FILED

United States Court of Appeals

Tenth Circuit

December 29, 2015

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEBRA JONES and ARDEN C.

POST, individually and as the natural
parents of Todd R. Murray; DEBRA
JONES, as personal representative of
the Estate of Todd R. Murray, for and
on behalf of the heirs of Todd R.
Murray,
Plaintiffs - Appellants,
v.
VANCE NORTON, Vernal City police
officer in his official and individual
capacity; VERNAL CITY;
BLACKBURN COMPANY, d/b/a
Thomas-Blackburn Vernal Mortuary;
DAVE SWENSON, in his individual
capacity; CRAIG YOUNG, in his
individual capacity; REX OLSEN, in
his individual capacity; JEFF CHUGG,
in his individual capacity;
ANTHONEY BYRON, in his
individual capacity; BEVAN
WATKINS, in his individual capacity;
TROY SLAUGH, in his individual
capacity; SEAN DAVIS, in his
individual capacity; UINTAH
COUNTY,
Defendants - Appellees.
______________________________
DEBRA JONES, individually and as
the natural parent of Todd R. Murray,
and as personal representative of the

No. 14-4040

Estate of Todd R. Murray, for and on

behalf of the heirs of Todd R. Murray;
ARDEN C. POST, individually and as
the natural parent of Todd R. Murray,
Plaintiffs - Appellants,
v.

No. 14-4144

VANCE NORTON, Vernal City police

officer in his official and individual
capacity; VERNAL CITY;
BLACKBURN COMPANY, d/b/a
Thomas-Blackburn Vernal Mortuary;
DAVE SWENSON, in his individual
capacity; CRAIG YOUNG, in his
individual capacity; REX OLSEN, in
his individual capacity; JEFF CHUGG,
in his individual capacity;
ANTHONEY BYRON, in his
individual capacity; BEVAN
WATKINS, in his individual capacity;
TROY SLAUGH, in his individual
capacity; SEAN DAVIS, in his
individual capacity; UINTAH
COUNTY,
Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH
(D.C. Nos. 2:09-CV-00730-TC-EJF and 2:09-CV-00730-TC-BCW)

Frances C. Bassett and Jeffrey S. Rassmussen (Thomas W. Fredericks, Jeremy J.

Patterson, Martha L. King, and Matthew J. Kelly, and Todd K. Gravelle, with
them on the briefs), of Fredericks Peebles & Morgan LLP, Louisville, Colorado,
for Plaintiffs-Appellants.

J. Clifford Petersen, Assistant Attorney General for the State of Utah (Sean D.
Reyes, Utah Attorney General, with him on the brief), Salt Lake City, Utah, for
State Defendants-Appellees, Dave Swenson, Craig Young, Rex Olsen, Jeff Chugg
and Sean Davis.
Jesse C. Trentadue (Britton R. Butterfield with him on the brief) of Suitter Axland
PLLC, Salt Lake City, Utah, for Defendants-Appellees Vance Norton, Vernal
City, Anthoney Byron, Bevan Watkins, Troy Slaugh and Uintah County.
Nathan R. Skeen (Julianne P. Blanch and Robert W. Thompson, with him on the
brief), of Snow, Christensen & Martineau, Salt Lake City, Utah, for DefendantAppellee Blackburn Company, Inc.

Before BRISCOE, McKAY and BACHARACH, Circuit Judges.

BRISCOE, Circuit Judge.

This case arises from the death of Ute Tribe member Todd R. Murray on
April 1, 2007, following a police pursuit. Murrays parents Debra Jones and
Arden Post, on behalf of themselves and Murrays estate, brought a 13-count
complaint in the district court alleging various constitutional violations under 42
U.S.C. 1983, conspiracy to violate civil rights under 42 U.S.C. 1985, and state
tort claims. These claims were alleged in varying permutations against nine
individual law enforcement officers, their government employers, and a private
mortuary (collectively, Defendants). Plaintiffs also sought sanctions against
Defendants for alleged spoliation of evidence. The district court granted
summary judgment to the mortuary on Plaintiffs emotional distress claim, and to

all remaining Defendants on all federal claims. The court also dismissed as moot
Plaintiffs motion for partial summary judgment on the status of Indian lands, and
denied Plaintiffs motion for spoliation sanctions. The district court declined to
exercise supplemental jurisdiction over the remaining state law torts after
disposing of the emotional distress claim and the federal claims. Costs were
taxed in favor of Defendants, and the court denied Plaintiffs motion to reconsider
the taxation of those costs. Plaintiffs now appeal all of these rulings in two
appeals. In Case No. 14-4040, we affirm the district court on each issue. As
regards Case No. 14-4144, we affirm the district courts denial of sanctions
against the City of Vernal, but we dismiss the appeal of taxation of costs because
we lack appellate jurisdiction.
I
On the morning of April 1, 2007, Trooper Dave Swenson of the Utah
Highway Patrol was involved in a high-speed chase of a vehicle in which Murray
was the passenger. At some point during the chase, Swenson conveyed to
dispatch that the driver appeared to be a tribal male. The driver eventually ran
off the road in a remote desert area within the Ute Tribes Uncompahgre
Reservation (Reservation). Trooper Swenson, who was in uniform, got out of
his patrol car and shouted at the two men to stop and get on the ground. Plaintiffs
contend that Murray paused for a moment before running from the car, but the
troopers dashboard camera video reveals no perceptible pause. Swenson did not
4

see any weapons in Murrays hands or waistband. Murray and the driver ran in
opposite directions, and Swenson notified dispatch that two runners, both
tribal males, had fled on foot. Swenson pursued the driver, eventually arresting
him.
Three nearby officers responded quickly to the chase: off-duty City of
Vernal Police Detective Vance Norton, Utah Highway Patrol Trooper Craig
Young, and Uintah County Sheriffs Deputy Anthoney Byron. When these
officers arrived, Swenson pointed them in Murrays direction. Norton, Byron,
and Young then began searching the desert for Murray. None of these officers
were cross-deputized to exercise law enforcement authority on the Reservation.
The search ended when Murray suffered a fatal gunshot wound to the head.
Plaintiffs contend that Detective Norton shot Murray, but Defendants contend that
Murray shot himself. Norton testified that as he crested a hill on foot, he saw
Murray and shouted, Police, get on the ground. App. Vol. III at 2410. Norton
was wearing plain clothes, and estimates he was approximately 140 yards away
from Murray. Murray did not get on the ground, but instead ran in Nortons
general direction. As Murray drew closer, Murray fired a shot at Norton, which
landed near Nortons feet. Detective Norton returned fire, shooting twice in rapid
succession, and ran back up the hill he had just come down. When he reached
what he believed to be a safe distance, he began to dial dispatch on his cell phone.
While Norton attempted this call, he saw Murray put the gun to his head. And I
5

think I told himonce or twice screamed, you know, [p]ut the gun down, and then
he pulled the trigger, and he just went straight down. App. Vol. XI at 3236. A
later investigation conducted by the Federal Bureau of Investigation (FBI), which
has exclusive jurisdiction to investigate incidents on the Reservation involving
non-tribal law enforcement officers, revealed that Detective Nortons .40 caliber
shell casings were 113 yards from where Murray was shot. When Norton reached
dispatch, he notified them that Murray just shot himself in the head and
requested an ambulance. App. Vol. VI at 1827.
In the meantime, before shots were fired, Deputy Byron and Trooper Young
were also searching for Murray. Byron testified that he and Young were walking
through a gully, and saw Norton standing on the top of a hill. Byron heard some
crackling noise, but was not sure if it was a gunshot. App. Vol. VIII at 2420.
As they made their way through the gully, Byron saw Murray walking, and . . .
swinging his arms. Id. Byron could not tell whether Murray was holding
anything. Byron then again heard crackling, could no longer see Detective
Norton, and saw Murray go[] from walking to going down. Id. Byron
estimated he was at least 200 yards from Murray, and 400 to 500 yards from
where he saw Norton on the top of the hill. He did not see anyone else.
Byron and Young then reunited with Norton on the hill where they had just
seen him. Byron and Young proceeded down the hill, guns drawn, to where
Murray was lying. Murray was on his back, bleeding from a gunshot wound to
6

the head. He was unconscious, but still breathing. Trooper Young testified that
he saw a .380 caliber gun and casings on the ground near Murray. Byron rolled
Murray from his back onto his side and handcuffed him while Young kept his
weapon aimed at Murray. None of the officers attempted to provide first aid or
any other assistance. Murray remained unconscious, lying on his right side and
handcuffed, until the ambulance arrived.
Plaintiffs vehemently dispute Detective Nortons and Deputy Byrons
testimony that Murray shot himself. Plaintiffs believe Norton shot Murray
execution-style at close range and planted the .380 caliber gun found near
Murrays body. To support their theory, Plaintiffs point principally to the fact
that Murray was right-handed, but the shot entered the left side of his head.
Plaintiffs various experts in police procedures opined that a conclusion that a
right-handed person inflicted a gunshot wound to the left side of his own head is
suspicious, and it is usually necessary to corroborate that conclusion with other
forensic trace evidence, such as blood blowback on the victims hands.
The remaining individual Defendants arrived either in the half hour before
the ambulance arrived, or shortly after the ambulance took Murray to the hospital
and their minor involvement need not be recited. These Defendants are: Division
of Wildlife Resource Investigator Sean Davis, Uintah County Sheriffs Deputies
Troy Slaugh and Bevan Watkins, Utah Highway Patrol Trooper Rex Olsen, and
Utah Highway Patrol Lieutenant Jeff Chugg.
7

Agent Rex Ashdown, the FBI agent assigned to the investigation, arrived
after Murray was taken to the hospital. Neither the FBI, nor any FBI agents are
named defendants in this lawsuit. According to Ashdown, officers at the scene
told him that Murray shot himself, and this influence[d] how he went about the
investigation. App. Vol. XVII at 5545. Ashdown admits he took some
information from the officers at face value. Id. at 5560. Agent Ashdown: (1)
took custody of the .380 gun and shell casings found near Murray, but did not
order any testing; (2) did not confiscate Detective Nortons gun or order any
testing; and (3) did not confiscate either Murrays or any of the officers clothing,
testifying later that Nortons clothes and hands appeared clean. Agent Ashdown
retired about two months later.
After Agent Ashdown retired, FBI Agent David Ryan took over the
investigation of Murrays death. The FBI later used the .380 caliber weapon as
evidence in an unrelated prosecution, and the gun was destroyed after the
conclusion of that prosecution pursuant to a court order in that case. Although
Agent Ryan knew the gun was evidence in an officer-involved shooting, he did
not notify the Utah Highway Patrol, the Uintah County Sheriffs, or the City of
Vernal Police that it was going to be destroyed. Nor did he attempt to prevent the
gun from being destroyed.
Detective Nortons gun and shell casings were recovered from the scene.
As far as the record reveals, the casings are still in the possession of Vernal City
8

police. After Murrays death, Vernal Chief of Police Greg Jensen, not a
defendant here, inspected Nortons gun visually, kept it for several days, and then
returned it to Norton.
While the investigation at the scene was underway, Murray was taken to a
hospital in Vernal, Utah, where he was pronounced dead. Deputy Byron, who had
accompanied the ambulance to the hospital, was joined there by two other officers
who are not defendants in this action. After Murrays death, the three men began
what they later claimed was evidence collection: taking photographs of Murrays
body, gathering his clothing in bags, and putting bags over Murrays hands. A
member of the hospital staff drew a vial of blood from Murrays body at the
officers request. One of the officers took Murrays clothes and the blood, but it
is unknown what became of these items.
Deputy Byron placed his index finger in both of Murrays head wounds.
According to Byron, he did this to determine the location of the entrance wound
and the exit wound. But Plaintiffs experts testified that this tampering was not
only unusual, but potentially harmful to the investigation. One expert stated that
in his thirty years of experience in police practices, he had never heard or seen
an instance where a law enforcement officer inserted a finger into a gunshot
wound prior to examination by the medical examiner, which can introduce
contamination, remove evidence and alter the appearance of the wound. App.
Vol XVIII at 5688. Even experts retained by Defendants agreed that there was no
9

reason for the turning, moving of limbs, [and] undressing of Murray, and that
probative trace evidence could have been lost as a result. App. Vol VI at
162829. Nonetheless, Dr. Edward Leis, the Deputy Medical Examiner who
performed the official medical examination of Murrays body, testified that any
potential contamination caused by the officers meddling would not have altered
his determination regarding the location of the entry and exit wounds or his
conclusion that Murray died of a self-inflicted gunshot wound. Dr. Leis is not a
defendant in this action.
Murrays body was transported from the hospital to The Blackburn
Company (Blackburn), a mortuary and funeral home, where it was kept until the
medical examiners office could retrieve it the following day. Colby DeCamp, a
mortuary apprentice, was asked by law enforcement officers to draw blood.
DeCamp, who is also not a defendant in this action, testified that he remembered
at least the following officers were present: Chief Jensen, Detective Norton, and
Keith Campbell (a Deputy Medical Examiner and a Deputy Sheriff, not a
defendant). In order to draw the blood, DeCamp made an incision in Murrays
neck, which he testified is a common practice used to draw blood from deceased
persons who have sustained significant blood loss. After drawing the blood,
DeCamp immediately gave the sample to the officers, but it is unknown what
became of the blood sample after that. Plaintiffs described the incision as a
jagged-gash on Murrays remains. App. Vol. IV at 1231. Plaintiffs believe the
10

incision in the neck was an effort to send a threatening message to Murrays

family, but DeCamp testified that he did not know Murray or his family, nor did
he believe that the incision would cause emotional distress.
The following day, Murrays body was taken to the Utah State Office of the
Medical Examiner where Dr. Leis performed an examination. Dr. Leis testified
that he did not believe Murrays injury was survivable, or at least Murray would
have remained in a chronic vegetative state, App. Vol. XVII at 5537, and thus
the officers who were at the scene could not have saved his life by administering
aid. Plaintiffs forensics experts opined that many victims of gunshot injuries to
the head survive, App. Vol. XIII at 3789, and that Murrays injury would not be
considered universally . . . fatal, App. Vol. XVIII at 5687, but these experts did
not offer evidence that Murrays particular injury was surviveable.
Although Agent Ashdown requested that a full autopsy be performed, Dr.
Leis decided to conduct only an external physical examination. According to Dr.
Leis, after performing the external physical examination and reading a
preliminary report prepared by Keith Campbell the prior evening, he concluded
that a full autopsy was unnecessary. A full autopsy might have revealed more
information about the trajectory and type of bullet that killed Murray, as well as
whether there was any evidence of a struggle which may have preceded his death.
Dr. Leis determined that the wound on the left side of Murrays head was
the entrance wound and that the wound on the right was the exit wound. Because
11

of soot in the entrance wound and surrounding abrasions to the skin, Dr. Leis
concluded that the gun was in close proximity to the skin when it was discharged,
and described the entry wound as a contact wound. Id. at 3364. Dr. Leis
completed a death certificate that listed the cause of Murrays death as suicide
resulting from a gunshot wound to the head.
II
Following Murrays death, Plaintiffs filed a civil suit in Utah state court,
which included numerous claims. The State of Utah, no longer a party, removed
the action to federal court. After entering several rulings, the district court has
now disposed of all claims contained in the Plaintiffs third and final amended
complaint. The district court first entered summary judgment in favor of
Blackburn on Plaintiffs claim of intentional infliction of emotional distress. The
district court also twice denied Plaintiffs leave to amend their emotional distress
claim. The district court then ruled that the United States treaty with Murrays
tribe, the Ute, did not give rise to a private right of action against municipalities
or individuals enforceable through 42 U.S.C. 1983, and dismissed that count on
the pleadings. The district court then issued a trio of opinions, granting summary
judgment to all municipal and individual Defendants on the remaining civil rights
claims (unlawful seizure, excessive force, failure to intervene, and conspiracy),
dismissing the remaining state tort claims, and dismissing as moot Plaintiffs
motion for partial summary judgment on the status of Indian lands. The district
12

court also denied Plaintiffs motion to reconsider an earlier ruling that the Utah
Governmental Immunity Act applies to the defendant officers. Finally, the
district court denied Plaintiffs request for sanctions against all individual
Defendants and Uintah County for alleged spoliation of evidence, but reserved
judgment on whether the City of Vernal might be liable for sanctions. After
further argument, the district later denied those sanctions as well.
After the entry of final judgment in this case, the district court taxed costs
against Plaintiffs. Plaintiffs subsequent request for reconsideration of the
taxation of costs was denied. We conclude we have jurisdiction under 28 U.S.C.
1291 to address all issues raised in both Case Nos. 14-4040 and 14-4144, except
the taxation of costs.
III
We have divided Plaintiffs substantive and procedural claims into the
following groups: (1) 42 U.S.C. 1983 claims for unlawful seizure, excessive use
of force, and failure to intervene in the violation of constitutional rights; (2) 42
U.S.C. 1983 claim for violation of individual rights under the Ute Treaty; (3) 42
U.S.C. 1985 claim for conspiracy to violate civil rights; (4) state law tort claims
of intentional infliction of emotional distress, wrongful death, and assault and
battery; (5) spoliation sanctions; and (6) taxation of costs.
1. Unlawful seizure, excessive force, and failure to intervene
The district court granted summary judgment to all Defendants on
13

Plaintiffs claims of unlawful seizure, excessive force, and failure to intervene in

the ongoing violation of constitutional rights, all brought under 42 U.S.C. 1983.
We review the grant of summary judgment de novo. Tabor v. Hilti, Inc., 703 F.3d
1206, 1215 (10th Cir. 2013). We view the facts in the light most favorable to the
nonmovant and draw all reasonable inferences in the nonmovants favor. Id.
Summary judgment is appropriate only if there is no genuine dispute as to any
material fact. Id. (quoting Fed. R. Civ. P. 56(a)). A fact is material if, under
the governing law, it could have an effect on the outcome of the lawsuit. A
dispute over a material fact is genuine if a rational jury could find in favor of
the nonmoving party on the evidence presented. Id. (quoting Equal Empt
Opportunity Commn v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190
(10th Cir. 2000)).
We first dispense with Plaintiffs unlawful seizure claims, and the
remaining constitutional claims unravel from there. Plaintiffs argue that
Detective Norton, Trooper Young, and Deputy Byron seized Murray without
probable cause or reasonable suspicion. They also allege these officers, along
with Trooper Swenson, unconstitutionally pursued and seized Murray on
Reservation land where they have no jurisdiction, even if arguably they had
cause. Plaintiffs argue further that the officers employers, Uintah County and
the City of Vernal, failed to properly train and supervise the officers, or
alternatively, implemented policies and procedures that were deliberately
14

indifferent to Murrays rights.

In order for Plaintiffs to succeed on their unlawful seizure claims, there
must have been a seizure which invokes the protections of the Fourth
Amendment. A seizure occurs when an individual remains in the control of law
enforcement officials because he reasonably believes, on the basis of their
conduct toward him, that he is not free to go. Michigan v. Chesternut, 486 U.S.
567, 577 (1988).
Plaintiffs contend the following events are seizures: (1) Trooper Swensons
order to Murray to get on the ground at the conclusion of the car chase, (2) the
search for, and closing in on Murray, and (3) Murrays fatal gunshot wound,
which Plaintiffs believe was inflicted by Detective Norton, not Murray himself.
The district court ruled that no reasonable jury could find for Plaintiffs on any of
these theories. 1
Plaintiffs first theory is that Murray momentarily halted when Trooper
Swenson commanded him to stop as he got out of the pursued vehicle. Aplt. Br.
at 40. But the dashboard camera video demonstrates that there was no
submission, not even an ephemeral one. See California v. Hodari D., 499 U.S.
621, 626 (1991) (explaining that an officers command to halt is not a seizure

It is undisputed that Deputy Byrons handcuffing Murray was an unlawful

seizure of a tribal member on tribal land. See Ross v. Neff, 905 F.2d 1349,
135354 (10th Cir. 1990). The district court ruled that Byron was entitled to
qualified immunity. Plaintiffs do not challenge this ruling on appeal.
15

until the person actually submits to the command); Scott v. Harris, 550 U.S. 372,
380 (2007) (in the context of a videotape: [W]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should adopt that version of the facts for
purposes of ruling on a motion for summary judgment.). Thus, we conclude,
Swenson never seized Murray.
Second, Plaintiffs argue that, under a totality of the circumstances, the
officers had seized Murray in the moments before Murray was shot, even if he
shot himself. Aplt. Br. at 40 (citing Jones v. Hunt, 410 F.3d 1221, 1226 (10th
Cir. 2005) (reciting several factors which contribute to a seizure)). In relevant
part, Jones points out that the threatening presence of officers, brandishing of a
weapon, aggressive tone of voice, interaction in a nonpublic place, and absence of
other members of the public can contribute to finding a seizure. 410 F.3d at
122526. Here, Detective Norton, who was in a remote area but at a distance
from Murray, ordered Murray to the ground. It is also reasonable to infer from
Deputy Byrons testimony that he and Trooper Young could see Murray, that
Murray reciprocally was aware of Byron and Young as well. It is also undisputed
that Norton fired two shots at Murray.
However, no reasonable jury could find a seizure had occurred in the
moments before shots were fired because there is no evidence that Murray ever
submitted to any show of authority. Even if one assumes Murray heard Nortons
16

shouts from over 100 yards away, Norton testified that Murray began running
toward him and fired at him, rather than submitting. Additionally, even if we
assume Murray was aware of Byron and Young in the other direction, there is no
indication that Murray submitted to their presence. Nothing in the officers
actions terminate[d] [Murrays] movement or otherwise caused the officers to
have physical control over Murray. See Brooks v. Gaenzle, 614 F.3d 1213,
122324 (10th Cir. 2010). 2
Finally, Plaintiffs argue that Murray did not shoot himself, but that
Detective Norton shot him at close range, thereby effectuating a seizure. Our best
understanding of Plaintiffs theory is this: Norton had the .380 weapon found near
Murray, caught up to Murray either in his vehicle or on foot, used either the .380
or his .40 caliber weapon to shoot Murray at close range, and planted the .380
near Murray. To support this theory, Plaintiffs offer these facts: (1) that Murray
was right-handed, but the entrance wound was on the left side of his head; (2)
Trooper Swenson did not see any weapons on Murray when he ran from the car;
and (3) no blood or tissue blowback was documented on Murrays left hand or
on the .380 firearm recovered near him.
These facts could not lead a reasonable jury to conclude that Detective

Plaintiffs argue that if Murray shot himself, his suicide would constitute a
seizure because it was motivated by being caught. Aplt. Br. at 41 n.74; Aplt.
Reply Br. at 19. However, Plaintiffs provided no authority upon which to base
such a conclusion.
17

Norton inflicted Murrays fatal contact wound. To the contrary, this extensive
record could only lead a reasonable jury to conclude that no other person,
including Detective Norton, was within 100 yards of Murray when he was shot,
and so Murray is the only person who could have inflicted a contact wound.
Norton testified that he saw Murray shoot himself from an estimated 140 yards
away. Plaintiffs argue that Nortons testimony should be disregarded because he
is the accused officer. But even if this court were to disregard Nortons
testimony, the remainder of Defendants evidence remains uncontroverted.
Deputy Byron testified that he heard crackling and saw Murray fall to the ground
immediately after seeing Detective Norton on a hill at a distance from Murray.
Agent Ashdown found two shell casings from Nortons gun 113 yards away from
where Murray fell, and observed that Norton had no blood on him when he was
seen immediately after Murray was shot. Plaintiffs do not contest the medical
evidence that Murray died of a contact wound, and Plaintiffs fail to present any
evidence that anyone else got close to Murray. Thus, although the question of
who inflicted Murrays fatal gunshot wound is certainly material, there is no
genuine dispute of fact that the shooter was anyone but Murray himself.
Without a seizure, there can be no violation of the Fourth Amendment and
therefore no liability for the individual Defendants. In the absence of a seizure
we need not address the tribal status of lands on which the purported seizures
occurred. As for the City of Vernal and Uintah County, [w]hen there is no
18

underlying constitutional violation by a[n] . . . officer, there cannot be an action

for failing to train or supervise the officer. Apodaca v. Rio Arriba Cty. Sheriffs
Dept, 905 F.2d 1445, 144748 (10th Cir. 1990) (citing City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986)).
Additionally, without a seizure, there can be no claim for excessive use of
force in effectuating that seizure. See County of Sacramento v. Lewis, 523 U.S.
833, 84344 (1998). That leaves Plaintiffs claim of excessive use of force in
violation of the Due Process Clause of the Fourteenth Amendment. 3 Id. The core
concept of due process protection against excessive use of force is the protection
against government action which is arbitrary or shocks the conscience. Id. at
84546. [O]nly the most egregious official conduct can be said to be arbitrary
in the constitutional sense. Id. at 846 (quoting Collins v. City of Harker
Heights, 503 U.S. 115, 129 (1992)).
As the application of force, Plaintiffs point to brandish[ing] and
threaten[ing] deadly force, apparently referring to Norton firing at Murray, and
Byron and Young approaching him with their guns drawn after he was down.
Aplt. Br. at 43. Plaintiffs attempt to rely on Black v. Stephens, 662 F.2d 181 (3d
Cir. 1981), to argue the officers here used excessive force. However, Black is

Although Plaintiffs briefed for this court the protections of substantive

due process under the Fifth Amendment, we interpret their arguments under the
Fourteenth Amendment because they seek relief against state, rather than federal,
actors.
19

unhelpful to Plaintiffs because there, a plainclothes detective, who did not

identify himself, aimed his service weapon at a mans head in an unprovoked road
rage incident, with the mans wife also in the line of fire. 662 F.2d at 18385.
Here, Plaintiffs offered no evidence to counter Detective Nortons testimony that
Murray fired first and Detective Norton returned fire. With respect to Deputy
Byron and Trooper Youngs armed approach of Murray after he was down,
Murray was unconscious and would not have been aware of the weapons, nor did
the officers apply any force directly to Murray. 4 The record contains no evidence
that these two officers ever fired at or verbally threatened Murray.
Therefore, nothing about the officers approach toward Murray shocks the
conscience or was arbitrary. We affirm the district courts grant of summary
judgment to Defendants on the excessive force claim. As with the unlawful
seizure claims, the municipalities are not liable in the absence of a constitutional
violation. Apodaca, 905 F.2d at 144748.
Without either an unlawful seizure or an excessive use of force, Plaintiffs
claim that the nine individual Defendants are liable for a failure to intervene in
the violation of constitutional rights also fails. In order to be liable for failure to
intervene, the officers must have observe[d] or ha[d] reason to know of a
constitutional violation and have had a realistic opportunity to intervene.

Deputy Byron did handcuff Murray, but Plaintiffs do not argue on appeal
that he used excessive force in doing so.
20

Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008) (quoting
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
Plaintiffs focus their arguments on the officers opportunities to intervene,
but ignore the requirement that the officers must have knowledge of a
constitutional violation. While this court has not directly stated as much, other
circuits have acknowledged that [i]n order for there to be a failure to intervene,
it logically follows that there must exist an underlying constitutional violation[.]
See Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). We are unaware of
any failure to intervene case in which this court has reversed either a grant of
summary judgment or qualified immunity to a government actor without first
finding at least a genuine issue of material fact as to an underlying constitutional
violation. Cf. Estate of Booker v. Gomez, 745 F.3d 405, 42223 (10th Cir. 2014)
(denying summary judgment and qualified immunity to government defendants on
failure to intervene in excessive use of force where plaintiffs genuinely disputed
facts, if true, would constitute a clearly established excessive use of force); Casey
v. City of Fed. Heights, 509 F.3d 1278, 128385 (10th Cir. 2007) (reversing grant
of summary judgment to government defendants on failure to intervene claim
where genuine issues of material fact remained on excessive use of force claim).
We therefore affirm the district courts grant of summary judgment to Defendants
on the failure to intervene claim.

21

2. Violation of Ute Treaty

Plaintiffs brought a claim under 42 U.S.C. 1983, alleging that all of the
individual Defendants violated Murrays rights under the Ute Treaty 5 between
the Ute Tribe and the United States. The district court dismissed the Treaty claim
on the pleadings, concluding that the Ute Treaty does not confer an individual
right for which 1983 provides a remedy against individuals or municipalities.
Instead, the district court concluded, the Treaty only creates an individual right
against the United States, which must be enforced directly through the Treaty
itself. We review a dismissal for failure to state a claim de novo. Seattle-First
Natl Bank v. Carlstedt, 800 F.2d 1008, 1011 (10th Cir. 1986).
Section 1983 is not an independent source of rights, but rather a vehicle
through which one may vindicate rights conferred elsewhere in the Constitution
and laws of the United States. Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002).
It is the violation of these federally-conferred rights, not merely violations of
federal law, which give rise to 1983 actions. Id. at 28283. Plaintiffs argue
these rights arise here from the Bad Men Clause 6 of the Ute Treaty:
5

Two treaties comprise the Ute Treaty at issue here. An 1863 Treaty
created the Uncompahgre Reservation, and an 1868 Treaty contains the language
Plaintiffs argue confers a right enforceable via 1983. See Treaty with the Utah
Tabeguache Band, Oct. 7, 1863, 13 Stat. 673; Treaty with the Ute, art. 6, Mar. 2,
1868, 15 Stat. 619. As Plaintiffs do, we read the two treaties together, referring
to them as one Ute Treaty.
6

Several treaties between the United States and various Native American
(continued...)
22

If bad men among the whites or among other people, subject to the
authority of the United States, shall commit any wrong upon the
person or property of the Indians, the United States will, upon proof
made to the agent and forwarded to the Commissioner of Indian
Affairs at Washington City, proceed at once to cause the offender to
be arrested and punished according to the laws of the United States,
and also reimburse the injured person for the loss sustained.
Treaty with the Ute, art. 6, Mar. 2, 1868, 15 Stat. 619.
Even though the Treaty can be read to grant individual rights to Ute
members, the text is clear that those rights only arise directly against the United
States, and must be enforced through the mechanism prescribed in the Treaty,
rather than the general 1983 remedy. The remedy for Plaintiffs claimed
wrongs is that the United States will . . . reimburse the injured person for the
loss sustained and cause the bad men to be arrested if his acts were criminal.
Treaty with the Ute, 15 Stat. at 620 (emphasis added).
Other courts have come to the same conclusion on similar Bad Men
Clauses. 7 E.g., Hebah v. United States, 428 F.2d 1334, 133536, 133940 (Ct.
6

(...continued)
tribes contain similar or identical language, commonly referred to as a Bad Men
Clause. See Lillian Marquez, Making Bad Men Pay: Recovering Pain and
Suffering Damages for Torts on Indian Reservations under the Bad Men Clause,
20 Fed. Cir. B.J. 609, 61013 (20102011).
7

The Court of Federal Claims, in parallel litigation to this case, ruled that
it had jurisdiction pursuant to the Ute Treaty Bad Men Clause to address at least
some of Plaintiffs claims against the individual defendants here, as well as the
FBI and Bureau of Indian Affairs officials involved. Jones v. United States, 122
Fed. Cl. 490, 51723 (Fed. Cl. July 30, 2015), appeal docketed, No. 15-5148
(Fed. Cir. Sept. 10, 2015). The Court of Federal Claims dismissed the action,
(continued...)
23

Cl. 1970) (holding for the first time that the Bad Men Clause does give rise to
individual rights, and plaintiff could sue the United States directly for
reimbursement of damages she suffered from her husbands death at the hands of
the Indian Police Force); Tsosie v. United States, 825 F.2d 393, 394, 398 (Fed.
Cir. 1987) (holding that an identical Bad Men Clause permitted individual
reimbursement from the federal treasury after suffering an assault at the hands
of a U.S. Public Health Service hospital employee); Elk v. United States, 87 Fed.
Cl. 70, 7273, 7879 (Fed. Cl. 2009) (permitting a member of the Oglala Sioux
Tribe to recover directly from the United States under an identically worded
treaty for an assault perpetrated by a U.S. Army recruiter).
This reading of the Ute Treaty also comports with the Supreme Courts
statements that a well-developed enforcement mechanism granted directly through
a statute will foreclose the ability to pursue a 1983 action. See Gonzaga, 536
U.S. at 28485 n.4; Wright v. City of Roanoke Redevelopment & Hous. Auth.,
479 U.S. 418, 423, 426 (1987) (noting that where a comprehensive scheme
provided for private actions, Congress expressed an intent to foreclose remedies
under 1983, but where the statute or its regulations had never provided a
procedure by which [persons] could complain . . . about the alleged [violations],

(...continued)
however, because the district courts factual findings in this case resulted in issue
preclusion. Id. at 52330.
24

 1983 action was not precluded); Middlesex Cty. Sewerage Auth. v. Natl Sea
Clammers Assn, 453 U.S. 1, 20 (1981).
While Plaintiffs cite several cases which they argue support their filing of a
1983 action to enforce their treaty rights, each of these cases either hold that the
treaties at issue do not provide a 1983 remedy, or grant a 1983 remedy based
on treaty language that is not present in the Ute Treaty. E.g., Hoopa Valley Tribe
v. Nevins, 881 F.2d 657, 66263 (9th Cir. 1989) (finding no 1983 remedy);
Mille Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp. 1118, 1122,
112526 (D. Minn. 1994) (permitting a 1983 action based on the privilege of
hunting, fishing, and gathering). If anything, these cases stand for the accepted
premise that the specific language of a treaty determines whether that treaty gives
rise to a 1983 remedy. We agree with the district court that the Ute Treaty does
not provide for a 1983 remedy, and affirm the district courts dismissal of
Plaintiffs treaty violation claim.
3. Conspiracy to violate civil rights under 42 U.S.C. 1985(2) and (3)
Plaintiffs claim that the individual Defendants conspired to obstruct justice,
and to violate Murrays civil rights, in violation of 42 U.S.C. 1985(2) and (3),
respectively. The district court granted summary judgment to Defendants on both
conspiracy claims.
The relevant portion of 1985(2) provides a right of action if two or more
persons conspire for the purpose of impeding, hindering, obstructing, or
25

defeating, in any manner, the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the laws. 42 U.S.C.
1985(2). Section 1985(3), clause 1, provides a right of action [i]f two or more
persons in any State or Territory conspire . . . for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the
laws. 42 U.S.C. 1985(3).
Among other elements, both causes of action require a showing of some
racial, or perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators action. Griffin v. Breckenridge, 403 U.S. 88, 102
(1971); see also Murray v. City of Sapulpa, 45 F.3d 1417, 1423 (10th Cir. 1995);
Smith v. Yellow Freight Sys., Inc., 536 F.2d 1320, 1323 (10th Cir. 1976). The
focus of the racial animus inquiry is the government actors intent, motive, or
purpose. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 647
(10th Cir. 1988). To avoid summary judgment, Plaintiffs must point to specific,
nonconclusory evidence that the Defendants actions were improperly
motivated. Id. at 650.
Plaintiffs only support for their racial animus theory is that some of the
officers were aware of Murrays race, there was significant racial tension in the
local culture, and that [t]he only plausible explanation for the abusive way that
[Defendants] handled every aspect of this incident, and the brazen and flagrant
evidence tampering is racial bias. App. Vol. XVIII at 5791. These facts,
26

even if fully accepted and considered together, do not amount to the specific,
nonconclusory evidence of invidiously race-based animus required to avoid
summary judgment on a conspiracy claim. Trooper Swensons identification of
the vehicles occupants as tribal males to dispatch was merely descriptive.
There is no evidence that Norton, Byron, or Young pursued Murray on foot
because of his race, even if we assume they heard Trooper Swenson identify the
vehicles occupants as such. The remaining officers arrived well after Murray
was shot, and there is no evidence that their behavior was based on racial or any
other animus. We therefore affirm summary judgment in favor of the individual
Defendants on Plaintiffs 1985(2) and (3) claims.
4. State law torts
Plaintiffs brought a claim of intentional infliction of emotional distress
(IIED) against Blackburn, and claims of wrongful death and assault and battery
against Detective Norton. We first address the IIED claim.
Plaintiffs alleged that Blackburn, the funeral home and mortuary where
Murrays body was temporarily housed on the day of his death, is vicariously
liable for emotional distress they experienced based on their later seeing the
incision made on Murrays neck. The district court granted Blackburn summary
judgment, and denied Plaintiffs leave to amend their IIED claim.
When a plaintiff is not present during the allegedly tortious act, Utah law
requires, among the other elements of an IIED claim, that the defendant
27

committed the act with the intention of inflicting injury upon the absent plaintiff.
Hatch v. Davis, 147 P.3d 383, 388 (Utah 2006). Plaintiffs IIED claim fails
because it is undisputed that they were not present when the incision was made
and they cannot demonstrate that Blackburn apprentice Colby DeCamp intended
to inflict any injury upon Plaintiffs. DeCamp testified that he did not know
Murray or the Plaintiffs at the time, and that he made the incision only at the
request of law enforcement officers to obtain a blood sample. Plaintiffs do not
dispute this testimony, but merely argue the very nature of the desecration
itself, i.e., the appearance of the incision, satisfies the presence requirement.
Aplt. Br. at 52. But Plaintiffs offer no authority to support this argument.
Summary judgment in favor of Blackburn on the IIED claim is affirmed.
Relatedly, Plaintiffs take issue with the district courts denial of their two
requests for leave to amend their complaint with respect to the IIED claim. In
general, leave to amend a complaint should be freely granted when justice so
requires. Fed. R. Civ. P. 15(a)(2). However, if the amendment would be futile,
we will uphold the denial of a requested amendment. Full Life Hospice, LLC v.
Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013). A denial of leave to amend a
complaint is reviewed for abuse of discretion. Id. Where the reason for denial of
leave to amend is futility, we review de novo the legal basis for the finding of
futility. Id.
Plaintiffs first sought leave to add DeCamp and Vernal Police Chief Greg
28

Jensen individually as defendants in the IIED claim. Adding DeCamp and Jensen
would be futile because the statute of limitations had already run when Plaintiffs
sought this amendment. Cabaness v. Thomas, 232 P.3d 486, 496 (Utah 2010)
(noting that the IIED statute of limitations is four years); Blackburn Supp. App. at
11. We see no mistake concerning the proper partys identity such that the
amendment would relate back, see Fed. R. Civ. P. 15(c)(1)(C), and, as a result, no
abuse of discretion by the district court in denying this amendment.
After entry of summary judgment in favor of Blackburn, Plaintiffs again
sought leave to amend their complaint, this time to add negligence and other torts
of lesser fault. However, as Plaintiffs acknowledge, their request was a year late
under the district courts scheduling order. Plaintiffs asked the district court to
modify its scheduling order, but the district court refused. Plaintiffs argument
that they could not have anticipated the entry of summary judgment in favor of
Blackburn is unpersuasive. App. Vol. V at 1433. The district courts denials of
Plaintiffs requests for leave to amend their IIED claim are affirmed.
In addition to its IIED claim against Blackburn, Plaintiffs alleged state law
claims of wrongful death and assault and battery against Detective Norton. After
resolving Plaintiffs federal claims in favor of Defendants, the district court
declined to retain supplemental jurisdiction and dismissed these claims without
prejudice. We review that decision for abuse of discretion. Exum v. U.S.
Olympic Comm., 389 F.3d 1130, 1139 (10th Cir. 2004). Plaintiffs provide no
29

basis for a conclusion that the district court abused its discretion in failing to
retain jurisdiction over these state law claims.
5. Sanctions for spoliation of evidence
Plaintiffs appeal the district courts denial of their requested sanctions for
alleged spoliation of evidence. Plaintiffs sought default judgment and the
application of adverse inferences against all individual and government
Defendants, as well as lesser sanctions in the alternative. Sanctions for spoliation
of evidence are reviewed for abuse of discretion. Burlington N. & Santa Fe Ry.
Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). [W]e accept the district
courts factual findings unless they are clearly erroneous. Id.
A spoliation sanction is proper where: (1) a party has a duty to preserve
evidence because it knew, or should have known, that litigation was imminent,
and (2) the adverse party was prejudiced by the destruction of the evidence.
Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1149 (10th Cir. 2009)
(quoting Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th
Cir. 2007)). The entry of default judgment or the imposition of adverse
inferences require a showing of bad faith. Id. (adverse inferences); Lee v. Max
Intl, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011) (default judgment). Mere
negligence in losing or destroying evidence is not enough to support imposition
of either of these harsh sanctions. Turner, 563 F.3d at 1149 (quoting Aramburu v.
Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)).
30

Plaintiffs argue that they were prejudiced by Defendants spoliation or

complete loss of the following evidence: (1) Murrays testimony, because officers
failed to administer life-saving aid to Murray at the scene; (2) the .380 caliber
firearm attributed to Murray; (3) Detective Nortons .40 caliber firearm; and (4)
any trace evidence that could have been recovered from the scene, Murrays body
and clothes, or Detective Nortons body, clothes, or vehicle on the day of the
shooting. Plaintiffs believe that this evidence would have tended to show that
Murray did not shoot himself, but was instead shot by Detective Norton.
Plaintiffs ask this court to find that the Defendants acted in bad faith because
[n]o [other] reasonable justification exists for Defendants disregard for the
evidentiary duties they were under. Aplt. Br. at 27.
With respect to preserving Murrays life, and therefore his testimony, the
district court found, based on Dr. Leis testimony, that Plaintiffs were not
prejudiced because Murrays injuries were not survivable. We see no clear error
in the district courts consideration of the medical facts, and therefore agree that
the failure to administer aid did not result in prejudice to Plaintiffs case.
Regarding the destruction of the .380 caliber weapon found near Murray,
the district court did not abuse its discretion in denying sanctions because
Defendants here lack the level of culpability required for the spoliation of
evidence outside of their control. See Silvestri v. Gen. Motors Corp., 271 F.3d
583, 591 (4th Cir. 2001) (sanctioned party had access to evidence for his own
31

investigation, but did not notify other party); Ehrenhaus v. Reynolds, 965 F.2d
916, 921 (10th Cir. 1992) (listing culpability as a relevant factor in considering
default judgment sanctions); K-Con Bldg. Sys., Inc. v. United States, 106 Fed. Cl.
652, 664 (Fed. Cl. 2012) (government allowed a witness to remove documents,
and the witness then caused those documents to be destroyed). Once Agent
Ashdown arrived, the FBI had exclusive jurisdiction over the investigation, and
was entirely responsible for preserving the .380 caliber weapon as evidence and
preventing its ultimate destruction. Neither Plaintiffs nor Defendants were
notified in advance of the weapons destruction.
Plaintiffs also contend the Defendants failed to preserve trace evidence that
may have been recovered from Detective Nortons .40 caliber gun, such as
blowback which would implicate it as the fatal weapon. Even if insufficient
examination of Nortons gun may have prejudiced Plaintiffs, the district court did
not abuse its discretion in finding that none of the Defendants here had a duty to
preserve it. The persons with the most obvious responsibility for preserving that
evidence, Agent Ashdown and Chief Jensen, are not parties to this litigation and
therefore cannot be the subject of sanctions. It is arguable that Norton had an
independent duty to preserve any trace evidence on his own firearm because he,
independent of the FBI investigation, could reasonably have anticipated litigation.
However, the district courts rejection of this theory does not amount to an abuse
of discretion.
32

Finally, Plaintiffs request sanctions for spoliation of trace evidence from

the scene of the shooting, Murray and Detective Nortons skin and clothing, and
from Nortons vehicle. Plaintiffs strongest support for the imposition of
sanctions is the conduct of Deputy Byron, 8 who accompanied Murray to the
hospital, was involved in removing Murrays clothes and taking samples which
have been lost, tampered with his body, and fingered Murrays head woundall
before the medical examiner had an opportunity to examine Murrays body.
Plaintiffs and Defendants experts agreed that these actions could have
contaminated or removed trace evidence, and were unnecessary and inappropriate.
Despite how disturbing Deputy Byrons behavior was, the district court
found no prejudice resulting from these acts. Dr. Leis testified that potential
contamination from Byrons actions would not have changed his ultimate
conclusion regarding Murrays cause of death. None of the blood improperly
extracted before the official medical exam was analyzed, and so the district court
reasoned there was no prejudice because it was not used against Plaintiffs. The

Arguments regarding failure to swab for gunshot residue, search for

bullets, or inspect Nortons car are much weaker. Defendants presented
unrebutted testimony that gunshot residue tests are unreliable and law
enforcement agencies have therefore ceased using them. A gunshot residue test
on Detective Norton would have added nothing to the investigation because he
admitted to firing his weapon twice. The district court found that none of the
Defendants had a duty to document the scene because it was within the province
of the FBI. Plaintiffs have also failed to articulate what relevant evidence might
have been gleaned from investigating Nortons vehicle.
33

district court further noted that Plaintiffs failed to point to any specific relevant
evidence that would have been found on Murrays clothing. The district court
concluded Plaintiffs had not established any prejudice resulting from the handling
of Murrays body after his death and therefore denied Plaintiffs request for
sanctions. Although these acts appear at best sloppy and unorthodox, and at
worst suspicious, the district courts denial of sanctions was not an abuse of
discretion.
6. Taxation of costs
After the district court entered final judgment, the state (Highway Patrol
and DWR officers) and municipal (remaining individuals and municipalities)
Defendants successfully sought costs, and Plaintiffs sought review of the clerks
taxation of costs. After Plaintiffs and Defendants submitted briefs on the costs
issue, the district court referred the motion to a magistrate judge pursuant to 28
U.S.C. 636(b)(1)(A). The magistrate judge issued a memorandum decision and
order denying Plaintiffs motion for review and upholding the clerks entry of
costs. This order was not in the form of a recommendation, and was not reviewed
or adopted by a district judge. The clerk then entered an amended final judgment,
to include the costs. The state and municipal Defendants argue that this court
lacks jurisdiction to review the taxation of costs because the magistrate judges
ruling is not an appealable order.
Plaintiffs had fourteen days to object from the date of the magistrate
34

judges order under a 636(b)(1)(A) referral. Fed. R. Civ. P. 72(a). Plaintiffs

may not assign as error a defect in the order not timely objected to. Id.
Moreover, [u]nder 28 U.S.C. 636(b)(1)(A), a magistrate judge may not issue a
final order directly appealable to the court of appeals. S.E.C. v. Merrill Scott &
Assocs., Ltd., 600 F.3d 1262, 1269 (10th Cir. 2010) (quoting Hutchinson v. Pfeil,
105 F.3d 562, 566 (10th Cir. 1997)). 9 We therefore lack appellate jurisdiction
over the magistrate judges order denying reconsideration of costs, and dismiss.
IV
With the exception of the taxation of costs under Case No. 14-4144, the
judgment of the district court is affirmed in Case Nos. 14-4040 and 14-4144.
Defendants motion to dismiss for lack of jurisdiction is granted with regard to
the taxation of costs, and denied with respect to all other issues. Plaintiffs
motion to seal Volume XIX of the record is granted. Plaintiffs motion to file a
supplemental appendix is denied.

The grant of authority under 28 U.S.C. 636(c) includes the ability to

issue final appealable orders, but requires consent of the parties. 28 U.S.C.
636(b) and (c)(3); Fed. R. Civ. P. 73(c); Phillips v. Beierwaltes, 466 F.3d 1217,
122022 (10th Cir. 2006). The parties here did not consent, either expressly or
impliedly, and so even construed under 636(c), the magistrate judges order is
not appealable.
35