Jones v. Norton, 2015 U.S. App. LEXIS 22792 (10th Cir. Dec. 29, 2015):

This case arises from the death of Ute Tribe member Todd R. Murray on [*2]  April 1, 2007, following a police pursuit. Murray's parents Debra Jones and Arden Post, on behalf of themselves and Murray's estate, brought a 13-count complaint in the district court alleging various constitutional violations under 42 U.S.C. § 1983, conspiracy to violate civil rights under 42 U.S.C. § 1985, and state tort claims. These claims were alleged in varying permutations against nine individual law enforcement officers, their government employers, and a private mortuary (collectively, "Defendants"). Plaintiffs also sought sanctions against Defendants for alleged spoliation of evidence. The district court granted summary judgment to the mortuary on Plaintiffs' emotional distress claim, and to all remaining Defendants on all federal claims. The court also dismissed as moot Plaintiffs' motion for partial summary judgment on the status of Indian lands, and denied Plaintiffs' motion for spoliation sanctions. The district court declined to exercise supplemental jurisdiction over the remaining state law torts after disposing of the emotional distress claim and the federal claims. Costs were taxed in favor of Defendants, and the court denied Plaintiffs' motion to reconsider the taxation of those costs. Plaintiffs [*3]  now appeal all of these rulings in two appeals. In Case No. 14-4040, we affirm the district court on each issue. As regards Case No. 14-4144, we affirm the district court's denial of sanctions against the City of Vernal, but we dismiss the appeal of taxation of costs because we lack appellate jurisdiction.

I

On the morning of April 1, 2007, Trooper Dave Swenson of the Utah Highway Patrol was involved in a high-speed chase of a vehicle in which Murray was the passenger. At some point during the chase, Swenson conveyed to dispatch that the driver appeared to be a tribal male. The driver eventually ran off the road in a remote desert area within the Ute Tribe's Uncompahgre Reservation ("Reservation"). Trooper Swenson, who was in uniform, got out of his patrol car and shouted at the two men to stop and get on the ground. Plaintiffs contend that Murray paused for a moment before running from the car, but the trooper's dashboard camera video reveals no perceptible pause. Swenson did not see any weapons in Murray's hands or waistband. Murray and the driver ran in opposite directions, and Swenson notified dispatch that two "runners," both "tribal males," had fled on foot. Swenson pursued the [*4]  driver, eventually arresting him.

Three nearby officers responded quickly to the chase: off-duty City of Vernal Police Detective Vance Norton, Utah Highway Patrol Trooper Craig Young, and Uintah County Sheriff's Deputy Anthoney Byron. When these officers arrived, Swenson pointed them in Murray's direction. Norton, Byron, and Young then began searching the desert for Murray. None of these officers were cross-deputized to exercise law enforcement authority on the Reservation.

The search ended when Murray suffered a fatal gunshot wound to the head. Plaintiffs contend that Detective Norton shot Murray, but Defendants contend that Murray shot himself. Norton testified that as he crested a hill on foot, he saw Murray and shouted, "Police, get on the ground." App. Vol. III at 2410. Norton was wearing plain clothes, and estimates he was approximately 140 yards away from Murray. Murray did not get on the ground, but instead ran in Norton's general direction. As Murray drew closer, Murray fired a shot at Norton, which landed near Norton's feet. Detective Norton returned fire, shooting twice in rapid succession, and ran back up the hill he had just come down. When he reached what he believed to be a safe distance, [*5]  he began to dial dispatch on his cell phone. While Norton attempted this call, he saw Murray "put the gun to his head. And I think I told him--once or twice screamed, you know, [p]ut the gun down, and then he pulled the trigger, and he just went straight down." App. Vol. XI at 3236. A later investigation conducted by the Federal Bureau of Investigation (FBI), which has exclusive jurisdiction to investigate incidents on the Reservation involving non-tribal law enforcement officers, revealed that Detective Norton's .40 caliber shell casings were 113 yards from where Murray was shot. When Norton reached dispatch, he notified them that Murray "just shot himself in the head" and requested an ambulance. App. Vol. VI at 1827.

In the meantime, before shots were fired, Deputy Byron and Trooper Young were also searching for Murray. Byron testified that he and Young were walking through a gully, and saw Norton standing on the top of a hill. Byron heard "some crackling noise," but was not sure if it was a gunshot. App. Vol. VIII at 2420. As they made their way through the gully, Byron saw Murray "walking, and . . . swinging his arms." Id. Byron could not tell whether Murray was holding anything. Byron then again heard "crackling," could no longer see Detective [*6]  Norton, and saw Murray "go[] from walking to going down." Id. Byron estimated he was at least 200 yards from Murray, and 400 to 500 yards from where he saw Norton on the top of the hill. He did not see anyone else.

Byron and Young then reunited with Norton on the hill where they had just seen him. Byron and Young proceeded down the hill, guns drawn, to where Murray was lying. Murray was on his back, bleeding from a gunshot wound to the head. He was unconscious, but still breathing. Trooper Young testified that he saw a .380 caliber gun and casings on the ground near Murray. Byron rolled Murray from his back onto his side and handcuffed him while Young kept his weapon aimed at Murray. None of the officers attempted to provide first aid or any other assistance. Murray remained unconscious, lying on his right side and handcuffed, until the ambulance arrived.

Plaintiffs vehemently dispute Detective Norton's and Deputy Byron's testimony that Murray shot himself. Plaintiffs believe Norton shot Murray "execution-style" at close range and planted the .380 caliber gun found near Murray's body. To support their theory, Plaintiffs point principally to the fact that Murray was right-handed, but [*7]  the shot entered the left side of his head. Plaintiffs' various experts in police procedures opined that a conclusion that a right-handed person inflicted a gunshot wound to the left side of his own head is suspicious, and it is usually necessary to corroborate that conclusion with other forensic trace evidence, such as blood blowback on the victim's hands.

The remaining individual Defendants arrived either in the half hour before the ambulance arrived, or shortly after the ambulance took Murray to the hospital and their minor involvement need not be recited. These Defendants are: Division of Wildlife Resource Investigator Sean Davis, Uintah County Sheriff's Deputies Troy Slaugh and Bevan Watkins, Utah Highway Patrol Trooper Rex Olsen, and Utah Highway Patrol Lieutenant Jeff Chugg.

Agent Rex Ashdown, the FBI agent assigned to the investigation, arrived after Murray was taken to the hospital. Neither the FBI, nor any FBI agents are named defendants in this lawsuit. According to Ashdown, officers at the scene told him that Murray shot himself, and this "influence[d]" how he went about the investigation. App. Vol. XVII at 5545. Ashdown admits he took some information from the officers "at face value." Id. at 5560. Agent Ashdown: (1) [*8]  took custody of the .380 gun and shell casings found near Murray, but did not order any testing; (2) did not confiscate Detective Norton's gun or order any testing; and (3) did not confiscate either Murray's or any of the officers' clothing, testifying later that Norton's clothes and hands appeared clean. Agent Ashdown retired about two months later.

After Agent Ashdown retired, FBI Agent David Ryan took over the investigation of Murray's death. The FBI later used the .380 caliber weapon as evidence in an unrelated prosecution, and the gun was destroyed after the conclusion of that prosecution pursuant to a court order in that case. Although Agent Ryan knew the gun was evidence in an officer-involved shooting, he did not notify the Utah Highway Patrol, the Uintah County Sheriffs, or the City of Vernal Police that it was going to be destroyed. Nor did he attempt to prevent the gun from being destroyed.

Detective Norton's gun and shell casings were recovered from the scene. As far as the record reveals, the casings are still in the possession of Vernal City police. After Murray's death, Vernal Chief of Police Greg Jensen, not a defendant here, inspected Norton's gun visually, kept it for [*9]  several days, and then returned it to Norton.

While the investigation at the scene was underway, Murray was taken to a hospital in Vernal, Utah, where he was pronounced dead. Deputy Byron, who had accompanied the ambulance to the hospital, was joined there by two other officers who are not defendants in this action. After Murray's death, the three men began what they later claimed was evidence collection: taking photographs of Murray's body, gathering his clothing in bags, and putting bags over Murray's hands. A member of the hospital staff drew a vial of blood from Murray's body at the officers' request. One of the officers took Murray's clothes and the blood, but it is unknown what became of these items.

Deputy Byron placed his index finger in both of Murray's head wounds. According to Byron, he did this to determine the location of the entrance wound and the exit wound. But Plaintiffs' experts testified that this tampering was not only unusual, but potentially harmful to the investigation. One expert stated that in his thirty years of experience in police practices, he had "never heard or seen an instance where a law enforcement officer inserted a finger into a gunshot wound prior [*10]  to examination by the medical examiner," which "can introduce contamination, remove evidence and alter the appearance of the wound." App. Vol XVIII at 5688. Even experts retained by Defendants agreed that there was no reason for the "turning, moving of limbs, [and] undressing" of Murray, and that probative trace evidence could have been lost as a result. App. Vol VI at 1628-29. Nonetheless, Dr. Edward Leis, the Deputy Medical Examiner who performed the official medical examination of Murray's body, testified that any potential contamination caused by the officers' meddling would not have altered his determination regarding the location of the entry and exit wounds or his conclusion that Murray died of a self-inflicted gunshot wound. Dr. Leis is not a defendant in this action.

Murray's body was transported from the hospital to The Blackburn Company ("Blackburn"), a mortuary and funeral home, where it was kept until the medical examiner's office could retrieve it the following day. Colby DeCamp, a mortuary apprentice, was asked by law enforcement officers to draw blood. DeCamp, who is also not a defendant in this action, testified that he remembered at least the following officers were present: Chief Jensen, Detective Norton, and [*11]  Keith Campbell (a Deputy Medical Examiner and a Deputy Sheriff, not a defendant). In order to draw the blood, DeCamp made an incision in Murray's neck, which he testified is a common practice used to draw blood from deceased persons who have sustained significant blood loss. After drawing the blood, DeCamp immediately gave the sample to the officers, but it is unknown what became of the blood sample after that. Plaintiffs described the incision as a "jagged-gash" on Murray's remains. App. Vol. IV at 1231. Plaintiffs believe the incision in the neck was an effort to send a threatening message to Murray's family, but DeCamp testified that he did not know Murray or his family, nor did he believe that the incision would cause emotional distress.

The following day, Murray's body was taken to the Utah State Office of the Medical Examiner where Dr. Leis performed an examination. Dr. Leis testified that he did not believe Murray's injury was survivable, or at least Murray would have remained "in a chronic vegetative state," App. Vol. XVII at 5537, and thus the officers who were at the scene could not have saved his life by administering aid. Plaintiffs' forensics experts opined that "many victims of gunshot injuries to the head survive," [*12]  App. Vol. XIII at 3789, and that Murray's injury "would not be considered universally . . . fatal," App. Vol. XVIII at 5687, but these experts did not offer evidence that Murray's particular injury was surviveable.

Although Agent Ashdown requested that a full autopsy be performed, Dr. Leis decided to conduct only an external physical examination. According to Dr. Leis, after performing the external physical examination and reading a preliminary report prepared by Keith Campbell the prior evening, he concluded that a full autopsy was unnecessary. A full autopsy might have revealed more information about the trajectory and type of bullet that killed Murray, as well as whether there was any evidence of a struggle which may have preceded his death.

Dr. Leis determined that the wound on the left side of Murray's head was the entrance wound and that the wound on the right was the exit wound. Because of soot in the entrance wound and surrounding abrasions to the skin, Dr. Leis concluded that the gun was in close proximity to the skin when it was discharged, and described the entry wound as a "contact wound." Id. at 3364. Dr. Leis completed a death certificate that listed the cause of Murray's death as suicide resulting from a gunshot wound to the [*13]  head.

II

Following Murray's death, Plaintiffs filed a civil suit in Utah state court, which included numerous claims. The State of Utah, no longer a party, removed the action to federal court. After entering several rulings, the district court has now disposed of all claims contained in the Plaintiffs' third and final amended complaint. The district court first entered summary judgment in favor of Blackburn on Plaintiffs' claim of intentional infliction of emotional distress. The district court also twice denied Plaintiffs leave to amend their emotional distress claim. The district court then ruled that the United States' treaty with Murray's tribe, the Ute, did not give rise to a private right of action against municipalities or individuals enforceable through 42 U.S.C. § 1983, and dismissed that count on the pleadings. The district court then issued a trio of opinions, granting summary judgment to all municipal and individual Defendants on the remaining civil rights claims (unlawful seizure, excessive force, failure to intervene, and conspiracy), dismissing the remaining state tort claims, and dismissing as moot Plaintiffs' motion for partial summary judgment on the status of Indian lands. The district [*14]  court also denied Plaintiffs' motion to reconsider an earlier ruling that the Utah Governmental Immunity Act applies to the defendant officers. Finally, the district court denied Plaintiffs' request for sanctions against all individual Defendants and Uintah County for alleged spoliation of evidence, but reserved judgment on whether the City of Vernal might be liable for sanctions. After further argument, the district later denied those sanctions as well.

After the entry of final judgment in this case, the district court taxed costs against Plaintiffs. Plaintiffs' subsequent request for reconsideration of the taxation of costs was denied. We conclude we have jurisdiction under 28 U.S.C. § 1291 to address all issues raised in both Case Nos. 14-4040 and 14-4144, except the taxation of costs.

III

We have divided Plaintiffs' substantive and procedural claims into the following groups: (1) 42 U.S.C. § 1983 claims for unlawful seizure, excessive use of force, and failure to intervene in the violation of constitutional rights; (2) 42 U.S.C. § 1983 claim for violation of individual rights under the Ute Treaty; (3) 42 U.S.C. § 1985 claim for conspiracy to violate civil rights; (4) state law tort claims of intentional infliction of emotional distress, wrongful [*15]  death, and assault and battery; (5) spoliation sanctions; and (6) taxation of costs.

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5. Sanctions for spoliation of evidence

Plaintiffs appeal the district court's denial of their requested sanctions for alleged spoliation of evidence. Plaintiffs sought default judgment and the application of adverse inferences against all individual and government Defendants, as well as lesser sanctions in the alternative. Sanctions for spoliation [*34]  of evidence are reviewed for abuse of discretion. Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). "[W]e accept the district court's factual findings unless they are clearly erroneous." Id.

A spoliation sanction is proper where: "(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence." Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1149 (10th Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007)). The entry of default judgment or the imposition of adverse inferences require a showing of bad faith. Id. (adverse inferences); Lee v. Max Int'l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011) (default judgment). "Mere negligence in losing or destroying" evidence is not enough to support imposition of either of these harsh sanctions. Turner, 563 F.3d at 1149 (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)).

Plaintiffs argue that they were prejudiced by Defendants' spoliation or complete loss of the following evidence: (1) Murray's testimony, because officers failed to administer life-saving aid to Murray at the scene; (2) the .380 caliber firearm attributed to Murray; (3) Detective Norton's .40 caliber firearm; and (4) any trace evidence that could have been recovered from the scene, Murray's body and clothes, or Detective Norton's body, clothes, or vehicle on the day of the shooting. Plaintiffs believe that this evidence would have [*35]  tended to show that Murray did not shoot himself, but was instead shot by Detective Norton. Plaintiffs ask this court to find that the Defendants acted in bad faith because "[n]o [other] reasonable justification exists for Defendants' disregard for the evidentiary duties they were under." Aplt. Br. at 27.

With respect to preserving Murray's life, and therefore his testimony, the district court found, based on Dr. Leis' testimony, that Plaintiffs were not prejudiced because Murray's injuries were not survivable. We see no clear error in the district court's consideration of the medical facts, and therefore agree that the failure to administer aid did not result in prejudice to Plaintiffs' case.

Regarding the destruction of the .380 caliber weapon found near Murray, the district court did not abuse its discretion in denying sanctions because Defendants here lack the level of culpability required for the spoliation of evidence outside of their control. See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (sanctioned party had access to evidence for his own investigation, but did not notify other party); Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (listing culpability as a relevant factor in considering default judgment sanctions); K-Con Bldg. Sys., Inc. v. United States, 106 Fed. Cl. 652, 664 (Fed. Cl. 2012) (government allowed a witness to remove documents, [*36]  and the witness then caused those documents to be destroyed). Once Agent Ashdown arrived, the FBI had exclusive jurisdiction over the investigation, and was entirely responsible for preserving the .380 caliber weapon as evidence and preventing its ultimate destruction. Neither Plaintiffs nor Defendants were notified in advance of the weapon's destruction.

Plaintiffs also contend the Defendants failed to preserve trace evidence that may have been recovered from Detective Norton's .40 caliber gun, such as blowback which would implicate it as the fatal weapon. Even if insufficient examination of Norton's gun may have prejudiced Plaintiffs, the district court did not abuse its discretion in finding that none of the Defendants here had a duty to preserve it. The persons with the most obvious responsibility for preserving that evidence, Agent Ashdown and Chief Jensen, are not parties to this litigation and therefore cannot be the subject of sanctions. It is arguable that Norton had an independent duty to preserve any trace evidence on his own firearm because he, independent of the FBI investigation, could reasonably have anticipated litigation. However, the district court's rejection of this [*37]  theory does not amount to an abuse of discretion.

Finally, Plaintiffs request sanctions for spoliation of trace evidence from the scene of the shooting, Murray and Detective Norton's skin and clothing, and from Norton's vehicle. Plaintiffs' strongest support for the imposition of sanctions is the conduct of Deputy Byron,⁸ who accompanied Murray to the hospital, was involved in removing Murray's clothes and taking samples which have been lost, tampered with his body, and fingered Murray's head wound--all before the medical examiner had an opportunity to examine Murray's body. Plaintiffs' and Defendants' experts agreed that these actions could have contaminated or removed trace evidence, and were unnecessary and inappropriate.

8   Arguments regarding failure to swab for gunshot residue, search for bullets, or inspect Norton's car are much weaker. Defendants presented unrebutted testimony that gunshot residue tests are unreliable and law enforcement agencies have therefore ceased using them. A gunshot residue test on Detective Norton would have added nothing to the investigation because he admitted to firing his weapon twice. The district court found that none of the Defendants had a duty to [*38]  document the scene because it was within the province of the FBI. Plaintiffs have also failed to articulate what relevant evidence might have been gleaned from investigating Norton's vehicle.

Despite how disturbing Deputy Byron's behavior was, the district court found no prejudice resulting from these acts. Dr. Leis testified that potential contamination from Byron's actions would not have changed his ultimate conclusion regarding Murray's cause of death. None of the blood improperly extracted before the official medical exam was analyzed, and so the district court reasoned there was no prejudice because it was not used against Plaintiffs. The district court further noted that Plaintiffs failed to point to any specific relevant evidence that would have been found on Murray's clothing. The district court concluded Plaintiffs had not established any prejudice resulting from the handling of Murray's body after his death and therefore denied Plaintiffs' request for sanctions. Although these acts appear at best sloppy and unorthodox, and at worst suspicious, the district court's denial of sanctions was not an abuse of discretion.