Jones v. United States

• Decision Date: 30 July 2015
• Docket Number: No. 13-227L,13-227L
• Parties: DEBRA JONES, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

DEBRA JONES, et al., Plaintiffs, v. UNITED STATES, Defendant.

No. 13-227L

United States Court of Federal Claims

July 30, 2015

Motion to Dismiss; Lack of Subject Matter Jurisdiction; Failure to State a Claim; Exhaustion of Administrative Remedies; Issue Preclusion; 1868 Ute Treaty; "Bad Men" Provision.

Frances C. Bassett, Fredericks Peebles & Morgan LLP, Louisville, CO, for plaintiffs. With her were Sandra L. Denton and Todd K. Gravelle, Fredericks Peebles & Morgan LLP, Louisville, CO.

Jody H. Schwartz, Trial Attorney, Environment and Natural Resources Division, Department of Justice, Washington D.C., for defendant. With her were Kenneth D. Rooney, Trial Attorney, Environment and Natural Resources Division, and John C. Cruden, Assistant Attorney General, Environment and Natural Resources Division, Department of Justice.

OPINION

HORN, J.

FINDINGS OF FACT

On April 1, 2013, plaintiffs filed their complaint in the United States Court of Federal Claims.¹ Plaintiffs allege that on April 1, 2007, "Utah State Trooper Dave Swenson senta radio dispatch from his patrol car advising the Utah central Police Dispatch that he was pursuing a car containing 'two tribal males' for a speeding violation." Trooper Swenson later testified² that the vehicle was traveling 74 miles per hour in a 65 mile an hour zone. The driver of the vehicle was 17-year-old Uriah Kurip, and his lone passenger was the decedent, 21-year-old Todd Murray. The alleged speeding violation occurred just outside the boundary of the Ute Tribe's Uncompaghre Reservation in Utah. In what Trooper Swenson later testified he viewed as an attempt to evade police pursuit, Mr. Kurip turned off U.S. Highway 40, onto State Road 88, an intersection located more than two miles outside the boundary of the Uncompahgre Reservation. Although Trooper Swenson began his pursuit off the Uncompaghre Reservation, the pursuit carried into the Uncompaghre Reservation, land held by the Ute Indians, and ended 25 miles south of the intersection of U.S. 40 and State Road 8 at the intersection of Seep Ridge Road and Turkey Track Road, an intersection also inside the boundary of the Uncompaghre Reservation. Once stopped, Mr. Kurip and Mr. Murray exited their vehicle and stood on either side of the vehicle. The amended complaint reflects that Trooper Swenson testified that he exited his vehicle with his gun drawn and ordered the two to the ground. Mr. Kurip and Mr. Murray exchanged looks and Trooper Swenson repeated the command two or three times, after which Mr. Kurip and Mr. Murray ran from their vehicle in opposite directions. Trooper Swenson pursued Mr. Kurip on foot and quickly apprehended him.

Responding to Trooper Swenson's earlier radio dispatch requests for help, off-duty Vernal City police officer Vance Norton was next to arrive on the scene, dressed in street clothes and driving his personal vehicle. Officer Norton set off on foot in pursuit of Mr. Murray. Utah Highway Patrol Trooper Craig Young and Uintah County Deputy Anthoney Byron subsequently joined in the search. Officer Norton later testified he eventually encountered Mr. Murray as Mr. Murray was rounding a hill. According to the amended complaint, Officer Norton testified he saw Mr. Murray before Mr. Murray saw him. Officer Norton allegedly raised his gun and shouted, "POLICE—GET TO THE GROUND." (capitalization in original). Also, according to the amended complaint, Officer Norton recalled seeing something in Mr. Murray's hand, but admitted that he could not tell what was in Mr. Murray's hand. Defendant indicates in its motion to dismiss that it was later determined Mr. Murray was carrying an illegally purchased .380 caliber handgun. Further, according to plaintiffs' amended complaint, Officer Norton indicated Mr. Murray raised his hand and fired shots, and Officer Norton, in turn, fired two rounds at Mr. Murray. The amended complaint states that "Norton alleges that Murray then turned the gun on himself and pulled the trigger. Officer Norton contacted dispatch, advised that shots had been fired and that Murray had shot himself." "At the time of the shooting, Officers Byron and Young state they were approaching from the south with their firearms drawn. Officers Byron and Young worked together to handcuff Murray." Plaintiffs contend that TrooperSwenson, Officer Norton, "Defendant" Byron, and "Defendant" Young³ are not cross-deputized by the federal government or the Ute Tribe to exercise law enforcement powers over Native Americans inside the Ute Tribe's Reservation.⁴

After the shooting, a number of other officers arrived at the scene, including Special Agents Rex Ashdown and David Ryan with the Federal Bureau of Investigation (FBI) and various officials from the Bureau of Indian Affairs (BIA). In their amended complaint, plaintiffs allege that the FBI and BIA officers "ostensibly assumed jurisdiction of the scene" because "the shooting scene was in Indian Country," yet "[t]he FBI and BIA officers on the scene were complicit in the State officers' improper assertion of jurisdictional authority over the shooting site." Plaintiffs further allege that RaymondWissiup, a member of the Ute Tribe and a certified law enforcement officer was excluded from the scene. In addition, plaintiffs contend that the law enforcement officers did not segregate, question, or search the officers involved in Mr. Murray's shooting, nor properly process their firearms.

At 11:30 a.m., immediately following the shooting, "Officer Norton contacted dispatch, advised that shots had been fired and that Murray had shot himself." Plaintiffs allege that an ambulance did not arrive on the scene until 12:02 p.m., and further allege that prior to its arrival, Mr. Murray was alive, but no state or federal officer provided him medical aid. According to the amended complaint, when the ambulance arrived on the scene, Mr. Murray's "breathing was labored, his limbs were twitching, and he was unconscious. There was a copious amount of blood around his head." The ambulance transported Mr. Murray to Ashely Valley Medical Center, where he was pronounced dead at 1:19 p.m. According to the amended complaint, the "FBI and the BIA officers then allowed the Utah state, county and municipal officers to transport Murray's body to the Thomson-Blackburn Vernal Mortuary (Mortuary) in Vernal, Utah, for holding overnight until the body could be transported to the Utah State Medical Examiner's office for an autopsy the next day."

Plaintiffs contend that the FBI and BIA officers "took no action to secure Todd Murray's remains or the crime scene itself." Plaintiffs also assert that "municipal officers present at the medical center proceeded to violate Murray's dignity and to tamper with the physical evidence." While at the hospital, plaintiffs allege that Mr. Murray's body was unnecessarily and inappropriately disrobed, manipulated, and photographed. Officer Byron was allegedly photographed with his finger inserted in Mr. Murray's head wound. Plaintiffs assert that BIA Officer Kevin Myore was present at the medical center and "condoned and participated in, or failed to prevent, the illegal and unethical desecration of Mr. Murray's remains and the spoliation of critical evidence." Plaintiffs also claim that "Special Agent Ashdown took no action to secure and preserve Mr. Murray's body at the Mortuary" and instead was "complicit in the additional acts of horrific desecration and evidence tampering that took place at the Mortuary." Further, plaintiffs claim that the Vernal City Police Chief Gary Jensen "admits" to inserting a needle into Mr. Murray to draw blood, and allege that "Chief Jensen then allegedly directed a mortuary employee to make an unauthorized incision to Murray's jugular vein, from which two vials of blood were purportedly drawn, although neither the Utah state nor the federal law enforcement officers have ever accounted for the blood vials drawn from Murray's body at the Mortuary." Plaintiffs also contend, "[n]either the Mortuary, nor any law enforcement officers, obtained the permission of Mr. Murray's next of kin to desecrate Todd Murray's remains in this manner."

The amended complaint states that Mr. Murray's body was next transported to the Utah Office of the Medical Examiner. The Utah Office of the Medical Examiner allegedly "elected to forego an autopsy and to perform only a simple external examination of Mr. Murray's body." Plaintiffs indicate that:

OME's [Utah Office of the Medical Examiner's] final pathological diagnosis was that the entrance wound on Mr. Murray's head was on the lateral left scalp and the exit wound was on the upper posterior right scalp. Thus, the gunshot wound that killed Todd R. Murray entered on the left side of Mr. Murray's head and exited on the right side of Mr. Murray's head.

(emphasis in original). Plaintiffs further note that the Utah Office of the Medical Examiner reported that Mr. Murray arrived with his hands "bagged" and that no soot was found on either of Mr. Murray's hands, his left hand was clean and free of any debris or blood, and his right hand was bloody. Moreover, plaintiffs allege that "the FBI officers and the BIA officers allowed the Utah Medical Examiner's Office to list the cause of Todd Murray's death as a suicide, when the Medical Examiner himself later testified that he could not rule out the possibility that Todd Murray was shot in the back of his head execution style." Plaintiffs, therefore, challenge Officer's Norton version of events and state that "Todd Murray did not shoot himself execution-style in the back of his head." (emphasis in original).

In addition, plaintiffs contend that "all of the evidence the FBI and BIA officers were responsible for—and that would have been of a dispositive nature in this case—has been destroyed or altered," and that, throughout, the FBI and BIA officers disregarded proper investigatory procedure and preservation of evidence. Specifically, plaintiffs contend that the firearm that...