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Jones v. United States

United States Court of Appeals, Federal Circuit

January 27, 2017

UNITED STATES, Defendant-Appellee

         Appeal from the United States Court of Federal Claims in No. 1:13-cv-00227-MBH, Judge Marian Blank Horn.

          Jeffrey S. Rasmussen, Fredericks Peebles & Morgan LLP, Louisville, CO, argued for plaintiffs-appellants. Also represented by Frances C. Bassett.

          James Maysonett, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by John C. Cruden.

          Before Lourie, O'Malley, and Taranto, Circuit Judges.

          O'Malley, Circuit Judge

         Debra Jones, Arden C. Post, and the Ute Indian Tribe of the Uintah and Ouray Reservations (collectively, "Jones"), appeal the judgment of the United States Court of Federal Claims ("CFC") dismissing (1) Jones's claims for damages against the United States for failure to state a claim under the 1868 Treaty between the United States and the Ute Tribe, and (2) a breach of trust claim for failure to state a claim under the 1868 Treaty and an 1863 Treaty between the same parties. Jones v. United States, 122 Fed.Cl. 490 (Fed. Cl. 2015) ("Jones II"). We hold that the CFC erred in dismissing Jones's claims by improperly limiting the scope of claims cognizable under the bad men provision of the 1868 Treaty.[1] The CFC also erred in applying issue preclusion without considering an essential spoliation issue. We vacate and remand.

         I. Background

         A. Circumstances Surrounding Murray's Death

         On April 1, 2007, Utah State Trooper Dave Swenson ("Swenson") attempted to stop a car for speeding near to, but outside of, the Uncompahgre Ute Reservation in Utah. The car did not stop but turned into the reservation. About twenty-five miles into the reservation, the car stopped and the driver, seventeen-year-old Uriah Kurip ("Kurip"), and the passenger, twenty-one-year-old Todd R. Murray ("Murray"), exited the car. Swenson exited his patrol car with his gun drawn, and ordered Kurip and Murray to the ground. Murray and Kurip ran in different directions. Swenson caught and arrested Kurip without further incident.

         At some point during the pursuit, Swenson requested back-up. Vernal City Police Officer Vance Norton ("Norton"), Utah Highway Patrol Trooper Craig Young ("Young"), and Uintah County Deputy Anthoney Byron ("Byron") responded. Norton pursued Murray on foot and ordered Murray to the ground. According to Norton, Murray raised a gun and fired two shots towards Norton, and Norton fired two shots at Murray. All of the shots missed. Norton testified that Murray then turned his own gun on himself and pulled the trigger. Norton called dispatch, indicated that shots had been fired, and explained that Murray had shot himself. Meanwhile, Byron and Young approached the scene with their guns drawn. Neither witnessed the shot that brought down Murray. Byron and Young handcuffed Murray.

         The officers found an illegally-purchased .380 caliber gun and two bullet casings near Murray. Investigators found two other bullet casings some distance away. A third casing was also found inside the chamber of Norton's gun. An ambulance arrived on the scene thirty-two minutes after the shooting, while Murray was still alive. No officer administered medical assistance to Murray in that time. By the time the ambulance arrived, additional police officers had arrived from various police departments and had "commandeered the site and were asserting state jurisdiction over the site." Complaint at 9, Jones II, 122 Fed.Cl. 490 (Fed. Cl. 2013) (No. 1:13-cv-00227).

         Federal Bureau of Investigation ("FBI") special Agents Rex Ashdown and David Ryan and Bureau of Indian Affairs ("BIA") Officers James Beck and Terrance Cuch (collectively, "federal officers") then arrived and "ostensibly assumed [federal] jurisdiction of the scene." Id. Ashdown took charge of the investigation. The com- plaint alleges that the federal and local officers prevented Raymond Wissiup-a member of the Ute tribe, a law enforcement officer, and the Director of the Tribe's Fish and Wildlife Department-from accessing the crime scene.

         An ambulance took Murray off the reservation to the Ashley Regional Medical Center ("Medical Center") in Vernal, Utah, where was declared dead at 1:19 pm. At the Medical Center, one of the officers allegedly disrobed Murray, photographed him nude, and manipulated his remains. For example, Byron was photographed with his finger in Murray's head wound. A sample of Murray's blood was also taken. Jones alleges that BIA Officer Kevin Myore "condoned and participated in, or failed to prevent" these actions. Complaint at 11, Jones II, 122 Fed.Cl. 490 (Fed. Cl. Dec. 3, 2013) (No. 1:13-cv-00227).

         The local officers then took Murray's body to the off-reservation Thomson-Blackburn Mortuary ("Mortuary") in Vernal, Utah to await an autopsy. There, Vernal City Police Chief Gary Jensen inserted a needle with syringe into Murray's heart and directed a mortuary employee to make an incision into Murray's jugular vein to collect two vials of blood. No one ever accounted for the blood or provided any reason for the necessity of collecting additional blood, the use of a jugular incision, or the insertion of a needle into Murray's heart.

         Murray's body was then transferred to the off-reservation Office of the Medical Examiner ("OME"), where the medical examiner declined to perform an autopsy. Jones alleges that this was done either at the direction of the FBI, or with the FBI's tacit approval.

         After an external examination, the medical examiner concluded that the bullet entered the back of Murray's head, above and behind his left ear, and exited on the right side of his head. Murray was right-handed. The medical examiner did not find soot on Murray's hands, but noted that his right hand was bloodied while his left was clean. The medical examiner considered Murray's death a suicide, but later testified that he could not rule out the possibility that Murray was shot in the back of the head, execution-style.

         The federal officers secured the .380 gun, which became the subject of a federal investigation into its illegal sale. In the course of the investigation, Ashdown retired and was replaced by Special Agent Ryan. Jones v. Norton, No. 2:09-cv-730-TC, 2014 WL 909569 at *4 (D. Utah Mar. 7, 2014) (unpublished) ("Spoliation Order"). When the criminal investigation into the illegal sale of the gun concluded, the judge hearing the case signed an order forfeiting the gun to the government. Id. The FBI thereafter destroyed the firearm. Id.

         Jones alleges that Murray was shot execution-style in the back of the head and that the gaps in the investigation were part of a conspiracy to cover-up this fact. Jones argues that the United States is liable for the actions of the federal and local officers under two treaties negotiated between the United States and the Ute Indians.

         B. The Ute Treaties

         The predecessor to the modern Ute Tribe entered into two treaties with the United States, one in 1863 and one in 1868. See Treaty with the Utah Tabeguache Band, Oct. 7, 1863, 13 Stat. 673 (hereinafter "1863 Treaty"); Treaty with the Ute, Mar. 2, 1868, 15 Stat. 619 (hereinafter "1868 Treaty").

         The Ute Tribe and the United States had a particularly acrimonious relationship prior to the 1863 Treaty, with several rounds of stalled treaty implementations and several skirmishes occurring between the parties. Ned Blackhawk, Violence Over the Land 215-16 (2008) (hereinafter, "Blackhawk"). A Ute War Council decided to forgo war in 1863 after being persuaded by Ouray, a leader of the Tabeguache Ute Tribe, that armed resistance to the

          United States would be futile. Id. Ouray led the Ute negotiations, which resulted in the Ute Tribe ceding to the United States "among the largest and most valuable tracts of land ever ceded to the United States, " according to Commissioner of Indian Affairs Dole. Id. at 216. The Tabeguache Band admitted that they reside within the United States, acknowledged the United States' supremacy, and claimed their protection, 1863 Treaty, art. 1; the United States agreed to send monthly payments in goods and provisions, id., art. 2; and the Treaty set the stage for the creation of a large Ute reservation in Colorado's mountain valleys in the 1868 Treaty. Blackhawk at 216.

         The 1868 Treaty established the Ute reservation. In common with the 1863 Treaty, its goal was peace between the Ute Tribe and white settlers. See Tsosie v. United States, 825 F.2d 393, 395 (Fed. Cir. 1987) (noting nine treaties made in 1868 containing bad men provisions with "peace as their object").

         The 1868 Treaty included the following particularly relevant provisions. Article 2 reads:

[T]he United States now solemnly agree that no persons, except those herein authorized so to do, and except such officers, agents, and employees of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law shall ever be permitted to pass over, settle upon, or reside in the Territory described in this article, except as herein otherwise provided.

1868 Treaty, art. 2. Article 6, the primary provision at issue in this case, reads as follows:

If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

Id. at art. 6. We refer to this provision as the "bad men provision" throughout this opinion.

         The 1868 Treaty also includes a requirement for a plaintiff seeking damages under the bad men provision to exhaust administrative remedies before filing a claim. See 1868 Treaty, Art. 5; Jones II, 122 Fed.Cl. at 510. This provision is not at issue on appeal.

         C. Procedural History

         Jones[2] first brought suit in state court in Utah, alleging Constitutional violations committed by the local officers against Murray and the Ute Tribe. The case was removed to the United States District Court for the District of Utah. Jones v. Norton, 3 F.Supp.3d 1170 (D. Utah 2014) ("Jones I").

         Jones alleged that the state, county, and city officers in various combinations were responsible for various Constitutional violations under 42 U.S.C. § 1983-illegal seizure, excessive use of force, failure to intervene and call for medical attention, assault/battery, and wrongful death-conspiracy to violate civil rights under 42 U.S.C. § 1985, and additional state law tort claims. Id. at 1177. On summary judgment, the district court held against Jones, concluding that he failed to establish that the state officers violated the Constitution. It concluded that there was no seizure, that the pursuit was reasonable, and that Murray had, in fact, fired at Norton. Id. at 1189. The court also concluded that "Plaintiffs offer no more than speculation and no reasonable jury could find that Norton shot Murray in the head at point-blank range." Id. at 1191. The court relied primarily on the testimony of Young and Byron that Norton was not near Murray when Murray went down, Norton's testimony that Murray shot himself in the head after exchanging shots with Norton, and the testimony of the medical examiner that the bullet came from point-blank range. Id. at 1189-92.

         In the course of the litigation, Jones alleged that the local officers spoliated evidence by (1) failing to give aid to Murray after the shooting (thus failing to preserve Murray's life); (2) failing to test Murray's gun for residue and destroying the gun pursuant to a court order; (3) failing to test Norton's gun; (4) failing to preserve the crime scene evidence (e.g., swabbing Murray and Norton's fingers, examining their clothing, searching for bullets, performing blood splatter analysis, or searching Norton); (5) desecrating Murray's body at the Medical Center and Mortuary; and (6) failing to perform a full autopsy. Spoliation Order, 2014 WL 909569 at *3-10. The district court concluded that there was no spoliation of evidence by any of the parties to the suit. Id. at *1. In particular, the court found that there was no evidence that Murray's wound was survivable and that the failure to give aid was a cause of Murray's death. Id. at *3. The court also found that the destruction of Murray's gun was performed on the orders of a judge in a separate investigation, and the state, county, and local officers (collectively, "local officers") did not know about the FBI's imminent destruction of the gun. Id. at *4-7. Because the state, county, and local officers did not know about the imminent destruction of the gun, they did not have a duty to request a test of the gun from the FBI. Id. The court found that the state, county, and local officials also had no obligation to inquire about the testing of the gun or preserve the crime scene evidence because they were not in charge of the investigation. Id. at *7-9. Finally, the court found there was no prejudice to the plaintiffs for the potential desecration of the body at the Medical Center and Mortuary. Id. at *9- 10.

         The district court's spoliation decision was predicated on the local officers' lack of supervisory authority over several key pieces of evidence, which the court determined were either in the charge of the federal officers, including Ashdown, or the medical examiner. See id. at *3 ("Because the shooting took place on the Uintah and Ouray Indian Reservation (the Reservation), the FBI had jurisdiction over the investigation."); id. at *7 ("As part of his investigation, Agent Ashdown possibly should have taken Detective Norton's firearm to have necessary tests performed. But Agent Ashdown is not a named Defendant."); id. at *8 ("[N]one of the named Defendants can be held liable for these alleged misdeeds, because Agent Ashdown and Keith Campbell were in charge of the investigation."). "No one from the federal government ha[d] been named as a Defendant, " and no member of the federal government was a party to the district court litigation. Id. at *3 n.3.

         The Tenth Circuit affirmed the district court's conclusions with respect to both spoliation and the substantive Constitutional violations. Jones v. Norton, 809 F.3d 564, 573-582 (10th Cir. 2015).

         D. Court of Federal Claims

         After filing in the district court, but before the Tenth Circuit's affirmance, Jones filed suit in the Court of Federal Claims against the United States, alleging violations of the bad men provision of the 1868 Treaty and a violation of the United States' trust obligations, arising out of the same circumstances surrounding Murray's shooting death. Jones predicated jurisdiction on the Indian Tucker Act and the 1868 Treaty.

         The CFC first considered which of Jones's claims were cognizable under the bad men provision. The court relied on two of its previous decisions, Garreaux v. United States, 77 Fed.Cl. 726 (2007), and Hernandez v. United States, 93 Fed.Cl. 193 (2010), to conclude that "any wrong" in the bad men provision was limited to affirmative criminal acts committed on reservation lands. Jones II, 122 Fed.Cl. at 522. Applying these limitations, the CFC dismissed several of Jones's allegations as not cognizable under the bad men provision. Id. at 522. These allegations included the failure to take custody of Murray's body and secure the body against desecration and spoliation of evidence, the failure to ensure a proper autopsy was performed, the failure to conduct an investigation into Murray's death, and the failure to protect the territorial integrity of the Tribe's reservation boundary and sovereign interest in maintaining the crime scene. Id.

         The CFC split Jones's remaining claims-allegations that the federal agents acted in concert with state, county, and local officers to concoct a false story that Murray shot himself, and allegations that some of those officials participated in, allowed, or failed to prevent the desecration of Murray's body and spoliation of critical evidence-into those that occurred off-reservation and those that occurred on the reservation. The court held that acts occurring outside the reservation were not cognizable under the bad men provision, id. at 522, and that those on the reservation, although cognizable, were barred by issue preclusion. Id. at 529.

         With regard to issue preclusion, the court explained that the issues presented in this case and those in the district court were identical-"namely the allegations that officials committed a wrong by pursuing Murray at gunpoint without jurisdiction and without probable cause, by shooting Murray execution-style, and then conspiring to cover-up the execution-style shooting and to obstruct justice." Id. at 527 (internal citation omitted). The CFC also held that Jones had a full and fair opportunity to litigate in the district court, explaining that the parties thoroughly ...

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