809 F.3d 564 (10th Cir. 2015), 14-4040, Jones v. Norton

Docket Nº:14-4040, 14-4144
Citation:809 F.3d 564
Opinion Judge:BRISCOE, Circuit Judge.
Party Name: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 ...
Attorney: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 Attor...
Judge Panel:Before BRISCOE, McKAY and BACHARACH, Circuit Judges.
Case Date:December 29, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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809 F.3d 564 (10th Cir. 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

Nos. 14-4040, 14-4144

United States Court of Appeals, Tenth Circuit

December 29, 2015

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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.

OPINION

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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

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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 . . .

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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...

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