August 21, 2019

Tenth Circuit: Excessive Force Claim Does Not Require Showing of More than De Minimus Injury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodella on Wednesday, November 4, 2015.

Michael Tafoya was driving home from his grandfather’s house in rural Rio Arriba County, New Mexico, when a green Jeep began tailgating him and flashing its headlights. Tafoya stepped on his brakes to try to get the Jeep to back off, and flipped off the driver of the Jeep through his back window, but the Jeep continued to tailgate him. Eventually, he found a place to pull over and allowed the Jeep to pass. When it sped past him, Tafoya again flipped off the driver. The Jeep slammed on its brakes and rapidly reversed back to where Tafoya was stopped. Two men got out of the Jeep: defendant Thomas Rodella, who was the passenger, and his son, Thomas Rodella Jr., who was the driver. The two men approached Tafoya and urged him to “come on.” Although Rodella was the acting sheriff of Rio Arriba County, at no point did he identify himself as a law enforcement officer.

Tafoya, believing the men wanted to fight him, sped off, followed by the Jeep. Tafoya became scared and began driving 60 to 65 miles per hour down the road, despite the 35 mph posted speed limit. He tried to plan a route to reverse his course but missed his turn. Panicked, he yelled out the window at a passing jogger to call the police. Tafoya turned into a nearby driveway, and the Jeep quickly followed. Tafoya reversed, trying to evade the Jeep, but crashed into a metal pole in the middle of the driveway. His vehicle became stuck.

Rodella jumped out of the passenger side of the Jeep and tried to get into the driver’s side. When that failed, he successfully entered the passenger side with a shiny silver firearm in his hand, later confirmed to be a .38 special revolver. Rodella tried to turn the gun toward Tafoya, who grabbed at his wrists, begging, “Please don’t kill me!” Rodella responded by saying, “It’s too late, it’s too late.” As the two struggled, Rodella Jr. approached the vehicle and pulled Tafoya out. Tafoya struggled to get up, continuing to say “Please don’t kill me.” As Rodella Jr. held him down, he told Tafoya that his dad was the sheriff. Tafoya reported that he froze in shock, and eventually calmly asked Rodella to show him his badge in order to confirm he was the sheriff. Rodella said, “You want to see my badge?,” grabbed Tafoya by the hair, and smacked him across the face with his badge, saying “Here’s my badge, motherfucker.”

Tafoya remained on the ground for several minutes until deputies from the Rio Arriba County Sheriff’s Office arrived on the scene. The deputies were contacted by Rodella directly during the chase; he did not report the chase to dispatch. The deputies took Tafoya to his car, frisked him, and transported him to the jail. Although Tafoya attempted repeatedly to explain what happened, they did not listen, and eventually charged him with a felony offense. Tafoya remained in jail for several days until his grandfather bailed him out. The criminal charges against Tafoya were eventually dismissed, and Tafoya contacted the FBI to report what had happened to him.

In August 2014, a federal grand jury indicted Rodella on four counts: conspiring with his son to violate Tafoya’s constitutional rights against unreasonable seizures, depriving Tafoya of his civil rights, brandishing a firearm in the commission of that offense, and falsifying a document because of his official written report documenting what happened before and during the arrest of Tafoya. In September 2014, the grand jury returned a superseding indictment charging two offenses: deprivation of Tafoya’s constitutional right to be free of unreasonable searches and seizures by a law enforcement officer and brandishing a firearm duing the commission of that offense. Rodella proceeded to trial, and the jury found him guilty on both counts. He was sentenced to a total term of imprisonment of 121 months. He appealed.

On appeal, Rodella argued the evidence was insufficient to show that he had subjected Tafoya to a deprivation of rights while under color of law. The government presented two theories to show Rodella’s violation of 18 U.S.C. § 242: that Rodella unlawfully arrested Tafoya, and that he used unreasonable force in the course of arresting Tafoya. The jury accepted the government’s theory on both counts. Considering the unreasonable force theory, the jury found beyond a reasonable doubt that Rodella used or threatened to use a dangerous weapon, but not that he caused serious bodily injury. Rodella challenged both theories of liability on appeal.

The Tenth Circuit initially noted that Rodella failed to preserve his argument that Tafoya was committing certain traffic infractions, thus supplying reasonable cause to stop him. The Tenth Circuit further noted that, because Rodella did not testify in his defense, the jury could only evaluate the testimony of the other eyewitnesses: Tafoya, Rodella Jr., and Mark Thompson, the owner of the property where Tafoya crashed his car. Thompson’s testimony generally supported Tafoya’s, and although Rodella Jr.’s testimony was dramatically different, the jury could have reasonably found it was not credible. Additionally, because Rodella was not in uniform, he could not have arrested Tafoya for the traffic offenses under New Mexico law. The Tenth Circuit found the evidence sufficient to support the unlawful arrest charge.

Next, the Tenth Circuit examined Rodella’s challenge to the sufficiency of the evidence supporting the excessive force claim. Rodella based his challenge on a Tenth Circuit opinion that an excessive force claim in the context of handcuffing too tightly requires more than a de minimus injury. The Tenth Circuit noted that the holding on which Rodella relied was limited to handcuffing injuries, and also that the Supreme Court rejected the theory that more than a de minimus injury was required to support an excessive force claim. The Tenth Circuit rejected Rodella’s claim that more than a de minimus injury was required to support excessive force and therefore concluded the evidence was sufficient for Tafoya’s excessive force claim. Rodella also argued that he was deprived of his Fifth and Sixth Amendment rights when the jury was not instructed that excessive force requires more than a de minimus injury, which the Tenth Circuit similarly rejected.

Next, Rodella argued the district court erred in admitting evidence of three similar incidents in which he was involved. Prior to trial, the government had filed a motion in limine, seeking to introduce evidence of the three similar incidents pursuant to FRE 404(b) to show motive, intent, plan, knowledge, absence of mistake, and lack of accident, listing specifically what the government thought the evidence would show. The district court granted the government’s motion on the eve of trial. To reduce the risk of prejudice, the court ordered the government to instruct the jury specifically for what purpose the evidence was admitted. The Tenth Circuit rejected Rodella’s argument that the evidence tended to make propensity-based inferences in order to show willfulness. The Tenth Circuit found that the evidence had significant probative value and was not unfairly prejudicial.

Rodella similarly argued the prosecution committed misconduct when it improperly referenced his other bad acts during closing argument, pointing to eight specific statements. The Tenth Circuit evaluated each statement separately. As to the statements that contrasted the personalities of Rodella and Tafoya, the Tenth Circuit found no misconduct. The Tenth Circuit also found no prejudice in the prosecutor’s statement that Rodella’s tailgating of Tafoya was “familiar,” considering the other similar incidents. The Tenth Circuit similarly found the prosecutor’s mention of the other three incidents acceptable three other times. As for the government’s mention of the emotional distress suffered by one of the other victims, the Tenth Circuit found no error because the government’s evidence was sufficient to establish that Tafoya experienced emotional distress from the incident. Finally, the Tenth Circuit found the last statement proper because it asked the jury to infer from the totality of the circumstances that Rodella had acted willfully.

The Tenth Circuit also rejected Rodella’s claim that the admission of evidence on officer training was an abuse of discretion, noting that the evidence showed that Rodella knew his conduct was illegal. The Tenth Circuit also addressed Rodella’s cumulative error claim, finding that it only had accepted one instance of prosecutorial misconduct as potentially erroneous and that was not enough to prove cumulative error.

The Tenth Circuit affirmed the district court.

The Colorado Lawyer: Abraham Lincoln—150 Years Later

Editor’s Note: This article originally appeared in the April 2015 issue of The Colorado Lawyer. Reprinted with permission.

By Charles F. Garciacharley garcia

Where justice is denied, where poverty is enforced, where
ignorance prevails, and where any one class is made to feel
that society is an organized conspiracy to oppress, rob and
degrade them, neither persons or property will be safe.

—Frederick Douglass, Emancipation Celebration
Washington, DC, 1886

April 15, 2015 marks the 150th anniversary of President Abraham Lincoln’s death. Lincoln served as U.S. President for little more than one term, and during that period, he worked to make all people of this country equal. He wrote the Emancipation Proclamation in 1862, declaring that “all persons held as slaves within any State or designated part of a state . . . shall be . . . forever free.” On April 4, 1864, the Thirteenth Amendment to the U.S. Constitution abolishing slavery passed the Senate, and on January 31, 1865, it passed the House of Representatives. It was ratified after Lincoln’s death on December 6, 1865.

Mindful of this powerful history, I began to reflect on recent events involving racial conflict occurring in the United States, including in Colorado, and to contemplate how far we have come in 150 years. We should not shy away from discussing racial conflict and related social and legal injustices simply because it is a difficult and sensitive subject for which there may be no single or immediate solution. I firmly believe that it is our duty as members of this honorable profession to reflect on the inescapable fact that people of color are over-criminalized, and constructively work toward reform. I hope this Message advances the discussion of the role we must play to ensure equality for all.

Atticus Revisted

On July 11, 1960, To Kill a Mockingbird by Harper Lee was published. Lee attended law school at the University of Alabama but chose to pursue a career in writing instead of the law. (She did receive an Honorary Special Membership to the Alabama Bar in 2008.[1])

To Kill a Mockingbird was published during a time of much racial tension in the United States. For example, in 1955, the black teenager Emmett Till was murdered in Mississippi for allegedly flirting with a white woman, and the Montgomery bus boycott of 1955 occurred after Rosa Parks was arrested for not giving up her seat on a bus to a white man. The book has been hailed by many in the civil rights movement for moving forward the dialogue on race and justice. For example, former Atlanta Mayor Andrew Young, who was the first African American since Reconstruction to represent Georgia in the U.S. Congress, stated that Lee’s book “inspired hope in the midst of chaos and confusion.”[2]

Searching for Answers

President Abraham Lincoln sought to bring racial justice to this country, and Harper Lee sought to bring social awareness to the fact that ninety-five years after the Emancipation Proclamation, equality was not a reality. Now, 150 years after Lincoln’s death and the ratification of the Thirteenth Amendment, there may be some sense of legal equality on the books, but equality across society is not a reality, and that is evident in the criminal justice system. For example, according to information as recent as November 2014:

Arrest rates are hard to come by, but African Americans are arrested at rates far exceeding their white counterparts. In many cities, the rate is 10 times higher and in some, it is as much as 26 times higher.[3]

According to the Bureau of Justice Statistics, “African American males are incarcerated at a rate 6.7 times higher, and Hispanic males 2.5 times higher, than their white non-Hispanic counterparts.”[4]

On February 22, 2015, when singer–songwriter John Legend accepted the Oscar for co-writing the song “Glory” from the film Selma, he commented, “There are more black men under correctional control today than there were under slavery in 1850.” The events highlighted by the death of a young African American man in Ferguson, Missouri have again focused national attention on the issue of race and justice in America. Similar events in Colorado have spurred protests in recent months. As citizens and as lawyers, we are striving to find answers to the questions raised by these events.

In December 2014, the Sam Cary Bar Association, in conjunction with the CBA and other bar associations, presented a program entitled “Community Forum—Waiting to Exhale: A Conversation About Race and Our Justice System.” The Forum was a panel discussion on long-ignored race-related issues brought to light by the events of Ferguson. Questions raised at the Forum focused largely on the manner in which our three branches of government should address these issues and the degree to which it is the responsibility of our justice system to rectify the unfair, unequitable imposition of punishment. Forum presenters focused on the Denver Police and Sheriff’s Departments, but the discussion also ventured into the role of our courts and legislature in addressing issues that ranged from excessive force by law enforcement to minority overrepresentation in our criminal justice system. The Forum itself provided no easy solutions to the problems raised by the community, but it continued to advance the conversation.

Legislating on Behalf of Children

The prevailing question is what lawyers can do to better address the issues pertaining to racial injustice in our society. It seems everyone has suggestions in these trying times, and one entity that is looking for answers is the Colorado Legislature, where, during the 2015 legislative session, it will be considering a bill dealing with petty tickets for juveniles. This bill began as a recommendation from the Juvenile Justice Task Force of the Colorado Criminal and Juvenile Justice Commission. The intention of the bill is to find a way to keep our children from becoming part of the criminal justice system. The belief is that once a child becomes part of the criminal justice system, it is very difficult to remove him or her from the system.

Tackling the overrepresentation of people of color in our criminal justice system begins with how we address the treatment of our children. It is a fact that our juvenile courts are overcrowded. The number of people of color adjudicated in those courts does not reflect our society as a community. We must begin our search for answers by looking at our courts and determining how our children reach the courts in the first place. This bill is a start to addressing the bigger issue of racial injustice.

The Challenge to the Justice System

We must begin to collaborate to solve the problems of over-criminalization, mass imprisonment, and minority overrepresentation in our criminal justice system. Although most people may agree on what the bigger problems are, they may differ on the causes. This should not stop us from working with our legislators, governors, mayors, judges, prosecutors, and defense attorneys to find solutions.

> A New York Times column on February 18, 2015 stated:

Usually bitter adversairies, Koch Industries and the Center for American Progress have found at least one thing they can agree on: The nation’s criminal justice system is broken. Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center, a Washington-based liberal issues group are coming together to back a new organization called the Coalition for Public Safety. The coalition will have initial backing of more than $5 million, with groups also spending independently on their own criminal justice initiatives.[5]

> In her book The New Jim Crow,[6] Michelle Alexander focuses on how the enactment and enforcement of drug laws have created a society in our country where we legalize discrimination. She argues in the book that the U.S. criminal justice system functions as a contemporary system of racial control, and writes that “we have not ended racial caste in America; we have merely redesigned it.” The United States currently represents 5% of the world population but represents 25% of the world’s incarcerated population.[7] In her January 2012 appearance on the National Public Radio program Fresh Air, Alexander told host Dave Davies that “[p]eople are swept into the criminal justice system—particularly in poor communities of color—at very early ages.”[8]

> George F. Will wrote about the death of Eric Garner in New York for the Washington Post Writers Group (WPWG). On December 14, 2014, when talking about the death of Eric Garner in New York for selling illegal cigarettes, Will wrote:

Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that when signs of disorder, such as broken windows, proliferate and persist, there is a general diminution of restraint and good comportment. So because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles. Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.[9]

> Professor Stephen L. Carter of Yale Law School has stated that [o]vercriminalization matters [because] making an offense criminal also means that the police will go armed to enforce it. However, today’s political system takes bizarre delight in creating new crimes for enforcement.[10]

> George Will states further in his WPWG article: The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism.[11]

> A group known as Right on Crime,[12] a project of the Texas Public Policy Foundation and in cooperation with the Justice Fellowship, has brought together former U.S. Speaker of the House Newt Gingrich, political advocate Grover Norquist, Texas Governor Rick Perry, and others to examine the causes of mass incarceration in Texas and across the United States. A look at Right on Crime’s website,, will lead you to articles on attempts at criminal justice reform in such states as Ohio, Georgia, and West Virginia.

The Rule of Law—The Guiding Premise to Repairing Injustices

Racial injustice exists outside the criminal justice system, as well. Inequalities in our educational system, in the employment arena, and in housing serve as breeding grounds for racial injustice in the criminal justice system. We need to constantly work at airing and addressing the problems that exist in all areas of society. At the same time, we need to address the reasons behind the staggering rate of incarceration of people of color and the poor in our country. The answer to societal injustices does not rest in any one of the three branches of our government, but in all three.

Our legislators need to address over-criminalization, mass incarceration, and overrepresentation of people of color in the criminal justice system. Legislators around the country are now rushing to enact laws around police body cameras, excessive force laws, and grand juries for police misconduct. These are perhaps good ideas, but they may be no more than Band-Aids for a much larger wound in our society.

Our Executive Branch needs to examine the enforcement of our laws to find a way to enforce them without doing harm to society. Many of the issues are particular to the local community, and this is where change needs to begin. We need to take a new approach to law enforcement, especially as it relates to people of color. It is the job of our mayors, city councils, and county commissioners to examine our methodology of law enforcement and assure the words “Serve and Protect” have meaning.

Finally, the third branch of government, and the one we lawyers know best—the Judicial Branch—plays a vital role in questioning and responding to the many issues raised here. The acts of our legislators and of our Executive Branch will eventually be tested in our courts. The criminal justice system is unworkable if it is not vetted in our courts.

There is one thing that is paramount in effecting change in our criminal justice system, and that is adherence to the rule of law. Many believe—and rightly so—that the rich and poor are treated differently in our criminal justice system. This has to change.

The rule of law is simple: the same laws must apply to each and every one of us. It is the duty of our courts to look out into the audience of the courtroom and the cells of our jails and ask why there is such a broad discrepancy among those who are criminalized. Colorado comprises district, county, and municipal courts. The county courts handle misdemeanor criminal matters and are frequently referred to as “our people’s courts.” The municipal courts handle municipal ordinance violations. These are the cases that are the subject of George Will’s reference to the “broken windows” method of police oversight of our communities. These are the courts Michelle Alexander speaks of when she talks about sweeping people into the criminal justice system. Once they are swept in even at the municipal level, they become branded for life, thus creating hurdles to employment, housing, and other opportunities that lead to the vicious circle that keeps them in the criminal justice system.


As stated in The New York Times article, in writing about the Koch brothers and the center coalition:

With the huge costs to the public of an expanding 2.2 million person prison population drawing interest from the right and the conviction that the system is unfair and incarcerating too many drug and nonviolent offenders driving those on the left, the new coalition is the most recent example of ideological opposites joining together.[13]

We must continue to correct inequality in this country and we can begin by bringing equality to the justice system. Atticus Finch stated in his closing argument:

Now, gentlemen, in this country, our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and our jury system—that’s no ideal to me. That is a living, working reality.[14]

I am an idealist, and I firmly believe our courts are the great levelers. I also believe that we as lawyers and citizens, together with our communities, must begin the difficult work of collaboration, because the courts are not the only solution. President Lincoln stated in the Gettysburg Address that “all men are created equal.” Our Declaration of Independence also states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. . . .” We must reexamine what has occurred during the past 150 years and constructively work toward improving the direction we take toward a better future.


[1] “Alabama Supreme Court Awards Harper Lee Honorary Special Membership,” The Alabama Lawyer 252 (July 2008),

[2] See, e.g., American Masters: Harper Lee: Hey Boo (2010),

[3] Heath, “Racial Gap in U.S. Arrest rates: ‘Staggering disparity,’”USA Today (Nov. 19, 2014),

[4] See West, “Prison Inmates at Midyear 2009—Statistical Tables” (June 2010),

[5] See Hulse, “Unlikely Cause Unites the Left and the Right: Justice Reform,” The New York Times(Feb. 18, 2015),

[6] Alexander, The New Jim Crow (New Press, 2010).

[7] See NAACP, “Criminal Justice Fact Sheet,” See also Ehrenfreund, “There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery,” The Washington Post (Feb. 23, 2015),

[8] See “Legal Scholar: Jim Crow Still Exists in American,” Fresh Air (NPR Radio, Jan. 16, 2012),

[9] Will, “Eric Garner, criminalized to death,” The Washington Post (Dec. 10, 2014),

[10] Carter, “Law puts us all in same danger as Eric Garner,” Bloomberg News (Dec. 14, 2014),

[11] Will, supra note 9.

[12] See See also Denver Post Editorial Board, “Common ground on criminal justice reform,” The Denver Post (Feb. 20, 2015), See also Hulse, supra note 5.

[13] Hulse, supra note 5.

[14] Lee, To Kill a Mockingbird (Grand Central Publishing, 1960).

Charles F. Garcia, Esq., CBA President, is a graduate of the University of Wisconsin. He worked in international tax as a CPA for Arthur Andersen & Co. and Price Waterhouse for ten years. He then went on to graduate from the University of Denver College Of Law and joined the Office of the Colorado State Public Defender, where he practiced as a criminal defense trial attorney for twenty-five years. He is an Adjunct Professor of Law at the University Of Denver Sturm College of Law and a teacher for the National Institute of Trial Advocacy. Charles retired in 2007 as the Office Head for the Denver Office of the Colorado State Public Defender. Charles was a campaign policy advisor and a co-chair to the transition team for Governor Hickenlooper and is currently Special Counsel to Governor Hickenlooper. In 2011, Charles came out of retirement to be appointed by Mayor Vidal as the Manager of Safety for the City and County of Denver.

Tenth Circuit: Published Concurrence Condemns Police Abuse of Children Under Color of Sovereign Immunity

The Tenth Circuit Court of Appeals published Judge Lucero’s concurrence in Hawker v. Sandy City Corp. on Friday, December 5, 2014.

The Tenth Circuit issued its opinion in Hawker v. Sandy City Corp. as an unpublished opinion. The facts of the case were that C.G.H., a 9-year-old boy, stole an iPad from a classmate. His grandmother, who was his legal guardian, found the iPad and asked C.G.H. to return it. When he was returning it, school officials caught him with the iPad and took it from him. He was upset, and school officials forcibly restrained him and called his grandmother and the police. C.G.H. began to calm down as his grandmother spoke to him, but then the police arrived and placed the child in a forcible twist-and-lock restraint and handcuffed him as he cried, “you’re hurting me!” The grandmother took him to the doctor later that day, where he was treated for a hairline fracture to his clavicle (collarbone). In addition to the fracture, C.G.H. suffered post-traumatic stress and anxiety from this experience. The grandmother brought suit on his behalf under 42 U.S.C. § 1983 against the officer and the city, but the district court granted summary judgment on qualified immunity grounds. The Tenth Circuit reluctantly upheld the summary judgment.

Tenth Circuit Judge Lucero wrote a separate concurrence, which was published. Judge Lucero concurred with the findings of the panel, since they followed the law, but disagreed with the state of the law that allows a 9-year-old boy to be treated so forcibly. Judge Lucero writes, “It is time for a change in our jurisprudence that would deal with petty crimes by minors in a more enlightened fashion and would not automatically extend qualified immunity for conduct such as occurred in this case.” The potential future consequences for this child and society at large are great; the child is now branded a criminal and no doubt has lost all faith in the criminal justice system. And although it would be ideal if this were an isolated incident, it is not. School districts across the country are adopting swift punishment for such childish behavior, and children as young as six are handcuffed and treated as criminals.

Judge Lucero condemns the “school-to-prison pipeline” and the myriad negative consequences created by treating children as criminals. Without the benefit of an education free from duress, children are unlikely to succeed in life, and end up populating already overcrowded prisons. Instead of swift punishment, the school’s aim should be to realign the child away from criminal behavior and encourage the pursuit of a productive and educated life. As Judge Lucero says in closing, “We should change course and instead leave it to the factfinder to determine whether the handcuffing of six- to nine-year-old children is excessive force rather than giving schools and police a bye by holding them immune from liability. A more enlightened approach to elementary school discipline by educators, police, and courts will enhance productive lives and help break the school-to-prison chain.”

Colorado Supreme Court: Ordinance Comports with Due Process Where it Bears Reasonable Relationship to Legitimate Government Interest

The Colorado Supreme Court issued its opinion in Town of Dillon v. Yacht Club Condominiums Home Owners Association on Tuesday, May 27, 2014.

Homeowners Association—Municipal Corporations—Police Power and Regulations—Constitutional Law—Due Process.

The Supreme Court considered whether a municipality may constitutionally exercise its police powers to undertake a road improvement project that eliminates parking on the municipality’s rights-of-way near a condominium. An ordinance comports with due process where it bears a reasonable relationship to a legitimate government interest. This inquiry turns on the reasonableness of the relationship between the ordinance and the government objectives to be achieved—not the burden on the complaining party or the availability of less burdensome alternatives. The Court held that the ordinances in this case were a reasonable exercise of the municipality’s police power because they were reasonably related to the municipality’s objectives of improving traffic safety, improving water drainage, and remedying a missing portion of a recreational bike path. Accordingly, the Court reversed the court of appeals’ judgment and remanded the case to the court of appeals for further proceedings.

Summary and full case available here.