Rocky Mountain Appellate Blog

Qualified Immunity

Kerns v. Bader (No. 9-2273) is a lengthy opinion concerning a set of lawsuits by an individual wrongly arrested for shooting down an Albuquerque police helicopter (charges were later dropped after the police ballistics expert changed his opinion regarding whether the bullet found in the helicopter could have come from the guns owned by the plaintiff). Somewhat unusually, all of the defendants were denied qualified immunity and appealed that denial, rather than the other way around. Because it touches on a number of qualified immunity issues, and included a detailed dissent, I have simply summarized the high points.

The first set of defendant officers entered the Plaintiffs’ home the night of the shooting without a warrant; allegedly because they believed the shooter might be inside. The district court analyzed only the first prong of the qualified immunity test (the existence of an actual violation of the plaintiff’s Fourth Amendment rights) and did not determine whether the right violated was clearly established. The Tenth Circuit considered this issue to be fact specific, and a close call. It accordingly remanded this issue to be addressed by the district court in the first instance. The dissent would have affirmed the denial of qualified immunity, as it believed the issue of the presence of exigent circumstances was a factual issue that the court could not review as part of an interlocutory appeal.

The second defendant allegedly violated the plaintiff’s Fourth and Fourteenth amendment rights by asking a hospital to share records concerning the plaintiff’s psychiatric treatment to determine whether he was permitted to own certain guns found in his home. The Tenth Circuit held that the law in this area was not clearly established and reversed the denial of qualified immunity. The dissent questioned the defendant’s decision to seek highly personal medical records of treatment for psychiatric conditions, rather than simply search public records for an adjudication of competency. It argued that he “undertook to obtain all of … [plaintiff’s] records, in spite of their privileged nature, without consent, without a warrant or any other judicial process, in the complete absence of exigent circumstances, and without probable cause; his request was based only on his suspicion that a crime might have been committed. If constitutional privacy protections mean anything at all, this conduct violated [p]laintiff’s right of privacy.”

The final set of defendants was accused of false arrest, false imprisonment, and malicious prosecution. The Tenth Circuit held that because probable cause existed to support the plaintiff’s arrest and detention until the charges against him were dismissed, the defendants were entitled to qualified immunity. The dissent concluded that a proper affidavit would not have demonstrated probable cause.

Colorado Supreme Court Announces Significant Rules Changes

The Colorado Supreme Court recently approved significant rules changes, including changes to the Colorado Appellate Rules, involving the computation of time and various due dates. 

Among other things, the changes include repealing the provision allowing lawyers to tack on three additional days to a response deadline; eliminating the provision that provides for skipping holidays and weekends when the response time is less than eleven days; and changing the deadlines for the filing of appellate briefs.  With respect to appellate brief deadlines, the time has been lengthened.  Opening briefs are now due 42 days after the record is filed, response briefs are due withing 35 days, and reply briefs must be filed within 21 days.

The redlined rules showing the changes can be found here.  The changes take effect on January 1, 2012.

Scope of a Frisk

In United States v. Rochin, No. 11-2024 the Tenth Circuit held that an officer conducting a search as part of a Terry stop may remove objects from the pocket of a suspect so long as a reasonable officer could have concluded that the object “might be used as an instrument of assault.” Put another way, it adopted the holding of the D.C. Circuit that the scope of a Terry frisk is not limited to traditional weapons.

It is hard to see what an officer might feel in a pat down that he could not reasonably suspect to be a potential instrument of assault. While crafting a narrower rule might not have been possible, this decision appears to have the effect of giving an officer blanket authority to empty a suspect’s pockets.

Rocky Mountain Appellate Blog: Five Years and Counting

Five years ago this past weekend, I put up the the first post on the Rocky Mountain Appellate Blog.  Nearly 800 blog posts later, we're still going strong.  Thanks to all of my colleagues who have contributed to our content over the years, and thanks to many more of my friends and colleagues who have provided encouragement and support.

Petition for a “Writ of Audita Querela”

I had never heard this term before, but it translates as “hear the complaint” and is (or was) used to “challenge a judgment that was correct when entered by later rendered infirm.” It was specifically abolished by Federal Rule of Procedure 60(e) along with bills of review, bills in the nature of bills in review, writs of coram nobis, and writs of coram vobis. (A quick trip to Blacks informs me that a writ of coram nobis, “before us,” is a writ of error from the Kings Bench and that a writ of coram vobis, “before you,” is a writ of error from any other court).  However, the Tenth Circuit assumes without deciding that a writ of audita querela remains available under the All Writs Act.

In United States v. Montano (No. 11-2119) the Tenth Circuit held, expanding on a footnote in a prior case, that this writ is not available when a remedy is present under 22 U.S.C. 2255, even if statutory relief is time barred.

U.S. Supreme Court Grants Cert in Secret Service Case

Earlier this year the Tenth Circuit issued its decision in Howards v. McLaughlin, which, as I described here, was an unequivocal win for the two Secret Service agents represented by our firm, but a disappointing loss for the two remaining agents who remained in the case as a result of the decision.

The two remaining agents filed a cert petition in April.  They were joined by the Department of Justice and six states (including Colorado) who participated as amici in support of the petition.

The Supreme Court granted the petition this morning.  Bloomberg has this report. (h/t Rudy Verner)

Lyle Denniston at Scotusblog describes the issue before the Supreme Court this way:

The case will require the Court to sort out the impact on the case of its own ruling in 2006, in the case of Hartman v. Moore.  In that case, the Court said that, if there is probable cause sufficient to justify filing charges, then that neutralizes a claim that the prosecution was started in retaliation for criticizing a public official or agency.   In the new Secret Service agents’ case, the Tenth Circuit said that precedent only dealt with retaliatory prosecution, not retaliatory arrest.   The federal Circuit Courts are split on that last point, and that division is apparently what led the Supreme Court to step in.

10th Circuit Upholds Oklahoma Death Sentence

The Daily Oklahoman has this story on the Tenth Circuit's decision issued today in Ochoa v. Workman.  The court upheld an Oklahoma death sentence imposed against defendant George Ochoa, who was convicted of the 1993 murders of Francisco Morales and Maria Yanez in their Oklahoma City home.  The decision, which was not designated for publication, can be viewed here.

As the decision explains in footnote 1, the appeal dates back to 2002.  After all the briefing was complete and the case set for oral argument, the Tenth Circuit granted a stay so that Ochoa could pursue a mental retardation claim in state court.  See Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Eighth Amendment prohibits execution of mentall retarded individuals).  The stay delayed the case another nine years while Ochoa pursued his Atkins claim, which is the subject of a separate appeal that remains pending in the Tenth Circuit.