Jones v. United States

CourtCourt of Federal Claims
PartiesDEBRA JONES, et al., Plaintiffs, v. UNITED STATES, Defendant.
Docket Number13-227
Decision Date29 March 2023


Jeffrey S. Rasmussen, Patterson Earnhart Real Bird and Wilson, Louisville, Colorado, for the plaintiffs.

J Scott Thomas, Environment & Natural Resources Division U.S. Department of Justice, Washington, D.C., and Christopher C. Hair, Department of Justice, of counsel, for the defendant.



This case returns following its second remand from the U.S. Court of Appeals for the Federal Circuit. See Jones v. United States, No. 2020-2182, 2022 WL 473032 (Fed. Cir. Feb. 16, 2022) ("Jones V"). The Federal Circuit reversed the grant of summary judgment in favor of the defendant, the United States, and against the plaintiffs, who are the parents, estate, and tribe of the deceased Ute Tribe-member Todd R. Murray. In its opinion, the Federal Circuit clarified the standards for determining whether the defendant spoliated evidence, including when the defendant controls evidence. The Circuit also vacated the limited spoliation sanction that had been awarded and clarified what the Court needs to consider in fashioning an effective spoliation sanction. The Court applies the standards elaborated by the Federal Circuit to the plaintiffs' renewed motion for spoliation sanctions.

On remand, the plaintiffs have limited the items for which they now seek sanctions. The plaintiffs now seek spoliation sanctions for the defendant's failure to collect and retain only three pieces of evidence: (1) the .380 Hi-Point handgun, found near Mr. Murray, which was already determined to have been spoliated; (2) the .40 Glock handgun carried by the officer involved in the shooting that preceded Mr. Murray's death; and (3) the clothing the officer wore that day.

For its spoliation of the .380 Hi-Point, the Court imposes on the defendant a sanction of a rebuttable adverse inference.

The plaintiffs have not shown, however, that the defendant had a duty to preserve the .40 Glock or the officer's clothing. The duty to preserve only arises when litigation is reasonably foreseeable, and the supposed spoliator had "a legal right to obtain or control [the supposedly spoliated] evidence." Jones V, supra, at *4. Although litigation was reasonably foreseeable on the day of the shooting that preceded Mr. Murray's death, April 1, 2007, the defendant had no legal right to control the evidence, and no sanction is appropriate for the failure to collect these items.


This opinion assumes familiarity with this case's protracted history. Jones v. United States, 122 Fed.Cl. 490 (2015) ("Jones I"); Jones v. United States, 846 F.3d 1343 (Fed. Cir. 2017) ("Jones II"); Jones v. United States, 146 Fed.Cl. 726 (2020) ("Jones III"); Jones v. United States, 149 Fed.Cl. 335 (2020) ("Jones IV"); Jones V, 2022 WL 473032. This opinion also assumes familiarity with the related litigation in the District of Utah and the subsequent appeal. Jones v. Norton, 3 F.Supp.3d 1170 (D. Utah 2014), aff'd, 809 F.3d 564 (10th Cir. 2015).

In Jones I, a judge of this court dismissed the plaintiffs' claims, but the Federal Circuit in Jones II vacated the dismissal to allow the plaintiffs to present their argument that the defendant, by failing to collect and preserve evidence, had spoliated that evidence.

In Jones III, the plaintiffs' motion for spoliation sanctions was granted in part and denied in part. The plaintiffs had sought spoliation sanctions for the defendant's supposed failure to collect and preserve evidence in 11 respects. Jones III, 146 Fed.Cl. at 735-36. In addition to the defendant's supposed failure to preserve the three pieces of evidence currently at issue, the plaintiffs argued that the defendant had failed to preserve Mr. Murray's clothing, that the shooting scene was not properly documented and possibly tampered with, that Mr. Murray's body had been improperly handled, and that authorities should have performed an autopsy on Mr. Murray, among other complaints. Id. Except for the .380 Hi-Point, the Court denied sanctions for all the spoliation allegations, finding that the mishandling of Mr. Murray's body was "not an independent basis for spoliation sanctions" and that the other items of supposedly spoliated evidence were not within the defendant's control. Id. at 737-42. The defendant's destruction of the .380 Hi-Point handgun that was found near Mr. Murray, however, was found to have constituted spoliation. Based on that determination, the defendant was forbidden from "rely[ing] affirmatively on any facts related to the .380 handgun, including the fact that the third shell casing was not ejected from the destroyed handgun and the presence or absence of fingerprints or blowback on the handgun, to support the [defendant's] conclusion that Mr. Murray died by suicide." Id. at 742-43.

The defendant was then granted summary judgment in Jones IV. The Court found that issue preclusion applied to the plaintiffs' claims, notwithstanding the spoliation sanction imposed for the destruction of the .380 Hi-Point. Jones IV, 149 Fed.Cl. at 348-54. The Court also rejected claims based on the plaintiffs' alleged wrongs that were not punishable under federal criminal law or that only implicated off-reservation conduct because these were not cognizable as "wrongs" under the bad men provision of the treaty between the United States and the Ute Tribe. Id. at 354-57. Finally, the Court found that the plaintiffs had not alleged sufficient facts to show that some of the claimed federal crimes had occurred, and that issue preclusion estopped the plaintiffs from re-arguing issues relating to all other alleged federal crimes. Id. at 357-62.

In Jones V, the Federal Circuit held that the Court in Jones III had applied the "wrong standard in its spoliation opinion" regarding whether the defendant had "control" of any of the supposedly spoliated evidence. Jones V, 2022 WL 473032, at *1, *4. In doing so, the Federal Circuit held that the defendant, like any other party, has "control" over evidence when "it has a legal right to obtain or control that evidence." Id. at *8.

The Federal Circuit also rejected the sanction imposed for the defendant's destruction of the.380 Hi-Point handgun in Jones III as "futile." Id. at *9-11. Specifically, the Federal Circuit held that "[a]lthough a sanction preventing the spoliator from relying on the evidence they destroyed might be appropriate in other cases, it is not appropriate in this case because it serves none of the rationales underlying the spoliation doctrine." Id. at *11. According to the Federal Circuit, "[c]onsidering the import of the Hi-Point .380 handgun to Mr. Murray's parents' case, a harsher sanction is required." Id. at *9.

The Federal Circuit therefore remanded the case to determine: (1) whether the defendant controlled and spoliated evidence relating to the defendant's supposed failure "to enforce its request for an autopsy and failure to bag Mr. Murray's hands," id., at *8; (2) "whether litigation was reasonably foreseeable while the government had control (as we define it here) over any allegedly spoliated evidence other than the spoliated Hi-Point .380 handgun," and therefore whether any such evidence was spoliated, id. at *9; and (3) "to determine the exact bounds of the appropriate remedy, such as an adverse inference or inferences, that should apply to any spoliated evidence in this case," including "whether the government should be permitted to rely on secondary evidence related to the spoliated [.380 Hi-Point handgun]," id. at *11.

Having vacated the ruling on spoliation, the Federal Circuit reversed the Jones IV ruling on issue preclusion and the grant of summary judgment to the defendant. The Federal Circuit held that issue preclusion did not apply based on the change in the evidentiary landscape and remanded for further consideration of the plaintiffs' substantive allegations of violations of the bad men provision of the treaty between the Ute Tribe and the defendant. Id. at *12.

Following remand from the Federal Circuit, the Court held an evidentiary hearing at which it heard testimony from October 31, 2022, through November 2, 2022, in Salt Lake City, Utah, regarding spoliation. (ECF 198-200.) Before the hearing, the parties submitted joint stipulations of fact for use in resolving the spoliation issues. (ECF 189.)[1] On January 6, 2023, and February 3, 2023, the plaintiffs and the defendant submitted their respective proposed findings of fact, based on the stipulations and the hearing evidence, and their proposed conclusions of law. (ECF 201, 203.) Closing arguments were heard on February 14, 2023.

In their post-hearing submission, the plaintiffs limited their motion for spoliation sanctions to three items: (1) the handgun of the officer who shot at Mr. Murray, a .40 Glock handgun; (2) the clothing worn by that officer at the scene of the events that led to Mr. Murray's death; and (3) the .380 Hi-Point handgun that was found near Mr. Murray and has already been found to have been spoliated by the defendant. (ECF 201 at 23-27.) The plaintiffs further confirmed during their closing summation that they are only seeking spoliation sanctions for those three pieces of evidence. Accordingly, notwithstanding the Federal Circuit's directive concerning the autopsy and the bagging of Mr. Murray's hands, Jones V, 2022 WL 473032, at *8, the plaintiffs have abandoned any argument for the imposition of spoliation sanctions based on any evidence other than these three items.


For purposes of deciding the plaintiffs' spoliation motion only, the Court makes the following findings of fact...

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