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Jones v. Norton

United States Court of Appeals, Tenth Circuit

December 29, 2015

DEBRA JONES and ARDEN C. POST, individually and as the natural parents of Todd R. Murray; DEBRA JONES, as personal representative of the Estate of Todd R. Murray, for and on behalf of the heirs of Todd R. Murray, Plaintiffs - Appellants,
v.
VANCE NORTON, Vernal City police officer in his official and individual capacity; VERNAL CITY; BLACKBURN COMPANY, d/b/a Thomas-Blackburn Vernal Mortuary; DAVE SWENSON, in his individual capacity; CRAIG YOUNG, in his individual capacity; REX OLSEN, in his individual capacity; JEFF CHUGG, in his individual capacity; ANTHONEY BYRON, in his individual capacity; BEVAN WATKINS, in his individual capacity; TROY SLAUGH, in his individual capacity; SEAN DAVIS, in his individual capacity; UINTAH COUNTY, Defendants-Appellees. DEBRA JONES, individually and as the natural parent of Todd R. Murray, and as personal representative of the Estate of Todd R. Murray, for and on behalf of the heirs of Todd R. Murray; ARDEN C. POST, individually and as the natural parent of Todd R. Murray, Plaintiffs - Appellants,
v.
VANCE NORTON, Vernal City police officer in his official and individual capacity; VERNAL CITY; BLACKBURN COMPANY, d/b/a Thomas-Blackburn Vernal Mortuary; DAVE SWENSON, in his individual capacity; CRAIG YOUNG, in his individual capacity; REX OLSEN, in his individual capacity; JEFF CHUGG, in his individual capacity; ANTHONEY BYRON, in his individual capacity; BEVAN WATKINS, in his individual capacity; TROY SLAUGH, in his individual capacity; SEAN DAVIS, in his individual capacity; UINTAH COUNTY, Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. Nos. 2:09-CV-00730-TC-EJF and 2:09-CV-00730-TC-BCW)

Frances C. Bassett and Jeffrey S. Rassmussen (Thomas W. Fredericks, Jeremy J. Patterson, Martha L. King, and Matthew J. Kelly, and Todd K. Gravelle, with them on the briefs), of Fredericks Peebles & Morgan LLP, Louisville, Colorado, for Plaintiffs-Appellants.

J. Clifford Petersen, Assistant Attorney General for the State of Utah (Sean D. Reyes, Utah Attorney General, with him on the brief), Salt Lake City, Utah, for State Defendants-Appellees, Dave Swenson, Craig Young, Rex Olsen, Jeff Chugg and Sean Davis.

Jesse C. Trentadue (Britton R. Butterfield with him on the brief) of Suitter Axland PLLC, Salt Lake City, Utah, for Defendants-Appellees Vance Norton, Vernal City, Anthoney Byron, Bevan Watkins, Troy Slaugh and Uintah County.

Nathan R. Skeen (Julianne P. Blanch and Robert W. Thompson, with him on the brief), of Snow, Christensen & Martineau, Salt Lake City, Utah, for Defendant-Appellee Blackburn Company, Inc.

Before BRISCOE, McKAY and BACHARACH, Circuit Judges.

BRISCOE, CIRCUIT JUDGE.

This case arises from the death of Ute Tribe member Todd R. Murray on 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 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 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, 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 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 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) 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 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 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 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, " 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 ...


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