Jones v. United States

1

DEBRA JONES, et al., Plaintiffs, v. UNITED STATES, Defendant.

No. 13-227

United States Court of Federal Claims

May 7, 2024

Jeffrey S. Rasmussen, Patterson Earnhart Real Bird and Wilson, Louisville, Colorado, for the plaintiffs.

J Scott Thomas, Environment & Natural Resources Division U.S. Department of Justice, Washington, D.C., with Christopher C. Hair and Amanda K. Rudat, Department of Justice, of counsel, for the defendant.

MEMORANDUM OPINION

RICHARD A. HERTLING, JUDGE

On April 1, 2007, Todd Murray, a member of the Ute Tribe, died from a contact gunshot wound to his head inflicted while he was on the Ute Reservation in Utah. The factual question at the heart of this case is simple: who is the more likely person to have shot Mr. Murray? The plaintiffs, who are Debra Jones, Mr. Murray's mother, and the Estate of Arden Post, Mr. Murray's father, allege that Officer Vance Norton, a local police officer, fired the shot and thereby committed homicide. If true, the plaintiffs are entitled to damages under the "bad men" provision of the treaty between the Ute Tribe and the federal government.^[1] The defendant counters that it was Mr. Murray, who either accidentally or purposefully fired the fatal shot after first firing two shots at Officer Norton, and argues that no federal crimes necessary for liability under the Ute Treaty were committed that day by any state or local officers.

This case has been extensively litigated, and the plaintiffs, in particular Ms. Jones, have demonstrated great stamina, fortitude, and resolve in vigorously pursuing their claims. It began in 2009 with a civil rights suit under 42 U.S.C. §§ 1983 and 1985 in the District of Utah. The district court entered summary judgment against the plaintiffs, and the Tenth Circuit affirmed. Jones v. Norton, 3 F.Supp.3d 1170 (D. Utah 2014), aff'd, 809 F.3d 564 (10th Cir. 2015). The plaintiffs also filed suit in this court in 2013. After more than 10 years of litigation, with two appeals to the Federal Circuit, the plaintiffs' claims were tried in November 2023.

This opinion, written more than 17 years after the events giving rise to this suit occurred, does not and cannot definitively resolve what occurred on April 1, 2007. This decision can only resolve whether the plaintiffs have met their required burden under the law, based on the evidence presented, to impose liability on the defendant. Many documents were received into evidence and extensive testimony was taken at trial and at a separate, earlier evidentiary hearing on an appropriate sanction for the defendant's spoliation of evidence. Even so, memories have faded. Evidence has been lost to time, was never collected, or has even been destroyed, including a .380 Hi-Point handgun that was found near Mr. Murray and seized by the defendant.

Because the defendant's destruction of the .380 Hi-Point was found to have been negligent, the defendant was sanctioned with a rebuttable adverse evidentiary presumption that the .380 Hi-Point did not have Mr. Murray's blood, tissue, DNA, or fingerprints on it. That sanction enabled the plaintiffs to avoid summary judgment and reach trial. The sanction also enabled the plaintiffs to overcome the defendant's motion for judgment on partial findings under Rule 52(c) of the Rules of the Court of Federal Claims ("RCFC"), because the presumption made it unlikely that Mr. Murray had ever touched or used the destroyed firearm.

The issue of who fired the shot that killed Todd Murray was tried and is now ripe for resolution. The questions to be determined from trial are whether the defendant has met its burden to overcome the adverse evidentiary presumption, and whether the plaintiffs have met their burden of proof to prevail on the merits.

This decision constitutes the findings of fact and conclusions of law required by RCFC 52(a)(1). Based on the evidence, the defendant has rebutted the adverse presumption imposed for its destruction of evidence by showing that it is more likely than not that Mr. Murray possessed and brought the .380 Hi-Point to the scene of the shooting on April 1, 2007. With the adverse presumption rebutted, the evidence shows that it is more likely than not that Mr. Murray died by a self-inflicted gunshot wound. Consistent with this factual finding, the plaintiffs cannot show that a federal crime was committed by any of the responding or investigating state or local officers. Because no federal crime was committed, Mr. Murray's death is not compensable by the defendant under the Ute Treaty. Judgment will be entered in favor of the defendant.

I. PROCEDURAL HISTORY

A. Prior Rulings

This opinion assumes familiarity with this case's extensive history. See Jones v. United States, 122 Fed.Cl. 490 (2015) ("Jones I"); Jones v. United States, 846 F.3d 1343 (Fed. Cir. 2017) ("Jones II"); Jones v. United States, 146 Fed.Cl. 726 (2020) ("Jones III"); Jones v. United States, 149 Fed.Cl. 335 (2020) ("Jones IV"); Jones v. United States, No. 2020-2182, 2022 WL 473032 (Fed. Cir. Feb. 16, 2022) ("Jones V"); Jones v. United States, No. 13-227, 2023 WL 2681819 (Fed. Cl. Mar. 29, 2023) ("Jones VI"). This opinion also assumes familiarity with the related litigation in the District of Utah and the subsequent appeal. Jones v. Norton, 3 F.Supp.3d 1170 (D. Utah 2014), aff'd, 809 F.3d 564 (10th Cir. 2015).

In Jones I, a judge of this court dismissed the plaintiffs' claims. In Jones II, the Federal Circuit vacated the dismissal and remanded for consideration of the plaintiffs' argument that the defendant had spoliated evidence by failing to collect and preserve certain alleged pieces of evidence. Jones II, 846 F.3d at 1363-64.

In Jones III, the plaintiffs' motion for spoliation sanctions was granted in part and denied in part. The plaintiffs sought sanctions for the defendant's supposed spoliation by failing to collect and preserve evidence in 11 respects. Jones III, 146 Fed.Cl. at 735-36. Except for the .380 Hi-Point, no evidence was found to have been spoliated. Id. at 737-43. Based on the determination that the .380 Hi-Point had been negligently spoliated, the defendant was forbidden from "rely[ing] affirmatively on any facts related to the .380 handgun, including the fact that the third shell casing was not ejected from the destroyed handgun and the presence or absence of fingerprints or blowback on the handgun, to support the [defendant's] conclusion that Mr. Murray died by suicide." Id. at 742-43.

The defendant was granted summary judgment in Jones IV because issue preclusion applied to the plaintiffs' claims, notwithstanding the spoliation sanction imposed for the destruction of the .380 Hi-Point. Jones IV, 149 Fed.Cl. at 348-54. In addition, two sets of the plaintiffs' claims were determined not to have been "wrongs" under the "bad men" provision of the Ute Treaty. First, the plaintiffs' claims based on alleged wrongs that were not punishable under federal criminal law were rejected. Id. at 354-56. Second, the claims that only implicated conduct that occurred solely off-reservation were rejected. Id. at 356-57. The plaintiffs were found not to have provided sufficient proof to show even on summary judgment that certain alleged federal crimes had occurred, and the plaintiffs were estopped from re-arguing issues relating to certain other alleged federal crimes due to issue preclusion arising from the summary judgment in the Utah district court litigation. Id. at 357-62.

In Jones V, the Federal Circuit held that the decision in Jones III had applied the "wrong standard" in evaluating whether the defendant had "control" of any of the evidence in deciding whether the defendant had spoliated that evidence. Jones V, 2022 WL 473032, at *1, 4. In so doing, the Federal Circuit held that the defendant, like any other party, has "control" over evidence when "it has a legal right to obtain or control that evidence." Id. at *4, 8. The Federal Circuit also rejected the sanction imposed for the defendant's destruction of the .380 Hi-Point handgun in Jones III as "futile." Id. at *9-11. Specifically, the Federal Circuit held that "[a]lthough a sanction preventing the spoliator from relying on the evidence they destroyed might be appropriate in other cases, it is not appropriate in this case because it serves none of the rationales underlying the spoliation doctrine." Id. at *11. According to the Federal Circuit, "[c]onsidering the import of the Hi-Point .380 handgun to Mr. Murray's parents' case, a harsher sanction is required." Id. at *9.

The Federal Circuit therefore remanded the case to determine: (1) whether the defendant controlled and spoliated evidence relating to the defendant's supposed failure "to enforce its request for an autopsy and failure to bag Mr. Murray's hands," id. at *8; (2) "whether litigation was reasonably foreseeable while the government had control (as we define it here) over any allegedly spoliated evidence other than the spoliated Hi-Point .380 handgun," and, accordingly, whether any such evidence was spoliated, id. at *9; and (3) "to determine the exact bounds of the appropriate remedy, such as an adverse inference or inferences, that should apply to any spoliated evidence in this case," including "whether the government should be permitted to rely on secondary evidence related to the spoliated [.380 Hi-Point handgun]," id. at *11.

Having vacated the rulings on spoliation, the Federal Circuit reversed the Jones IV ruling on issue preclusion and vacated the summary judgment for the defendant. The Federal Circuit held that issue preclusion did not apply based on the change wrought by its decision to the evidentiary landscape and remanded for further consideration of the plaintiffs' substantive allegations of violations of the bad...