DEBRA JONES, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TODD R. MURRAY, DECEASED, FOR AND ON BEHALF OF THE HEIRS OF TODD R. MURRAY, ARDEN C. POST, INDIVIDUALLY AND AS THE NATURAL PARENTS OF TODD R. MURRAY, UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, Plaintiffs-Appellants
UNITED STATES, Defendant-Appellee
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.
Maysonett, Environment and Natural Resources Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellee. Also represented by John C. Cruden.
Lourie, O'Malley, and Taranto, Circuit Judges.
O'Malley, Circuit Judge
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. The CFC also erred in applying issue
preclusion without considering an essential spoliation issue.
We vacate and remand.
Circumstances Surrounding Murray's Death
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
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
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).
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
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.
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.
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.
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.
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.
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.
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
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
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.
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
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.
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.
Jones 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").
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.
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.
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.
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).
Court of Federal Claims
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.
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.
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.
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