Estate of Redd v. United States

• Decision Date: 15 March 2016
• Docket Number: Case No. 2:11-CV-1162 TS
• Citation: 171 F.Supp.3d 1229
• Parties: Estate of James D. Redd, M.D., et al., Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — District of Utah

171 F.Supp.3d 1229

Estate of James D. Redd, M.D., et al., Plaintiff,

v.United States of America, Defendant.

Case No. 2:11-CV-1162 TS

United States District Court, D. Utah.

Signed March 15, 2016

Edward P. Moriarity, Jesse A. Froehling, Shandor S. Badaruddin, Moriarity & Badaruddin LLC, Missoula, MT, Bradley L. Booke, Law Office of Bradley L. Booke, Jackson, WY, for Plaintiff.

Christopher R. Benson, Enyo A. Blege, Mary M. Leach, US Department of Justice, Torts Branch-Civil Division, Deepthy Kishore, Robin Doyle Smith, US Department of Justice, Washington, DC, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Ted Stewart, United States District Judge

This matter is before the Court on Defendant's Motion for Summary Judgment. The Court will grant Defendant's Motion for reasons more fully addressed below.

I. BACKGROUND

This case arises out of the tragic suicide of Dr. James D. Redd the day after federal agents arrested him and his wife for theft of tribal property and trafficking in stolen artifacts. The Estate of Dr. James D. Redd, Jeanne Redd, Jay Redd, Jericca Redd, Javalan Redd, Jamaica Redd Lyman, and Jasmine Redd (“Plaintiffs”) brought several tort claims against the United States under the Federal Tort Claims Act (“FTCA”). On the United States' (“Defendant”) prior motion to dismiss in 2012 (“Rule 12 Order”), the Court dismissed all of Plaintiffs' claims except for its intentional infliction of emotional distress (“IIED”) and wrongful death claims based on the alleged use of excessive force against Dr. Redd.

In their Complaint, Plaintiffs alleged that Defendant dispatched over 100 heavily armed officers to execute the Redd warrants. Accepting as true Plaintiffs' allegations, the Court found that the decision to use that amount of force was potentially unreasonable and therefore nondiscretionary, falling outside the discretionary function exception of the FTCA. Now at the summary judgment stage, the record paints a different picture and supports the entry of judgment in favor of Defendant.

In 2006, the Federal Bureau of Investigation (“FBI”) and the Bureau of Land Management (“BLM”) began a joint investigation into the looting of Native American artifacts on public land. The operation, dubbed “Cerberus,” culminated in the simultaneous execution of 12 search warrants and 19 arrest warrants in Southern Utah, including the search and arrest warrants for Dr. Redd and his wife at their residence in Blanding, Utah.

At approximately 6:40 a.m. on June 10, 2009, an initial team consisting of about 12 federal agents and one unarmed cultural specialist arrived at the Redd residence. Mrs. Redd and their adult daughter were home, but Dr. Redd was not. Mrs. Redd answered the door and was arrested without incident. At approximately 6:55 a.m., Dr. Redd returned home and was arrested in the driveway without incident and taken to the garage where agents questioned him until 9:30 a.m. Dr. Redd and Mrs. Redd were transported to the BLM office in Monticello at roughly 10:34 a.m. By 10:34 a.m., an additional nine federal personnel had arrived at the Redd residence to assist with the search or observe in a supervisory capacity. In total, 22 federal personnel were present at the Redd home between 6:40 a.m. and 10:34 a.m.

After Dr. Redd was removed from the residence, federal personnel continued to arrive and depart the Redd residence at various times throughout the day.

At approximately 11:55 a.m., a voice message was left on the Redds' answering machine:

“Is anybody there? I know somebody's there. A whole bunch of you. You gonna pick up the phone? All right. I'll be in there in a little bit. Be ready.”¹

At approximately 1:13 p.m., a second message was left:

“Hey, you guys still too scared to answer the phone? Don't touch anything of mine. Trust me. You don't want to.”²

In response to those messages, the FBI enlisted the help of four members of an FBI SWAT team who were already present at the residence serving in their primary role as FBI agents assisting with the search. Those four agents switched gears and transformed into a protective role by acquiring long guns from their vehicles and taking up tactical positions at or around the residence to ensure the safety of the federal personnel engaged in the ongoing search and cataloging of evidence. No other SWAT team was assembled or otherwise called to the Redd residence on that day.

Dr. Redd's adult daughter (“Ms. Redd”) was present at the Redd residence on the morning of the raid. In her declaration, Ms. Redd recounts seeing five or six law enforcement agents approaching the front door at approximately 6:40 a.m. She was immediately taken to the “Piano Room” of the house after her mother was arrested. Ms. Redd describes “many agents coming and going from the Piano Room and from the house”³ and that “there were more agents than [she] could count.”⁴ Ms. Redd was eventually allowed to leave the Piano Room and go outside. From the front porch, Ms. Redd states she saw “6-8 agents in the area immediately in front of the front door.”⁵

Ms. Redd describes the initial team of federal agents as having been “heavily armed”⁶ and “appeared to be wearing bullet-proof vests or some sort of body armor or flak jacket.”⁷ They appeared to be “more like military than ... police officers”⁸ and carried what “looked like machine guns.”⁹ Ms. Redd claims that from the time she first saw federal agents at approximately 6:40 a.m. until she left the Redd residence at approximately 12:00 p.m., “there appeared to be as many as 50 agents at any one time.”¹⁰ She states that the agents who arrived later throughout the day “were not as heavily armed as the first set of agents were armed.”¹¹

According to the federal personnel sign-in log, a total of 53 federal personnel, including seven unarmed cultural specialists had visited the Redd residence by the time the operation concluded at approximately 5:36 p.m. on June 10. Approximately 800 artifacts were inventoried and ultimately seized from the Redd residence.

The day following the raid, Dr. Redd committed suicide. Plaintiffs bring wrongful death and IIED claims against Defendant under the FTCA.

II. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”¹² In considering whether a genuine dispute of material fact exists, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.¹³ The Court is required to construe all facts and reasonable inferences in the light most favorable to the nonmoving party.¹⁴

III. DISCUSSION

Defendant moves to dismiss Plaintiffs' remaining wrongful death and IIED claims based on the alleged use of excessive force against Dr. Redd under the discretionary function exception of the FTCA. Defendant alternatively argues that under Utah law, Plaintiffs cannot prove proximate causation necessary for Plaintiffs' IIED and wrongful death claims should the Court find that the FTCA governs.

In response, Plaintiffs argue that its claims are not jurisdictionally barred under the discretionary function exception of the FTCA because the decision to “use the amount of force that was used, including the number of armed agents dispatched, and the manner in which they were equipped,” amounts to an excessive show of force unreasonable under the circumstances, which makes the conduct unconstitutional and therefore nondiscretionary.¹⁵ Plaintiffs argue that summary judgment should alternatively be denied because Plaintiffs maintain a “survival action” against Defendant, which Plaintiffs argue survived the Court's Rule 12 Order because it was not affirmatively dismissed. Additionally, Plaintiffs argue that their IIED claim should not be dismissed because Defendant's conduct “caused other elements of compensable harm in addition to, or other than, the death of James Redd.”¹⁶

A. THE DISCRETIONARY FUNCTION EXCEPTION

The FTCA provides a limited waiver of the federal government's sovereign immunity from private suits, but is itself subject to various exceptions contained in § 2680, including the “discretionary function” exception.¹⁷ The discretionary function exception retains the United States' sovereign immunity and deprives federal courts of subject matter jurisdiction to hear

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.¹⁸

In Berkovitz by Berkovitz v. United States,¹⁹ the Supreme Court provided a two-pronged test to help guide courts in determining whether the discretionary function exception applies to the challenged conduct. First, courts must decide if the challenged conduct is discretionary in nature involving an element of judgment or choice.²⁰ Second, courts must determine if the conduct was based on considerations of public policy.²¹

Under the first prong of the Berkovitz test, the Court looks to whether the challenged conduct involves an element of judgment or choice.²² “If a federal statute, regulation or policy imposes specific, mandatory directives, conduct pursuant to those directives is not discretionary since ‘the employee has no rightful option but to adhere to the directive.’ ”²³ Plaintiffs have the burden of identifying a specific mandatory statute or regulation that precludes discretion for the conduct alleged to be actionable.²⁴

Here, Plaintiffs have not met their burden in identifying a specific mandatory statute or regulation to which Defendant must adhere. Rather, Defendant cites to an FBI arrest policy effective in June 2009, which granted...