U.S. Tenth Circuit: August 2010 Archives
U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

August 2010 Archives

Flood v. ClearOne Communications, Inc., No. 09-4017

Flood v. ClearOne Communications, Inc., No. 09-4017, involved defendant's appeal from a preliminary injunction requiring defendant-corporation to advance attorney fees and costs to its former CEO, who was then facing a criminal trial.  The court vacated the order on the ground that the district court misread the parties' contract as a matter of law, disregarding express conditions to advancement specified in their agreement.

Deutsch v. Jordan, No. 09-8042, involved an action bringing federal civil-rights and state-law claims against the City of Laramie, Wyoming, based on plaintiff's termination as police chief.  The court affirmed in part the denial of summary judgment for defendant, holding that 1) not only was speech alleging that the police chief misused city funds ordinarily speech on a matter of public concern, but so, too, was speech defending against such allegations; and 2) the court of appeals could not rule in defendant's favor without reversing the district court's determination that there was a factual dispute regarding her state of mind.

American Atheists, Inc. v. Duncan, No. 08-4061

American Atheists, Inc. v. Duncan, No. 08-4061, involved an Establishment Clause Challenge to the decision of the Utah Highway Patrol Association, with the permission of Utah state authorities, to erect a number of twelve-foot high crosses on public land to memorialize fallen Utah Highway Patrol troopers.  The court reversed summary judgment for defendants on the ground that the memorials had the impermissible effect of conveying to the reasonable observer the message that the state preferred or otherwise endorsed a certain religion.

Lundstrom v. Romero, No. 08-2254, concerned a civil rights action claiming a prolonged detention of plaintiffs.  The court reversed summary judgment for defendant-officers, holding that plaintiffs alleged facts sufficient to demonstrate the officers violated their clearly established constitutional rights because, while the circumstances the officers confronted initially supported a brief investigatory detention, objectively reasonable officers would not have prolonged the detention and searched the home on the facts before them.

Stearns v. Clarkson, No. 09-3103

Stearns v. Clarkson, No. 09-3103, involved an action arising out of plaintiff's arrest and strip search.  The court affirmed in part the denial of defendants' motion for summary judgment, holding that the facts would not lead a reasonable person to conclude that probable cause existed to arrest plaintiff for disorderly conduct.  However, the court reversed in part, on the ground that, while the record did not support a conclusion that defendant himself reasonably believed probable cause existed to arrest plaintiff, it in no way undermined his reliance on "the flawed conclusions of [his] fellow police officers."

Excessive Force Case, and Criminal and Tort Matters

Brooks v. Gaenzle, No. 09-1489, concerned an action claiming that defendant-officers violated plaintiff's Fourth Amendment right to be free from unreasonable seizure by use of excessive force when they shot him after he fled the scene of a violent crime.  The court affirmed summary judgment for defendants on the grounds that 1) the authorities did not gain "intentional acquisition of physical control" over plaintiff; 2) the mere use of physical force or show of authority alone, without termination of movement or submission, did not constitute a seizure; and 3) the officer's gunshot may have intentionally struck plaintiff, but it clearly did not terminate his movement or otherwise cause the government to have physical control over him.

Therrien v. Target Corp., No. 09-5047

Therrien v. Target Corp., No. 09-5047, involved an action claiming that plaintiff was stabbed when he tried to help apprehend a shoplifter at a Target store.  The court affirmed judgment for plaintiff on the grounds that 1) the jury could rationally find that a customer's decision to enter the fray was not an intervening cause because it was "reasonably foreseeable"; 2) the district court properly refused to instruct the jury that defendant had no duty to warn or protect plaintiff from apparent dangers and that it is not liable if there was no time to warn or protect him; and 3) the district court properly excluded evidence of plaintiff's psychological history and prior bad acts.

Dodds v. Richardson, No. 09-6157

Dodds v. Richardson, No. 09-6157, concerned an action claiming that defendant-sheriff violated plaintiff's Fourteenth Amendment due process rights by depriving him of his protected liberty interest in posting bail.  The court affirmed the denial of summary judgment to defendant based on qualified immunity, holding that 1) defendant has yet to proffer any reason, let alone a "legitimate goal," for refusing to allow plaintiff to post bail and detaining plaintiff for three days, other than the assertion that the longstanding policies or customs at the jail, allegedly set by either the court clerk or the district judges, prohibited individuals charged with a felony from posting bond until they had been arraigned by a judge and from posting bond after hours; and 2) plaintiff's right to be free from unjustified detention after his bail was set was clearly established such that a reasonable official in defendant's position in April 2007 would have understood that his deliberately indifferent maintenance of the policies that prevented arrestees from posting preset bail for no legitimate reason violated the Constitution.

US v. Landeros Lopez, No. 09-8056

In US v. Landeros Lopez, No. 09-8056, the court affirmed defendant's conviction for conspiracy to traffic in methamphetamine on the ground that, when read in combination with the prosecutor's statements and the plea colloquy, a presentence report provided a sufficient factual basis for the court to accept defendant's plea.  However, the court vacated defendant's sentence on the ground that, by definitively announcing defendant's sentence before providing him with an opportunity to speak on his own behalf, the district court prematurely adjudged his sentence.

Flitton v. Primary Res. Mortgage, Inc. No. 09-4108

In Flitton v. Primary Res. Mortgage, Inc. No. 09-4108, the court affirmed the district court's order awarding plaintiff $367,689.00 in attorney's fees as a prevailing party in a Title VII lawsuit, holding that 1) the district court correctly concluded that plaintiff's successful retaliation claim and her unsuccessful discrimination and punitive damages claims were interrelated; 2) the district court's assessment of her overall level of success was not an abuse of discretion; and 3) the district court conducted a thorough review of plaintiff's attorneys' billing entries and reduced the fee award based on the inadequacy of eleven specific entries.

US ex rel. Lemmon v. Envirocare of Utah, Inc., No. 09-4079

US ex rel. Lemmon v. Envirocare of Utah, Inc., No. 09-4079, involved a False Claims Act action against a government contractor by one of its former employees alleging improper hazardous-and-radioactive-waste-disposal.  The court reversed the dismissal of the complaint, holding that 1) implied false certification claims did not involve -- let alone require -- an explicit certification of regulatory compliance; and 2) to sustain their express certification claims, plaintiffs needed only to have alleged, with sufficient factual basis, that the requests contained a false statement and that the statement was material to the government's decision to pay.

Braxton v. Zavaras, No. 10-1053, involved an action by Colorado prisoners proceeding pro se, alleging that defendants violated their civil rights during a public strip search at a correctional facility.  The court of appeals affirmed the dismissal of the action as untimely, holding that 1) the Colorado Supreme Court had not held that the statute of limitations was automatically tolled whenever a person is involved in any administrative review process; and 2) plaintiffs did not diligently pursue their claims following the exhaustion of their administrative remedies.

Felon in Possession Conviction Affirmed

In US v. Martin, No. 09-3310, the court of appeals affirmed defendant's conviction for being a felon unlawfully in possession of a firearm, holding that the arresting officers had probable cause to arrest defendant as a suspect in the shooting, and they faced exigent circumstances sufficient to justify effecting that arrest inside an apartment building's entryway.

As the court wrote:  "Confronted at the entryway of his apartment building by officers who
suspected him of a shooting earlier in the day, Michael Martin was arrested, searched, and found carrying a gun. Charged with being a felon unlawfully in possession of a firearm, Mr. Martin moved to suppress evidence about the weapon from his anticipated trial, claiming his seizure and subsequent search violated the Fourth Amendment. The district court denied the motion, and today we affirm. The arresting officers in this case had probable cause to arrest Mr. Martin as a suspect in the shooting, and they faced exigent circumstances sufficient to justify effecting that arrest inside the apartment building's entryway. Because of this, we conclude, the officers' actions complied with, not violated, the Fourth Amendment."

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Wire Fraud Convictions Affirmed

In US v. Mullins, No. 09-1031, the court of appeals affirmed defendants' wire fraud convictions and sentences, on the grounds that 1) a "new or increased risk of loss" was plainly a material, detrimental effect on a financial institution, and fell squarely within the proper scope of the statute; 2) the statute of limitations did not expire as to certain offenses because the jury could find that, by using fraudulent information to obtain loans, defendant and her customers exposed the companies to a greater risk of loss that persisted at least until extinguished by the final loan payment; and 3) the use of interstate wires was integral to defendants' fraudulent scheme.

As the court wrote:  "LaDonna Mullins and Linda Edwards both owned real estate businesses in the Denver metro area. Both also entered into a scheme to defraud the U.S. Department of Housing and Urban Development ("HUD") by using false information to obtain loans insured by the Federal Housing Administration ("FHA"). For this, Ms. Mullins and Ms. Edwards were indicted for and convicted of wire fraud, among other things."

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