TENA CAMPBELL, District Judge.
On April 1, 2007, after police officers' high speed car chase and subsequent foot pursuit of Todd Murray on the Uintah and Ouray Indian Reservation (the Reservation), Mr. Murray suffered a gun-shot wound to the head. Mr. Murray, who was twenty-one-years old and a member of the Ute Indian Tribe, died that same day in a local hospital. Mr. Murray's parents and Debra Jones, Mr. Murray's mother and the executor of his estate, filed this civil rights lawsuit, alleging that his death was caused by the unconstitutional acts of local law enforcement. This matter comes before the court on cross-motions for summary judgment.
The Plaintiffs bring civil rights claims under 42 U.S.C. § 1983 and § 1985 against the municipalities of Uintah County and the City of Vernal, and against law enforcement officers, in their individual, as well as their official, capacities. The individual officers are four troopers with the Utah State Highway Patrol (Jeff Chugg, Dave Swenson, Craig Young and Rex Olsen); three Uintah County Sheriff Deputies (Bevan Watkins, Troy Slaugh and Anthoney Byron); Sean Davis, who is an investigator with the Utah Division of Wildlife Resources (DWR); and Vance Norton, a detective with the Vernal City Police Department (collectively, the Individual Defendants). The Plaintiffs also allege two state law claims (assault/battery and wrongful death) against Detective Norton individually.
In their § 1983 claims against the Individual Defendants, the Plaintiffs allege illegal seizure, excessive force, and failure to intervene to prevent the officers' unconstitutional acts. Under § 1985, they allege conspiracy to obstruct justice and conspiracy to violate Mr. Murray's civil rights based on racial animus. (Vernal City is also named in the Plaintiffs' § 1985 conspiracy claims.) All of the Individual Defendants filed motions for summary judgment on the basis that no constitutional right was violated, but even if there were a violation, they are entitled to qualified immunity from the suit.
The Plaintiffs also bring claims against Uintah County and the City of Vernal (collectively, the Municipalities), that employ many of the Individual Defendants. The Plaintiffs allege that the Municipalities failed to train or supervise their officers about jurisdictional limits on their law enforcement authority, probable cause to arrest, and the proper use of force, and failed to implement policies regarding the same.
Uintah County and Vernal City filed motions for summary judgment, arguing that (1) there was no violation of Mr. Murray's civil rights; (2) there is no respondeat superior liability under § 1983 and § 1985; (3) there is no evidence of a causal link between any constitutional violation and the Municipalities' alleged failure to train, supervise, or implement policies; and (4) the jurisdiction arguments fail because there is no evidence that the officers knew Mr. Murray was a member of the Ute Tribe until after Mr. Murray was shot and examined by the EMTs.
On the morning of April 1, 2007, Mr. Murray was a passenger in a car driven by Uriah Kurip. Mr. Murray and Mr. Kurip were driving west on Highway 40 in Uintah County near Vernal, Utah. Trooper Dave Swenson of the Utah Highway Patrol was parked near mile marker 134.
Trooper Swenson activated his overhead lights and began following the car, intending to make a traffic stop. Instead of stopping, Mr. Kurip drove faster. Trooper Swenson notified the dispatch officer that he was involved in a high-speed chase. For approximately thirty minutes, Trooper Swenson pursued the car, in and out of the Reservation's boundaries.
Detective Vance Norton, who was off-duty and driving in his own car, saw the two cars speed by. He says he saw the
About the same time, Lieutenant Jeff Chugg, supervisor of the Utah Highway Patrol troopers, was at home when he received a call that one of his officers was involved in a highspeed chase. He began to monitor radio traffic and was on the phone with dispatch during the car chase. Soon after he began monitoring the pursuit, he saw on a CAD
Trooper Rex Olsen was on duty at the time of the car chase. He was in his patrol car when he heard over the radio about the high-speed chase. He drove toward Trooper Swenson's location to provide backup.
Deputy Troy Slaugh, from the Uintah County Sheriff's Department, also learned that the high speed chase was happening. He called his colleague, Deputy Bevan Watkins (who was a "K-9" officer
About the same time, Utah Division of Wildlife Resources (DWR) Investigator Sean Davis was on patrol in a nearby area when he learned of the chase over the radio. He drove toward Trooper Swenson's location.
Similarly, Trooper Young and Deputy Byron drove to the scene when they heard about the high speed chase. Both Trooper Young and Deputy Byron testified that they did not hear any reference to "tribal males."
The car chase ended when Mr. Kurip lost control of the car and came to a stop on Turkey Track Road, which is located on the Reservation. Both Mr. Kurip and Mr. Murray got out of the car and ran. Trooper Swenson arrived almost immediately after the Kurip car stopped and Mr. Kurip and Mr. Murray got out of the car. As they began running, Trooper Swenson got out of his car, pointed his gun at Mr. Kurip and Mr. Murray, and ordered them to get down on the ground. The men did not stop and continued running in different directions.
Detective Norton was the first officer (after Trooper Swenson) to arrive at the scene. He saw Trooper Swenson standing on a hill with a man in handcuffs (Mr. Kurip) and asked Trooper Swenson about the other man (Mr. Murray). (The court notes that none of the law enforcement officers on the scene knew Mr. Murray or Mr. Kurip.) Trooper Swenson told Detective Norton that the man had run away and pointed in the direction where Mr. Murray had fled. Detective Norton began his pursuit, first in his car and then on foot. Soon after, Deputy Byron and Trooper Young arrived at the crash scene in their separate cars. As Trooper Swenson had done with Detective Norton, he asked the two officers to capture the fleeing passenger.
Detective Norton, after driving a short distance, got out of his car when he saw Trooper Young and Deputy Byron.
Trooper Young and Deputy Byron saw Detective Norton standing on the top of a nearby hill. The three men spoke and decided that they would take different routes to locate Mr. Murray.
As Detective Norton was crossing over a hill, he saw Mr. Murray "coming around another hill."
After firing the two shots, Detective Norton turned around and, still watching over his shoulder, ran back up the hill. When he reached a distance where he believed that Mr. Murray could not shoot him, he took out his cell phone to call dispatch. Detective Norton described what saw:
In the meantime, before shots were fired, Deputy Byron and Trooper Young began walking through a wash.
He then heard a crackling sound but he was not sure that it was the sound of gunfire,
Deputy Byron did not see whether Mr. Murray had anything in his hands.
In the meantime, Trooper Swenson had taken Mr. Kurip into custody, and Investigator Davis had arrived at the crash scene. At Trooper Swenson's request, Investigator Davis drove his car down a dead-end road but did not see anyone. He drove back to the crash scene after hearing that shots had been fired and then walked to the shooting scene.
During all this time, Lieutenant Chugg had been monitoring the radio and talking with dispatch. When he heard that shots had been fired, he left his home and drove to the crash scene.
Deputy Byron and Trooper Young quickly returned to their cars and drove to the area where they had seen Detective Norton. When they reached Detective Norton, he was talking on his cell phone. Detective Norton told them that Mr. Murray had shot at him, that he had returned fire. He also stated that he had not shot Mr. Murray but that Mr. Murray had shot himself. Detective Norton pointed out where his bullet casings had fallen.
Deputy Byron described their actions:
Deputy Byron stated the reasons he placed Mr. Murray in handcuffs: "Again, I didn't know the extent of his injuries, and I just wanted to make sure it was a secure scene before we got medical on its way."
In the meantime, other officers werearriving at the shooting scene.
Trooper Olsen, while driving to the scene, heard over the radio that shots had been fired. He arrived about twenty minutes later. He did not go to the shooting scene. He stayed at the crash scene, took an inventory of Mr. Kurip's car, prepared a vehicle impound report, and interviewed Trooper Swenson. He did not have contact with Mr. Murray or Detective Norton at any point during the incident.
While Deputy Watkins was on his way, he learned that the car chase was over and the driver had been taken into custody. He never heard Trooper Swenson say that "two tribal males" were in the car being chased. He did know that the BIA had been called and was en route. When Deputy Watkins arrived at the crash scene, Mr. Murray had already been shot and the ambulance had been called. He helped the ambulance get close to Mr. Murray and help the EMTs load Mr. Murray into the ambulance. He then stayed at the shooting scene until an agent with the F.B.I. arrived.
Deputy Slaugh did not arrive at the shooting scene until after Mr. Murray had been shot. He went to stand by Detective Norton, where he found shell casings on the ground. He took photographs of the shell casings and Detective Norton. He and Detective Norton walked over to Mr. Murray's body. He handed Detective Norton the camera, and Detective Norton took closeup photographs of Mr. Murray. Then the two officers walked back to Deputy Slaugh's car, where they "stayed out of the scene."
After Mr. Murray was handcuffed, the EMTs were summoned from the waiting ambulance. By this time, other officers had arrived. Although Mr. Murray was unconscious, breathing laboriously, and
About thirty minutes after the shooting, the EMTs arrived at the shooting scene. While tending to Mr. Murray, they retrieved Mr. Murray's identification card identifying him as an enrolled member of the Ute Tribe. It was only at that point that the officers knew that Mr. Murray was an enrolled member of the Ute Tribe.
When Officer Davis arrived at the shooting scene, he saw Mr. Murray, who was already on the ground and handcuffed. He stayed at the scene, but did not assist Mr. Murray. Instead, he stood over some shell casings to make sure they were not disturbed. He also assisted a Uintah County Sheriff with obtaining GPS locations. He had no further involvement with the events that day.
Deputy Watkins ordered Deputy Byron to accompany Mr. Murray to the hospital. Lieutenant Chugg arrived at the shooting scene after Mr. Murray had been taken to the hospital.
Mr. Murray was taken to a hospital in Vernal, Utah, where he was pronounced dead shortly after his arrival. Deputy Byron, who had accompanied the ambulance to the hospital, was joined there by Officer Ben Murray and BIA Officer Kevin Myore. After Mr. Murray's death, the three men began collecting evidence: taking photographs of Mr. Murray's body, gathering his clothing in bags, and putting bags over Mr. Murray's hands. A member of the hospital staff drew a vial of blood from Mr. Murray's body. One of the officers took Mr. Murray's clothes and the blood. Deputy Byron placed his index finger in both of the wounds in Mr. Murray's head. According to Deputy Byron, he did this to determine the location of the entrance wound and the exit wound.
An employee from a nearby mortuary took Mr. Murray's body to the mortuary. Several law enforcement officers—including Rex Ashdown, who was a special agent from the FBI, Gary Jensen, who was Vernal City Chief of Police, and Keith Campbell, who was both a deputy medical examiner for the Utah State Office of the Medical Examiner and a chief deputy for the Uintah County Sheriff's Office—were there.
Chief Jensen twice tried, unsuccessfully, to take blood from Mr. Murray's body. An employee from the mortuary then made incisions in the neck and jugular vein and drew two vials of blood which he gave to Chief Jensen.
The following day, Mr. Murray's body was taken to the Utah State Office of the Medical Examiner. Although FBI Special Agent Ashdown had requested that a full autopsy be performed, the Deputy Chief Medical Examiner, Dr. Edward Leis, who was to carry out the examination of Mr. Murray's body, decided to do only a physical examination. According to Dr. Leis, he decided after doing a physical examination of Mr. Murray's body and reading the Office of the Medical Examiner (OME) Investigative Report (which said that Mr. Murray had shot himself in the head), that a full autopsy was not necessary.
Dr. Leis determined that the bullet had entered the left side of Mr. Murray's head,
The smaller wound on the right side of Mr. Murray's head was, in Dr. Leis' opinion, the exit wound. Dr. Leis took a urine sample, an eye-fluid sample, and three blood samples from Mr. Murray's body. He sent the samples to a toxicology laboratory for testing.
Dr. Leis completed a death certificate that listed the cause of Mr. Murray's death as suicide resulting from a gunshot wound to the head.
After the examination at the Medical Examiner's Office was completed, Mr. Murray's body was released to his family for burial.
Under Rule 56 of the Federal Rules of Civil Procedure, a party is entitled to summary judgment if it demonstrates, through pleadings, depositions, answers to interrogatories, admissions on file, or affidavits, that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a), (c). A genuine issue of material fact exists when, after viewing the record and making all reasonable inferences in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The opposing party's response must set forth specific facts showing a genuine issue for trial, and it "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence
Under 42 U.S.C. § 1983, the Plaintiffs allege that the officers violated Mr. Murray's Fourth Amendment and due process rights to be free from illegal seizure, excessive force, and the officers' failure to intervene in ongoing violations of those civil rights. Under 42 U.S.C. § 1985, they allege that the Defendants conspired to obstruct justice in a state court proceeding and to violate equal protection rights, all while motivated by a racial animus directed at Native Americans.
Law enforcement officers who have been sued in their individual capacity for constitutional violations are entitled to qualified immunity "when they could not reasonably have known that their challenged actions violated the law." Ross v. Neff, 905 F.2d 1349, 1354 (10th Cir.1990). Qualified immunity "provides `immunity from suit rather than a mere defense to liability.'" Mecham v. Frazier, 500 F.3d 1200, 1203 (10th Cir.2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).
The doctrine shields law enforcement officers from civil liability for discretionary actions if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982);
Law enforcement jurisdiction on the Reservation is an important element of the Plaintiffs' case. Apart from some limited exceptions discussed below, neither the State of Utah nor its political subdivisions have criminal jurisdiction in "Indian country," such as the Reservation. See 18 U.S.C. § 1152 (federal law of the United States "as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States. . . shall extend to Indian country."); Gardner v. United States, No. 93-4102, 1994 WL 170780 at *3, 1994 U.S.App. LEXIS 10090 at *10 (10th Cir. May 5, 1994). Although a cooperative law enforcement agreement between a state and a tribe may allow cross-deputized officers from Utah to exercise law enforcement authority on the Reservation, none of the officers involved in this incident were cross-deputized.
Any seizure of Mr. Murray by any of the Individual Defendants, absent exigent circumstances, would as a matter of law be unconstitutional. See Ross v. Neff, 905 F.2d 1349, 1354 (10th Cir.1990) (a "warrantless arrest executed outside of the arresting officer's jurisdiction [that is, on
The Plaintiffs contend that officers Norton, Young, Byron, and Swenson seized Mr. Murray on the Reservation
"Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added), quoted in Reeves v. Churchich, 484 F.3d 1244, 1251 (10th Cir. 2007). Plaintiffs allege that Mr. Murray was illegally seized either through a "show of authority"
Plaintiffs assert that Trooper Swenson seized Mr. Murray when he ordered the two men to stop after Mr. Kurip ran the car off the road. Even though the two men were not physically restrained at that point, the Plaintiffs argue that the two men were seized by a show of authority when, after Trooper Swenson shouted to them to stop, Mr. Kurip and Mr. Murray hesitated before running away. Characterizing the incident as a "traffic stop,"
In California v. Hodari D., the United States Supreme Court defined the contours of the "show of authority" requirement. 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), cited in Reeves, 484 F.3d at 1252. In Hodari D., the Court held that a police officer's command to halt is not a seizure until the person actually submits to the command. Id. at 626, 111 S.Ct. 1547. There, the Court held that because the suspect fled and refused to comply with the police command to stop, he was not seized at that point. Id. at 629,
The video taken by the dashboard camera on Trooper Swenson's patrol car captured the scene of the car stopping and Mr. Murray getting out of the car and running away from the officer. Plaintiffs suggest that Mr. Murray, upon getting out of the car, hesitated and glanced to the left toward Mr. Kurip as Trooper Swenson ordered them to stop. This hesitation, Plaintiffs assert, was a brief submission to Trooper Swenson's authority and constituted a seizure of, admittedly, "short duration."
With no submission, Plaintiffs cannot establish that Mr. Murray was seized by Trooper Swenson. Accordingly, Trooper Swenson is entitled to qualified immunity as a matter of fact on Plaintiffs' claim of illegal seizure.
Plaintiffs next allege that Trooper Swenson, Detective Norton, Deputy Byron,
After Mr. Murray fled, Trooper Swenson captured Mr. Kurip, handcuffed him, and brought him back to the police car at the crash scene.
But Trooper Swenson never left the scene of the crash. He stayed with Mr. Kurip. His only role in the foot chase was to ask officers from different law enforcement jurisdictions to chase and capture Mr. Murray. Trooper Swenson had no involvement in formation of the alleged perimeter. And even if one characterizes his request to the officers to pursue Mr. Murray as a command to form a perimeter,
Indeed, the court is not convinced from the record that a reasonable jury could conclude that the three officers actually formed a perimeter that surrounded Mr. Murray and prevented his escape. The officers were one to two hundred yards away from Mr. Murray and did not have him surrounded. They were coming at him from the same direction, and, with the exception of Detective Norton, the officers did not definitively locate Mr. Murray until after the shooting. Deputy Byron's view of Mr. Murray was partially obscured by a bush and his sighting of Mr. Murray occurred within seconds of Mr. Murray being shot. Trooper Young did not see Mr. Murray until after Mr. Murray had been shot.
But even if they did form a perimeter, the record is not clear that Mr. Murray
But even assuming the officers formed a police perimeter around Mr. Murray, they did not seize him, because Mr. Murray failed to submit to their law enforcement authority. Instead of submitting, Mr. Murray fired a shot at Detective Norton and then turned the gun on himself. See Reeves v. Churchich, 484 F.3d 1244, 1252-53 (10th Cir.2007) (no seizure occurred when police officers gave verbal commands and pointed their weapons at the plaintiffs outside a surrounded apartment building, because one plaintiff ran away and the other pushed the gun away, refusing to follow the officer's command to go inside her apartment); Estate of Bennett v. Wainwright, 548 F.3d 155, 171 (1st Cir. 2008) (holding that existence of police perimeter was not a seizure because there was no evidence that the suspect knew his house had been cordoned off, much less that he submitted to the officers' authority).
Because no reasonable jury could find that Mr. Murray submitted to a police perimeter, the court holds that no constitutional violation occurred. Trooper Swenson, Detective Norton, Deputy Byron, and Trooper Young are entitled to qualified immunity from suit on that portion of Plaintiffs' claim.
The Plaintiffs contend that Detective Norton seized Mr. Murray when he (1) fired shots at Mr. Murray; and (2) according to Plaintiffs, shot Mr. Murray in the head. The record does not support their claim and no reasonable jury could find against Detective Norton.
During the foot chase, when Detective Norton spotted Mr. Murray approximately 100 yards away, he held his gun (a .40 caliber weapon) in a "low ready position,"
As noted above, a seizure occurs when the individual is physically restrained by the officer or when the individual submits to the officer's show of authority. Reeves v. Churchich, 484 F.3d 1244, 1251 (10th Cir.2007). Neither scenario occurred here.
Plaintiffs contend Mr. Murray was waving his arms in an act of surrender and so he did submit to Norton's show of authority. But the evidence on that point is inconclusive, and, more importantly, not material. The evidence clearly shows that Mr. Murray shot himself.
The Plaintiffs argue that Detective Norton seized Mr. Murray because he shot Mr. Murray in the head. But the Plaintiffs' evidence is sparse, circumstantial, subject to more than one interpretation, and, at times, very speculative. Moreover, evidence to the contrary is strong and is consistent with a self-inflicted gunshot wound.
Deputy Byron testified that he did not see Detective Norton next to Mr. Murray when Mr. Murray dropped to the ground. Detective Norton testified that he was up on a hill when he saw Mr. Murray shoot himself.
The Deputy Chief Medical Examiner Dr. Edward Leis, who conducted the physical examination of Mr. Murray's body, concluded in his report that the wound was caused by a gun shot "in close proximity to the skin surface when it was discharged."
The smaller wound on the right side of Mr. Murray's head was, in Dr. Leis' opinion, the exit wound.
Detective Norton was more than 100 yards away when Mr. Murray was shot. Dr. Leis testified that there was no evidence that the wound could have been caused by a shot coming from that far away.
The Plaintiffs' alternative contention that Mr. Murray shot himself in response to the pressure of a wrongful pursuit is not persuasive. Their theory is speculative. Moreover, such a situation would not be a seizure. See Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) ("[A] Fourth Amendment seizure does not occur whenever there is . . . a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is governmental termination of freedom of movement through means intentionally applied.") (italics emphasis in original; underline emphasis added). Based on the evidence in the record, no reasonable jury could find that Detective Norton inflicted the mortal blow to Mr. Murray.
Plaintiffs contend that Detective Norton shot Mr. Murray in the head at point blank range, but they offer speculation rather than evidence to support their claim. For instance, they point to Dr. Leis' response (in his deposition) to a question that asked for an answer to a hypothetical. Specifically, the attorney asked, "So would it be possible—is it your opinion, Doctor, that this could be—looking at this wound [as depicted in a photograph], that it could be self-inflicted or an execution-style shooting?"
The Plaintiffs question Detective Norton's version of the events that occurred. But veracity of a witness is not to be considered at the summary judgment stage. Moreover, independent evidence discussed above supports Detective Norton's
Because direct evidence (unrefuted by admissible evidence) that Mr. Murray's gunshot wound was self-inflicted, it could not be a physical restraint imposed by Detective Norton. Consequently, the fatal shot was not a seizure by a law enforcement officer.
For foregoing reasons, no reasonable jury could conclude that a seizure of Mr. Murray occurred during the shooting incident, and so his constitutional right to be free from illegal seizures was not violated. Detective Norton is entitled to qualified immunity on the seizure claim.
Deputy Byron's handcuffing of Mr. Murray was indisputably a seizure. Because that seizure occurred on the Reservation, where Mr. Murray was an enrolled member of the Ute Tribe, and because Deputy Byron was not cross-deputized, that seizure was a per se violation of Mr. Murray's Fourth Amendment right, albeit a technical violation. See Ross v. Neff, 905 F.2d 1349, 1353-54 (10th Cir.1990) (holding that a warrantless arrest made outside of the officer's jurisdiction is a constitutional violation absent exigent circumstances).
Consequently, the court must determine whether Deputy Byron violated a clearly established constitutional right of which a reasonable officer would have known. In other words, to determine whether the officers are entitled to the qualified immunity defense, the court "must determine whether a reasonable officer could have believed the manner of plaintiff's arrest and detention . . . to be constitutionally permissible, in light of clearly established law and the information defendants possessed at the time." Martin v. Bd. of County Comm'rs, 909 F.2d 402, 405 (10th Cir.1990) (emphasis added).
Even if the rule of law regarding an officer's jurisdiction was clearly established in Ross, that decision did not address how or when a police officer must determine the tribal status of the suspect. Deputy Byron did not know Mr. Murray and he did not hear any reference to "tribal males" over the radio. When Deputy Byron handcuffed Mr. Murray, at that point there was no way he could determine whether Mr. Murray was a tribal member. He followed reasonable police procedure, and there is no legal rule prohibiting the procedure he followed.
Moreover, an officer cannot tell whether a person is a registered tribal member just by looking at him.
Deputy Byron confirmed this practice when he testified that his employer's policy was to handle situations requiring a quick response without regard to jurisdiction because the officers must provide assistance
Deputy Byron reasonably believed that he had a factual basis to restrain Mr. Murray. It is not reasonable to expect him to ascertain Mr. Murray's status before then.
Plaintiffs also contend that Trooper Young violated Mr. Murray's civil rights by pointing a gun at him. Trooper Young did not touch Mr. Murray and did not point his gun at Murray for longer than the time it took for Deputy Byron to approach Mr. Murray and handcuff him. Trooper Young did not make a show of authority to Mr. Murray, as Mr. Murray was unconscious and had no knowledge of the cover Trooper Young provided for Deputy Byron. Pointing a gun at a suspect, by itself, with no submission by the suspect, is not a seizure. See Reeves v. Churchich, 484 F.3d 1244, 1252-53 (10th Cir.2007) (finding no seizure when officers pointed weapons and made verbal commands without submission to authority); James v. Chavez, 830 F.Supp.2d 1208, 1243 (D.N.M.2011) ("[W]ithout evidence that a person has submitted to a show of authority, even an officer pointing a gun directly at a person's head does not constitute a seizure.") (citing Reeves, 484 F.3d at 1252-53). To the extent the Plaintiffs contend that Trooper Young's action was a seizure because it was connected to (or perhaps facilitated by) Deputy Byron's action, their claim fails, because, as discussed above, it was reasonable for Trooper Young to protect his fellow officer, whether the danger was real or not. He too had no reasonable basis for knowing that Mr. Murray was an enrolled member of the Tribe. An officer is not required to determine a person's legal status before doing his duty to enforce the law in a situation requiring a quick response. For the foregoing reasons, the court finds that Trooper Young did not violate Mr. Murray's civil rights by pointing a gun at Mr. Murray and so he is entitled to qualified immunity on the seizure claim.
The Plaintiffs contend that the officers used excessive force against Mr. Murray when they (1) formed the "police perimeter to entrap and apprehend Murray at gunpoint";
The Plaintiffs bring their excessive force claim under the Fourth Amendment as well as the substantive due process clause of the Fourteenth Amendment. A claim of excessive force occurring during a seizure must be analyzed under the Fourth Amendment reasonableness test set forth in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). A claim of excessive force that occurs outside the course of a seizure is analyzed under the Fourteenth Amendment's substantive due process principles. County of Sacramento v. Lewis, 523 U.S. 833, 843-44, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
Because the Plaintiffs challenge acts that occurred in both seizure and nonseizure
To find excessive force under the Fourth Amendment, the court must first find that a seizure occurred. County of Sacramento v. Lewis, 523 U.S. 833, 843-44, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The only time Mr. Murray was seized was when Deputy Byron handcuffed him. Accordingly, that is the only act that must be analyzed under the standards applicable to the Fourth Amendment claim.
To determine whether Deputy Byron used excessive force, the court must consider the totality of the circumstances and conduct "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (internal citations and quotation marks omitted).
Id. at 396-97, 109 S.Ct. 1865. "The use of handcuffs is the use of force, and such force must be objectively reasonable under the circumstances." Muehler v. Mena, 544 U.S. 93, 103, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (Kennedy, J. concurring).
Here, Deputy Byron did not know the identity of Mr. Murray or anything about him other than his involvement in the high-speed chase, his flight from a police officer, subsequent exchange of gun shots, and a gun on the ground next to Mr. Murray. He rushed onto the scene and had little time to assess the situation before he handcuffed Mr. Murray. He knew he had a wounded suspect and that emergency personnel were on the way. He secured the scene, as he was trained to do. Securing the scene, no matter what it might present, is a reasonable response by a police officer.
Moreover, to succeed on a claim of excessive force for the manner of handcuffing, a plaintiff "must show `some actual injury that is not de minimis, be it physical or emotional.'" Koch v. City of Del City, 660 F.3d 1228, 1247 (10th Cir.2011) (quoting Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir.2007)). There is no evidence of physical harm or emotional harm to Mr. Murray. The manner in which Deputy Byron handcuffed Mr. Murray was simple and the least intrusive way to secure the scene for the EMTs.
Plaintiffs alternatively claim that Mr. Murray's substantive due process rights under the Fourteenth Amendment were violated. The due process analysis under the Fourteenth Amendment applies to a claim of excessive force only when no seizure occurred. See County of Sacramento v. Lewis, 523 U.S. 833, 842-43, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (holding that all claims of excessive force arising out an arrest, investigatory stop, or other seizure should be analyzed under the
"[T]he substantive component of the Due Process Clause is violated by executive action only when it `can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.'" County of Sacramento, 523 U.S. at 847, 118 S.Ct. 1708 (quoting Collins v. Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). And "only the most egregious official conduct can be said to be `arbitrary in the constitutional sense.'" Collins, 503 U.S. at 129, 112 S.Ct. 1061. The substantive due process standard is "more onerous" than the Fourth Amendment standard. Butler v. City of Norman, 992 F.2d 1053, 1054 (10th Cir.1993). Plaintiffs have not met this high threshold.
All of the Plaintiffs' claims of egregious behavior stem from their complaint that the actions took place on the Reservation and were aimed at an enrolled member of the tribe. The officers did not know, could not have known, and did not have the duty at that point to ascertain whether Mr. Murray was an enrolled member of the tribe.
The pursuit was reasonable under the circumstances. Mr. Murray was part of a high speed chase and fled from Trooper Swenson. This information created sufficient concern in the officers' minds about Mr. Murray's motives for the flight and the danger he posed, if any. They reasonably believed he had committed at least one crime (flight from a police officer) and pursuing him for that was reasonable. Even though the BIA police had been called as a precaution, no BIA police officer was there at the time. It was completely reasonable to apprehend the fleeing suspect so they could fully investigate and turn him over to the proper authorities, if necessary. There is no evidence that the officers were acting like a posse to capture the "Indian," as Plaintiffs have argued. Although Plaintiffs paint it that way, they do so without evidence to support their theory.
It was also reasonable under the circumstances for Detective Norton to fire his gun at Mr. Murray. Mr. Murray shot at Detective Norton first. Detective Norton was retreating to protect himself when he shot back.
None of the officers' actions were egregious or conscience shocking. Their attempt to apprehend Mr. Murray while protecting themselves—and the means they used to do so—were expected police behavior in light of the circumstances.
It is clearly established that every law enforcement officer has the duty to intervene if he sees a person's constitutional rights being violated by a fellow officer and has an opportunity to do so. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir.2008). "`Omissions as well as actions may violate civil rights'"
Plaintiffs allege that the Individual Defendants failed in their duty to intervene to protect the constitutional rights of Mr. Murray. Specifically, they allege in their complaint that each of the Individual Defendants failed to intervene because they breached their "duty to protest" the "illegal pursuit and apprehension" of Todd Murray on the Reservation.
The Plaintiffs further allege that:
It appears from the Plaintiffs' complaint that they focus the majority of their "failure to intervene" allegations on the pursuit of Mr. Murray. But based on their statements in briefs, the court liberally reads their pleadings and concludes that they also challenge the officers' actions concerning the handcuffing of Mr. Murray. Accordingly, the court will look at the events that occurred at the shooting scene after Mr. Murray was shot.
To find liability, the court must find that a duty to intervene exists and
As the court found above, the pursuit did not constitute a seizure (it did not result in submission to a show of authority or physical restraint of Mr. Murray). Second, pursuing Mr. Murray on Reservation lands after a high-speed car chase is not a violation of Mr. Murray's rights because he was not seized and there was no reason for the police officers to know that Mr. Murray was an enrolled member of the tribe. Compare Ross v. Neff, 905 F.2d 1349, 1354 n. 6 (10th Cir.1990) (addressing an arrest (seizure) of a tribal member on Indian land, not pre-seizure conduct). Third, when Deputy Byron handcuffed Mr. Murray, neither Deputy Byron nor Trooper Young had any basis for knowing that Mr. Murray was an enrolled member of the Tribe. The same would apply to any other officer on the scene, either at the time of the handcuffing or immediately afterward. The handcuffing had already occurred by the time the officers arrived at the site. Accordingly, they did not have the ability to stop the handcuffing. Also, none of the officers had any basis for knowing that Mr. Murray was an enrolled member of the Tribe, and so they would not reasonably have known that a violation of the right recognized in Ross v. Neff had occurred.
Plaintiffs bring their ninth and tenth causes of action in civil conspiracy under 42 U.S.C. § 1985(2) and 42 U.S.C. § 1985(3) against the following Individual Defendants: Detective Norton, Deputy Byron, Deputy Watkins, Deputy Slaugh, Trooper Swenson, Trooper Young, Trooper Chugg, Trooper Olsen, and DWR Officer Davis. Plaintiffs also allege civil conspiracy under both sections against Vernal City.
Summed up, Plaintiffs' argument is that Defendants engaged in "[a] conspiracy to cover up a killing."
Plaintiffs argue that Defendants' conspiratorial conduct obstructed justice in a state court proceeding in violation of § 1985(2) and deprived Mr. Murray of equal protection under the laws in violation of § 1985(3).
Each of the Individual Defendants, as well as the sole municipal defendant, Vernal City, asks the court to grant their motions for summary judgment on the ninth and tenth causes of action.
Section 1985(2) is separated into two clauses by a semicolon. The first clause addresses conspiracies to obstruct justice in federal courts, and the second clause addresses conspiracies to obstruct justice in state courts. See Kush v. Rutledge, 460 U.S. 719, 724-25, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). The Plaintiffs bring their § 1985(2) claim under the second clause, which is commonly referred to as the clause "after the semicolon" or "following the semicolon." See i.e., Brown v. Chaffee, 612 F.2d 497, 502 (10th Cir.1979); see also Lessman v. McCormick, 591 F.2d 605, 607 (10th Cir.1979). To prevail against Defendants' motions for summary judgment, Plaintiffs must show there is evidence of a conspiracy, that obstructs the "due course of justice in any State," and that causes injury. See 42 U.S.C. § 1985(2). The conspiracy must have the "intent to deny to any citizen the equal protection of the laws." Id.
Section 1985(3) contains four clauses, but Plaintiffs bring their cause of action under only the first one, which also addresses conspiracy to violate equal protection of the laws. To survive Defendants' motions for summary judgment on § 1985(3), Plaintiffs must present evidence to prove a (1) conspiracy; (2) to deprive them of equal protection; (3) at least one overt act in furtherance of the conspiracy; and (4) an injury or deprivation that results. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.1993) (citing Griffin v. Breckenridge, 403 U.S. 88, 103, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)).
Significantly, in addition to proving a conspiracy and a violation of a civil right, both of these civil conspiracy sections (§ 1985(2) and § 1985(3)) require the Plaintiffs to show that there is race-based discriminatory animus motivating the alleged conspiracy. See Griffin, 403 U.S. at 102, 91 S.Ct. 1790 (§ 1985(3) requires showing of racial or some other class-based invidious discriminatory intent); see also Smith v. Yellow Freight Sys., Inc., 536 F.2d 1320, 1323 (10th Cir.1976) ("[A] racial, or perhaps otherwise class-based, invidiously discriminatory animus must be behind the conspirators' action for a cause
In their motions for summary judgment, the Individual Defendants argue that there is no evidence that an invidious, racial-based animus against Mr. Murray motivated the alleged conspiracy. Plaintiffs respond that "[t]he only plausible explanation for the abusive way Defendants handled every aspect of this case is racial bias."
In addition to their global claim that everything that happened in this case proves their claim of racial animus, Plaintiffs offer the following evidence to support a finding of invidious racial animus: (1) Trooper Swenson announced that there were "tribal males" in the vehicle he was pursuing; (2) Detective Norton testified that he thought that Mr. Murray and Mr. Kurip were Hispanic when they first passed him on the road at a high speed; and (3) There was "significant racial tension between Utah State police officers and Native Americans in Utah."
Plaintiffs assert that Trooper Swenson "was quick to announce" that the individuals in the car he was pursuing were "tribal males" for "the express purpose of communicating to all responding officers the unspoken fashion in which to respond to the incident."
Trooper Swenson made those statements to dispatch on his radio, and the dispatch agent copied that information on the radio channel. The evidence before the court is clear that Detective Norton was not among those listening to the dispatch radio.
Deputy Byron testified that the quality of the radio signal and communication was quite bad: "Handheld radios don't get out in tight areas, especially in that general area. It's—it's broken, broken traffic. You're only maybe catching pieces. Sometimes it's just a radio break."
In addition, the Individual Defendants joined the dispatch channel at different points, and the evidence before the court is that they joined the chase to provide backup support for Trooper Swenson. Regardless of when they joined the dispatch channel, the evidence before the court is that not all of them heard Trooper Swenson's descriptive statements. Officer Davis is the only defendant who testified that he heard a reference to tribal males over the radio, and he was one of the last officers to arrive at the shooting scene.
Based on the evidence before the court, no reasonable juror could conclude that these two statements by Trooper Swenson initiated a racially-motivated conspiracy against Mr. Kurip and Mr. Murray, that led to Mr. Murray's death at the hand of Detective Norton.
Similarly, no reasonable juror could find that Detective Norton's description of the men in the car as Hispanic supports Plaintiffs' contention that Detective Norton's conduct, and the conduct of the other Individual Defendants, was motivated by racial animus against Native Americans.
Detective Norton did not start following Trooper Swenson in the high speed chase because of Trooper Swenson's characterization of the car occupants as "tribal," nor did he continue to follow Trooper Swenson's car for that reason. Detective Norton did not have a radio in his private car and did not hear Trooper Swenson's first comment about the driver appearing to be "tribal." Detective Norton testified that while off-duty he observed what he believed to be a high speed chase, and that he called dispatch to determine if the chasing officer had any back up assistance.
Finally, Plaintiffs argue that the relationship between Native Americans in Utah and Utah State police officers is rife with racial tension and animosity, and that the strained relationship between Native Americans and police officers in Utah supports a conclusion of racial animus in support of civil conspiracy in this case. They point to the testimony of Deputy Byron and Deputy Slaugh to support their position.
Whether these facts are considered separately or together, no reasonable jury could find that the facts offered by the Plaintiffs amount to invidious racial animus toward Native Americans generally, or Mr. Murray in particular. There is no other evidence in the record that makes a stronger showing. Plaintiffs' theory is that the Defendants responded to, and participated in, the chase because, as Plaintiffs' counsel suggested, "They were hunting themselves an Indian. . . ."
Even if the evidence supported the necessary finding of racial animus, the Individual Defendants argue that there is no evidence of conspiracy and no evidence of overt acts in furtherance of a conspiracy. Defendants also argue that there is no state court proceeding, and therefore no obstruction of justice in that forum, necessary components for a claim under § 1985(2).
In their responses to the motions for summary judgment, Plaintiffs do not point to any direct testimonial or documentary evidence before the court to show that two or more defendants agreed to a conspiracy to violate Mr. Murray's civil rights. Instead, the Plaintiffs repeatedly ask the court to infer the existence of such a conspiracy (much like they asked the court to infer racial animus) from a handful of facts and the Plaintiffs' speculative characterization of those facts as so "brazen and flagrant" and "unjustifiable and irrational" that they support a finding of conspiracy.
A conspiracy "requires the combination of two or more persons acting in concert." Brever v. Rockwell Int'l Corp., 40 F.3d 1119, 1126 (10th Cir.1994) (quoting Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990)). The Plaintiffs have not established direct evidence of a meeting of the minds or agreement among the Defendants.
Of course, "[r]arely in a conspiracy case will there be direct evidence of an express agreement among all the conspirators to conspire." See Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir.1990) (quoting Bell v. City of Milwaukee, 746 F.2d 1205, 1260 (7th Cir.1984)). And sometimes the "sequence of events" in a case will create "a substantial enough possibility of a conspiracy" to allow Plaintiffs to proceed to trial. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
But for Plaintiffs to establish an agreement to conspire based on circumstantial evidence, they have to show more than that Defendants acted or didn't act. "Parallel action . . . or inaction . . . does not necessarily indicate an agreement to act in concert." Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir.2004). There have to be real questions of fact and gaps that Defendants fail to, and cannot, explain. See Adickes, 398 U.S. at 157-59, 90 S.Ct. 1598.
An examination of the evidence Plaintiffs rely on fails to make this showing. The court will discuss each in turn.
As discussed more below, the evidence before the court shows that the Individual Defendants believed that Mr. Murray was gravely injured and that medical care was imminent because the ambulance was en route. The evidence also shows that none of the Individual Defendants provided first aid to Mr. Murray. But the Plaintiffs' conclusion, that the Individual Defendants did not provide aid to Mr. Murray because they wanted him to die so that his version of the events with Detective Norton would be lost, is too speculative based on the evidence before the court. Standing alone, the fact that none of the Defendants gave aid to Mr. Murray is not sufficient to show that the Defendants failed to act because of a common conspiratorial objective.
Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir.2010) (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir.1998)) (internal citations omitted). In sum, there is no evidence before the court to support a finding that the inaction by each individual defendant was part of a conspiracy to let Mr. Murray die.
After carefully considering all of the arguments and evidence raised by the parties, as well as taking oral testimony from experts and the Defendants, the court denied the Plaintiffs' motion for sanctions based on spoliation of evidence.
Based on the facts as detailed and explained in its spoliation order, the court concludes that no reasonable jury could conclude that Defendants conspired to "effectively eliminate[] all probative evidence"
While the Plaintiffs allege that Detective Norton and Trooper Swenson, as well as the other Defendants, were illegally chasing Mr. Kurip and Mr. Murray because they were Native Americans, and that the officers illegally chased them on tribal land, the evidence is clear that those two officers did not even agree about the ethnicity of Mr. Kurip and Mr. Murray.
Furthermore, there is no evidence that Detective Norton communicated with the other Defendants during the high speed chase. In fact, the evidence shows that Trooper Swenson and Detective Norton did not communicate during the chase, and had only brief contact once that chase ended at Turkey Track.
Plaintiffs allege that the version of events given by Deputy Byron "directly contradicts" Detective Norton's description about what happened when Mr. Murray was shot, and they argue that "Defendants have conspired to tell a common story about what happened; however, as is common with fabrications, the factual details are not congruent."
Plaintiffs also allege that Deputy Watkins and Deputy Slaugh conspired to "ensure that Murray would not live to tell his version of what happened" by slowing down the ambulance that was en route to the scene and by directing the ambulance to an "impassable" ridge so that it would take longer to reach Mr. Murray.
Plaintiffs point to the fact that officers Chugg, Davis, and Olsen spoke to each other about the events that took place on April 1, 2007.
Here, there is no evidence before the court that the conversations cited by the Plaintiffs
The testimony offered by the Plaintiffs about the conversations that occurred on April 1, 2007, the date of the alleged constitutional violations, can be summarized as follows: Officer Davis testified that he spoke with Trooper Swenson when he arrived at the Turkey Track crash site, and that Trooper Swenson directed him to the oil location road. Trooper Chugg testified that he spoke with Trooper Swenson at the crash site and they discussed the high speed chase. Trooper Chugg could not remember any details about what Trooper Young told him when he arrived at the shooting scene and he testified that he never spoke with Deputy Slaugh at the scene or after. Trooper Chugg also testified that he did not recall any conversations with Officer Davis at the scene or after.
After April 1, 2007, Plaintiffs cite to testimony showing that Officer Davis had a conversation with Trooper Olsen about this lawsuit, that Trooper Chugg spoke with Trooper Swenson to discuss the criminal charges that were brought against Mr. Kurip, and that Trooper Olsen testified that he interviewed Trooper Swenson about the chase and the instant litigation. No reasonable jury could find that those conversations are evidence of a conspiracy to deprive Mr. Murray of medical aid or access to state court.
Significantly, most of the conversations identified by the Plaintiffs took place after the alleged constitutional violations at the heart of Plaintiffs' theory about the conspiracy. If the court were to take the conversations as circumstantial evidence of a conspiracy, namely to withhold medical aid and destroy evidence, the conversations would have had to occur before the failure to give aid and preserve evidence.
Finally, in their response to Trooper Swenson's motion for summary judgment, the Plaintiffs argue that the officers "switched from their police radios to their cell phones so that their communications after the shooting would not be recorded and preserved."
As noted above, the record reflects that the radio signal in the remote area where the events unfolded was poor and made communication over the dispatch radio difficult. Words were dropped. Phrases were lost. There is no evidence to support Plaintiffs' purely speculative conclusion. The only evidence before the court is the difficulty of communicating by radio and the improved communication with cell phones.
In their summary judgment motions, the Defendants argue that there were no violations of Mr. Murray's civil rights. They also argue that even if there were violations of Mr. Murray's civil rights, they were entitled to qualified immunity for any such acts.
Plaintiffs originally argued there were numerous civil rights violations at the center of the alleged conspiracies. But at this stage in the litigation, Plaintiffs focus on two issues for all of the Individual Defendants: (1) failure to give medical aid to Mr. Murray, and (2) interference with Mr. Murray's due process right of access to courts via the failure to preserve critical evidence and the affirmative destruction of critical evidence. Plaintiffs argue that the evidence surrounding these two allegations require the court to infer not only the existence of a conspiracy (an agreement to conspire and overt acts in furtherance of the conspiracy), but also the substantive conclusions that Mr. Murray's civil rights were violated by the failure to give aid and that the spoliation of evidence prevented him from seeking redress in state court.
In their complaint, Plaintiffs allege a number of § 1983 violations and then use those alleged violations as examples of overt acts in furtherance of the alleged § 1985 conspiracy causes of action. But Plaintiffs do not plead the failure to give medical aid in this way. That alleged civil rights violation is something that the Plaintiffs only allege as part of their § 1985(2) and § 1985(3) conspiracy claims and not as a stand-alone violation under § 1983. When asked about this apparent discrepancy, Plaintiffs' counsel responded that the failure to give medical aid was included in the failure to intervene section of the complaint, which is the fifth cause of action, but deferred argument on this to her co-counsel.
Plaintiffs make no distinction among the Defendants named in the ninth and tenth causes in terms of the alleged failure to give medical aid. Instead, they lump all of "the Defendants" together. In doing so, they fail to identify the action taken (or not taken) by specific Defendants.
Not all of the named Individual Defendants were in a position to give medical aid to Mr. Murray. Lieutenant Chugg, for example, arrived at the scene after the ambulance had already left with Mr. Murray. Troopers Olsen and Swenson never went to the shooting scene at all. The court only considers this alleged violation against officers Norton, Byron, Young, Davis, Watkins, and Slaugh.
By 11:22 a.m., there were two ambulances on stand-by because of the high speed chase.
Once Deputy Byron handcuffed him, Mr. Murray was under the care and control of the officers at the scene of the shooting and had to rely upon them to provide medical care, even though his injury was self-inflicted. The officers were obligated to provide that medical care to him. "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." See DeShaney v. Winnebago County. Dept. of Social Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); see also Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (Due Process Clause requires state actors to provide medical care to suspects in police custody); see also Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (the Eighth Amendment requires officials to provide medical care to prisoners).
Summoning an ambulance and making sure that the injured suspect is "taken promptly to a hospital" is constitutionally required. See Revere, 463 U.S. at 245, 103 S.Ct. 2979. Defendants argue that once they called for an ambulance and EMTs to provide medical care to Mr. Murray, they had discharged their constitutional obligations. The evidence before the court is clear that an ambulance was en route when Mr. Murray shot himself, that the ambulance personnel were told that there was someone with a gunshot wound and labored breathing, and that, when the ambulance arrived, emergency medical technicians provided Mr. Murray with medical care and took him to the hospital.
But Plaintiffs argue that the failure to try and stop bleeding from the entry and exit wounds in his skull, as well the failure to provide cardiopulmonary resuscitation, amounted to a civil rights violation.
The Tenth Circuit, following the Ninth Circuit, has refused to find that the due process clause establishes an affirmative duty on police officers to provide medical care—even something as basic as CPR—in any and all circumstances. "[T]here is no duty to give, as well as summon, medical assistance, even if the police officers are trained in CPR." See Wilson v. Meeks, 52 F.3d 1547, 1555 (10th Cir.1995); see also Maddox v. City of Los Angeles, 792 F.2d 1408, 1411, 1415 (9th Cir.1986). The Wilson court made a distinction
While it is true that "anyone can render first aid," the nature of any given injury faced by police officers in a rapidly unfolding and dynamic situation may dictate whether providing first aid is actually a good idea. Indeed, there may be medical disagreement about how best to proceed. See id. at 1555-56. First aid is often viewed as a "limited intervention with the immediate goal of preventing death," but even attending to an injured person's airway, breathing, and circulation "ABC" could be problematic depending on the nature of the injury. Id. at 1556. In Wilson, for example, there was disagreement about whether breathing is best facilitated by lying on one's side or one's back. Id. To legally require police officers to provide first aid, or to take specific action, in every situation (and to hold them legally responsible for civil rights violations when they fail to do so) is, in the words of the Tenth Circuit, "unfair and unwise." Id.
But under the Eighth Amendment and the Due Process Clause, delay in medical care can be a constitutional violation when that delay results in "substantial harm" and when the government actor was "deliberately indifferent" to the risk of that harm. See Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir.2000) (citing Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)); see also Howard v. Dickerson, 34 F.3d 978, 980-81 (10th Cir.1994) (Eighth Amendment standard of deliberate indifference applies in the context of due process analysis).
Considered from this perspective, the question is whether, based on the evidence before the court, a reasonable jury could find that the officers were "deliberately indifferent" to Mr. Murray's medical needs because they did not perform CPR or try to staunch the flow of blood from Mr. Murray's head. That question has objective and subjective elements: (1) whether the need for medical care was sufficiently serious; and (2) whether the Defendants acted with sufficient culpability in failing to render that care. See Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir.2001) (quoting Perkins v. Kan. Dept. of Corr., 165 F.3d 803, 809 (10th Cir.1999)). A medical need or injury is considered "sufficiently serious" when a physician determines that it requires treatment or when it is "so obvious" that even a lay person could recognize the need for medical attention. Sealock, 218 F.3d at 1209 (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999)). There is no question that Mr. Murray's head wound met the threshold question of being "sufficiently serious."
An analysis of the subjective element of deliberate indifference requires the court to determine whether the Defendants knew that Mr. Murray faced "a substantial risk of harm" if they didn't stop the blood flow and attempt CPR and whether the Defendants nevertheless disregarded that risk of harm with deliberate indifference by failing to take "reasonable measures" to abate it. See Oxendine, 241 F.3d at 1276. Would trying to stop the blood flow from the bullet holes and attempting CPR have been "reasonable measures" given Mr. Murray's injuries and condition? Based on the evidence before it, the court finds that no reasonable jury could conclude that the Defendants' failure to try and stop Mr. Murray's bleeding while they waited for the ambulance to arrive resulted in "substantial harm" to Mr. Murray, and that Defendants nevertheless disregarded the risk of that harm.
Plaintiffs' theory is that the Defendants acted "in concert to assure that Mr. Murray
That Mr. Murray "might" have survived had he received medical aid before the ambulance arrived is all that the Plaintiffs can argue because there is no evidence before the court that Mr. Murray could have or would have survived his self-inflicted head wound, even if the Defendants had attempted to give first aid to Mr. Murray. There is no evidence before the court that Defendants could have stopped Mr. Murray's bleeding if they had tried, or that he would have survived had the bleeding stopped.
What is before the court is the testimony of physician Dr. Edward Leis, who is the Chief of the Utah State Office of the Medical Examiner. Dr. Leis testified that Mr. Murray's head wound was a fatal one, that the pathway of the bullet, the location of the entrance and exit wounds, and the trauma to the brain tissue were not survivable.
The report of Plaintiffs' criminal justice expert William T. Gaut, Ph.D., who is not a medical doctor, does not create a question of material fact on these issues. Dr. Gaut concedes that gunshot wounds to the head are "usually fatal."
Officers Norton, Byron, Young, Davis, Slaugh, and Watkins all testified that they did not take any steps to stop the bleeding from Mr. Murray's head. They offered a variety of reasons for not trying to stop Mr. Murray's bleeding. Some stated that they did not help because they did not believe that there was anything they could do to help him and that, given the severity of the wounds, there was no way to stop the bleeding.
None of that testimony could allow a reasonable jury to conclude that Individual Defendants were deliberately indifferent to Mr. Murray's situation, or that they knew that there was a substantial risk of significant harm to Mr. Murray if they did not provide first aid. If anything, the evidence shows that at least three of the Individual Defendants (Young, Davis, and Slaugh) were concerned that attempts to provide any kind of aid to Mr. Murray would do more harm than good.
The court has discussed the Plaintiffs' claim that the Defendants failed to preserve evidence in its spoliation order and will not repeat it here.
The Plaintiffs' argument under § 1985(2) is that they have been denied judicial redress in state court because of the Defendants' conspiratorial actions of tampering with, and destroying, evidence and letting Mr. Murray die.
There is no question that Plaintiffs have the due process right to have their legitimate claims of civil rights violations heard in court. Indeed, this court is carefully considering all of the Plaintiffs' claims. But no reasonable jury could find that the Plaintiffs have been denied their right to litigation in state court because of the Defendants' alleged conspiratorial conduct. As the court found above, as well as in its spoliation order,
The only municipal defendant named in the ninth and tenth causes of action is Vernal City. In its motion for summary judgment, Vernal City argues that there is no respondeat superior liability if the respective officers have not committed a civil rights violation.
Detective Norton is the only Individual Defendant who worked for Vernal City. The court has found that he is not liable for conspiracy under either § 1985(2) or
The Plaintiffs have named two municipalities—the City of Vernal and Uintah County—in their § 1983 claims for failing to train, supervise, and implement policies that would ensure that their officers (1) did not exceed the municipalities' jurisdictional authority, (2) had probable cause to arrest, and (3) did not use excessive force. "A plaintiff suing a municipality under section 1983 for the acts of one of its employees must prove: (1) that a municipal employee committed a constitutional violation, and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation." Myers v. Okla. County Bd. of County Comm'rs, 151 F.3d 1313, 1318 (10th Cir.1998) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). The Plaintiffs must also demonstrate that the municipality's action amounted to "deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (emphasis added), quoted in Myers, 151 F.3d at 1318; see also Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ("As our § 1983 municipal liability jurisprudence illustrates, . . . a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.") (emphasis added).
Because the court has found that only one constitutional violation occurred (the handcuffing of Mr. Murray by Deputy Byron on the Reservation), only Uintah County, as Deputy Byron's employer, faces potential liability under § 1983. The City of Vernal is not liable, because "[w]hen there is no underlying constitutional violation by a [municipality] officer, there cannot be an action for failing to train or supervise the officer." Apodaca v. Rio Arriba County Sheriff's Dep't, 905 F.2d 1445, 1447-48 (10th Cir.1990) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)); see also Taylor v. Meacham, 82 F.3d 1556, 1564 (10th Cir.1996) ("[O]nce we conclude that the employee . . . committed no constitutional violation, the claim against the supervisory authority . . . is properly dismissed.").
Uintah County asserts that even if Deputy Byron's handcuffing of Mr. Murray on Reservation land was a constitutional violation, Deputy Byron did not know, nor could he have known, that Mr. Murray was an enrolled member of the Tribe, and so there is no evidence of a causal link to any failure to train, supervise, or implement proper policies concerning officers' jurisdiction. While it is true that Deputy Byron could not have known Mr. Murray's legal status before the seizure occurred, that fact is irrelevant to the issue of whether the County is liable. Rather, the court must focus on two related issues. First, the court must determine whether the County failed to train or supervise Deputy Byron concerning his authority to exercise law enforcement duties on the Reservation. Second, the court must determine
There is no question that Uintah County instructed its officers on the facts and issues underlying the County's jurisdiction (or lack thereof) on the Reservation. For example, the Uintah County Sheriff's Office gave its officers maps and GPS devices so they could determine where they had jurisdiction. The record does not support a finding of liability for failure to train or supervise.
But the record does show that the County had a potentially problematic practice of responding to all emergency calls on the Reservation when the suspect's tribal status was not known. The officers were taught to apprehend an individual first and then determine who had jurisdiction over that person. Certainly this practice was a moving force behind Deputy Byron's (and the others') pursuit of Mr. Murray and the subsequent handcuffing. But the practice was not deliberately indifferent.
Plaintiffs contend that the practice was clearly in violation of the rule set forth in Ross v. Neff, 905 F.2d 1349 (10th Cir.1990), but Ross did not provide guidance in this situation. There, the Tenth Circuit clarified that the arrest of an enrolled member of the Tribe on Reservation land by a municipal law enforcement officer was a constitutional violation of the tribal member's Fourth Amendment rights. Id. at 1354 (a "warrantless arrest executed outside of the arresting officer's jurisdiction [that is, on tribal land] is analogous to a warrantless arrest without probable cause" and is "presumptively unreasonable."). Ross did not address an emergency situation such as the one at issue here (a high speed chase, unknown fleeing suspects, and gun shots) in which the officers had no way of determining the legal status of the fleeing suspect or the land before responding to the emergency call.
Also, the failure to implement such a practice would arguably result in the County's and officers' dereliction of their duties to enforce the law. In other words, the alternative practice suggested by the Plaintiffs—that the officers should not have pursued Mr. Murray run because he appeared to be a tribal member—would have resulted in letting Mr. Kurip, who was not a "tribal male" and so was subject to the County's jurisdiction, flee without pursuit. The County's practice avoided that unwanted result and was an attempt to protect members of the public.
In the absence of any clear legal guidance cited by the Plaintiffs, and given the motivation behind the practice, the County's choice to implement such a practice was not deliberately indifferent to others' rights. Accordingly, Uintah County is not liable under 42 U.S.C. § 1983.
The Plaintiffs have alleged two state law claims against Detective Norton: (1) Assault and Battery and (2) Wrongful Death. Because the court has original jurisdiction over the Plaintiffs' federal law claims, the court automatically has supplemental jurisdiction over those two related state law claims because they form part of the same case or controversy. 28 U.S.C. § 1367(a). Because the court is now dismissing all of the claims over which it has original jurisdiction, the court declines to exercise supplemental jurisdiction over the Assault/Battery and Wrongful Death claims. See 28 U.S.C. § 1367(c) ("The district courts may decline to exercise supplemental jurisdiction over a claim under
For the foregoing reasons, the court ORDERS as follows:
1. Vernal City Detective Vance Norton's Motion for Summary Judgment (Docket No. 270) is GRANTED.
2. Uintah County Deputy Anthoney Byron Motion for Summary Judgment (Docket No. 269) is GRANTED.
3. Uintah County Deputies Bevan Watkins' and Troy Slaugh's Joint Motion for Summary Judgment (Docket No. 266) is GRANTED.
4. Uintah County and Vernal City's Joint Motion for Summary Judgment (Docket No. 271) is GRANTED.
5. State Trooper Craig Young's Motion for Summary Judgment (Docket No. 275) is GRANTED.
6. State Trooper Dave Swenson's Motion for Summary Judgment (Docket No. 276) is GRANTED.
7. State Trooper Jeff Chugg, State Trooper Rex Olsen, and DWR Officer Sean Davis's Joint Motion for Summary Judgment (Docket No. 277) is GRANTED.
8. Plaintiffs' motion for partial summary judgment on the First, Third, and Fifth Causes of action (Docket No. 273) is DENIED.
9. Plaintiffs' Motion to Determine Daubert Issues and Request for Hearing to Exclude the Expert Testimony of Nicholas Roberts (Docket No. 260) is DENIED AS MOOT.
10. Plaintiffs' Motion to Determine Daubert Issues and Request for Hearing to Exclude the Expert Testimony of Rudi Riet (Docket No. 261) is DENIED AS MOOT.
11. Plaintiffs' Motion for Summary Judgment re: Indian Country Status of Lands (Docket No. 263) is DENIED AS MOOT.
12. Defendants' Motions to Strike (Docket Nos. 314 and 315) the Plaintiffs' Motion for Summary Judgment re: Indian Country Status of Lands are DENIED AS MOOT.
13. Plaintiffs' Motion to Supplement the Record (Docket No. 407) and Plaintiffs' Amended Motion for Record Supplementation (Docket No. 408) are GRANTED IN PART AND DENIED IN PART.
