Bunch v. United States, 16-3775

Decision Date30 January 2018
Docket NumberNo. 16-3775,16-3775
Citation880 F.3d 938
Parties Kristine BUNCH, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Janis M. Susler, Shubra Ohri, John L. Stainthorp, Attorneys, People's Law Office, Chicago, IL, for PlaintiffAppellant.

Shelese M. Woods, Attorney, Office of the United States Attorney, Indianapolis, IN, for DefendantAppellee.

Betsy M. Isenberg, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants Bryan Frank, James Skaggs.

Before Wood, Chief Judge, and Bauer and Sykes, Circuit Judges.

Wood, Chief Judge.

Kristine Bunch spent 17 years in an Indiana prison based on a state conviction for the murder of her son. Bunch's conviction rested on testimony and evidence apparently fabricated by a federal forensic chemist, William Kinard. Kinard's conduct came to light during post-conviction proceedings in Indiana's courts, prompting the Indiana Court of Appeals to reverse her conviction. The Indiana Supreme Court later denied transfer. With the criminal conviction wiped out, Bunch became free to seek some recompense for the wrongful conviction and years of liberty she lost. She is attempting to do so in this suit.

At the time of Bunch's wrongful conviction, Kinard was a forensic chemist with the federal Bureau of Alcohol, Tobacco, and Firearms (ATF). Bunch therefore sued the United States as his employer, invoking the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 – 80. That suit was consolidated with a separate action Bunch brought against two Indiana state fire marshal investigators under 42 U.S.C. § 1983. With respect to the suit against the United States, the district court concluded that the intentional-tort exception to the general waiver of immunity found in the FTCA applied. It also ruled that the exception to that exception for torts committed by investigative or law-enforcement officers did not apply, and on that basis it granted summary judgment in the United States's favor. With that work done, the court certified under Federal Rule of Civil Procedure 54(b) that the suit against the United States was fully resolved and that there was no just reason to delay an appeal.

It may well be, in the final analysis, that the intentional-tort exception precludes suit against the United States. But the record was not developed fully enough in the district court to support such a conclusion at this stage. We do not sit as triers of fact, and so it would be improper for us to supervise the collection of further evidence. We conclude that summary judgment was premature and that further proceedings must occur in the district court before the immunity issue can finally be resolved.


Bunch's travails began when a fire consumed her home and claimed the life of her three-year-old son on June 30, 1995. Two investigators from the Indiana Fire Marshal's office, Bryan Frank and James Skaggs, quickly decided that arson had caused the fire and that Bunch was the arsonist. They sent samples from Bunch's home to ATF for testing. It fell to Kinard, an ATF forensic chemist and gunshot-residue analyst-specialist, to analyze the samples. His results did not confirm Frank and Skaggs's theory. To the contrary, his draft report stated that no accelerants were present in the two places where the Indiana investigators thought the fire had begun: the boy's bedroom and a spot in the living room. Although samples from elsewhere in the house tested positive for heavy petroleum distillates, Kinard concluded that these results were "consistent with the presence of kerosene, for which there was an innocent explanation."

This was not what Frank and Skaggs wanted to hear. Bunch alleges that they communicated their disappointment to Kinard, who agreed to fabricate findings in his official report. He apparently did just that: the official report confirmed the presence of accelerants in the two locales identified by the Indiana investigators. It also said that the heavy petroleum distillates were consistent with the presence of a broad array of chemicals, many of which were highly suspicious. The Indiana investigators submitted only the final, official, version of Kinard's report to the state prosecutors, and Kinard's trial testimony stuck to that version. No one revealed the existence of the draft report to Bunch, nor did anyone alert her to the dramatic shift in Kinard's conclusions.

In 1996 an Indiana jury convicted Bunch of felony murder, and the court sentenced her to 60 years' imprisonment. As the Indiana Court of Appeals later noted, "no witness testified to seeing Bunch set the fire or hearing her talk about doing so; there was no evidence Bunch had purchased a liquid accelerant and no evidence of flammable liquid on the clothes she was wearing; and there was no testimony regarding a motive for her setting the fire." Bunch v. State , 964 N.E.2d 274, 280 (Ind. Ct. App. 2012). Thus, "[t]he State's case relied largely on expert testimony describing two points of origin for the fire from visual inspection and testing of floor samples showing evidence of a liquid accelerant." Id . In other words, Bunch asserts, the state relied on the testimony of Frank and Kinard, bolstered by Kinard's falsified report.

Bunch filed a petition for post-conviction relief in 2006. In the course of those proceedings, Kinard's draft report came to light. The Indiana Court of Appeals reversed Bunch's conviction, holding that the state's failure to produce the draft report had violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Bunch , 964 N.E.2d at 304. In addition, the court held that significant advances in the science of fire-victim toxicology independently justified granting post-conviction relief. Id . After the Supreme Court of Indiana denied the state's petition to transfer, Indiana declined to retry Bunch.

At that point Bunch sued the United States under the FTCA because Kinard was acting within the scope of his federal employment when he prepared the reports. She raised claims of both malicious prosecution and intentional infliction of emotional distress arising out of the malicious prosecution. As we noted, the district court later consolidated this suit with her separate section 1983 action against Frank and Skaggs. The court ultimately resolved her FTCA suit with its decision that the United States is entitled to sovereign immunity. Its entry of summary judgment for the United States and order under Rule 54(b) permit this immediate appeal.


We review the district court's grant of summary judgment for the United States de novo . Alston v. City of Madison , 853 F.3d 901, 906 (7th Cir. 2017). Summary judgment is proper when the moving party—here the United States—"shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The party that bears the burden of proof for an issue at trial must "cite the facts which it believes [would] satisf[y]" that burden and "demonstrate why the record is so one-sided as to rule out the prospect of a finding in favor of the non-movant ...." See Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund , 778 F.3d 593, 601 (7th Cir. 2015).

Through the FTCA, the United States has assumed liability for its employees' torts as if it were a private employer. 28 U.S.C. §§ 1346(b)(1) ; 2674. This broad waiver of immunity, however, is subject to several qualifications, some of which appear in section 2680. Bunch's case depends on the FTCA's regime for intentional torts—specifically those arising out of malicious prosecution—for which the United States has reserved sovereign immunity unless they stem from the conduct of "investigative or law enforcement officers." Id. § 2680(h). The statute defines the term "investigative or law enforcement officer" as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." Id . Although such an officer must act within the scope of his or her employment, the tort need not arise while the officer is performing one of the three enumerated activities. Millbrook v. United States , 569 U.S. 50, 55, 133 S.Ct. 1441, 185 L.Ed.2d 531 (2013). Rather, the waiver of sovereign immunity holds so long as the tortfeasor is empowered to search, seize evidence, or arrest. Id.

Bunch has raised a claim of intentional infliction of emotional distress arising out of malicious prosecution and a stand-alone claim of malicious prosecution. If the intentional-tort exception bars one, it bars the other as well, and so we analyze them together. See United States v. Shearer , 473 U.S. 52, 54–56, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). It is undisputed that Kinard acted within the scope of his employment when he tested the forensic samples and drafted the reports stating his conclusions. This leaves only the question whether Kinard was "empowered by law" to search, seize evidence, or arrest.

Bunch has fulfilled her duty to put forth evidence sufficient to support jurisdiction under 28 U.S.C. § 1346(b)(1). The burden has thus shifted to the government to support its affirmative defense that the exception to the FTCA for intentional torts applies and is not vitiated by the investigative or law-enforcement proviso. E.g. , Keller v. United States , 771 F.3d 1021, 1023 (7th Cir. 2014) ; Parrott v. United States, 536 F.3d 629, 634–35 (7th Cir. 2008) ; Stewart v. United States , 199 F.2d 517, 519 (7th Cir. 1952). Some, though not all, of our sister circuits share our view on this allocation of the burden of proof. See St. Tammany Par. ex rel. Davis v. FEMA , 556 F.3d 307, 315 n.3 (5th Cir. 2009) (reviewing circuit split with focus on the burden of proving the discretionary function exception). Most of our own cases assigning this burden to the government have responded to the United States's invocation of the discretionary-function...

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