Summaries of Selected Opinions
| Publication year | 2022 |
| Pages | 72 |
FROM THE COURTS US COURT OF APPEALS FOR THE TENTH CIRCUIT
Summaries of Selected Opinions
No. 21-8021. United States v. Armajo.
6/23/2022. D.Wyo. Judge Seymour. FRE 404(b)—FRE 403—Assault Resulting in Serious Bodily Injury—Self-Defense Claim.
Following a day spent drinking, smoking marijuana, and arguing, defendant's uncle Eli declared that he had "had enough" of defendant. Eli then pulled the truck they were riding in over so they could "duke it out." At trial, Eli testified that he struck defendant several times, bloodying defendant's face and breaking his glasses. According to Eli's testimony, defendant then pulled out a knife and slashed Eli, stabbing him twice in the leg. Eli further testified he was left bleeding by the side of the road when defendant drove away in the truck. A passerby noticed him, and Eli was treated at the hospital and released the next day.
Defendant was charged with two assault charges. Although defendant did not testify at trial, his counsel cast the stabbing as self-defense. At trial, a Bureau of Indian Affairs officer testified that in 2018, he arrived at the scene of a fight to find defendant covered in blood after being beaten by Eli. The defense also argued that the evidence showed it was Eli who escalated the fight by drawing a knife, and defendant stabbed Eli only because he reasonably believed his life was in danger. The jury ultimately found defendant guilty of assault resulting in serious bodily injury, but not guilty on the charge of assault with a dangerous weapon with intent to do bodily harm.
Before trial, defendant filed a FRE 404(b) notice that he intended to present evidence not only of the 2018 beating but also of an alleged assault by Eli on his disabled brother in 2014 and several alleged assaults on a girlfriend in 2015and2017. Following a hearing, the district court ruled that defendant would be allowed to present evidence of Eli's 2018 assault, but not evidence relating to the alleged assaults against others. While the evidence served a valid purpose under Rule 404(b) because defendant's state of mind was pivotal, the district court determined that the other assault evidence was barred under Rule 403 because its probative value was substantially outweighed by the risk of unfair prejudice. Defendant appealed this ruling.
The Tenth Circuit concluded that defendant met his burden to show self-defense, in that he reasonably believed he was in imminent danger of death or great bodily harm, necessitating an in-kind response. The appeal therefore centered on the evidence the jury never heard. As an initial matter, the Tenth Circuit held that the district court was correct in holding that under FRE 404(b), specific instances of a victim's violent conduct, when known by a defendant, maybe admissible in a self-defense case to prove the defendant's state of mind.
Next, the Tenth Circuit determined that the district court did not abuse its discretion in applying the FRE 403 balancing test. The court did not err when it considered the lack of similarity of the other alleged assaults as a factor relevant to the probative value analysis. Further, the court's primary concern about unfair prejudice was valid. Presentation of evidence that Eli had abused a disabled person and a woman would very likely have stirred a strong emotional response from jurors, and the jurors also may have used the evidence to infer that Eli was a violent person and likely to have been the aggressor in this instance, which is precisely the sort of propensity inference that Rule 404(b) forbids. Therefore, because the evidence was likely to be highly prejudicial and of only marginally probative value, the Tenth Circuit held that the district court was justified in excluding the evidence under Rule 403.
The district court's ruling was affirmed.
No. 20-3132. Finch v. Rapp. 7/5/2022. D.Kan. Judge Tymkovich. 42 USC § 1983—Excessive Force Claim—Summary Judgment—Qualified Immunity—Monell Claim.
A 911 dispatcher alerted Wichita law enforcement officers that a caller had shot his father and was holding his mother and brother at gunpoint. The dispatcher also reported that the caller threatened to light the house on fire and commit suicide. Officers responded and surrounded the residence.
Unbeknownst to the officers and dispatchers, this was a case of "swatting." The caller was a Los Angeles resident, with no connection to the Wichita address or its residents. This serial "swatter" made the call on behalf of a Call of Duty player who wanted to retaliate against another player after a virtual altercation in the videogame. However, none of the players actually lived in Wichita, and the caller was given a false address. Andrew Finch, one of the residents, had no connection to the caller or online altercation. He was at home with a few family members and friends.
It was dark outside when officers arrived. Officer Rapp was told to be "long cover" because he had a rifle. When Finch pushed the front door open and stepped onto the porch, an officer on the east side of the residence instructed him to put his hands up and step off the porch. Officer Rapp's supervisor, on the north side of the residence, shouted commands that were not heard by other officers. None of the officers identified themselves as police. Although Finch initially appeared to comply with commands to put his arms up, he then began to lower his hands. There was conflicting evidence as to what occurred next, with some officers believing that Finch was reaching for a weapon and others perceiving no threat. Officer Rapp believed Finch was drawing a firearm, and fired a single shot, hitting Finch in the chest. Finchthed within minutes. Afterward, officers confirmed that Finch was unarmed and realized there had been no hostage situation or murder.
Through his next of kin, Finch filed a 42 USC § 1983 suit against Officer Rapp, his supervisor, and the City of Wichita. Defendants moved for summary judgment. The district court granted summary judgment on the claims against the supervisor and the City, but denied summary judgment and the qualified immunity defense as to Officer Rapp. Officer Rapp filed an interlocutory appeal of the denial of qualified immunity, and plaintiff appealed the final summary judgment entered in favor of the City.
The Tenth Circuit first evaluated the denial of summary judgment as to Officer Rapp. Excessive force claims are analyzed under the Fourth Amendment and its reasonableness standard. That standard asks whether police employed objectively reasonable force given the totality of the circumstances. The district court concluded that a reasonable jury could find that (1) Officer Rapp fired a shot when he could see Finch's hands were empty, (2) Officer Rapp's assertion that Finch made a threatening motion was false, and (3) Officer Rapp could not see Finch's movements clearly due to darkness and distance.
These findings were binding on the Tenth Circuit in its review of the qualified immunity denial. The Tenth Circuit rejected Officer Rapp's contention that the video evidence contradicted the district court's findings. Whether Officer Rapp reasonably believed Finch presented a threat is ultimately a genuine issue of fact for the jury to determine.
The Tenth Circuit next concluded that having found a constitutional violation, the district court correctly denied qualified immunity because Officer Rapp's actions violated clearly established law. In particular, the district court correctly relied on four Tenth Circuit opinions to determine that the right not to be subjected to deadly force was clearly established. While there was no case with identical facts, taken together, the cases established that an officer, even when responding to a dangerous reported situation, may not shoot an unarmed and unthreatening suspect.
Last, the Tenth Circuit determined that the district court properly granted summary judgment on plaintiff's municipal liability claims against the City. Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a city may be liable if it executes an unconstitutional policy or custom, or a facially constitutional policy that causes a constitutional violation. The Tenth Circuit concluded that plaintiff failed to show genuine issues of material fact regarding a city policy or custom of inadequate investigation and discipline, as alleged. Further, even if he could have, he was unable to prove causation. Plaintiff's arguments therefore did not meet the demanding standard of causation required in Monell cases, namely, a "direct causal link between the municipal action and the deprivation of federal rights."
The Tenth Circuit therefore affirmed the district court's denial of summary judgment as to the claims against Officer Rapp and affirmed the grant of summary judgment as to the claims against the City.
No. 21-1320. Cl.G v. Siegfried. 7/6/2022. D.Colo. Judge Kelly. High School Suspension and Expulsion—42 USC § 1983—First Amendment—Fourteenth Amendment Procedural Due Process—Motion to Dismiss.
C.G., a student at Cherry Creek High School (CCHS), was off campus at a thrift store with three friends on a Friday evening when he took a picture of his friends wearing wigs and hats, including one hat that resembled a foreign military hat from the World War II period. C.G. posted the picture on Snapchat and captioned it, "Me and the boys bout to exterminate the Jews." He removed the post after several hours and posted that he was sorry for the picture. One of C.G.'s Snap chat "friends" took a photo of the post before it was deleted. She showed it to her father, who called the police. The police went to C.G.'s house and determined there was no threat. A CCHS parent emailed the school and community leaders about the post.
The following Monday, the...
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