Government Entities – Case Law Update, April 2019
All summaries are written by Heather White and are for informational purposes only. Snow Christensen & Martineau represented clients in some of the cases listed below, but the firm was not legal counsel for all of them.
Ceballos v. Husk
Jaime Ceballos’s wife called police to report that her husband was in their driveway with a baseball bat “acting crazy,” and that he was drunk and probably on drugs. Vigil wanted police to remove Ceballos so she could return home to put the child to bed. Defendant William Husk and several other Thornton police officers responded. Within a minute of their arrival, Officer Husk shot Ceballos to death in the street in front of his home. Ceballos’s estate and his surviving wife and children sued Officer Husk and the City of Thornton, asserting: (1) a 42 U.S.C. 1983 claim against Officer Husk, alleging he used excessive force in violation of the Fourth Amendment; (2) a section 1983 claim alleging the City failed to train Officer Husk adequately in how to handle situations involving individuals who are emotionally distraught or who have a diminished ability to reason; and (3) a state-law wrongful death tort claim against Husk. In an interlocutory appeal, Defendants challenged the district court’s decision to deny them summary judgment on each of these three claims.
The Tenth Circuit affirmed the district court’s decision denying Officer Husk summary judgment on the section 1983 excessive-force claim. It reasoned that the officers did not have probable cause to believe Ceballos posed a threat of serious physical harm to themselves or to others. First it explained, the officers’ actions in approaching Ceballos quickly, screaming at Ceballos to drop the bat and refusing to give ground as Ceballos approached the officers created the asserted need to use force, particularly where they were aware Ceballos’ mental capacity was compromised (whether due to mental illness or the ingestion of substances.) It next explained that when Ceballos was pacing in the driveway, swinging a baseball bat, yelling and throwing his arms in the air, there was no one else in the driveway with him, they knew Ceballos’s wife and her daughter were parked down the street, Ceballos’ two friends had left his immediate vicinity, and the officers did not see any neighbors or other members of the public.
The Court dismissed for lack of jurisdiction both the City’s appeal of the denial of summary judgment on the failure-to-train claim, and the officer’s appeal involving the state-law wrongful death claim, because they were not based on qualified immunity and were not inexplicably intertwined with the use-of-force qualified immunity issue.
United States v. Desmond Gaines
This appeal stemmed from a search, which took place after the police spoke with defendant Desmond Gaines. After a brief exchange, Gaines fled but was soon captured. The police then found cocaine, marijuana, PCP, drug paraphernalia, over $640, and a handgun. Gaines unsuccessfully moved to suppress this evidence, and he appealed denial of his suppression motion. Presented for the Tenth Circuit’s review were issues of whether: (1) Gaines was seized by police; and (2) were his Fourth Amendment rights violated. The Tenth Circuit determined based on the facts presented at trial that (1) Gaines was not seized lawfully; and (2) the development of probable cause or the subsequent discovery of the arrest warrant did not attenuate the connection between the seizure and the drug/money evidence. The Court therefore vacated the denial of Gaines’s motion to suppress.
Lindsey v. Hyler
In this police pursuit case, the Tenth Circuit affirmed summary judgment based on qualified immunity for officers on the plaintiffs’ excessive force claim arising from injuries they sustained in a crash occurring during a police pursuit. The Tenth Circuit confirmed prior rulings that only intentional contact between a police vehicle and a vehicle they are pursuing can give rise to liability for excessive force under the Fourth Amendment. Where there was no evidence of contact, there is no claim. Note that this rule only applies to the vehicle being pursued.
The Tenth Circuit also concluded the officers were entitled to summary judgment based on qualified immunity on the plaintiffs’ due process claim because their actions in pursuing the plaintiffs’ vehicle for a minor traffic violation (driving a UTV on a public road) did not shock the conscience where there was no reasonable inference the officer intended any harm to either plaintiff and the officer reacted reasonably in responding to multiple traffic violations, including the attempt to elude police authority. Note that the injured plaintiffs were the individuals fleeing the officer, not innocent bystanders, and that the pursuit lasted only about one mile. Also note there were no state law claims asserted.
Osterhaut v. Morgan
Officers were engaged in a pursuit of a suspect on a motorcycle, who failed to stop but instead “raced away from the officers’ patrol car on his motorcycle at a high speed for approximately one-quarter of a mile running a stop sign at the highway crossing, and then crossing the four-lane highway before stopping his motorcycle on the highway’s edge.” When the suspect finally pulled over and put his hands in the air, an officer approached him and, without warning, hit the suspect in the face with a closed fist and/or a flashlight, which knocked the suspect to the ground, cut his face, and broke his nose and a bone in his forehead. While the suspect was lying on the ground with his hands still overhead, the officer handcuffed him and then kneed him several times in the ribs. The officer argued on appeal that “‘the high-stress and swiftly evolving situation’” gave him reason to believe the suspect posed an immediate threat to him and others and, therefore, it was reasonable for the officer to hit the suspect in the face to defend against a potential threat of harm.
The Tenth Circuit Court of Appeals rejected the argument and concluded a reasonable jury could conclude the officer’s use of force was not objectively reasonable given the fact the suspect had ended any threat to the officers or the public when he ceased operation of the motorcycle. When he was struck, he was “standing still, facing the patrol car with his arms raised . . . .”
State v. Baudry
The Utah Court of Appeals ruled that an officer’s on-site post-surveillance identification of a suspect arrested by police for drug dealing did not require a cautionary instruction to the jury at trial about the limitations of eyewitness testimony where the officer’s identification was based on the “continuous, real-time observation” of the suspect engaged in selling drugs.
State v. Medina
During an interrogation for murder, detectives read Medina his Miranda rights. Medina invoked his right to counsel, but immediately after, started talking to detectives about the investigation, the circumstances surrounding the murder, and the pending charges against him. In response to the detectives’ statements they had questions for him about the murder, Medina stated, “I’m gonna answer questions.” During the resulting conversation, Medina made several incriminating statements and was charged with murder and obstructing justice. He moved to suppress his statements made during the interview, arguing the officers violated his Miranda rights. The district court granted the motion and the Utah Court of Appeals reversed.
The court explained, “if, after invoking the right to counsel, the accused himself initiates further communication, exchanges, or conversations with the police, then he has effectively waived his right to counsel and the interrogation may continue. An accused’s statements made after he has invoked his right to counsel and before counsel is made available to him are admissible if three conditions are satisfied.” Those conditions are: 1) the accused, not the law enforcement officers, must be the one who initiates the conversations in which the incriminating statements are made; 2) the waiver of the right to counsel must be knowing and intelligent; and 3) the accused’s statements must be voluntary.
The court went on to analyze each of the factors in the decision and concluded they were each met. It confirmed that initiating a routine conversation about something unrelated to the crime charged is not enough to relinquish an accused’s right to counsel. It continued, whether a waiver knowingly and intelligently made depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. It recognized that officers are not required to rewarn suspects of their right to counsel. It finished by reaffirmaing the rules that the ultimate in determining whether a statement is voluntarily with whether physical or psychological force or other improper threats or promises prompted the accused to talk when he otherwise would not have done so. It ruled this element was satisfied from reviewing the interrogation transcript and videos of the interrogation.
State v. Miller
The court first confirmed that during a traffic stop, officers may order a driver out of the vehicle, and even require them to join the officer in the patrol vehicle, if done for officer safety, even without additional reasonable suspicion that the driver posed a danger. The court then reiterated that a brief exchange of pleasantries does not does not unreasonably extend a traffic stop, nor did in this case asking unrelated questions while the officer was completing the citation where there was measurable extension of the traffic stop. It finished by confirming a dog sniff conducted during a lawful detention, which included running criminal history and warrants checks, does not violate the Fourth Amendment.
State v. Trujillo
The Supreme Court reversed Defendant’s conviction under Utah’s witness retaliation statute, Utah Code 76-8-508.3, holding that the statute does not criminalize threats a person makes regarding a witness outside the witness’s presence and without an intention to have the threat communicated to the witness. Section 76-8-508.3 makes it a crime to direct a threat of harm or a harmful action against a witness or a person closely associated with that witness as retaliation against that witness. After Defendant was convicted, he challenged his conviction on the ground that the witnesses that were the subject of the alleged threat were not present when Defendant made the threat. The court of appeals affirmed. The Supreme Court reversed, holding (1) the witness retaliation statute criminalizes only those threats that the threat-maker intended to be communicated to the witness; and (2) therefore, the court of appeals incorrectly interpreted the requirements of the statute.
United States v. Dalton
In 2017, Michael Dalton was convicted by a jury of being a felon in possession of a firearm. Dalton challenged his conviction on several evidentiary grounds. The Tenth Circuit Court of Appeals agreed with one: that the district court should have excluded the evidence the government obtained during the second search of Dalton’s residence that occurred in this case, which the Court concluded was unlawful. The police conducted the second search of Dalton’s residence pursuant to a warrant that permitted the officers to search for firearms and firearm paraphernalia based on: (1) the officers’ discovery of an AK-47 in Dalton’s car; (2) their knowledge that Dalton could not lawfully possess firearms as a previously convicted felon; and (3) their knowledge from training and experience that, frequently, persons who have firearms in their vehicles also have firearms in their homes. However, after the officers obtained the search warrant but before they executed it, they discovered that someone other than Dalton had been driving Dalton’s vehicle with the AK-47 in it, which, when combined with the other facts the officers knew, made it materially less likely that firearms and firearm paraphernalia would be found in Dalton’s residence. Nonetheless, the officers conducted the search. The Tenth Circuit concluded the second search was not supported by probable cause. However, it determined the inclusion of the evidence discovered in the second search at Dalton’s trial was harmless error. Therefore, the Court affirmed Dalton’s conviction.
United States v. Knapp
The Tenth Circuit Court of Appeals ruled a carried purse does not qualify as a search of the person incident to arrest. It also rejected the argument that the search of the purse was justified by either the need to preserve evidence or the need to disarm the defendant because the purse was not within the area the arresting officers could reasonably have believed the defendant could have accessed at the time of the search, rather than at the time of the arrest. Relying on Arizona v. Gant, 556 U.S. 332, 344 (2009), the court explained, “[N]ot only were Ms. Knapp’s hands cuffed behind her back, Officer Foutch was next to her, and two other officers were nearby. Moreover, the purse was closed and three to four feet behind her, and officers had maintained exclusive possession of it since placing her in handcuffs.” It therefore reversed the denial of her motion to suppress and remanded the case to the district court.
Zartner v. Miller
The Tenth Circuit Court of Appeals affirmed the longstanding rule that handcuffing can constitute excessive force under the Fourth and Fourteenth amendments where there is an actual injury, a causal link between this injury and the unduly tight handcuffs, and the officer knows the handcuffs were too tight. Officers are advised to respond to complaints by arrestees that their handcuffs are too tight and note in their reports (and capture on recordings if possible) remedial action taken and acknowledgement by the arrestee that the action alleviated their pain.
Butler v. Board of County Commissioners
Plaintiff Jerud Butler was a supervisor for the San Miguel County, Colorado, Road and Bridge Department. He alleged his supervisors violated his First Amendment freedom of speech when they demoted him for testifying in state court as a character witness for his sister-in-law in a domestic child custody dispute between Butler’s sister-in-law and her ex-husband, who also worked for the County’s Road and Bridge Department. The Tenth Circuit Court of appeals addressed whether a public employee’s speech is on a matter of public concern.
The court rejected Butler’s assertion that any truthful sworn testimony given by a government employee in court as a citizen is per se always a matter of public concern and instead employed a case-by-case approach, considering whether the facts of this case the content of Butler’s testimony, as well as its form and context, made it speech involving a matter of public concern. After applying that analysis, the Court concluded that Butler’s testimony during the child custody proceeding was not on a matter of public concern. It explained Butler’s testimony as a character witness for his sister-in-law in a child custody proceeding was a purely personal dispute not ordinarily not of general interest to the community as a whole. Moreover, his testimony about the hours of operation of the Department did not touch on any matter involving impropriety or malfeasance of government officials.
Free the Nipple-Fort Collins v. City of Ft. Collins
In 2017, the Fort Collins City Council passed an ordinance that imposes no restrictions on male toplessness but prohibits women from baring their breasts below the areola. Free the Nipple-Fort Collins sued the city in federal court, claiming the ordinance violates the Equal Protection Clause of the U.S. Constitution. The district court agreed and issued a preliminary injunction that prohibits Fort Collins from enforcing the nudity ban that criminalizes the act of women going topless in public. The city appealed the ruling.
The Tenth Circuit Court of Appeals affirmed the lower court, concluding that Fort Collins’ ordinance is “likely unconstitutional.” It reasoned, “Here, absent the preliminary injunction, the plaintiffs, and all women in Fort Collins, risk criminal sanctions for making a choice – to appear topless in public – that men may make scot-free.” The city is determining whether to petition the Supreme Court to hear an appeal due to an inconsistency with other circuit court decisions.
Pilot v. Hill
The plaintiff appealed the denial of a post-trial motion to amend the tier designation when the jury awarded more than the damages allowed under the pled tier. The Utah Supreme Court affirmed denial of the requested amendment, providing several justifications. First, it ruled the plaintiff never moved to amend prior to trial, and Rule 15(a) only applies to pre-trial amendments. Second, it explained the plaintiff affirmatively pleaded a designated tier in his complaint, and Rule 15(b) permits post-trial amendments only as to issues not raised in the pleadings. More importantly, it ruled, “There is no permitted modification of the tier designation once trial commences . . . .” Third, it explained the defendant never consented to an unpleaded higher tier.