April 18, 2019

Tenth Circuit: Without Seizure of Defendant, Excessive Force Claims Cannot Stand

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Norton on Tuesday, December 29, 2015.

Utah Highway Patrol Officer Swenson was involved in a high-speed chase with a vehicle, which eventually ran off the road in a remote desert area of the Ute Tribe’s Uncompahgre Reservation. Two tribal males exited the vehicle, the driver and passenger Todd R. Murray, and ran in opposite directions. Swenson pursued the driver and eventually arrested him. Three nearby officers, off-duty City of Vernal Police Detective Vance Norton, Utah Highway Patrol Trooper Craig Young, and Uintah County Sheriff’s Deputy Anthoney Byron, responded to the chase and began searching the desert for Murray. The search ended when Murray sustained a gunshot wound to the head.

Plaintiffs, Murray’s parents, contended that Detective Norton shot Murray, but Detective Norton countered that Murray shot himself. Norton testified that as he crested a hill, he saw Murray and ordered him to the ground. Murray started running toward Norton and fired a shot that landed near his feet, so Norton fired two shots at Murray from about 140 yards away. Norton retreated back up the hill and tried to call dispatch. He testified that as he was calling, Murray put the gun to his head and fired, crumpling to the ground immediately. Deputy Byron and Trooper Young testified that they heard noise and saw Norton standing on the top of a hill. They also said they saw Murray walking and swinging his arms, but were not sure if he was carrying a gun. Byron and Young testified that they were about 200 yards from Murray and 400-500 yards from Norton. They reached Norton and descended the hill together to where Murray lay, bleeding from a gunshot wound to the head. They pushed Murray on his side and handcuffed him but made no effort to perform first aid.

Murray was transported to a hospital, where he was pronounced dead. Deputy Byron accompanied the ambulance to the hospital and was joined there by two other officers. The three proceeded to engage in what they called “evidence collection”: taking photographs of Murray’s body, gathering his clothing in bags, and putting bags over his hands. They also ordered blood drawn, which was done by the hospital staff. Deputy Byron placed his index finger in both the entrance and exit wounds on Murray’s head. Experts later testified that this was highly unusual and potentially harmful to the investigation. Even defense experts opined there was no reason for the removal of clothing, turning of the body, and contaminating the wounds.

Murray’s body was taken to a mortuary, where the police ordered the collection of more blood. The apprentice who performed the blood draw did so via a jagged cut on Murray’s neck. Plaintiffs contend this was done as a threatening message. Murray’s body was next taken to the Utah State Office of the Medical Examiner where Dr. Leis performed an examination. Dr. Leis did not perform a full autopsy, despite a request to do so by FBI Agent Ashdown. Dr. Leis concluded that Murray died of a self-inflicted gunshot wound to the head, and further concluded that the gun was close to the skin when it discharged.

Plaintiffs strongly disagreed with Norton’s testimony. They believe that Norton shot Murray at close range, “execution style,” and then planted a gun near him. Plaintiffs pointed out that although Murray was right handed, the entrance wound was on the left side of his head. Plaintiffs also pointed to many instances of destruction of evidence, including that no forensic tests were conducted on the weapon attributed to Murray, nor that of Norton; no tests were conducted to examine whether gunshot residue was present on Murray’s hands or clothing; no evidence was collected regarding whether there was any splash back from the shot onto Murray’s hands or clothing; and the gun, clothing, and other evidence were destroyed before being examined.

Plaintiffs filed a civil suit in Utah state court, which included numerous claims. The State of Utah, no longer a party, removed the case to federal court. The district court entered several rulings, including granting summary judgment to the mortuary on Plaintiffs’ claims of intentional infliction of emotional distress; ruling that the United States’ treaty with the Ute Tribe did not recognize a private right of action against municipalities or individuals enforceable through § 1983; granting summary judgment to all individual and municipal defendants; dismissing the state tort claims; dismissing plaintiffs’ motion for partial summary judgment as moot; and denying all of plaintiffs’ requests for sanctions. Plaintiffs appealed.

The Tenth Circuit divided the plaintiffs’ claims into six groups: (1) § 1983 claims for unlawful seizure, excessive force, and failure to intervene in the violation of constitutional rights; (2) § 1983 claim for violation of rights under the Ute Treaty; (3) § 1985 claim for conspiracy to violate civil rights; (4) state law tort claims for intentional infliction of emotional distress, wrongful death, and assault and battery; (5) spoliation sanctions; and (6) taxation of costs. The Tenth Circuit addressed the first group of claims first.

The district court granted summary judgment to defendants on the § 1983 claims for unlawful seizure, excessive force, and failure to intervene. On de novo review, the Tenth Circuit affirmed. The Tenth Circuit first found that the officers had reasonable suspicion to pursue Murray, but that no seizure had occurred because Murray had run from the officers. Although plaintiffs alleged he paused momentarily when exiting the car, the Tenth Circuit reviewed the videotape and perceived no pause. Without a pause, there was not a seizure as a matter of law. Plaintiffs also argued there was a seizure in the moments before Murray was shot, when Norton ordered him to stop, but again the Tenth Circuit disagreed, finding instead that the evidence illustrated that Murray was charging toward Norton and never submitted to authority. Finally, plaintiffs contended that Norton seized Murray when he shot him at point-blank range. However, the Tenth Circuit found that the evidence tended to show that Norton was at least 100 yards away from Murray when the gun discharged, so the only person who could have shot him at point-blank range was himself. Without a seizure, there could be no Fourth Amendment violation and therefore no individual liability for defendants. The Tenth Circuit similarly disposed of the plaintiffs’ claim of excessive force in violation of the Fourteenth Amendment’s Due Process Clause. The Tenth Circuit found that it was reasonable for Norton to return fire after Murray shot at him, and as for the officers brandishing their weapons after Murray sustained his head wound, he was unconscious and would not have been aware of the weapons. The Tenth Circuit found nothing about the way the officers handled Murray shocked the conscience or was arbitrary.

The Tenth Circuit next addressed plaintiffs’ Ute Treaty claims. The district court dismissed plaintiffs’ Ute Treaty claims because the treaty does not confer the right for plaintiffs to assert § 1983 claims against individuals, but rather provides a mechanism within the treaty itself for claims against the United States. The Tenth Circuit evaluated the treaty’s “bad men” clause and affirmed the district court’s ruling.

Turning to the plaintiffs’ § 1985 conspiracy claims, the Tenth Circuit again affirmed. The district court granted summary judgment to defendants on both of plaintiffs’ claims, finding no showing of specific invidious discriminatory animus. Although the officers were likely aware of Murray’s race, they did not pursue him because of his race but rather because of the car chase.

The Tenth Circuit turned next to plaintiffs’ state law claims. Plaintiffs asserted intentional infliction of emotional distress claims against the funeral home employee and asserted claims of wrongful death against Norton. The Tenth Circuit noted that plaintiffs who are absent during the commission of the act underlying the emotional distress claims must prove that the person performing the act did so with the intent to injure plaintiffs. Because plaintiffs were not present when the funeral home employee made the incision on Murray’s neck, plaintiffs’ claims failed because they could not show the employee intended to harm plaintiffs. After the district court dismissed plaintiffs’ emotional distress claims, it declined to retain jurisdiction over plaintiffs’ wrongful death claims and dismissed them without prejudice. The Tenth Circuit found no evidence that the district court abused its discretion in declining to retain jurisdiction.

Plaintiffs sought sanctions in the form of default judgment and adverse inferences against all defendants for spoliation of evidence, including (1) Murray’s testimony, because the officers failed to administer first aid; (2) the .380 caliber firearm attributed to Murray; (3) Norton’s .40 caliber weapon; and (4) any trace evidence that could have been recovered from the scene, Murray’s body and clothes, or Norton’s body, clothes, or vehicle on the day of the shooting. Plaintiffs believe this evidence would have tended to show that Norton shot Murray, and asked the court to find that defendants acted in bad faith by destroying or allowing the destruction of the evidence. With respect to Murray’s life, the district court found the medical testimony that Murray’s wound was not survivable to be persuasive, and the Tenth Circuit found no reason to disturb the district court’s ruling. As to the .380 caliber weapon, the destruction of the weapon was outside defendants’ control since it was destroyed by the FBI. Although the Tenth Circuit agreed that Norton’s weapon was not examined for evidence, it found no prejudice to defendants from this failure because Norton admitted firing his weapon. The plaintiffs also requested spoliation sanctions regarding the evidence on Murray’s body and clothes, the scene of the shooting, and Norton. The Tenth Circuit found that the plaintiffs’ strongest case was against Deputy Byron, who stuck his fingers in the holes in plaintiffs’ head, removed Murray’s clothes which were later lost, and tampered with Murray’s body, all before the medical examiner was present. The Tenth Circuit found Byron’s conduct disturbing, sloppy, and unorthodox, but did not find that the district court abused its discretion by denying sanctions.

Finally, the plaintiffs sought review of the district court’s taxation of costs against them. The Tenth Circuit noted that the district court never ruled on the costs issue; a clerk entered costs based on a magistrate judge’s memorandum. Plaintiffs had 14 days in which to object to the magistrate’s decision and failed to do so. The Tenth Circuit found it lacked jurisdiction over the issue.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Underinsured Motorist Benefits Only Triggered When Policy Limits Reached on Tortfeasor’s Liability Policy

The Colorado Court of Appeals issued its opinion in Jordan v. Safeco Insurance Company of America, Inc. on Thursday, March 28, 2013.

Summary Judgment—Underinsured Motorist Benefits.

Plaintiffs Philip and Roberta Jordan appealed the district court’s summary judgment in favor of defendant Safeco Insurance Company of America, Inc. (Safeco) on their claim that Safeco unreasonably denied them underinsured motorist (UIM) benefits. The judgment was affirmed.

In 2009, the Jordans were involved in an automobile accident with J.F., a minor driver. The Jordans were injured and sued J.F. J.F.’s automobile insurance policy covered damages for injury to others up to $100,000 per person or $300,000 per accident. The Jordans settled for $60,000 and $38,500, respectively.

The Jordans sought underinsured motorist (UIM) benefits under their policy with Safeco, asserting that the policy covered all damages unpaid under the settlements, up to the policy limit. Safeco maintained that their UIM coverage would be triggered only if either of them had damages exceeding the $100,000 limit of J.F.’s policy, which neither did.

The Jordans sued Safeco, asserting claims for (1) common law bad faith breach of an insurance contract; (2) unreasonable delay and denial of payment of a claim in violation of CRS §§ 10-3-1115 and -1116; and (3) deceptive trade practice in violation of the Colorado Consumer Protection Act (CCPA). The Jordans moved for summary judgment under their unreasonable delay claims, and Safeco moved for summary judgment on the same claims and the bad faith claim. The parties stipulated that neither could prove damages in excess of $100,000, and the court granted the Jordans’ motion to dismiss their own CCPA claim.

The court granted Safeco’s motion for summary judgment. On appeal, the Jordans challenged only the grant of summary judgment in favor of Safeco under CRS §§ 10-3-1115 and -1116 and conceded that no material facts were disputed.

The Court of Appeals concluded that Safeco’s denial of coverage was permissible under the clear language of the policy, as well as the unambiguous terms of CRS § 10-4-609. The policy language unambiguously provides that payment of UIM benefits are only for damages above the tortfeasor’s insurance policy liability limit. Here, the damages did not exceed those limits.

The Jordans also argued that under CRS § 10-4-609, an insured’s good faith settlement with a tortfeasor necessarily exhausts the tortfeasor’s liability limits. That section, as amended January 1, 2008, requires that UIM coverage “shall be in addition to any legal liability coverage and shall cover the difference, if any, between the amount of the limits of any legal liability coverage and the amount of the damages sustained.” This is plain and unambiguous language. The trigger is the exhaustion of the tortfeasor’s “limits of . . . legal liability coverage.” The judgment was affirmed.

Summary and full case available here.