Rocky Mountain Appellate Blog

Supreme Court Grants Cert to Review Tenth Circuit's Millard County Decision

Last summer the Tenth Circuit, in a divided 2-1 decision, reinstated a section 1983 lawsuit brought by a drug dealer who had been subjected to a warrantless search and arrested after he sold drugs to an informant. Callahan v. Millard County. The court declined to join three other circuits in extending the "consent-once-removed" doctrine (under which there is no Fourth Amendment violation if the undercover person is a police officer) to an undercover informant. Having thus found a Fourth Amendment violation, the court held that the defendants were not entitled to qualified immunity.

I was harshly critical of the court's qualified immunity analysis, and was disappointed when the Tenth Circuit declined to grant the defendants' petition for rehearing en banc.

However, yesterday the Supreme Court granted cert (scroll down to the second page). (The case caption now reads Pearson v. Callahan, No. 07-751.) Interestingly, the Court granted cert on the issue of whether the Supreme Court's recent qualified immunity decision, Saucier v. Katz, should be overruled. Peter Stirba, the attorney for the defendants, has confirmed that neither party urged the Court to reconsider the Saucier decision.

I'll post a link to the cert petition as soon as I find it. (Right now a google search for "Callahan" and "petition" turns up a bunch of online petitions to fire former Nebraska coach Bill Callahan. Mission accomplished.)

Applying Twombly

The plaintiffs in Robbins v. State of Oklahoma, No. 07-7021 brought suit against various individuals and governmental entities after their daughter was murdered by a day care provider.  (Technically, she was ‘allegedly murdered’ as it appears from the Tenth Circuit’s opinion that the charge of first degree murder is still pending). The Oklahoma Department of Human Services allegedly told the plaintiffs that the day care center where the daughter was murdered was the only day care that DHS would pay for their daughter to attend. 

The case was before the Tenth Circuit on the appeal of three defendants (the Director of the Oklahoma DHS and two DHS social workers) from the denial of their motion to dismiss.  On appeal, the court considered the complaint under the standards set forth in Bell Atlantic Corp. v. Twombly.  The court observed that the standard set forth in Twombly is “less than pellucid.”  It held, however, that “As best we understand it . . . [Twombly] seeks to find a middle ground between ‘heightened fact pleading’ . . . and allowing complaints that are no more than ‘labels or conclusions’ . . .”.  The court held that, under Twombly, if the scope of the allegations is so general as to encompass “a wide swath of conduct, much of it innocent” then the complaint fails to plead a cause of action.  The court further held that the degree of specificity required depended on the context and the nature of the cause of action alleged.

Applying Twombly to the complaint in Robbins, the court held that due process count of the complaint failed to state a claim because it failed to isolate the allegedly unconstitutional acts of each defendant and thus failed to provide them with adequate notice of the claims against them. The court also held that the plaintiffs failed to pled facts sufficient to state a claim of liability under a theory of danger creation. The court held that “[g]iven the complaint’s use of either the collative term “Defendants” or a list of the defendants named individually but with no distinction as to what acts are attributable to whom, it is impossible for any of these individuals to ascertain what particular unconstitutional acts they are alleged to have committed.” The court similarly rejected an equal protection claim and remanded the case for dismissal without prejudice.

Nacchio Verdict Overturned on Appeal

The Tenth Circuit today overturned the conviction of Joseph Nacchio based on the improper exclusion of expert testimony.  However, the court held that sufficient evidence had been presented to the jury that a retrial would not violate the double jeopardy clause. The court also reassigned the case to a different district judge because it believed that it would be “unreasonably difficult” for the district court to retry the case with a fresh mind.  From a personal point of view, I find it interesting that the expert whose testimony was at issue is Daniel Fischel, the former dean of the University of Chicago (and currently, I believe, Lexecon CEO) during most of my time there. 

I Pledge Allegiance

David Habecker was a Trustee of the Town of Estes Park.  When the Town Board of Trustees implemented a new policy of reciting the Pledge of Allegiance at the beginning of Board meeting, he refused to do so because he objected to the inclusion of the phrase “under God” in the Pledge.  Habecker was subsequently recalled from office by the voters.  He then brought suit against the town, various town officials, and members of the recall committee alleging various claims.  In Habecker v. Town of Estes Park, (No. 06-1515), the Tenth Circuit affirmed the dismissal of his claims for lack of jurisdiction. 

On appeal, Habecker had identified “three injuries as a source of standing . . . (1) his loss of elected office; (2) social pressure, rising to the level of government coercion, to recite the Pledge against his beliefs; and (3) exposure to the Pledge at Board meetings.” As to the first alleged injury the Tenth Circuit held that while Habecker suffered an injury in fact by virtue of having been recalled from his office, he could not show that the defendants caused his recall.  The court determined that it could not make inferences with regard to the motivations of the voters who voted for Habecker’s recall.  With regard to the second alleged injury, the court held that any social pressure Habecker may have felt was insufficient to create an injury in fact.  In so doing, it noted that “[s]ocial pressure to participate in a religious exercise . . . has been treated as an injury in fact only in a public school context.”  The court declined to extend this precedent, noting that public officials make a voluntary decision to seek public office and are not as readily susceptible to peer pressure or religious indoctrination as schoolchildren.  With regard to the third injury, the court held that it was moot because Habecker was no longer required to attend Board meetings and no longer suffered any injury from being exposed to the Pledge. The court refused to consider Habecker’s late argument that he was still entitled to attend meeting as a member of the public, and would be exposed to the Pledge if he did so.

Mystery Argument

The defendant in United States v. Tillett, No. 05-2352, plead guilty to conspiracy to possess marijuana with intent to distribute after he was pulled over driving a tractor-trailer with 692.65 kilograms of marijuana hidden behind a false wall (the arresting officer, in what must be a dramatic understatement, detected “a strong odor of marijuana”).   At his sentencing hearing Tillett argued for a sentence below the guideline range, and in support advanced an argument the disclosure of which, he alleged, would put his life and the life of his family at risk.  While the argument itself was unsuccessful, the plaintiff must have presented a persuasive case that it created a danger: The district court conducted a closed sentencing hearing and sealed the transcript, and the Tenth Circuit allowed him to file sealed briefs. The Tenth Circuit discusses the issue without giving any hint as to the nature of the argument, but does not simply dismiss it as frivolous. I am loath to speculate (particularly on the internet) as to the nature of the argument, which will always be a mystery.

Judicial Misconduct Decisions Now Online

The Tenth Circuit has begun posting judicial misconduct decisions dating back to January 1, 2008 on its website.  Fortunately for the administration of justice, these opinions make extremely dull reading.  To date, four decisions have been posted.  All of them appear to involve litigants improperly complaining about rulings in their cases, or making vague allegations that lacked any factual support.  

Is Drugging Someone a "Crime of Violence"?

On Monday the Tenth Circuit issued a very interesting decision addressing whether a conviction under Colorado state law for assault by drugging the victim constitutes a "crime of violence" for purposes of the sentencing guidelines.  United States v. Rodriguez-Enriquez.  The court's conclusion, by a two-to-one decision, was that it does not.  Judge McWilliams dissented, but did not file an opinion.  (This is the first time that I can remember a Tenth Circuit dissent without an accompanying dissenting opinion.)

The defendant in the case received a 70-month sentence, the length of which was made dramatically longer based on the sentencing court's conclusion that the defendant's prior Colorado state conviction for assault by drugging was a "crime of violence," warranting a 16-level enhancement.

Because assault by drugging was not among the specific offenses enumerated in the Guidelines' definition of "crime of violence," the majority opinion (authored by Judge Hartz and joined by Judge Holmes) examined whether a conviction for nonconsensual administration of a drug should be characterized as "the use of physical force."  In particular, the opinion focuses  on what the word "physical" means in this context:

In what circumstances . . . are we likely to think of the force as being generated by physical means?  When someone is struck by a fist, a bat, or a projectile, we have no difficulty in characterizing the force against the person as physical.  In those instances the force on the victim is generated mechanically.  Kinetic energy from the fist, bat, or projectile is transferred to the body of the victim.  Although the matter is far from certain, the absence of colorable alternative meanings for physical suggests that it is the presence of this mechanical impact that defines when force is physical.  In contrast, the effect of poison on the body is achieved by chemical action, not by mechanical impact.

Supreme Court Justices, Unplugged

I don't know how this escaped my notice until now, but at a CLE website, lawprose.org, legal writing teacher Bryan Garner has posted video interviews of eight Supreme Court justices (Souter is the only omission) in which they share their thoughts on brief writing and oral advocacy.  All of the interviews are accessible here, and the quality of the audio and video is quite good.  It will take hours to review all of them, but an article from today's Legal Times by Tony Mauro briefly summarizes the highlights.

A Reason for Expert Witnesses Not to Change Their Minds

The Tenth Circuit issued a decision last night in the fascinating case of Pace v. Swerdlow, and it may have serious ramifications for those who make their living as expert witnesses in the Tenth Circuit.

In Pace, the plaintiffs had filed a medical malpractice action in Utah state court arising from the death of their daughter.  They hired Dr. Swerdlow as an expert witness in the case, and he concluded in his expert report that the defendants' care of the decedent was substandard and had likely caused the decedent's death.  In his deposition testimony, however, Dr. Swerdlow backed off a bit and admitted that he could not state within a reasonable degree of medical probability that she would not have died but for the defendants' actions.

If that weren't damaging enough to the plaintiffs' case, Dr. Swerdlow then drafted and faxed to all of the parties a two-page "addendum" to his deposition completely reversing course and stating that he now considered defendants' actions to have been within the standard of care.  Not surprisingly, the plaintiffs lost the case on summary judgment.

Plaintiffs then sued Dr. Swerdlow for, among other things, professional malpractice, fraud and negligent misrepresentation.  The district court granted a Rule 12(b)(6) motion to dismiss, but the Tenth Circuit reversed, holding that the plaintiffs had adequately pleaded causation.

Judge Gorsuch dissented based on the higher pleading standard set forth by the Supreme Court in last year's Twombly decision, but he also noted the policy implications of the majority's decision.  His discussion on this point, in my opinion, warrants extended quotation:

Allowing this claim to march along sends the message to would-be expert witnesses: Be wary – very wary – of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession. Neither can there be any doubt this is exactly the message plaintiffs wish to send, candidly explaining, as they do, that their real beef with Dr. Swerdlow was his failure to “deliver[] the expert liability opinion he had promised the Paces all along.”      . . . In our legal system, demanding that experts “deliver” a specified opinion, as opposed to their honest judgment, is supposed to be ethically out-of-bounds – not the basis for a cause of action.

Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court beyond the pleading stage simply for changing their opinions – with no factual allegation to suggest anything other than an honest change in view based on a review of new information – we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve.

Lost in Space

Max Ary, the defendant in United States v. Ary, No. 06-3383, was the President and CEO of the Kansas Cosmosphere and Space Center, a space museum.  In this capacity, he apparently removed a number of artifacts from the museum, sold them at auction, and pocketed the proceeds. Following Ary’s departure from his position the theft was discovered and Ary hired a lawyer.  His lawyer instructed him to prepare “notes and summaries of his involvement with the sale of artifacts” and Ary did so.  Subsequently Ary’s house was raided by the government, which seized space artifacts and various files (including some summaries prepared by Ary).  Ary’s lawyer corresponded with the government regarding his concern that privileged documents had also been seized, but never specifically identified the documents or their location. The seized documents were reviewed by a “taint team” to ensure that no attorney-client privileged or work product documents were reviewed by the prosecutors, and several documents were returned to Ary’s lawyer.  However, Ary’s lawyer later discovered, while reviewing Rule 16 discovery, that what he believed to be protected had been handed over to the prosecutors. The court held that the documents were, for the most part, not privileged and that Ary had waived the issue because he did not raise it immediately on discovering the documents in the governments files.

The Tenth Circuit addressed for the first time the appropriate standard for determining whether work product or attorney client protection are waived when documents are seized pursuant to a search warrant. It concluded, broadly, that “in the case of an involuntary disclosure, the party asserting the work-product doctrine or attorney-client privilege must pursue all reasonable means to preserve the confidentiality of the material.”  Under this standard, it held that the district court had properly determined that Ary had waived any privilege because he had failed to specifically identify the contents of the file box as pillaged when communicating with the government following the seizure and waited six weeks to assert the privilege following his discovery of the documents in the government’s files.