments were in violation of New Mexico’s Rules of Criminal Procedure, which entitles defendants to arraignment within 15 days following arrest. Under the belief that Santa Fe County and Santa Fe County officials had a systematic policy and practice of failing to take action that would ensure detainees receive timely bail hearings as required by law, Mr. Moya and Mr. Petry filed a class action complaint under 42 U.S.C. § 1983, alleging their unlawful detainment was a deprivation of due process.

The district court granted the defendants’ motion to dismiss for failure to state a claim, finding that the complaint did not plausibly allege facts showing the sheriff or wardens had been personally involved in the untimely arraignments, either through their own participation or supervisory control. The district court also denied plaintiffs’ request to amend, reasoning that as the individual defendants’ were entitled to qualified immunity, any amendment would be futile.

On appeal, the plaintiffs argued that the sheriff and wardens were responsible for the delays in the arraignments under the theory of supervisory liability. The Tenth Circuit disagreed, finding that the sheriff and wardens were not the cause of the arraignment delays. After their arrests, jail officials notified the court that Mr. Moya and Mr. Petry were in custody. Once the court had been notified, it became the exclusive responsibility of the court to comply with the fifteen-day arraignment requirement—only the state trial court has the power to schedule arraignments. In further support of its conclusion that jail officials had not caused the arraignment delays, the Tenth Circuit brought attention to the fact that the plaintiffs had not alleged a failure by the defendants to tell the court of the arrests in a sufficient time to conduct the arraignment within the requisite fifteen days. There simply was no alleged conduct of the defendants that had prevented the court from scheduling the arraignments.

The Tenth Circuit next examined whether the defendants had any duty to ensure arraignments are timely scheduled. In the Tenth Circuit, the determination of the scope of defendant’s responsibility to ensure prompt hearings correctly focuses on state law. New Mexico law imposes no duty on the sheriff or warden to bring an arrestee to court in the absence of a scheduled arraignment. Further, the plaintiffs presented no authority that would provide guidance on what the sheriffs and wardens could have done to ensure timely court proceedings and avoid the due process violations, short of reminding the court of the court’s own failure to schedule an arraignment. But the Tenth Circuit reasoned that even with such a reminder, the arraignments could still only be scheduled by the court. Because the sheriff and wardens had no power to schedule the arraignments, the sheriff and wardens had no power to prevent or cure the alleged constitutional violations.

The dissent argued that the majority wrongly focused only on the arraignment and overlooked the detention. The dissent agreed that the sheriff and wardens were powerless to cause timely arraignments as the arraignments could only be schedule by the court, but theorized that the jail officials could have simply released Mr. Moya and Mr. Petry. The majority countered, stating that the plaintiffs had expressly disavowed this theory and had therefore waived any reliance on such theory as a basis for reversal. The majority noted than even if the issue was raised, under New Mexico law jailers commit a misdemeanor and must be removed from office if they deliberately release a prisoner absent a court order. Even in this scenario, the Tenth Circuit opined that the dismissal of the § 1983 action should be affirmed because the state law required detention absent a court order and the plaintiffs had not challenged the constitutionality of the law.

In addressing the plaintiffs’ claims against the county for failing to adopt a policy that would ensure timely arraignments, the Tenth Circuit found that as the sheriff and wardens did not cause the arraignment delays, the county could not incur liability under §1983 on the basis of the alleged inaction of the sheriff and wardens.

The issue of whether Mr. Moya and Mr. Petry had adequately alleged a deprivation of due process was not reached.

The Tenth Circuit also found the district court did not abuse its discretion in denying leave to amend, as the plaintiffs had failed to explain how they could have cured the deficiencies in the complaint identified by the district court.

The Tenth Circuit Court of Appeals affirmed the district court’s dismissal of Plaintiffs’ claims for failure to state a valid claim.

Tenth Circuit: On Interlocutory Review, Class Certifications Were Not Abuse of Discretion by District Court

The Tenth Circuit Court of Appeals issued its opinion in Menocal, et al. v. The GEO Group, Inc. on February 9, 2018.

The appeal addresses whether or not immigration detainees housed in a private contract detention facility in Aurora, Colorado may bring claims as a class under 18 U.S.C. § 1589, a provision of the Trafficking Victims Protection Act (TVPA) that prohibits forced labor, and Colorado unjust enrichment law.

The GEO Group, Inc. (GEO) owns and operates the Aurora Facility under government contract. While there, the plaintiff detainees (Appellees) rendered mandatory and voluntary services to GEO. Under GEO’s mandatory policies, they cleaned their housing units’ common areas. They also performed various jobs through a voluntary work program, which paid them $1 a day.

The district court certified two separate classes: (1) all detainees housed at the Aurora Facility in the past ten years (TVPA class), and (2) all detainees who participated in the Aurora Facility’s voluntary work program in the past three years (unjust enrichment class). On interlocutory appeal, GEO argues that the district court abused its discretion in certifying each class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It primarily contended that the Appellees’ TVPA and Colorado unjust enrichment claims both require predominantly individualized determinations, making class treatment inappropriate.

At all times relevant to this appeal, GEO owned and operated the Aurora Facility under contract with the U.S. Immigration and Customs Enforcement (ICE). In operating this facility, GEO implemented two programs that form the basis for this case: (1) the Housing Unit Sanitation Policy, which required all detainees to clean their common living areas; and (2) the Voluntary Work Program, which compensated detainees $1 a day for performing various jobs.

The Aurora Facility’s Sanitation Policy had two components: (1) a mandatory housing unit sanitation program, and (2) a general disciplinary system for detainees who engaged in “prohibited acts,” including refusal to participate in the housing unit sanitation program. Under the mandatory housing unit sanitation program, GEO staff generated daily lists of detainees from each housing unit who were assigned to clean common areas after meal service. Upon arriving at the Aurora Facility, each detainee received a handbook notifying them of their obligation to participate in the program.

Under the disciplinary system, detainees who refused to perform their cleaning assignments faced a range of possible sanctions, including the initiation of criminal proceedings, disciplinary segregation—solitary confinement—for up to 72 hours, loss of commissary, loss of job, restriction to housing unit, reprimand, or warning. The Aurora Facility handbook included an explanation of the disciplinary system and the possible sanctions for refusing to clean. The Appellees alleged that the TVPA class members were all “forced to clean the housing units for no pay and under threat of solitary confinement as punishment for any refusal to work.”

Under the Aurora Facility’s Voluntary Work Program (VWP), participating detainees received $1 a day in compensation for voluntarily performing jobs such as painting, food services, laundry services, barbershop, and sanitation. Detainees who wished to participate in the VWP had to sign the “Detainee Voluntary Work Program Agreement,” which specified that “compensation shall be $1 per day.” Detainees had the additional option of working without pay if no paid positions were available. The complaint alleged that the VWP class members were all “paid one dollar $1 per day for their VWP labor.”

The Appellees filed a class action complaint against GEO in the U.S. District Court for the District of Colorado on behalf of current and former ICE detainees housed at the Aurora Facility. The complaint alleged a TVPA forced labor claim based on the Sanitation Policy, and an unjust enrichment claim under Colorado law based on the VWP. GEO moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Regarding the TVPA claim, GEO argued that the Thirteenth Amendment’s civic duty exception to the prohibition on involuntary servitude should also apply to the TVPA’s ban on forced labor. Regarding the unjust enrichment claim, GEO asserted sovereign immunity as a government contractor because ICE “specifically directed it to establish a voluntary detainee work program and pay the detainees who volunteer for that program $1 per day.” The district court rejected these arguments and denied GEO’s motion to dismiss the TVPA and unjust enrichment claims. GEO moved for reconsideration of the court’s rulings. The court denied the motion, finding that GEO “d[id] not identify any intervening change in controlling law or new evidence previously unavailable” to warrant reconsideration. After prevailing on the motion to dismiss, Appellees moved for certification of a separate class for each claim under Fed. R. Civ. P. 23(a) and (b)(3). GEO petitioned the Tenth Circuit for interlocutory review of the class certifications. Accordingly, only the district court’s order granting class certification—and not its rulings on whether the complaint stated TVPA and unjust enrichment claims—is before us.

The Tenth Circuit reviewed the district court’s decision to certify a class for an abuse of discretion. The Tenth Circuit affirmed the district court’s certification of the TVPA class. GEO contended that the district court abused its discretion in determining that the TVPA class satisfied commonality, typicality, predominance, and superiority. The court did not abuse its discretion as to any of these requirements in certifying the TVPA class.

The Tenth Circuit also affirmed the district court’s certification of unjust enrichment class. GEO argued the district court abused its discretion in determining that the unjust enrichment class satisfies commonality, typicality, predominance, and superiority. The district court reasonably determined that the class members shared the circumstances relevant to the unjustness question and that individual damage assessments would not predominate over the class’s common issues. Its findings on commonality, typicality, and superiority were likewise reasonable and fell within its discretion.

The Tenth Circuit Court of Appeals affirmed the district court’s certification of both classes.

Tenth Circuit: Retroactive Sentence Reduction Inappropriate for Successive Motion on Identical Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. Green on April 6, 2018.

Green appealed the district court’s decision to deny his second motion for reducing his sentence. Green’s appeal was based on his view that the district court abused its discretion in not considering all of the facts and circumstances of his case for reducing his sentence.

In 2011, Green was sentenced to 130 months’ imprisonment after pleading guilty to three counts of using a communication facility to facilitate the acquisition of cocaine powder in violation of 21 U.S.C. § 843(b). Green was initially indicted on seven counts of possession of cocaine powder and cocaine base with intent to distribute and three counts of using a communication facility to facilitate the acquisition of cocaine powder. He pleaded guilty for the three communication-facility counts, and the district court imposed 130 months’ imprisonment. One of the reasons for the higher sentence was the Defendant’s extensive criminal history spanning over 30 years and including a manslaughter conviction, convictions for distribution of cocaine base, violation of protective order, and distribution of crack cocaine.

Three years later, the base offense level for many drug offenses was reduced by two levels when the U.S. Sentencing Commission promulgated Amendment 782, which was retroactive.

Citing Amendment 782, Green then filed another motion to reduce his sentence under 18 U.S.C § 3582(c)(2), arguing he was eligible for a reduction based on the amendment and the progress he had made while in prison as shown by his transcript listing the courses he had completed. The district court denied the motion, and the Tenth Circuit affirmed the district court’s denial.

Fifteen months after the first appeal, Green filed another motion to reduce his sentence under § 3582(c)(2), again citing Amendment 782 and based on the courses he completed while in prison. With the exception of additional courses, the second appeal was the same as the first appeal. The district court denied this second motion, explaining that Amendment 782 did not mandate relief and that completion of courses did not make a reduction appropriate. Defendant appealed the denial, arguing the district court abused its discretion in not considering all the facts and circumstances of his case, including his clean disciplinary record while incarcerated.

When assessing whether the district court had jurisdiction to consider Defendant’s second motion to modify his sentence under Amendment 782, the Tenth Circuit determined whether 18 U.S.C. § 3582(c)(2) contained a jurisdictional bar to second motions based on the same guidelines amendment, and stated it was a question “of considerable practical importance for judges and litigants.” It noted that courts have an ongoing obligation to determine whether adjudicating a particular case is within their subject-matter jurisdiction, even if neither party argues the court lacks jurisdiction.

In consideration of the Supreme Court’s caution against reckless use of the term “jurisdictional,” the Tenth Circuit Court of Appeals relied on 18 U.S.C. § 3582 for guidance. The government contended § 3582(c)(2) only confers jurisdiction on district courts to consider one motion to modify a sentence under each amendment. Since Defendant had previously filed a motion to modify his sentence under Amendment 782, the government argued that the district court lacked jurisdiction to consider his second motion to modify his sentence under this same amendment.

Absent a clear statement from Congress that any potential bar on the number of motions a defendant may file per amendment is jurisdictional, the Court held § 3582(c)(2) did not divest a district court of jurisdiction to consider a second motion to modify a sentence under the same amendment. The government, however, did not advance any argument that § 3582(c)(2) imposes a non-jurisdictional bar, therefore, this issue was do not addressed.

The Tenth Circuit used a two-step inquiry to determine whether the defendant was eligible for a sentence reduction, and whether a sentence reduction was warranted in accordance with the 18 U.S.C. § 3553(a) factors. The parties did not dispute that Defendant was eligible for a reduced sentence under § 3582(c)(2). Defendant only argued the district court erred in the second step of the § 3582(c)(2) inquiry by holding that a reduced sentence was not warranted upon consideration of the § 3553(a) factors, more specifically that the district court did not consider the courses he completed while he was in prison.

The Tenth Circuit found the district court’s considerations of these factors as “unquestionably appropriate.” The district court then determined that Defendant’s coursework while in prison and certificates of completed coursework did not overcome these considerations. The Tenth Circuit concluded that this determination was well within the district court’s discretion.

Additionally, Defendant argued in his initial pro se brief that the district court did not consider his clean disciplinary record while in prison. The disciplinary record was not presented to the district court, so the Tenth Circuit did not consider Defendant’s clean disciplinary record.

Defendant argued that the Circuit should have remanded to the district court so that the district court may consider the Defendant’s disciplinary record while in prison. In general, a remand for a party to produce additional evidence is inappropriate where the party had full opportunity to present the evidence in the first instance.

The Tenth Circuit affirmed the district court’s order.

Tenth Circuit: Gas Use that Adversely Affected Prisoners Was Not Excessive Force

The Tenth Circuit Court of Appeals issued its opinion in Redmond v. Crowther on February 9, 2018.

Redmond and the entire plaintiff class (collectively, Redmond) were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard, which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus’s HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D. James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away. The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.

Instead, Hill walked into Section D’s recreation yard and closed the door behind him, causing it to lock. Hill then took of his glasses and began sharpening them on the wall. He declared he would “stick or cut the first pig that came out there,” paced aggressively, swung his arms in the air, swore, and spit at prison officials. In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas. Before doing so, Nicholes examined the recreation yard and looked for risks. He did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless continued to respond aggressively.

Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem – the HVAC unit. Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners’ eyes, ears, and noses, and made it difficult for them to breathe. It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them: “if any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing.” Two prisoners claim they would have sought medical treatment had Powell not made this statement.

Powell thought the gas had dissipated in these sections. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells’ doors and placed an industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.

Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas. Redmond specifically claimed four violations: (1) exposing plaintiffs to CS gas, (2) discouraging plaintiffs from seeking medical attention and not permitting them all to leave their cells or to shower, (3) verbally abusing and intimidating plaintiffs, and (4) failing to train prison staff regarding the use of CS gas. The Tenth Circuit found none of Redmond’s Eighth Amendment claims persuasive.

Redmond argued in support of his claim that Powell and Nicholes violated the Eighth Amendment by exposing prisoners to CS gas that when “assessing the claims of innocent bystanders who are not the intended target of force and whose exposure to force does not further the purpose of maintaining and restoring discipline,” the conditions of confinement framework applies. The Tenth Circuit disagreed, finding no viable conditions of confinement claim.

The Tenth Circuit found that Nicholes and Powell were entitled to qualified immunity on the excessive force claim regarding exposing the prisoners to gas. Redmond failed to meet his burden of showing a constitutional violation. And even assuming the officials did, in fact, violate the Eighth Amendment, Redmond failed to show that the right was clearly established.

An excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind. Because the record demonstrates the prison officials inadvertently exposed the prisoners to gas, they could not have done so with malicious or sadistic intent. Redmond argues a jury could infer the officers intended to gas all the prisoners, not just Hill, because the officers knew the HVAC unit existed, knew the harmful effects of CS gas, knew the gas should not be deployed in small spaces near buildings and hospitals because it could easily disperse, and would have seen the HVAC unit because it was large and conspicuous. The Tenth Circuit concluded that no reasonable juror could believe that the officers intended to expose any prisoner besides Hill to gas. The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas – and required a large-scale evacuation of the prison. Given all this, Nicholes’s and Powell’s generalized knowledge about the HVAC system and CS gas’s intended uses and effects are insufficient to create a jury question about their intent.

To determine whether prison officials applied force maliciously and sadistically or, rather, in good faith, the Circuit considered the need for the force, and whether the officers used a disproportionate amount of force. The Circuit initially concluded the prison officials needed to use force. Hill had, after all, locked himself inside the recreation yard and refused to comply with prison officials’ orders. The record demonstrates the officials inadvertently exposed the other prisoners to gas. So the question, then, is whether it was disproportionate to use CS gas to secure Hill, when officers did not realize other prisoners would be incidentally exposed to the gas as well. The Tenth Circuit concluded it was not disproportionately forceful to use CS gas.

Even assuming a constitutional violation occurred, the Tenth Circuit determined the officers would still be entitled to qualified immunity because no case clearly establishes this right. Nicholes and Powell are entitled to qualified immunity on the claim they violated the Eighth Amendment by exposing the prisoners to CS gas. Redmond cannot establish that the officers violated the Eighth Amendment and, even assuming they did, the right would not be clearly established.

Redmond next contended Powell acted with deliberate indifference to prisoners’ serious medical needs in violation of the Eighth Amendment. To establish an Eighth Amendment claim based on inadequate medical care, the prisoner must prove both an objective component and a subjective component. The objective component requires showing the alleged injury is “sufficiently serious.” A delay in medical care is only sufficiently serious if “the plaintiff can show the delay resulted in substantial harm.” The subjective component requires showing the prison official knew the inmate faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it. The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed. The Circuit found that Redmond failed to meet his burden.

The Tenth Circuit affirmed the district court’s grant of qualified immunity to the officers.

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: 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: 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: 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: Attorneys Who Withheld Information About Appraiser Properly Sanctioned

The Tenth Circuit Court of Appeals issued its opinions in Auto-Owners Ins. Co. v. Summit Park Townhome Association on March 30, 2018. The Tenth Circuit Court of Appeals VACATED its original opinions and issued the following revised opinions: Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, No. 16-1638, and Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, No. 16-1352.

Two attorneys, Mr. William Harris and Mr. David Pettinato, represented Summit Park Townhome Association against its insurer. The two attorneys were sanctioned for failing to disclose information to the district court. The attorneys appealed the sanction on these five arguments:

  1. The district court lacked authority to require the disclosure requirements.
  2. The attorneys did not violate the court’s disclosure requirements.
  3. The district court awarded attorneys’ fees beyond the scope of an earlier sanctions order.
  4. The district court’s award of attorneys’ fees resulted in a deprivation of due process.
  5. The amount of attorneys’ fees awarded was unreasonable.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s actions in issuing sanctions, determining the scope of the sanctions, and calculating the amount of the sanctions.

The initial lawsuit was related to an insurance dispute following a claim filed by Summit Park with Auto-Owners Insurance for hail damage. The parties disagreed on the dollar amount of the damages, and Auto-Owners sued for a declaratory judgement to decide the value.

Summit Park attorneys Harris and Pettinato moved to compel an appraisal following the insurance policy requirements. Auto-Owners asked the district court to resolve the dispute over the dollar amount by ordering an “appraisal agreement.” The district court ordered the appraisal agreement and warned both parties that if the parties and/or counsel did not comply, the court would impose sanctions.

George Keys was the appraiser for Summit Park, and Auto-Owners questioned his impartiality. Mr. Keys and the court-appointed umpire both agreed on an appraisal award of over $10 million. Auto-Owners then objected to Mr. Keys based on impartiality and that Summit Park had failed to disclose evidence bearing on his impartiality. The court disqualified Mr. Keys and vacated the appraisal award. Auto-Owners then moved for sanctions against Mr. Harris and Mr. Pettinato, including attorney fees and expenses. The district court assessed sanctions against the two attorneys for $354,350.65 in fees and expenses.

Attorneys Harris and Pettinato questioned the district court’s authority to enter the disclosure order, and they refused to comply with the order. They could have sought reconsideration or a writ, but they could not violate the order. See Maness v. Meyers, 419 U.S. 449, 458 (1975) (“If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.”). Orders issued by a court must be obeyed by the parties until “reversed by orderly and proper proceedings.” United States v. United Mine Workers, 330 U.S. 258, 293 (1947); See United States v. Beery, 678 F.2d 856, 866 (10th Cir. 1982); and see also GTE Sylvania, Inc. v. Consumers Union of U.S., Inc, 445 U.S. 375, 386 (1980). Failure to comply with the court order could trigger sanctions. See United Mine Workers, 330 U.S. at 294 (quoting Howat v. Kansas, 258 U.S. 181, 190 (1922)), so Mr. Harris and Mr. Pettinato were obligated to comply in the absence of an appellate challenge, and could be sanctioned for noncompliance.

Attorneys Harris and Pettinato challenged the district court’s conclusion that they had violated the disclosure order by arguing that the district court misinterpreted the term “impartial” and that Harris and Pettinato disclosed sufficient information about Mr. Keys.

Because Mr. Harris and Mr. Pettinato urged a legal error consisting of misinterpretation of the term “impartial,” the Tenth Circuit Court of Appeals engaged in de novo review. Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202 (10th Cir. 2008), and it otherwise confined the review sanctions under the abuse-of-discretion standard. Russell v. Weicker Moving & Storage Co., 746 F.2d 1419, 1420 (10th Cir. 1984) (per curiam).

The district court requested disclosure of (1) the appraiser’s “financial or personal interest in the outcome of the appraisal,” (2) any “current or previous relationship” between the appraiser and Summit Park’s counsel, and (3) any other facts subsequently learned that “a reasonable person would consider likely to affect” the appraiser’s impartiality.

Harris and Pettinato made two disclosures:

  1. “Mr. Keys does not have any significant prior business relationship with [Merlin], Summit Park, or C3 Group. Mr. Keys has acted as a public adjuster and/or appraiser on behalf of policyholders that [Merlin] has represented in the past, however, this obviously does not affect his ability to act [as] an appraiser in the matter.” Appellant’s App’x, vol. 2 at 292.
  2. “Mr. Keys has acted as a public adjuster and/or appraiser on behalf of policyholders that [Merlin] has represented in the past. Mr. Keys has no financial interest in the claim, and has no previous relationship with the policyholder in this matter.” Id. at 298.

Mr. Keys made the following disclosure: “I do not have a material interest in the outcome of the Award and have never acted either for or against Summit Park Townhome Association. My fee agreement is based upon hourly rates plus expenses. . . . I do not have any substantial business relationship or financial interest in [Merlin]. There have been cases where both [Merlin] and Keys Claims Consultants acted for the same insured but under separate contracts.” Id. at 307-08.

Regardless of the district court’s definition of “impartial,” attorneys Harris and Pettinato failed to disclose that (1) other attorneys in their firm (Merlin Law Group) had worked with Mr. Keys on appraisals for at least 33 clients, (2) Merlin attorneys had represented Mr. Keys on various matters for over a decade, (3) Merlin’s founder and Mr. Keys had co-founded a Florida lobbying operation, and (4) Merlin attorneys had served as the incorporator and registered agent for one of Mr. Key’s companies.

Attorneys Harris and Pettinato claim they disclosed sufficient information about Mr. Keys’ impartiality and that they lacked personal knowledge about the undisclosed facts. Both of these arguments failed. The district court could reasonably find that the undisclosed information was meaningful, and Harris and Pettinato knew about some of Mr. Keys and Merlins contacts, and they had an obligation to inquire about contacts with other Merlin attorneys. Therefore, the district court acted within its discretion on Mr. Harris’ and Mr. Pettinato’s failure to disclose information.

As far as Mr. Harris’ and Mr. Pettinato’s argument over the district court’s definition of “impartial,” the disclosure order issued by the district court defined “impartial” by stating: “An individual who has a known, direct, and material interest in the outcome of the appraisal proceeding or a known, existing, and substantial relationship with a party may not serve as an appraiser.” Id. at 245.

Using the definition of “impartial” provided in the district court’s order, the district court required disclosure of any facts that a reasonable person would view as likely to affect the appraiser’s impartiality. Mr. Harris and Mr. Pettinato argued that evidence of an appraiser’s advocacy was unlikely to affect the appraiser’s impartiality. See Owners Ins. Co. v. Dakota Station II Condominium Ass’n, 2017 WL 3184568, at *4 (Colo. App. July 27, 2017), cert. granted, 2018 WL 948601 (Colo. Feb. 20, 2018). Even if Mr. Harris and Mr. Pettinato were correct, the district court could have reasonably viewed Mr. Keys’ undisclosed prior statements as likely to affect his impartiality based on a known, direct, and material interest in the outcome. Additionally, in an advertisement on Mr. Keys’ website, Mr. Pettinato endorsed Mr. Keys, saying: “Both Mr. Keys and his staff have assisted me as well as my firm in resolving an untold number of large multi-million dollar losses to an amicable resolution and settlement to the policyholders’ benefit and satisfaction.” Id. at 704. And a profile on Merlin’s website reported that Mr. Keys “ha[d] dedicated his professional life to being a voice for policyholders in property insurance claims.” Id. at 723. In this profile, Mr. Keys stated: “I was taught to always handle a claim as if my momma was the insured.” Id.

Therefore, the district court did not abuse its discretion by finding that Mr. Harris and Mr. Pettinato had violated the disclosure order.

Mr. Harris and Mr. Pettinato argued that Auto-Owners waived the right to object by failing to object despite their knowledge of past relationships between Merlin and Mr. Keys. The Tenth Circuit disagreed, because without the undisclosed information, Auto-Owners would not have had full knowledge of the relationship.

For the sanction against the two attorneys, the district court invoked 28 U.S.C. § 1927. Under § 1927, an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. The two attorneys argued that these three items fell outside of the initial sanctions order: (1) Auto-Owners’ preparation of the motion for sanctions ($51,309.50), (2) Auto-Owners’ preparation of the application for attorneys’ fees and expenses ($16,960.50), and (3) Auto-Owners’ other related work ($61,662.50).

The Tenth Circuit disagreed with those arguments, because the district court explained the attorney fees in the sanctions order. Therefore, the Tenth Circuit deferred to the district court’s interpretation of its own order. See, e.g., Chi., Rock Island & Pac. R.R. v. Diamond Shamrock Ref. & Mktg. Co., 865 F.2d 807, 811 (7th Cir. 1988) (“We shall not reverse a district court’s interpretation of its own order ‘unless the record clearly shows an abuse of discretion.’” (quoting Arenson v. Chicago Mercantile Exch., 520 F.2d 722, 725 (7th Cir. 1975))). The Tenth Circuit found it reasonable for the district court to consider these litigation expenses.

The fifth area that Mr. Harris and Mr. Pettinato questioned was a deprivation of due process based on an inability to respond to the district court’s inclusion of litigation activities outside of the initial sanctions order. The Tenth Circuit disagreed because they could have objected to any of the attorney fees included on the Auto-Owners application that was filed. This opportunity supplied due process. See Resolution Tr. Corp. v. Dabney, 73 F.3d 262, 268 (10th Cir. 1995); see also Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, No. 16-1352, slip op. at 17-19 (10th Cir. Mar. 30, 2018) (to be published) (discussing a similar argument made by Summit Park Townhome Association).

The last argument was that the court awarded an unreasonable about of attorney fees. The Tenth Circuit reviewed a determination of attorney fees for an abuse of discretion. See AeroTech, Inc. v. Estes, 110 F.3d 1523, 1528 (10th Cir. 1997). In applying the abuse-of-discretion standard, the Circuit considered whether the district court’s determination appeared reasonable in light of the complexity of the case, the number of strategies pursued, and the responses necessitated by the other party’s maneuvering. See Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The district court was not required to identify and justify every hour allowed or disallowed. See Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996).

Based on the Tenth Circuit’s review, the district court considered three areas when determining reasonableness of fees. First, the district court concluded that it was reasonable for Auto-Owners’ counsel to spend long hours because “Auto-Owners had over $30 million at stake” and the issues were complex. Appellants’ App’x, vol. 3 at 673-74. Second, the court considered the local market, the qualifications of the attorneys, and the contentiousness of the litigation. These considerations led the district court to find that the billing rates had been reasonable. Third, the court considered the use of billing judgment by Auto-Owners’ counsel through concessions such as staffing with lower-billing attorneys, declining to charge for all hours worked, and discounting hours worked by paralegals and secretaries. The district court acted reasonably in considering these concessions. The Tenth Circuit concluded that the district court did not abuse its discretion in calculating the amount of the sanction ($354,350.65).

The Tenth Circuit Court of Appeals concluded that the district court did not err in sanctioning Mr. Harris and Mr. Pettinato, that Mr. Harris and Mr. Pettinato violated the district courts order by failing disclose information bearing on Mr. Key’s impartiality, and that the amount set by the district court was reasonable.

Tenth Circuit: “Crime Involving Moral Turpitude” is Conduct Which Is Inherently Base, Vile, or Depraved Under Categorical Approach

The Tenth Circuit Court of Appeals issued its opinion in Afamasaga v. Sessions on March 19, 2018.

Paulo Afamasaga, a native and citizen of Samoa, was admitted to the United States on a nonimmigrant, B-2 tourist visa in February 1998, with authorization to remain until that August. He stayed much longer. In 2011, Mr. Afamasaga pleaded guilty in federal court to violating 18 U.S.C. § 1542, which prohibits “willfully and knowingly making any false statement in an application for a passport with intent to induce or secure the issuance of a passport under the authority of the United States.” The indictment charged that Mr. Afamasaga falsely stated in his passport application that he was born in American Samoa; had that been true, he would have been a United States citizen. Shortly thereafter, the Department of Homeland Security (DHS) issued a Notice to Appear, charging him with removability as an alien who had remained in the United States longer than permitted. The immigration judge (IJ) sustained the change of removability.

Mr. Afamasaga applied for cancellation for removal and adjustment of status, or, in the alternative, for voluntary departure. The IJ dropped his cancellation application after deeming him inadmissible because he had been convicted of a crime involving moral turpitude. The IJ did, however, grant voluntary departure to Samoa. In a decision issued by a single board member the Board of Immigration Appeals (BIA) agreed that Mr. Afamasaga’s conviction for a violation of § 1542 constitutes a crime involving moral turpitude and affirmed the IJ’s decision.

A noncitizen applying for cancellation of removal must show, among other things, that he has not been convicted of a crime involving moral turpitude. In determining whether an alien’s offense was a crime involving moral turpitude, it is not enough that his actual conduct would qualify. Instead, courts apply the “categorical approach” and “compare the statutory definition of that offense with the generic definition of crimes involving moral turpitude and consider whether the minimum conduct that would satisfy the former would necessarily also satisfy the latter.”

Although the Immigration and Nationality Act (INA) does not define “crime involving moral turpitude,” courts have guidance for defining it because “the contours of the term have been shaped through interpretation and application by the Attorney General, the BIA, and federal courts.” The Tenth Circuit Court of Appeals has previously said that the term “refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality.” Previous Attorneys General have described offenses that qualify as crimes involving moral turpitude as those entailing both “reprehensible conduct and some form of scienter.” Precedents established rules for assessing specific types of conducts. Specifically, “crimes in which fraud is an ingredient are regarded as involving moral turpitude.” The BIA has identified three categories of deceit-related offenses that qualify as crimes involving moral turpitude: (1) offenses containing an explicit fraudulent intent element; (2) offenses containing an inherent fraudulent intent element; and (3) offenses containing a specific intent element. In particular, the BIA has found an offense implicitly fraudulent – and thus a crime involving moral turpitude – where it involved impairing or obstructing an important function of the government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means.

The BIA held in 1956 that fraud is an “essential element” of § 1542 because “the applicant must knowingly make a false statement with the specific intent that the false statement should be acted upon the Government.” More recently, a precedential opinion of the BIA held that a conviction for making false statements to obtain a passport in another person’s name is a crime involving moral turpitude because “convictions for making false statements have been found to involve moral turpitude.” Additionally, the Second Circuit has also concluded that an offense under § 1542 categorically constitutes a crime involving moral turpitude.

Agreeing with the above interpretations of the meaning of crime involving moral turpitude, the Tenth Circuit Court of Appeals concluded that a violation of § 1542 is categorically a crime involving moral turpitude.

Mr. Afamasaga made the conclusory statement that § 1542 is not categorically a crime involving moral turpitude because “there is a realistic possibility, not a theoretical possibility, that section 1542 applies to conduct that falls outside the well-established definitions of crime involving moral turpitude.” But he did not proffer a single example of such conduct, nor could the Tenth Circuit Court of Appeals come up with one.

The Tenth Circuit Court of Appeals recognized that one of its recent opinions, which thoroughly explored when offenses involving statements constitute crimes involving moral turpitude, held that a violation of a city ordinance prohibiting the knowing and willful providing of false information to a public official conducting an investigation is not a crime involving moral turpitude. But, the critical feature of the ordinance was that it did not require an intent to affect the official’s decision. Section 1542, in contrast, requires the “intent to induce or secure the issuance of a passport.”

Mr. Afamasaga did not satisfy his burden “to prove the absence of any impediment to discretionary relief.” The Tenth Circuit Court of Appeals DENIED his petition for review and upheld the BIA’s determination that he is not eligible for cancellation of removal.

Tenth Circuit: Defendant Did Not Establish Significant Nexus Between Potential Alternative Perpetrators and Crimes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Meisel on Tuesday, November 14, 2017.

In 2014, Detective Wright saw a user on the Ares file-sharing network offering child pornography. After identifying the IP address, Wright obtained a search warrant for a home Meisel shared with Thomas. Meisel’s personal computer was found to have child pornography on the external hard drive, with some pictures added just three days prior to the execution of the warrant. Meisel attributed the child porn to his son, W.R., who lived in the home previously. During the investigation, however, there was evidence of the child porn being viewed frequently after W.R. moved out of the home. Meisel continued to assert there was a sufficient nexus between three individuals, J.H., S.H., and W.R., and the child pornography. On appeal, Meisel asserted the district court (1) violated his right to present a complete defense by preventing him from presenting alternative perpetrator evidence; and (2) erred in denying his request to instruct the jury on “identity.”

As for the argument of J.H., Meisel asserted that J.H., Thomas’s caregiver, had unfettered access to the computer and external hard drive at times Meisel was absent from the home. Meisel asserts that the computer was logged into and child pornography was downloaded at times that Meisel was not at the home. Further, Meisel contends that J.H. has a high level of technical knowledge.

S.H. is J.H.’s brother, and Meisel contends that S.H. would often visit the home when the computer was accessible and that S.H. previously lived at the home and knew the wifi password.

W.R., Meisel’s son, lived at the home previously, and Meisel argue that he found W.R. accessing child pornography sites on his computer.

The district court determined that Meisel had not proffered sufficient evidence to establish the necessary nexus between any of the proposed perpetrators and the crimes with which Meisel was charged.

Meisel argued that the district court did not allow him to utilize the term “alternate perpetrator” in presenting his case to the jury. The question was whether the evidence was sufficient to allow Meisel to argue that a particular person was the one who placed the child pornography on his hard drive. The Tenth Circuit found that the district court did an appropriate balancing of evidence in finding that Meisel did not satisfy requirements for arguing that anyone else was responsible for downloading the child pornography.

The Supreme Court has noted that special considerations arise when a court is faced with a defense theory of an alternative perpetrator: “Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded.”

The Tenth Circuit reexamined the three potential perpetrators Meisel provided. The information on S.H. was not admitted into evidence, as mere proximity and potential access are not sufficient to argue an alternative perpetrator to a crime. Further, the evidence implicating W.R. as the actual perpetrator set out a speculative and remote outcome. And at most, the evidence at trial demonstrated that W.R. used Meisel’s computer; however, there was no evidence indicating that W.R. was anywhere near Meisel’s computer for at least one year before the events at issue. J.H., however, seemed to be a viable alternative perpetrator for these crimes, as J.H. was present in the home four days a week and was present while Thomas slept during the day. Further, child pornography was downloaded on a day Meisel was possibly absent from the home, but J.H. was there. However, the theory that J.H. was responsible for the child pornography was presented to, and rejected by, the jury.

The Tenth Circuit found that the evidence of Meisel’s guilt was, contrary to protest, overwhelming. Unrebutted and unexplained forensic evidence demonstrated that Meisel’s assertion that he was unaware of the child pornography was implausible. Instead, the evidence overwhelmingly proved that after Thomas found child pornography on Meisel’s computer, Meisel took extraordinary efforts to limit access to his computer. For that very reason, Meisel stated during his interview that if child pornography was found on the computer, he was the responsible party. Although Meisel attempted to explain away that statement at trial with the theory he was only accepting ultimate responsibility for the computer, the Tenth Circuit found the evidence to the contrary to be overwhelming.

Lastly, Meisel asserted the district court refused to give his proffered identity instruction to the jury. The Tenth Circuit found that the district court did not abuse its discretion in determining that the existing jury instructions made it clear to the jury that Meisel was legally responsible for the charges if he personally and knowingly possessed and distributed the child pornography found on his computer. The Tenth Circuit found that the district court’s jury instructions were not erroneous or inadequate as given.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s conviction.