Summaries of Selected Opinions
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on “Opinions/Rules/Statutes”).
Nos. 14-1384 & 14-1402. United States v. Bennett.05/26/2016
. D.Colo. Judge Tymkovich. Categorical Approach—Prior Conviction “Relating To” Child Pornography—Mandatory Minimum Sentence— Penile Plethysmograph.
Defendant pleaded guilty to federal child pornography charges. In 1997, he had pleaded guilty to sexual exploitation of a child, a misdemeanor under Colorado law, and was sentenced to 140 days in jail. The parties disagreed as to whether, based on this prior conviction, federal law required a 10-year mandatory minimum sentence. In evaluating defendant’s sentence, the district court concluded that because Colorado law punished a broader range of activities than the federal crime of possession of child pornography, the prior conviction was not a child pornography offense for statutory purposes, and the court sentenced defendant to 57 months’ imprisonment.
The government appealed, arguing that the district court should have found that defendant had a prior Colorado state conviction relating to child pornography, which would have triggered a 10-year mandatory minimum sentence under 18 USC § 2252A(b)(2). The mandatory minimum enhancement applies if defendant’s prior conviction relates to a variety of state sexual abuse and child pornography crimes. To resolve whether defendant’s prior conviction is a predicate offense for statutory purposes, the Tenth Circuit applied a categorical approach. Because it had no facts about defendant’s prior conviction other than the guilty plea, the Tenth Circuit examined the statutory language of the prior conviction to determine whether that conviction was related to the triggering offenses. The nature of sexual exploitation of a child under Colorado law is the possession of visual material depicting a child participating in explicit sexual conduct. Therefore, defendant’s prior conviction categorically relates to the possession of child pornography and the 10year mandatory minimum sentence should have been applied.
Defendant appealed a condition of his supervised release requiring him to undergo penile plethysmograph testing. Because this case presents many speculative factors too far into the future, the Tenth Circuit held that this challenge was not ripe for review.
The case was remanded to the district court with instructions to vacate defendant’s sentence and resentence him to the 10-year mandatory minimum sentence. Defendant’s cross-appeal was dismissed on ripeness grounds.
No. 15-7067. Adair v. City of Muskogee. 05/26/2016. E.D.Okla. Judge Phillips.
Americans With Disabilities Act— “Regarded As” Claim—ADA Amendments Act—Prohibited Medical Examination—Oklahoma Workers’ Compensation Act—Retaliatory Discharge.
Plaintiff Adair was the HazMat director for the City of Muskogee Fire Department (City) when he injured himself during a training exercise. As a result of his injury, he received a workers’ compensation award with permanent lifting restrictions. During the month he received the award, he retired. Adair sued the City for constructive discharge, claiming that the City forced him to choose between retiring and begin fired, which he alleged constituted discrimination under the Americans With Disabilities Act (ADA). He also claimed that the City retaliated against him for receiving a workers’ compensation award, in violation of the Oklahoma Workers’ Compensation Act. The district court granted summary judgment to the employer. In analyzing the discrimination claims, neither the parties nor the district court recognized the 2008 amendments to the ADA (ADAAA).
On appeal, Adair challenged the summary judgment on the disability discrimination claim. The Tenth Circuit discussed the ADAAA, which requires a plaintiff to show that (1) he is disabled; (2) he is qualified, with or without accommodation, to perform the essential functions of the job; and (3) he was discriminated against because of his disability. Prior to the ADAAA, to be “regarded as” having a disability, a plaintiff had to show an impairment that substantially limited one or more major life activities that are of central importance to most people’s daily lives. Under the ADAAA, to be “regarded as” having an impairment, a person must prove she has an impairment, but need not show that the impairment limits a major life activity. Here, although the parties and the district court applied the pre-ADAAA standards and although Adair could show that the employer regarded him as having an actual or perceived impairment, Adair’s claim failed as a matter of law because he was not qualified to perform the essential weight-lifting functions of his job and the City could not reasonably accommodate his lifting restrictions.
Adair also contended that the employer violated the ADA’s prohibition on requiring a medical examination or inquiring about an employee’s disability unless it is voluntary, job-related, and a business necessity. The Tenth Circuit rejected this claim because Adair put his ability to perform his job at issue; the medical examination was at his request to support his claim for workers’ compensation and the exam related to his ability to perform the job.
Adair also contended that the district court erred in its causation analysis by failing to consider his proffered evidence that his workers’ compensation award was the impetus for his termination. However, Adair’s inability to perform a firefighter’s duties constitutes a legitimate, non-retaliatory reason for his termination, and he did not show that the City’s non-retaliatory reason was a pretext.
The Tenth Circuit did not address Adair’s argument on the computation of emotional damages because it has no bearing on the summary judgment order. The judgment was affirmed.
No. 15-1001. Estate of Reat v. Rodriguez.05/31/2016. D.Colo. Chief Judge Tymkovich. 911 Operator—Fourteenth Amendment Substantive Due Process—Qualified Immunity—State-Created Danger—Law Not Clearly Established.
While driving in the City of Denver at about 4:00 a.m., Ran Pal called 911 to report that several men in another car had thrown a bottle and broken the rear windshield of the car he was driving. He told Rodriguez, the 911 operator, that he and his passengers had fled to Wheat Ridge for safety. Rodriguez told Pal that he had to return to Denver to receive help from police, because the attack occurred there. Despite Pal’s pleas with Rodriguez that he was injured and in shock and to send help to his Wheat Ridge location, Rodriguez insisted the police could not help unless he returned to Denver. Pal returned to Denver, where Rodriguez told Pal to wait for police and turn on his car’s hazard lights. Though Rodriguez told Pal he had called for police assistance, he had not. Subsequently, the attackers returned and shot and killed Pal’s brother Reat. Officers were dispatched to the scene about one minute after the shooting.
Reat’s estate sued Rodriguez and the City and County of Denver. The district court dismissed the claims against the City and County and held that Rodriguez was entitled to qualified immunity and granted him summary judgment on all claims except a Fourteenth Amendment substantive due process claim based on a theory of state-created danger. Rodriguez appealed.
The Tenth Circuit noted that officials are entitled to qualified immunity if their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have known. To determine whether a reasonable official would have understood that his conduct violated Reat’s rights, the Tenth Circuit considered whether there were previous rulings that “materially similar conduct” was unconstitutional or if a decision identified a general constitutional rule that would apply with “obvious clarity” to the conduct at issue. The estate asserted that Rodriguez created the danger that led to Reat’s death.
There are two preconditions for the state-created danger doctrine: (1) the state actor took an affirmative action, and (2) that action led to private violence injuring the plaintiff. If these conditions are met, the plaintiff must show that (1) the state actor increased the plaintiff’s vulnerability; (2) the plaintiff was a member of a limited and definable group; (3) the defendant’s conduct put the plaintiff at risk of serious, immediate, and proximate harm; (4) the risk was obvious or known; (5) the defendant acted recklessly; and (6) the defendant’s conduct is conscience shocking. The Tenth Circuit held that Rodriguez’s conduct did not violate the clearly defined contours of the state-created danger doctrine because there was no on-point case involving a 911 operator, the state had not limited Reat’s freedom to act on his own behalf, and Reat was not in custody. Therefore, Rodriguez was entitled to qualified immunity.
The Tenth Circuit declined to exercise its supplemental jurisdiction over the related state law claims. The judgment was reversed and the case was remanded for entry of summary judgment in favor of Rodriguez.
No. 15-8019. United States v. Martinez.06/07/2016. D.Wyo. Judge Phillips. Sentencing—Hearsay Evidence—Reliability.
Defendant pleaded guilty to possessing an unregistered, shortbarrel shotgun. The district court enhanced his Guideline sentence for using or possessing the firearm in connection with another felony. The other felony was the burglary of the home from which the shotgun defendant later possessed was stolen. This burglary was established at sentencing through the testimony of a U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives special agent, who testified about portions of state police reports containing hearsay statements of an accomplice who had admitted, during a police interview, to committing the burglary with defendant. Based on these statements, the district court found that defendant had participated in the burglary.
On appeal, defendant argued that the accomplice’s hearsay statements lacked sufficient indicia of reliability to support their probable accuracy. The Tenth Circuit determined that the district court did not clearly err in finding that the hearsay statements implicating defendant had sufficient indicia of reliability to support their probable accuracy, given the corroborative evidence. The shotgun was found in the trunk of defendant’s girlfriend’s car during a search unrelated to the burglary. During a custodial interview with police, defendant, who had a long history of theft offenses, related an improbable story that he received the shotgun from an unidentified white male long before the burglary. Police later interviewed the accomplice, whose fingerprint was found at the scene of the burglary. The accomplice eventually admitted that he had stolen the shotgun during the burglary and, during a subsequent interview, implicated defendant in the burglary. Accordingly, the Tenth Circuit affirmed the consideration of the agent’s testimony and the application of the sentencing enhancement.
No. 15-1329. Davis v. Clifford.6/13/2016. D.Colo. Judge Lucero. Traffic Stop—Suspended License—Excessive Force—Qualified Immunity—Relevant Factors—Clearly Established.
Davis was pulled over by Lakewood police officers. According to Davis, after she stopped her car in a parking area, police cars surrounded her vehicle and pounded on it with batons, demanding she exit. Davis asked the officers for assurance that they would not hurt her, and they responded by smashing her window and pulling her from her vehicle by her hair and arms. Davis sued Lakewood police officers and the City of Lakewood (City). She claimed that officers used excessive force in arresting her for driving with a suspended license caused by failure to provide proof of insurance and that the City failed to properly train and supervise the officers. The district court held that the City was not liable and the officers were entitled to qualified immunity and granted their request for summary judgment. Davis appealed.
The Tenth Circuit observed that a plaintiff alleging an excessiveforce claim under 42 USC § 1983 must demonstrate that the force used was objectively unreasonable. To evaluate the use of force, the Tenth Circuit assessed three factors: (1) the severity of the crime at issue, which weighed in plaintiff’s favor because her alleged crime was a misdemeanor, justifying only minimal force; (2) whether she posed an immediate threat to the safety of the officers or others, which also weighed in her favor, because she threatened no harm; and (3) whether she actively resisted or attempted to evade arrest, which she did not. Thus, under the facts she alleged, plaintiff established that the officers used excessive force.
The Tenth Circuit then considered whether the officers were entitled to qualified immunity, which required plaintiff to show that the officers violated a constitutional or statutory right that was clearly established at the time of the conduct. To be clearly established, a plaintiff need not produce a case precisely on point if the relevant three factors, described above, weigh in her favor. Here, all three factors weighed against the officers. The Tenth Circuit determined that the law was clearly established.
The judgment was affirmed in part and reversed as to the grant of qualified immunity to two officers, and the case was remanded.
No. 15-2169. United States v. Singer.06/13/2016. D.N.M. Judge Briscoe. Sentencing—Involuntary Manslaughter—Upward Departures and Variance.
Defendant was driving while on bond with his driving privileges revoked when he passed another car in a no-passing lane and then hit and killed a pedestrian who was crossing the highway. His speed at the time of impact was later estimated at 84 miles per hour. As a result of the impact, the pedestrian was decapitated; his left leg was dismembered; his body parts, blood, and clothing were scattered over a distance of approximately 274 feet; and his clothes were sheared off except for his underwear and one sock. The pedestrian’s wife witnessed the accident.
Defendant sped away from the accident and led police on a high-speed chase before he was finally apprehended. A blood test showed that his blood alcohol level was 0.18g/100mL. After his arrest, he engaged in erratic behavior and twice attempted to headbutt a deputy. Defendant pleaded guilty to one count of involuntary manslaughter in Indian country. At sentencing, the district court (1) applied a two-level enhancement for recklessly creating a substantial risk of death or serious bodily injury while fleeing from a law enforcement officer, which was in accordance with the presentence investigation report; (2) imposed a two-level upward departure in the Guideline sentence for endangering the community to an exceptional degree; and (3) varied upwardly from the advisory Guideline range, based on the brutality of the crime. Defendant was sentenced to 75 months’ imprisonment to be followed by supervised release for three years.
Defendant appealed, contending that the district court erred in applying a two-level enhancement and two-level upward departure and that his sentence was substantively unreasonable because the district court lacked a valid basis for the upward departure. However, the two-level enhancement related to conduct involved in fleeing from the scene, which created a risk of serious bodily injury or death to another person, not from the recklessness that caused the accident itself. Nor did the upward departure represent “double counting”; the base offense level and enhancement did not take into account such factors as defendant’s blood alcohol level and other circumstances concerning the risk he posed to the public and his flight from the officers. Finally, the upward variance did not make the sentence substantively unreasonable; the victim’s brutal death occurred in the presence of his wife; defendant committed the offense within six months of a prior arrest for driving under the influence, while he had his driving privileges revoked and was on bond; and defendant knowingly assaulted a law enforcement officer twice.
The judgment was affirmed.