Jones v. United States

In the United States Court of Federal Claims

No. 13-227

Filed: March 29, 2023

NOT FOR PUBLICATION

DEBRA JONES, et al.,

Plaintiffs,

v.

UNITED STATES,

Defendant.

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., and Christopher C. Hair, Department of Justice, of counsel, for the

defendant.

MEMORANDUM OPINION AND ORDER

HERTLING, Judge

This case returns following its second remand from the U.S. Court of Appeals for the

Federal Circuit. See Jones v. United States, No. 2020-2182, 2022 WL 473032 (Fed. Cir. Feb. 16,

2022) (“Jones V”). The Federal Circuit reversed the grant of summary judgment in favor of the

defendant, the United States, and against the plaintiffs, who are the parents, estate, and tribe of

the deceased Ute Tribe-member Todd R. Murray. In its opinion, the Federal Circuit clarified the

standards for determining whether the defendant spoliated evidence, including when the

defendant controls evidence. The Circuit also vacated the limited spoliation sanction that had

been awarded and clarified what the Court needs to consider in fashioning an effective spoliation

sanction. The Court applies the standards elaborated by the Federal Circuit to the plaintiffs’

renewed motion for spoliation sanctions.

On remand, the plaintiffs have limited the items for which they now seek sanctions. The

plaintiffs now seek spoliation sanctions for the defendant’s failure to collect and retain only three

pieces of evidence: (1) the .380 Hi-Point handgun, found near Mr. Murray, which was already

determined to have been spoliated; (2) the .40 Glock handgun carried by the officer involved in

the shooting that preceded Mr. Murray’s death; and (3) the clothing the officer wore that day.

For its spoliation of the .380 Hi-Point, the Court imposes on the defendant a sanction of a

rebuttable adverse inference.

The plaintiffs have not shown, however, that the defendant had a duty to preserve the .40

Glock or the officer’s clothing. The duty to preserve only arises when litigation is reasonably

foreseeable, and the supposed spoliator had “a legal right to obtain or control [the supposedly

spoliated] evidence.” Jones V, supra, at *4. Although litigation was reasonably foreseeable on

the day of the shooting that preceded Mr. Murray’s death, April 1, 2007, the defendant had no

legal right to control the evidence, and no sanction is appropriate for the failure to collect these

items.

I. PROCEDURAL HISTORY

This opinion assumes familiarity with this case’s protracted history. 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, 2022 WL 473032. 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, but the Federal Circuit in

Jones II vacated the dismissal to allow the plaintiffs to present their argument that the defendant,

by failing to collect and preserve evidence, had spoliated that evidence.

In Jones III, the plaintiffs’ motion for spoliation sanctions was granted in part and denied

in part. The plaintiffs had sought spoliation sanctions for the defendant’s supposed failure to

collect and preserve evidence in 11 respects. Jones III, 146 Fed. Cl. at 735-36. In addition to the

defendant’s supposed failure to preserve the three pieces of evidence currently at issue, the

plaintiffs argued that the defendant had failed to preserve Mr. Murray’s clothing, that the

shooting scene was not properly documented and possibly tampered with, that Mr. Murray’s

body had been improperly handled, and that authorities should have performed an autopsy on

Mr. Murray, among other complaints. Id. Except for the .380 Hi-Point, the Court denied

sanctions for all the spoliation allegations, finding that the mishandling of Mr. Murray’s body

was “not an independent basis for spoliation sanctions” and that the other items of supposedly

spoliated evidence were not within the defendant’s control. Id. at 737-42. The defendant’s

destruction of the .380 Hi-Point handgun that was found near Mr. Murray, however, was found

to have constituted spoliation. Based on that determination, 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 then granted summary judgment in Jones IV. The Court found that

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. The Court also

rejected claims based on the plaintiffs’ alleged wrongs that were not punishable under federal

criminal law or that only implicated off-reservation conduct because these were not cognizable

as “wrongs” under the bad men provision of the treaty between the United States and the Ute

Tribe. Id. at 354-57. Finally, the Court found that the plaintiffs had not alleged sufficient facts

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to show that some of the claimed federal crimes had occurred, and that issue preclusion estopped

the plaintiffs from re-arguing issues relating to all other alleged federal crimes. Id. at 357-62.

In Jones V, the Federal Circuit held that the Court in Jones III had applied the “wrong

standard in its spoliation opinion” regarding whether the defendant had “control” of any of the

supposedly spoliated evidence. Jones V, 2022 WL 473032, at *1, *4. In doing so, 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 *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 therefore

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 ruling on spoliation, the Federal Circuit reversed the Jones IV ruling

on issue preclusion and the grant of summary judgment to the defendant. The Federal Circuit

held that issue preclusion did not apply based on the change in the evidentiary landscape and

remanded for further consideration of the plaintiffs’ substantive allegations of violations of the

bad men provision of the treaty between the Ute Tribe and the defendant. Id. at *12.

Following remand from the Federal Circuit, the Court held an evidentiary hearing at

which it heard testimony from October 31, 2022, through November 2, 2022, in Salt Lake City,

Utah, regarding spoliation. (ECF 198-200.) Before the hearing, the parties submitted joint

stipulations of fact for use in resolving the spoliation issues. (ECF 189.) 1 On January 6, 2023,

and February 3, 2023, the plaintiffs and the defendant submitted their respective proposed

1

The joint stipulations contain a list of the exhibits that the parties agreed to admit into

evidence. (ECF 189 at ¶ 17.) The plaintiffs’ stipulated exhibits were subsequently renumbered.

(ECF 198 at 4.) This opinion cites the plaintiffs’ exhibits by the numbering used at the

evidentiary hearing and not by the numbering used in the joint stipulations.

3

findings of fact, based on the stipulations and the hearing evidence, and their proposed

conclusions of law. (ECF 201, 203.) Closing arguments were heard on February 14, 2023.

In their post-hearing submission, the plaintiffs limited their motion for spoliation

sanctions to three items: (1) the handgun of the officer who shot at Mr. Murray, a .40 Glock

handgun; (2) the clothing worn by that officer at the scene of the events that led to Mr. Murray’s

death; and (3) the .380 Hi-Point handgun that was found near Mr. Murray and has already been

found to have been spoliated by the defendant. (ECF 201 at 23-27.) The plaintiffs further

confirmed during their closing summation that they are only seeking spoliation sanctions for

those three pieces of evidence. Accordingly, notwithstanding the Federal Circuit’s directive

concerning the autopsy and the bagging of Mr. Murray’s hands, Jones V, 2022 WL 473032, at

*8, the plaintiffs have abandoned any argument for the imposition of spoliation sanctions based

on any evidence other than these three items.

II. FINDINGS OF FACT

For purposes of deciding the plaintiffs’ spoliation motion only, the Court makes the

following findings of fact based on the joint stipulations (ECF 189), 2 the proposed findings of

fact submitted by the parties (ECF 201, 203), and the testimony and evidence submitted in

connection with the evidentiary hearing between October 31, 2022, and November 2, 2023 (ECF

198-200). 3

A. Persons Involved with the Shooting on April 1, 2007, and the Subsequent

Investigation

“Todd Rory Murray was a member of the Ute Tribe. He died on April 1, 2007, at the age

of 21.” (ECF 189 at ¶ 3.) “Debra Jones and Arden Post are the natural parents of Mr. Murray;

and Ms. Jones is the personal representative of the Estate of Mr. Murray, for and behalf of the

heirs of Mr. Murray.” (Id. at ¶ 4.) “The Ute Tribe is a federally recognized Tribe, with a

Reservation in northeastern Utah.” (Id. at ¶ 5.)

2

The parties agreed that any statements in the joint stipulations of fact are “solely for

purposes of the spoliation issue to be briefed by the [p]arties” and that “[f]or any statements that

a person ‘testified to . . .’ the parties are stipulating that the person so testified, but do not agree

to the truth of any such testimonies.” (ECF 189 at ¶¶ 1-2.)

3

It is a party’s responsibility to support its proposed findings of fact with relevant citations to

the evidence in the record. Cf. Phillips & Jordan, Inc. v. United States, 158 Fed. Cl. 313, 326

(2022) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“But the

significance of sufficient citation to the evidentiary record cannot be overstated. Failure to

accurately cite to case law and the record invokes the oft-repeated adage: ‘[j]udges are not like

pigs, hunting for truffles buried in briefs.’”)). Inadequately supported or irrelevant proposed

findings of fact have been disregarded unless necessary to this decision.

4

“Uriah Kurip was the driver of a car involved in the high[-]speed car pursuit with Utah

State Patrol officers. Although Mr. Kurip was not an enrolled Ute tribal member on April 1,

2007, he was enrollable as an Indian and was an ‘Indian’ as that term is used to define a political

classification under federal law on April 1, 2007.” (Id. at ¶ 6.)

“Dave Swenson, Craig Young, Jeff Chugg, and Rex Olson were Utah State Troopers on

April 1, 2007, and were employed by the State of Utah. Each was on duty on April 1, 2007.

They were not cross-deputized by the United States or the Ute Indian Tribe on April 1, 2007, to

exercise law enforcement authority on the Ute Reservation.” (Id. at ¶ 7.) 4

“Vance Norton was, on April 1, 2007, a Vernal City police officer. [Officer] Norton was

not on duty on April 1, 2007. Vernal City is a municipality located wholly within the State of

Utah and wholly outside the Ute Indian Reservation. [Officer] Norton was not cross-deputized

by the United States o[r] the Ute Indian Tribe on April 1, 2007, to exercise law enforcement

authority on the Ute Reservation.” (Id. at ¶ 8.) Officer Norton first began working in law

enforcement in 1993 in Utah. (ECF 198 at 69:7-8.)

On April 1, 2007, Gary Jensen was the chief of the Vernal City Police Department. (ECF

199 at 233:20-21, 278:1-2.) Chief Jensen was not cross-deputized as a tribal officer or an officer

of the United States Bureau of Indian Affairs (“BIA”). (Id. at 350:22-24.)

On April 1, 2007, Dylan Rooks was a detective with the Vernal City Police Department.

(Id. at 298:2-5.)

On April 1, 2007, Officer Ben Murray was an officer with an unspecified law

enforcement agency. (See id. at 307:15-20; 364:16.)

“Anthoney Byron, Bevan Watkins, and Troy Slaugh were Uintah County Deputy Sheriffs

on April 1, 2007, and employed by Uintah County. Each was on duty on April 1, 200[7]. They

were not cross-deputized by the United States or the Ute Indian Tribe on April 1, 2007, to

exercise law enforcement authority on the Ute Reservation.” (ECF 189 at ¶ 9.)

“On April 1, 2007, Keith Campbell was a Uintah County Deputy Sheriff and employed

by Uintah County. On April 1, 2007, Mr. Campbell was also a contract employee for the Utah

State Medical Examiners and employed by the State of Utah.” (Id. at ¶ 10.) More specifically,

in 2007, Mr. Campbell was the Chief Deputy of the Uintah County Sheriff’s Department (ECF

199 at 222:11-14), and a medical examiner investigator working in Uintah County (id. at 215:21-

217:6). Mr. Campbell was at the scene of the shooting in his role as a medical examiner

investigator. (Id. at 231:14-22.) In that role, he was responsible for investigating the mechanics

as well as the likely cause and manner of Mr. Murray’s death. (Id. at 225:5-9.)

4

To avoid any confusion in the roles the witnesses had in investigating the shooting on April

1, 2007, all witnesses are referred to by the job titles they had on that date.

5

“Sean Davis was a Utah Department of Natural Resources officer on April 1, 2007, and

was employed by the State of Utah. He was not cross-deputized by the United States or the Ute

Indian Tribe on April 1, 2007, to exercise law enforcement authority on the Ute Reservation.”

(ECF 189 at ¶ 11.)

“On April 1, 2007, Rex R. Ashdown was employed as a Special Agent with the United

States Federal Bureau of Investigation (‘FBI’) with duty in the Vernal Resident Agency out of

the Salt Lake Division. He was assigned to investigate the death of Todd Murray on the

Reservation through the date of his retirement on May 31, 2007.” (Id. at ¶ 12.) Agent Ashdown

is an experienced investigator, having served with the FBI from 1985 until his retirement. (ECF

199 at 269:16-22.)

“David Ryan is employed as a Special Agent with the FBI with duty in the Vernal

Resident Agency out of the Salt Lake Division. On April 1, 2007, and thereafter, [ ] Agent Ryan

was assigned to the Vernal Resident Agency. [ ] Agent Ryan took over the investigation of Todd

Murray’s death after [ ] Agent Ashdown retired on May 31, 2007.” (ECF 189 at ¶ 13.) Agent

Ryan and Agent Ashdown were the only two agents working in the FBI’s Vernal Resident

Agency on April 1, 2007. (ECF 199 at 275:16-19.) The Vernal Resident Agency had no support

staff. (Id. at 273:18-24.)

“In April of 2007, Dr. Edward A. Leis was employed as the Deputy Chief Medical

Examiner for the State of Utah Medical Examiner’s Office. Dr. Leis conducted the examination

of Mr. Murray’s body and testified at a June 6, 2013, evidentiary hearing in the Utah District

Court [l]itigation.” (ECF 189 at ¶ 14.)

Officer Norton knew Agent Ashdown professionally because they had worked “a couple

cases together and stuff like that.” (ECF 198 at 183:9-15.) Officer Norton considered Agent

Ashdown a friend, although no closer a friend than any of his other colleagues, noting that they

“never went to lunch or dinner or anything like that.” (Id. at 183:8-184:6.) Investigator

Campbell and Officer Norton are friends who have known each other since junior high school.

(Id. at 132:19-22.)

Officer Norton described his relationships with Deputy Byron and Trooper Young as

follows:

Deputy Byron, he was with the sheriff’s office when I was working

there, and Trooper Young just – I mean, he was working at the same

time. We had interaction as far as maybe having a drink or

something if we were working the same shift or something like that,

but that was about it.

(Id. at 84:18-23.)

Officer Norton did not know Todd Murray and had not met him before April 1, 2007.

(Id. at 106:19-22, 169:18-20.) Officer Norton did not know any members of Mr. Murray’s

family or Mr. Kurip before April 1, 2007. (Id. at 120:13-18, 169:21-22.)

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B. Background Litigation Involving the Ute Tribe

Since 1975, the Ute Tribe and the State of Utah have engaged in substantial litigation

concerning the boundaries of the Uintah and Ouray Reservation and state and local law

enforcement’s jurisdiction to enforce state law within those disputed boundaries. Ute Indian

Tribe v. Utah, 521 F. Supp. 1072 (D. Utah 1981) (“Ute I”); Ute Indian Tribe v. Utah, 716 F.2d

1298 (10th Cir. 1983) (“Ute II”); Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985) (en

banc) (“Ute III”), cert. denied, 479 U.S. 994 (1986); Ute Indian Tribe v. Utah, 935 F. Supp. 1473

(D. Utah 1996) (“Ute IV”); Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997) (“Ute V”),

cert. denied, 522 U.S. 1107 (1998); Ute Indian Tribe v. Utah, 790 F.3d 1000 (10th Cir. 2015)

(“Ute VI”), cert. denied, 577 U.S. 1216 and 577 U.S. 1229 (2016); Ute Indian Tribe v. Myton,

835 F.3d 1255 (10th Cir. 2016) (“Ute VII”).

The Tenth Circuit has ruled favorably for the Ute Tribe in each of the Ute cases before it.

The most relevant of these decisions is Ute VI, involving an attempted state prosecution of an

Indian for, among other things, driving without an ignition interlock. Ute VI, 790 F.3d 1007 n.1.

The decision in Ute VI postdates the events giving rise to this suit. The Tenth Circuit held that

“prosecut[ing] tribal members in state court for conduct occurring within the tribal boundaries

recognized by Ute III” is something “the State had no business doing.” Id. at 1003. The Tenth

Circuit directed the district court to enter “appropriate preliminary injunctive relief forthwith” to

halt the prosecution. 790 F.3d. 1011-13. In doing so, the Tenth Circuit noted that it had already

decided the boundaries of the Uintah and Ouray Reservation in Ute V, almost 20 years

previously. Id. The decision in Ute V predates the events giving rise to this case by

approximately 10 years.

Despite the line of Ute cases extending back more than two decades at the time of Mr.

Murray’s death, Officer Norton testified that during his 13 years as a law enforcement officer in

Uintah County the maps his agency used for Indian reservation land changed “from time to

time,” and that he would arrest tribal members on tribal land based on the directions he was

given. (ECF 198 at 142:24-145:7.)

C. The Vehicle Pursuit

“On April 1, 2007, Utah State Patrol Officer Dave Swenson began a high-speed car

pursuit of a vehicle driven by Uriah Kurip.” (ECF 189 at ¶ 18.) During the chase, “[Trooper]

Swenson activated the dashboard camera in his police vehicle on Highway 88.” (Id. at ¶ 19.)

“[Trooper] Swenson contacted police dispatch to inform them that he was in pursuit while he

was on Highway 88.” (Id. at ¶ 20.) “[Trooper] Swenson stated to dispatch that there were two

occupants in the car that he was pursuing—one driver and one passenger. He later stated to

dispatch that the driver was male and appeared to be tribal.” (ECF 189 at ¶ 21.) The BIA was

notified of the high-speed chase by at least 11:04 a.m. on April 1, 2007. (Def. Ex. 43 at 2

(Jones0011445).)

Officer Norton was not part of the chase. (ECF 198 at 74:25-75:2.) Officer Norton was

off duty on April 1, 2007, a Sunday, driving his personal, unmarked vehicle when he saw

Trooper Swenson in pursuit of a vehicle. (Id. at 72:20-21, 73:6-8, 81:5-10.) Officer Norton

7

called dispatch with his cellphone, “found out what was going on,” and chose to assist Trooper

Swenson “as a backup officer . . . until somebody else . . . could actually get there and take over

. . . .” (Id. at 73:21-74:24.) Trooper Swenson did not request that Officer Norton assist with the

pursuit of Mr. Kurip’s vehicle. (Def. Ex. 43.) According to Agent Ashdown, there was nothing

unusual about Officer Norton’s assisting Trooper Swenson because officers in the sparsely

populated Uintah Basin area would often assist officers from other jurisdictions. (ECF 199 at

289:6-14.)

“The car that [Trooper] Swenson was pursuing crashed at the intersection of Seep Ridge

Road and Turkey Track Road, on the Ute Indian Reservation.” (ECF 189 at ¶ 22.) “The two

occupants of the vehicle got out of the vehicle. The driver, subsequently identified as Uriah

Kurip, exited the driver[ʼs] seat. Todd Murray, the passenger, exited the front passenger seat.”

(Id. at ¶ 23.) “Both Uriah Kurip and Todd Murray ran away from the car in different directions.”

(Id. at ¶ 24.) “[Trooper] Swenson notified dispatch that the two occupants appeared to be tribal

males.” (Id. at ¶ 25.) At that time, Mr. Murray was on Ute Reservation land. (Pl. Ex. 18 at 12-

13 (Jones 0011223, Jones0011462).)

“[Trooper] Swenson previously testified that he visually checked Mr. Murray’s hands and

waistband for weapons, and that he did not see any weapon.” (ECF 189 at ¶ 26.) “Mr. Murray

was wearing short pants with short socks, a t-shirt and short-sleeved button up shirt.” (Id. at ¶

27.) “[Trooper] Swenson did not put Mr. Murray under arrest on April 1, 2007.” (Id. at ¶ 28.)

“[Trooper] Swenson did not pursue Mr. Murray on foot.” (Id. at ¶ 29.) “[Trooper] Swenson did

pursue, and catch up to, Mr. Kurip, and he placed Mr. Kurip under arrest.” (Id. at ¶ 30.) “After

he began his pursuit of Mr. Kurip, [Trooper] Swenson did not see Mr. Murray again.” (Id. at ¶

31.) “[Trooper] Swenson did not see or hear any interaction between Officer Norton and Mr.

Murray.” (Id. at ¶ 36.)

D. Officer Norton’s Pursuit of Mr. Murray

“After [Trooper] Swenson had Mr. Kurip in handcuffs but before he made it back to Mr.

Kurip[’s] and [Trooper] Swenson’s vehicles, Officer Norton arrived at the scene.” (Id. at ¶ 32.)

Officer Norton arrived in his personal vehicle and was wearing jeans and a short sleeve shirt.

(ECF 198 at 81:5-10, 90:3-4; Pl. Ex. 2 at 13.)

“[Trooper] Swenson pointed out to Officer Norton where Mr. Murray had gone and

provided a general description of Mr. Murray.” (ECF 189 at ¶ 33.) “[Trooper] Swenson did not

tell Officer Norton that he had witnessed Mr. Murray commit any crime on April 1, 2007.” (Id.

at ¶ 34.) “Prior to the time that Officer Norton talked to [Trooper] Swenson, Officer Norton had

not witnessed Mr. Murray commit any crime on April 1, 2007.” (Id. at ¶ 35.)

Officer Norton drove a short distance away, parked on the side of a road, and exited his

vehicle in search of Mr. Murray. (ECF 198 at 82:1-83:19.) Trooper Young and Deputy Byron

arrived shortly after Officer Norton exited his vehicle. (Id. at 83:25-84:15.) The officers then

split up and went in different directions in search of Mr. Murray. (See id. at 83:25-84:15, 90:7-

24 (referring to a Trooper Troy Marks), 90:25-91:12 (Officer Norton admitting he might have

confused Trooper Marks with Trooper Young).)

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Officer Norton moved to the highest point he could to “visualize” where Mr. Murray

could have run. (Id. 83:3-6.) To do so, Officer Norton walked 50-75 yards to the west from the

road to reach the edge of a hill. (Id. at 83:14-15.) Officer Norton then first observed Mr. Murray

when he looked “west down over the hill” and saw Mr. Murray about 120-130 yards away. (Id.

at 87:18-21.)

Officer Norton was holding his weapon, a .40 Glock handgun, at “low ready” position as

he observed Mr. Murray running “around the hill” towards Officer Norton’s location. (Id. at

93:5-14.) Officer Norton observed “something black in [Mr. Murray’s] hands,” specifically in

Mr. Murray’s left hand. (Id. at 89:15-17, 95:24-96:8.) Officer Norton thought it was a gun but

was not certain “because of the distance.” (Id. at 93:5-14.) Officer Norton grew concerned for

his own safety, so he drew his weapon and yelled “Police, get on the ground[!]” (Id. at 89:15-

21.) Officer Norton suspected Mr. Murray may have been “coming back to actually kill

[Trooper Swenson] knowing that there [were] . . . no other officers out there.” (Id. at 93:5-14.)

Officer Norton testified that he was uncertain whether Mr. Murray heard his yells and

acknowledged that he was not in uniform, although he testified that he had his badge on. (Id. at

89:22-90:4.) Photographs of Officer Norton taken after the shooting show that his badge was on

his belt. (Pl. Ex. 2 at 13.) According to Officer Norton, when he was yelling toward Mr.

Murray, Trooper Young and Deputy Byron were located “off to [Officer Norton’s] left down a

little ways,” indicating they were to Officer Norton’s south. (Id. at 90:7-91:12.)

E. The Shooting5

According to Officer Norton, when Mr. Murray saw Officer Norton, Mr. Murray raised

his arm and fired one shot at Officer Norton, which hit the ground below him. (Id. at 93:15-21.)

Officer Norton lacked any cover. (Id. at 93:19-20.) Officer Norton fired two shots at Mr.

Murray in rapid succession while facing Mr. Murray. (Id. at 94:4-10, 172:7-9.) Officer Norton

saw the impact of his two shots on the sandstone rocks, with neither shot hitting Mr. Murray.

(Id. at 170:4-8.) Officer Norton then turned around and ran 30-40 yards up the hill to a location

where he thought he was safer. (Id. at 93:19-25.)

Officer Norton testified that, with his cellphone in his left hand and his gun in his right

hand, he then attempted to call dispatch via his cellphone “to let them know what was going on.”

5

The plaintiffs’ entire case disputes Officer Norton’s account of the shooting and rests on the

premise that Officer Norton’s account is false. The dispute over whether Mr. Murray shot

himself or was shot at close range by Officer Norton lies at the heart of the case and will be

determined at a trial on the merits. These findings are based on the evidence submitted solely for

the plaintiffs’ spoliation motion and are supported by the testimony and physical evidence

submitted by the parties. These findings do not and are not intended to reflect any

determinations with respect to the merits of the plaintiffs’ claim as to what occurred on April 1,

2007, leading to Mr. Murray’s death. The plaintiffs remain free to challenge Officer Norton’s

account and credibility, as well as the official cause of Mr. Murray’s death, at trial on the merits.

9

(Id. at 94:1-3, 95:2-7.) Officer Norton kept misdialing “because of stress and what was going

on,” while watching Mr. Murray and “scream[ing] at him to put the gun down.” (Id. at 95:5-7.)

Officer Norton testified that he then saw Mr. Murray put the gun to his head. Mr. Murray

held the gun against his head long enough for Officer Norton to give “3-4 commands before”

Mr. Murray pulled the trigger, whereupon he immediately fell to the ground. (Id. at 91:21-92:6,

93:23-94:3, 95:8-14; Def. Ex. 8 at 3 (Jones0018844).) Officer Norton was about 150-160 yards

away from Mr. Murray at that time. (Id. at 98:16-21.) Officer Norton claimed that he did not

know he was on an Indian reservation. (Id. at 136:16-20.)

F. Officer Norton’s Subsequent Actions

Officer Norton re-holstered his weapon and eventually got through to dispatch on his

phone and let dispatch know that “shots had been fired and [the] suspect was down[.]” (Id. at

95:8-17.) Officer Norton asked that dispatch send Trooper Young and Deputy Byron to his

location and requested an ambulance. (Id.) Officer Norton also requested that dispatch send his

supervisors. (Id. at 97:3.)

Officer Norton testified that he did not believe that anyone else had observed the shooting

but thought that Deputy Byron may have seen him on the hill. (Id. at 92:7-93:1.) Officer Norton

admitted that he could not view things from the other officers’ perspectives and did not read

other officers’ reports of the incident. (Id.)

After the shooting and a few minutes after Officer Norton had spoken with dispatch,

Trooper Young and Deputy Byron arrived at Officer Norton’s location. (Id. at 173:4-12.) After

Trooper Young and Deputy Byron approached him, Officer Norton “explained to them exactly

what took place.” (Id. at 102:12-15.) Trooper Young and Deputy Byron then approached Mr.

Murray to “secur[e] the suspect.” (Id.) Trooper Young and Deputy Byron moved towards Mr.

Murray, gave him commands not to move, and handcuffed him. (Id. at 102:25-103:2.)

Meanwhile, Officer Norton remained on the hill, where he was joined by Deputy Slaugh. (Id. at

103:3-10.)

When Officer Norton initially talked to other officers after the shooting, he told them that

Mr. Murray had fired at him once and that he had heard only one shot. (Id. at 109:18-20, 110:8-

10.) Officer Norton “saw the bullet [supposedly fired at him by Mr. Murray] hit the ground”

before Mr. Murray shot himself. (Id. at 112:13-15.) Later, after observing two shell casings and

one “stovepiped” casing in the .380 Hi-Point handgun near where Mr. Murray lay, Officer

Norton changed his belief about the number of rounds that Mr. Murray had fired at him. 6 (Id. at

109:15-110:7.)

6

A “stovepiped” round is when “the round has gone off, but the casing itself is actually

stuck in the chamber. And sometimes they’re partially out . . . .” (ECF 198 at 182:16-24.) The

resulting stuck casing jams the firearm. (See ECF 199 at 294:15-25.) Agent Ashdown testified

10

“Mr. Murray was unconscious and bleeding from his head when officers at the scene

handcuffed Mr. Murray.” (ECF 189 at ¶ 45; Pl. Ex. 2 at 8-11.) “Shortly after Mr. Murray was

shot, an ambulance arrived and he was provided with medical assistance. No officer provided

medical assistance to Mr. Murray before or during his treatment by ambulance personnel.” (ECF

189 at ¶ 44.) Mr. Murray was handcuffed for approximately 30 minutes before an ambulance

arrived. (Def. Ex. 43 at 8 (Jones0011451) (shooting reported by Officer Norton at approximately

11:30 a.m.), 13 (Jones0011456) (ambulance reported it was a couple of minutes away at 11:59

a.m.).)

“After Mr. Murray was shot, Officer Norton walked through the crime scene and took

pictures.” (ECF 189 at ¶ 38.) Specifically, after Mr. Murray was handcuffed, Officer Norton

went down the hill to evaluate the scene and suggested to Deputy Byron that they take some

photographs of the “pristine” scene before the ambulance arrived and moved any evidence.

(ECF 198 at 108:11-14, 191:19-192:10.) After Officer Norton came down from the hill, Officer

Davis arrived on the scene. (Id. at 104:11-19.) Officer Davis volunteered to stand at Mr.

Murray’s location to “protect the evidence” by ensuring that nothing was moved. (Id. at 108:14-

18.) Officer Norton then went back up the hill and borrowed Deputy Slaugh’s newer camera to

take photographs. (Id. at 108:19-109:1.) Deputy Slaugh did not take the photographs because

“he wasn’t real familiar with the camera.” (Id.)

While taking photographs, Officer Norton observed a .380 caliber handgun, later

determined to be a Hi-Point brand handgun, near Mr. Murray. (Id. at 110:15-20.) Officer

Norton testified that “[n]obody touched” that handgun. (Id. at 111:16-19.) Officer Norton also

observed two bullet casings near Mr. Murray, and one that was visibly “stovepiped” in the .380

Hi-Point’s chamber. (Id. at 109:14-17, 110:11-111:19.) A “stovepiped” round occurs when a

“round has gone off, but the casing itself is actually stuck in the chamber.” (Id. at 182:16-24.)

Officer Norton did not move anything at the scene or touch any of the evidence. (Id. at 175:8-

14.) At all times other than during the shooting and the immediate aftermath before other

officers arrived, Officer Norton was either accompanied by or within the sight line of other law

enforcement officers at the scene, including when Officer Norton went back to his vehicle at

some point and when he was asked at some other unspecified point to help search for any

evidence Mr. Kurip may have discarded. (Id. at 177:9-23.)

After Officer Norton had completed taking the photographs and while returning to the

location of the patrol vehicles, Deputy Slaugh suggested putting up police tape around the scene

to establish a perimeter around any evidence; officers on the scene then placed police tape

around the site. (Id. at 176:9-19; 177:3-8; see also id. at 54:7-9, 64:7 (referring to left-over

that “[a] stovepipe[d] round happens for a variety of reasons. The two most common would

maybe be the gun is dirty and uncared for and the slide action is gritty, so the slide doesn’t move

smoothly back and forth, so the gun doesn’t operate correctly. The other most common reason

for a stovepipe[d] round would be a -- a weak grip or lack of support for the gun when the gun’s

fired, which -- which again hinders the full action of the -- the slide to eject a round and reload

another round.” (Id. at 294:19-295:5.)

11

crime-scene tape at the scene the next day); ECF 199 at 233:20-25 (referring to a perimeter).) At

some time, likely after having taken the photographs, Officer Norton and Deputy Slaugh

conducted a search for the shell casings from Officer Norton’s firearm. (Id. at 170:19-171:10.)

At no point did any “officer instruct[] Officer Norton to remove himself from the scene.” (ECF

189 at ¶ 46.)

“Officer Norton was left in possession of his own handgun after he admittedly shot at Mr.

Murray, and then he exchanged guns with his supervisor.” (Id. at ¶ 39.) At some unspecified

point, Chief Jensen, Officer Norton’s superior, arrived at the scene and took Officer Norton’s

weapon. (ECF 198 at 116:24-25.) Officer Norton testified that he was told Chief Jensen

conducted a visual inspection of the weapon and did not observe anything on it. (Id. at 122:14-

18.) Officer Norton’s weapon was his department-issued and owned Glock-brand .40 caliber

handgun. (Id. at 130:18, 131:10-23.) Officer Norton is unsure whether he ever received that

handgun back from Chief Jensen. (Id. at 156:3-8.) In accordance with departmental “custom,”

however, Chief Jensen gave his own service weapon to Officer Norton in return; Chief Jensen’s

weapon was “the same model and everything” as Officer Norton’s. (Id. at 130:1-25.)

Additionally, at some unspecified point between the shooting and Officer Norton’s brief

interaction with Agent Ashdown, Officer Norton returned to his car and called his attorney. (Id.

at 118:8-10.) Officer Norton’s attorney told him not to talk to anyone without the attorney being

present. (Id. at 154:11-13.) Officer Norton does not remember ever going to his car to retrieve

anything or put anything away. (Id. at 185:24-186:2.) Officer Norton, however, spent a

significant amount of time by his car. (Id. at 120:22-121:2.)

A few days after the incident, Officer Norton authored a police report. (Id. at 133:24-

134:4.)

G. Agent Ashdown’s Investigation of the Scene

“The FBI had exclusive jurisdiction to investigate the incident because it occurred on the

Ute reservation and because it was determined by law enforcement after Mr. Murray was shot

that he was an enrolled member of a federally recognized tribe.” (ECF 189 at ¶ 47.) The FBI

Vernal Resident Agency was notified of the shooting at about 11:45 a.m. (Pl. Ex. 17 at 1.)

On April 1, 2007, Agent Ashdown was informed that “there had been a car chase and a

shooting and that a tribal member had been involved.” (ECF 199 at 274:22-275:2.) Agent

Ashdown “left from [his] home in [his] government vehicle and dr[o]ve straight to the scene.”

(Id. at 275:3-4.) Based on the “word-of-mouth confirmation from BIA officers that were at the

scene with – that had – maybe had personal knowledge of [Mr. Murray] being there,” Agent

Ashdown thought that it was “pretty well assured” that the FBI would have jurisdiction over the

investigation, even before a certificate of membership could be obtained from the Tribe to

confirm Mr. Murray’s tribal status. (Id. at 276:8-21.) Agent Ashdown would spend a couple of

hours at the scene. (Id. at 299:13-15.)

“Agent Ashdown was the only FBI employee to arrive on the scene on April 1, 2007, and

he did not arrive to the scene until after the shooting had occurred and until after Mr. Murray had

been transported to the hospital.” (ECF 189 at ¶ 48.) Agent Ashdown arrived at the scene at

12

approximately 12:30 p.m., about 15 minutes after the ambulance carrying Mr. Murray had

departed for the hospital emergency room. (Id.; ECF 199 at 277:9-12; Pl. Ex. 17 at 1-2; Def. Ex.

43 at 14 (Jones0011457).) “[Trooper] Swenson was still at the scene of the incident when Agent

Ashdown arrived, along with other state and local law enforcement officers.” (ECF 189 at ¶ 49.)

When Agent Ashdown arrived at the scene, he observed vehicles from the BIA, the Vernal City

Police Department, the Utah Highway Patrol, and the Uintah County Sherriff’s Office; he also

observed other, unspecified vehicles. (ECF 199 at 277:18-22.)

Consistent with his general practice when arriving at a crime scene, Agent Ashdown

believed he received a briefing on what had occurred from the most senior officers present, Chief

Jensen of the Vernal City Police Department and Sergeant Chugg of the state police. (Id. at

277:16-278:13, 348:18-349:9.) While testifying, however, Agent Ashdown did not remember

speaking to these officers, and instead relied on a photograph that shows them together. (Id. at

278:9-13, 348:18-349:9.) Agent Ashdown also recalls seeing Detective Rooks and Investigator

Campbell at the scene. (Id. at 297:24-299:6.) Agent Ashdown is certain that he interacted with

Investigator Campbell, although he has no specific recollection of his interaction. (Id. at 298:10-

14.) While at the scene on April 1, 2007, Agent Ashdown did not interview any of the officers

who had witnessed the shooting and its immediate aftermath. (Id. at 304:25-305:2.) “On April

1, 2007, no other officer reported to the FBI that they had seen Mr. Murray being shot.” (ECF

189 at ¶ 37.) The FBI did not interview Officer Norton until one month after the shooting, on

May 1, 2007. (Pl. Ex. 8.)

Agent Ashdown recalled speaking with Trooper Swenson, who showed Agent Ashdown

the route that Trooper Swenson had taken to apprehend Mr. Kurip and the location where the

shooting had occurred. (ECF 199 at 278:16-279:1.) Agent Ashdown did not place any markers

in the area where Mr. Kurip’s car was located. Agent Ashdown believed that the Highway Patrol

would investigate the high-speed chase because the chase was within its purview. (Id. at 279:23-

280:5.) Agent Ashdown nonetheless took photographs of the wrecked car Mr. Kurip had been

driving and its skid marks. (Id. at 280:15-22.)

After examining the scene around Mr. Kurip’s vehicle, Agent Ashdown went to the area

from which he had been told Officer Norton had fired his shots. (Id. at 282:4-12.) Agent

Ashdown observed Officer Norton standing nearby. (Id.) He also observed two expended shell

casings that had already been marked by state or local law enforcement officers with evidence

markers. (Id.) The shell casings from the .40 Glock were found at a noticeable distance from

each other. (Def. Ex. 45DD (Jones0011742).) Later, Agent Ashdown collected the shell

casings, which he verified were .40 caliber shell casings. (Id. at 300:22-301:4; Def. Ex. 4 at 8

(Jones0038089) (listing two .40 caliber casings as items #39 and #40).) Agent Ashdown knew

that Officer Norton’s handgun was .40 caliber based on his knowledge of the caliber of the

standard-issue firearm for Vernal City officers. (ECF 199 at 301:4-11.)

Agent Ashdown observed Officer Norton’s demeanor to be normal and that his clothes

were “clean and pristine[.]” (Id. at 283:4-11.) Agent Ashdown testified that Officer Norton

“hadn’t been running or involved in any sort of altercation that was obvious from his clothes.”

(Id.; see Pl. Ex. 2 at 13 (photograph of Officer Norton).) “Agent Ashdown did not perform any

testing of Officer Norton’s clothing.” (ECF 189 at ¶ 55.)

13

“The FBI is unaware of any state or local officer at the scene requesting permission to

search Officer Norton’s vehicle.” (Id. at ¶ 40.) “Agent Ashdown did not request permission to

search Officer Norton’s vehicle, and did not search Officer Norton’s vehicle; and the FBI is

unaware of any search having been performed by local or state law enforcement.” (Id. at ¶ 52.)

Agent Ashdown did not believe there was any investigative need to search Officer Norton’s car

because he did not suspect Officer Norton of having done anything wrong. (ECF 199 at 288:18-

25.)

Agent Ashdown had a brief conversation with Officer Norton and requested an interview.

(Id. at 282:13-23.) Officer Norton advised that he wanted his attorney present for an interview.

Agent Ashdown considered that request to be “typical” for a law enforcement officer involved in

a shooting. (Id.) Agent Ashdown testified that, although he would have liked to interview

Officer Norton on April 1, 2007, it was not unusual to wait until later so that Officer Norton’s

attorney could be present. (Id. at 305:6-22.)

“Agent Ashdown did not examine Officer Norton’s gun, nor did he request that Officer

Norton’s gun be tested for blood or tissue.” (ECF 189 at ¶ 54.) “Agent Ashdown [also] did not

request that Officer Norton’s hands be tested for blood or tissue, and did not test Officer

Norton’s hands.” (Id. at ¶ 53.) Notwithstanding Officer Norton’s request that an attorney be

present for any questioning, Agent Ashdown believed that he could have asked to examine

Officer Norton’s handgun, but he did not do so. (ECF 199 at 360:6-12.) Agent Ashdown saw no

reason to request that Officer Norton hand over his weapon. Instead, Agent Ashdown permitted

Chief Jensen, who commanded Officer Norton’s department (the Vernal City Police

Department), to retain Officer Norton’s handgun in accordance with its own protocol. (Id. at

288:9-17.) Further, Agent Ashdown did not have access to a DNA testing kit at the scene on

April 1, 2007. 7 (Id. at 281:14-17.)

Ultimately, “[n]o officer at the scene tested Officer Norton’s gun” or his “hands for blood

or tissue.” (ECF 189 at ¶¶ 41-42.) In any case, Agent Ashdown was “the decider” as to what

evidence was taken into custody. (ECF 199 at 361:14-18.) Agent Ashdown did not ask anybody

else at the scene to collect any evidence on his behalf. (Id. at 295:18-21.)

After talking to Officer Norton, Agent Ashdown traveled to the area where Mr. Murray

had lain. (Id. at 290:11-14.) While there, “Agent Ashdown inspected the scene and laid down his

own evidence markers.” (ECF 189 at ¶ 50; see also ECF 199 at 290:17-291:7; Def. Ex. 45V

(Jones0011733).) “Agent Ashdown independently photographed the scene, including

photographing some of the blood and blood splatter [sic] that could be identified as blood.”

7

Wes Fitzer, a retired FBI agent and one of the defendant’s expert witnesses, thought it was

“odd” that Agent Ashdown did not have a DNA testing kit. In his experience, “[t]ypically within

Indian country, [FBI agents] have the supplies necessary” to collect blood spatter and submit it

for DNA testing. That said, Mr. Fitzer noted he would not have collected any blood spatter

because Mr. Murray was the only one at the scene with an apparent injury, meaning any blood at

the scene had to have been his. (ECF 200 at 525:15-526:23.)

14

(ECF 189 at ¶ 51.) Agent Ashdown took photographs of blood spatter because he believed the

spatter provided an indication of what had happened at the scene. (ECF 199 at 292:5-9.) He did

not collect any samples of the blood spatter because he had been told that only one person (Mr.

Murray) had been injured at the scene. There was therefore, according to Agent Ashdown, no

question of whose blood it was and no reason to do any scientific testing on the blood. (Id. at

301:16-302:3.) While at the scene, Agent Ashdown did not have any information about which

side of Mr. Murray’s head the bullet had entered. (Id. at 259:2-5.)

Agent Ashdown also observed a handgun at the scene, near where he had been told Mr.

Murray had lain; that handgun was later determined to be a .380 Hi-Point. (Id. at 292:17-293:24,

300:5-21; Def. Ex. 45OO (Jones0011753).) Agent Ashdown observed an “expended round that

[was] jammed into the action” of the handgun, i.e., the stovepiped round. (ECF 199 at 293:1-2.)

Agent Ashdown later collected the gun, took the live rounds out of the magazine, and

cleared the action. He observed five rounds in the magazine, a spent round in the chamber, and

two spent shell casings in the area (for a total of eight rounds). (Id. at 294:5-14; Def. Ex. 4 at 8

(Jones0038089) (listing two .380 caliber casings as items #1 and #3).) Upon collecting the

handgun, Agent Ashdown identified it as a .380 caliber Hi-Point. He also identified the two

spent casings in the vicinity and the stovepiped round as .380 caliber, based on the writing on the

rim of each cartridge. (ECF 199 at 300:5-21.) The .380 Hi-Point handgun did not appear to

have any visible blood or tissue on it. (Pl. Ex. 2 at 12, 15-16.)

The FBI never conducted any forensic testing of the .380 Hi-Point because Agent

Ashdown did not believe there was anything to be learned from it. (ECF 199 at 321:25-322:6.)

A few days following the shooting, after he had received a courtesy call from the medical

examiner to inform him that Mr. Murray’s death would be ruled a suicide, Agent Ashdown

concluded that “[i]t was at that point pretty obvious of what we had as far as the cause of death,

manner of death.” (Id. at 320:20-322:6.)

In total, “Agent Ashdown collected the following physical evidence from the scene: (a) a

.380 Hi[-]Point pistol; (b) the magazine with five rounds of ammunition from the .380 highpoint

[sic] pistol; (c) an expended round shell that was jammed in the .380 pistol; (d) two .380 caliber

shell casings; and (e) two .40 caliber shell casings.” (ECF 189 at ¶ 51.) Agent Ashdown did not

observe any signs that anyone had moved or tampered with any of the evidence near where Mr.

Murray had been. (ECF 199 at 295:9-12.) Agent Ashdown did not conduct a search for any of

the fired rounds because he did not reasonably expect that the rounds could be located, calling

such a search “nigh on impossible.” 8 (ECF 199 at 290:4-10.)

8

On April 2, 2007, the day after these events, Mr. Murray’s family searched the area for

expended rounds without success. (ECF 198 at 28:17-29:2.)

15

H. Investigator Campbell’s Investigation of the Scene

Before his arrival on scene, Investigator Campbell recalled Officer Norton calling him on

April 1, 2007, and informing him of the events, including how Officer Norton had followed Mr.

Kurip’s car to serve as backup. He also recalled that Officer Norton had informed him that Mr.

Murray had shot at Officer Norton and then shot himself. (ECF 199 at 232:2-233:8.)

When Investigator Campbell arrived at the scene, he spoke with Officer Norton and told

him to stay at his location on the hill while Investigator Campbell walked down the hill to where

Mr. Murray had lain. (Id. at 233:20-234:4.) Investigator Campbell was instructed to enter the

scene through a perimeter law enforcement had set up to preserve evidence. (Id. at 249:4-13.)

According to Investigator Campbell, he and Agent Ashdown were at the scene at the same time

and spoke with one another. (Id. at 235:11-17.)

Along with Agent Ashdown, Investigator Campbell observed the scene where Mr.

Murray had been shot, the Hi-Point .380 handgun near that location, the two spent .380 casings,

and the stovepiped round in the handgun. (Id. at 241:10-242:16, 260:7-14.)

Based on the direction of the blood spatter and brain matter on the sandstone, Investigator

Campbell determined the direction of the bullet he believed had killed Mr. Murray. (Id. at

258:18-259:1.) Specifically, the blood spatter indicated that the shot that killed Mr. Murray

traveled from north to south, at a right angle from where spent bullet casings indicated that

Officer Norton was standing. (Id. at 258:18-259:1, 260:16-18, 262:4-24; Def. Ex. 41 at 2

(Jones0011385).) He also determined the number of shots that had been fired from the .380 Hi-

Point gun by observing the number of shell casings on the ground and the stovepiped round in

the weapon itself. (ECF 199 at 260:1-14.)

Investigator Campbell also observed the location from where Officer Norton stated he

had fired his shots. Investigator Campbell saw the shell casings from Officer Norton’s .40 Glock

while viewing that location with Agent Ashdown. (Id. at 249:15-23, 264:6-9.) Investigator

Campbell confirmed Officer Norton’s location at the time of the shooting based on foot tracks

and spent shell casings. (Id. at 262:11-24, 263:13-22.) Investigator Campbell specifically noted

the absence of tracks in the “crusty, yellow clay and sand” between where Mr. Murray had been

and where Officer Norton said he had been during their exchange of gunfire. (Id.)

Investigator Campbell conveyed a summary of his findings to the Medical Examiner in a

report, which consisted of a handwritten summary narrative about his observations. (Id. at

252:10-16; Def. Ex. 41.) Investigator Campbell’s report states that “[b]lood spatter at the scene

was clearly at a right angle to the location of [Officer Norton], and consistent with a self[-]

inflicted gunshot to the head.” (Def. Ex. 41 at 2 (Jones0011385).) Investigator Campbell did not

speak with the Medical Examiner beyond submitting his handwritten report. (ECF 199 at

254:10-21.)

16

I. The Forensic Examinations

After leaving the scene of the shooting, Agent Ashdown went to Blackburn Mortuary,

where Mr. Murray’s body had been taken following his death at a hospital. (ECF 199 at 255 12-

17, 307:5-13.) While at the mortuary, Agent Ashdown observed Mr. Murray’s body and spoke

with the state and local officers gathered there, including Investigator Campbell, Deputy Byron,

Officer Ben Murray, and Detective Rooks. (Id. at 298:2-5, 307:15-20.)

While at the mortuary, and in Agent Ashdown’s presence but not at his request, Officer

Byron placed a gloved finger inside the entrance wound into Mr. Murray’s skull to feel for

beveling. 9 (ECF 199 at 309:11-310:13; Pl. Ex. 2 at 2-4.) Because Agent Ashdown could not

himself determine which wound was the entry wound and which the exit wound, he decided to

wait for the results from the Medical Examiner’s examination of the body. (ECF 199 at 307:21-

25.)

Agent Ashdown did not see or collect Mr. Murray’s clothing at the mortuary. (Id. at

311:22-312:2.) Agent Ashdown assumed that any clothing had been removed at either the

hospital or the mortuary before Agent Ashdown’s arrival. (Id. at 311:25-312:8.) Agent

Ashdown did not believe the clothing would have added anything to the FBI’s investigation. (Id.

at 312:9-13.) Agent Ashdown observed that Mr. Murray’s hands had been bagged, although he

did not know who had requested that they be bagged or who had bagged them. (Id. at 312:14-

23.) Agent Ashdown did not test Mr. Murray’s hands for gunshot residue because the FBI did

not conduct gunshot residue tests at that time. (Id. at 322:7-14.) Ultimately, Agent Ashdown did

not collect any evidence at the mortuary. (Id. at 313:10-15.) Officer Ben Murray offered Agent

Ashdown a vial of Todd Murray’s blood, that Agent Ashdown assumed had been collected to

test for alcohol or drugs, but Agent Ashdown rejected the offered vial both because he

anticipated receiving blood-testing results from the Medical Examiner and because he had chain-

of-custody concerns. (Id. at 313:10-315:1.)

“The FBI requested that the Utah State Office of Medical Examiner perform an autopsy

on Mr. Murray on April 1, 2007.” (ECF 189 at ¶ 56; Pl. Ex. 11.) Specifically, Agent Ashdown

requested an autopsy be performed. (ECF 199 at 318:2-4; Def. Ex. 39.)

9

Beveling refers to “a sort of cone shaped bone erosion in the direction of the bullet path

through the cranial vault.” Lorenzo Gitto, M.D. & Robert Stoppacher, M.D., Autopsy &

Forensics, Types of Injuries, Gunshot Wounds, Pathology Outlines (Aug. 24, 2021),

https://www.pathologyoutlines.com/topic/forensicsgunshotwounds.html#:~:text=Beveling%20is

%20a%20sort%20of,Sci%201991%3B36%3A1592) (last visited Mar. 23, 2023). Dr. Joseph

Cohen, one of the defendant’s expert witnesses, described “the best example of [beveling] that I

can think of is if one has seen a BB gun defect in a window, one side is very flat and the other

side has the beveling. And the beveling occurs on the opposite side of the window from where

the BB came from.” (ECF 200 at 442:24-443:4.)

17

Agent Ashdown recalled receiving a courtesy call from the Medical Examiner’s office

within a day or two of the shooting. (ECF 199 at 320:20-321:4.) During that call he was

informed that the Medical Examiner was “going to call [the incident] a self-inflicted wound,

close-contact, self-inflicted wound, suicide;” a full report from the Medical Examiner was to

follow. (ECF 199 at 321:3-13.) Agent Ashdown retired before the FBI received the Medical

Examiner’s written report. (Id. at 361:25-362:3.)

Despite Agent Ashdown’s request for an autopsy, “Dr. Leis, a medical examiner for the

Utah State Office of Medical Examiner, [only] performed an external examination of Mr.

Murray’s body.” (ECF 189 at ¶ 57.) “Dr. Leis did not perform an autopsy.” (Id. at ¶ 58.) Dr.

Leis’s report from that examination noted that Mr. Murray’s left hand was clean, and his right

hand was “caked” in blood. (Def. Exs. 51-52.) “Mr. Murray’s wound has been described by

Medical Examiner Leis and Plaintiffs’ and Defendant’s expert witnesses, Dr. Arden and Dr.

Cohen, as a ‘contact wound.’” (ECF 189 at ¶ 43.)

“The FBI did not request that the Office of Medical Examiner perform any additional

testing on Mr. Murray’s clothing.” (Id. at ¶ 60.) “The FBI did not request that the Office of

Medical Examiner turn over to it Mr. Murray’s clothes after the examination of Mr. Murray’s

body. Dr. Leis [previously had] testified that had the FBI made such a request, the Office[] of

the Medical Examiner would have turned the clothing over to the FBI.” (Id. at ¶ 59.)

J. Subsequent Investigations

“Agent Ashdown interviewed Trooper Dave Swenson on April 2, 2007.” (Id. at ¶ 61.)

Deanna Aguilar-Ramirez, Mr. Murray’s aunt, visited the scene of the shooting on April 2,

2007, to search for evidence and take photographs and videos of the scene. (ECF 198 at 44:5-7,

46:4-47:5.) Ms. Aguilar-Ramirez found two cigarettes or cigarette butts, band aids, bandages,

tapes, gloves, three large pools of blood, yellow glasses, crime scene tape, and empty beer bottles

at or near the scene; she did not find any bullets. (Id. at 49:16-52:7, 63:17-64:7; see also id. at

28:17-29:2 (Ms. Jones stating that neither she nor her family members found or have possession

of any bullets).)

Ms. Jones grew suspicious about the cause of Mr. Murray’s death when she saw his body

at the mortuary with a cut in his throat. (Id. at 25:17-26:5.) Ms. Jones was also suspicious

because of the location of Mr. Murray’s wounds. Ms. Jones believed her son had been “shot in

the back of his head,” based on her belief regarding the location of the entry wound. (Id. at

26:24-27:4.) Ms. Jones testified that her son was right-handed (id. at 27:9-10) but admitted that

she had never seen him fire a gun and did not know whether he used his right or left hand to fire

a gun. (Id. at 32:19-23.) Ms. Jones believed it was impossible for her son to have shot himself

in the back of the head with his right hand. (Id. at 27:5-8.)

After Mr. Murray’s funeral, Mr. Murray’s family contacted the Ute Indian Tribe’s

Business Committee (“Business Committee”) to pursue a lawsuit regarding Mr. Murray’s death.

The Business Committee provided an attorney, who met with Mr. Murray’s family on April 11,

2007. (Id. at 17:24-18:18, 55:15, 64:8-15.) Although Mr. Murray’s family knew that no autopsy

18

had been performed before Mr. Murray’s body was released to the family, the family did not

retain an independent forensic pathologist to conduct an autopsy. (Id. at 29:3-30:1.)

Mr. Murray’s family met with Agent Ashdown towards the end of April 2007, during the

week after their initial meeting with their attorney. (Id. at 40:21-23, 54:10-17.) The family’s

attorney was not present for the family’s meeting with Agent Ashdown. (Id. at 65:2-7.) Agent

Ashdown also recalled meeting with five or six members of Mr. Murray’s family during, as far

as he recalls, an unannounced visit approximately a couple of weeks after April 1, 2007. (ECF

199 at 323:2-22.)

Ms. Jones testified that she and her family told Agent Ashdown during their meeting that

they disagreed with the conclusion that Mr. Murray’s wound was self-inflicted, and that the

family would be “pursuing this.” (ECF 198 at 23:1-3.) Ms. Jones could not remember the exact

words that she or her family members had used to express their dissatisfaction with Agent

Ashdown’s conclusion of a suicide, but she testified that someone informed Agent Ashdown at

the meeting that the family was going to file a lawsuit. (Id. at 30:2-16.) Ms. Jones’ sister,

Martha Cornpeach, who also attended this meeting, testified that Agent Ashdown told the family

that the investigation “was still ongoing” and that he was “gonna try his best to get our questions

answered and try his best to follow through with the investigation.” (Id. at 36:16-21.)

That meeting in late April 2007 was the only time the Murray family met with someone

from the FBI. (Id. at 27:21-28:9.) The Murray family did not contact the FBI again after the

meeting in 2007 until the family’s attorney filed a notice of claim in March 2009. (Id.)

Agent Ashdown viewed the meeting as one with an upset, but respectful family that did

not believe Mr. Murray had committed suicide. (ECF 199 at 324:24-325:20.) Agent Ashdown

does not recall Mr. Murray’s family providing him with any additional evidence, and nothing

about the meeting changed Agent Ashdown’s existing belief that the totality of the evidence

supported the conclusion that Mr. Murray had committed suicide. 10 (Id. at 329:3-17.)

On April 12, 2007, Agent Ashdown prepared a summary report of the incident. That

report contained the GPS locations Agent Ashdown had recorded for Officer Norton’s location

and Mr. Murray’s location, based on what he had been told and the locations of physical

evidence. (Id. at 316:9-16; see also Def. Ex. 6.) Agent Ashdown approximated the distance

between those two GPS locations as 113 yards. (Def. Ex. 6 at 1 (Jones 0006858).)

“Agent David Ryan interviewed Officer Norton in the presence of Officer Norton’s

lawyer on May 3, 2007.” (ECF 189 at ¶ 62.) Agent Ryan’s notes of the interview do not

indicate that he asked Officer Norton any questions concerning Officer Norton’s inconsistent

10

During the meeting, Ms. Jones, her family, and Agent Ashdown together watched dash

camera footage of the car chase leading up to the shooting on April 1, 2007. (ECF 198 at 20:4-

21:25, 56:14-22; ECF 199 at 327:12-19.) No party has proffered dashboard camera video, and

none has been admitted into evidence or reviewed by the Court.

19

statements about the number of shots Mr. Murray had fired; Officer Norton having initially

stated that Mr. Murray fired one shot at him but later stated that he had fired two shots. (Pl. Ex.

8.) At the conclusion of the interview, Agent Ryan did not suspect Officer Norton of any

wrongdoing. (ECF 199 at 392:20-395:4.) Agent Ryan did not believe there was probable cause

to arrest Officer Norton or that there was any legal basis to request a search warrant for Officer

Norton’s person or property. (Id. at 394:11-395:4.)

Agent Ryan received the Medical Examiner’s final report on Mr. Murray’s death in July

2007 (id. at 395:21-23), and he did not notice or question the Medical Examiner’s decision to

conduct only an external examination rather than an autopsy on Mr. Murray. (Id. at 398:12-25.)

The Medical Examiner’s final report determined that the manner of death was suicide, and the

cause of death was a contact gunshot wound to the left side of the head. (Def. Ex. 52.) After

receiving the Medical Examiner’s report, Agent Ryan did not think further investigation into Mr.

Murray’s death was necessary because the Medical Examiner’s conclusion of suicide was

corroborated by the evidence at the scene and Officer Norton’s account. (ECF 199 at 399:4-13.)

K. Initiation of Legal Actions

Officer Norton did not learn that he was being accused of any wrongdoing related to the

April 1, 2007, incident until about “a year or so later[.]” (ECF 198 at 190:7-13.) At some time

in the spring or summer of 2008, Agent Ryan learned that Mr. Murray’s family would be suing

the local and state police officers and their employers over Mr. Murray’s death. (ECF 199 at

405:11-19.)

Agent Ryan investigated the purchase of the .380 Hi-Point. That investigation revealed

that that weapon had been illegally purchased for Uriah Kurip. (Id. at 399:17-401:12.) Agent

Ryan closed the investigation into both the illegal purchase of the .380 Hi-Point and Mr.

Murray’s death in September 2008, after a conviction against a third party related to the illegal

straw purchase of the .380 Hi-Point for Mr. Kurip. (Id. at 242:17-21, 326:9-13, 401:6-402:7,

405:6-10; Def. Ex. 19.)

Following the conviction of the straw-purchaser and the closure of the FBI case file, a

United States District Judge issued an order of forfeiture for the .380 Hi-Point on November 14,

2008. (ECF 199 at 401:6-402:7; Def. Ex. 19.) Pursuant to this order, the .380 Hi-Point was

removed from the FBI’s evidence locker in late November 2008 and handed over to the U.S.

Marshals Service in December 2008. (ECF 199 at 406:20-25.) “The Marshals Service destroyed

the handgun, as is its routine practice.” Jones III, 149 Fed. Cl. at 344. According to Agent

Ryan’s review of the case file and his familiarity with the general contours of the forfeiture

process, the FBI followed its normal procedures for turning property over to the U.S. Marshals

Service after an order of forfeiture has been entered. (Id. at 402:18-404:11.)

Agent Ryan was not thinking about civil litigation at the time the .380 Hi-Point was

forfeited to the U.S. Marshals Service and destroyed, and to his knowledge, neither was anyone

else involved in the forfeiture process. (Id. at 404:12-405:2.) Agent Ryan also did not

contemplate the Murray family suing the United States because “this was a clear-cut case” of

suicide and “[e]verything matched up from the [ ] statements[,] to the evidence that was found[,]

20

to the autopsy report. It just matched up.” (Id. at 406:4-15.) Agent Ryan did not contemplate

litigation against the United States over Mr. Murray’s death until March 2009, when the family

served the FBI with a notice of claim. (Id. at 405:20-406:3; Def. Ex. 50.)

L. Expert Witness Evidence

1. The Plaintiffs’ Expert Witnesses

“Dr. Jonathon Arden and William Gaut are experts retained by the Plaintiffs, and they

have been deposed once in the Utah District Court [l]itigation and once by the United States in

this case.” (ECF 189 at ¶ 15.) The parties stipulated to portions of prior deposition testimony

for use in resolving the motion for spoliation sanctions. 11 (Id. at ¶ 16.) Neither Dr. Arden nor

Dr. Gaut testified at the evidentiary hearing, and neither was qualified as an expert witness.

Dr. Gaut, an expert in police practices, opined that “this case can’t be closed, we can’t

prove this is a suicide just because we have one officer who says it was a suicide.” (ECF 144-2

at 150:13-15.) He also opined that he “didn’t see any evidence to corroborate or to refute [Dr.

Leis’s determination of cause and manner of death]. Because, remember, the evidence might

show that exactly what was alleged to happen did, but we can’t know the answer to that because

all of the evidence went away.” (Id. at 151:16-24 (apparently referencing the blood spatter,

Officer Norton’s clothes, and the lack of testing of one or more guns, including whether the.380

Hi-Point was functional).) In reference to an unspecified checklist, Dr. Gaut opined that: “You

can’t, for instance, choose not to collect a gun, or choose not to identify a blood stain. Those are

things that are not discretionary. They become -- evidence becomes part of the crime scene, and

it has to be protected, collected, analyzed.” (Id. at 31:7-20.)

Dr. Gaut acknowledged that the FBI could properly conclude that a death was a suicide

when it receives a certification of death by suicide from a forensic pathologist and there exists

“even a slight bit” of corroborating forensic evidence. (Id. at 151:10-15.)

Dr. Arden, a widely recognized medical examiner, opined:

There should have been further inquiry and examination, should

have been further documentation of critical facts. . . . I’m not saying

affirmatively this was not a suicide. I’m certainly not saying it could

not have been a suicide. I am saying that the totality of the

investigation and the examination were not adequate and leave

questions open.

11

Specifically, “[t]he parties stipulate that the following pages of deposition transcripts are

considered as testimony for purpose of Plaintiff[s’] renewed motion for spoliation sanctions.

Deposition of Jonathan Arden: pages 13, 54–55, 57, 61–64, 77–78, 82–84, 124–29, and 163–65

[available at ECF 144-1]. Deposition of William Gaut: pages 10, 14–20, 31, 87–88, 134, 146–

47, and 150–51 [available at ECF 144-2].” (ECF 189 at ¶ 16.)

21

(ECF 144-1 at 57:10-19.) Dr. Arden also opined that the gunshot wound to Mr. Murray’s head

was “atypical for a self-inflicted gunshot wound,” and that the location of the head wound was

“unusual” and the supposed trajectory of the bullet “a little unusual.” (Id. at 55:4-11.)

In reference to suicides by gunshot, Dr. Arden also opined that “there probably is some

spattering in every one of these cases but it doesn’t create visible identifiable spatter or blow-

back in a hundred percent of the cases.” (Id. at 82:3-7.) He added that only a minority of

suicide-by-gunshot cases lack visible blow-back on the hand or gun, “[b]ut is it something that

can occur, yes.” (Id. at 82:8-16.) Dr. Arden opined that the absence of blow-back on Mr.

Murray’s hand:

would raise the question to me about whether it was actually a

suicide. And it would cause me to make sure I’d investigated very

thoroughly and make sure that the other evidence is sufficient if I

were going to certify that case as a suicide. It would not by itself

absolutely exclude a suicide, no.

(Id. at 83:6-19.)

Finally, Dr. Arden opined that “a complete autopsy should have been performed rather

[than] an external examination . . . to confirm that the external features” of the gunshot wound

were consistent with the internal features, to examine the brain injury further, and to compare

this information with witness accounts of the shooting. (Id. at 126:16-127:14.)

2. The Defendant’s Expert Witnesses

a. Mr. John W. Fitzer

Mr. John W. Fitzer is a retired FBI agent with extensive experience and specialized

training in conducting criminal investigations in Indian country and in evidence-gathering

procedures. (ECF 200 at 482-96.) He has processed more than a thousand crime scenes

throughout his career. (Id. at 496:2-10.) Mr. Fitzer was designated “as an expert in crime scene

investigations or crime scene processing and criminal investigations in Indian country” and

testified at the evidentiary hearing. (Id. at 496:17-497:17.) Mr. Fitzer reviewed the evidence,

police reports, photographs, and deposition testimony of the responding law enforcement officers

related to the death of Mr. Murray. (Id. at 498:2-11.) In August 2008, he also visited the scene

where the incident had taken place. (Id.)

Mr. Fitzer explained that FBI guidance limits the FBI’s investigative jurisdiction to

crimes based on specific violations of federal laws. (Def. Ex. 16 at 8 (Jones0042228).) He also

explained that an FBI agent typically begins an investigation by identifying the legal authority

for the FBI’s presence at the scene and determining that there is a potential criminal violation of

law that would confer authority on the FBI to conduct a criminal investigation. (ECF 200 at

503:16-504:14.)

Mr. Fitzer explained that the FBI processes crime scenes using a 12-stage process, which

is taught to all FBI agents. (Id. at 501:18-22.) The 12 stages include, among other things, the

22

securing and protection of a scene, evaluation of evidence possibilities, documentation of the

scene with photographs, a detailed search, and collection and recordation of evidence. (Def. Ex.

18 at 22 (Jones0038326) (admitted as a demonstrative exhibit only).) Mr. Fitzer did not see any

evidence that Agent Ashdown had failed to follow that 12-stage process in processing the scene

of Mr. Murray’s death. (ECF 200 at 515:15-516:1.)

With regards to the scene of the shooting on April 1, 2007, Mr. Fitzer opined that the

non-federal law enforcement officers appropriately acted to preserve and protect the scene until

the FBI arrived. (Id. at 507:21-508:3.) The responding law enforcement officers stood near

items of potential evidentiary value, including fired rounds, to ensure that those items were

neither touched nor moved. (Id. at 508:4-25.) According to Mr. Fitzer, Officer Norton’s

participation in the investigation by taking photographs of the scene was not improper because it

was done in the presence of other law enforcement officers and did not disturb any evidence.

(Id. at 513:9-514:17.)

Mr. Fitzer opined that, upon arrival, Agent Ashdown appropriately took responsibility for

documenting and gathering evidence at the scene. (Id. at 509:1-5.) First-hand information is not

available for every incident, so investigators must take all evidence into consideration to include

testimonial evidence and physical evidence. (Id. at 552:22-553:9.) In Mr. Fitzer’s opinion,

Agent Ashdown reasonably relied on some second-hand information because it corroborated

evidence at the scene. (Id. at 553:10-25.) Agent Ashdown also properly located, documented,

and collected all the spent bullet casings at the scene (id. at 510:23-511:9); recorded GPS

coordinates to identify the location of Officer Norton’s shell casings and the location where Mr.

Murray had fallen after being shot (id. at 512:8-15); and took possession of the .380 Hi-Point

handgun (id. at 511:16-512:5).

In Mr. Fitzer’s opinion, Agent Ashdown had “zero” information at the scene that Officer

Norton was ever near Mr. Murray prior to the gunshot wound to Mr. Murray’s head. (Id. at

518:19-519:14.) Based on the information and evidence gathered by Agent Ashdown at the

scene, Mr. Fitzer opined there was neither reasonable suspicion nor probable cause for the FBI to

search Officer Norton’s car or collect his clothing or his .40 Glock. (Id. at 520:13-521:13.)

Additionally, the FBI’s decision to photograph, but not collect, blood spatter evidence was

reasonable because no one other than Mr. Murray had been injured, and there was therefore no

doubt that the blood on the scene had come from Mr. Murray. (Id. at 525:9-527:12.)

Further, Mr. Fitzer opined that there was no need to collect Officer Norton’s .40 caliber

service weapon to tie it to the spent shell casings found at Officer Norton’s location, because

there were other methods to connect that gun to the spent casings. (Id. at 519:4-6.) Although not

specified by Mr. Fitzer, one apparent method was reading the listed caliber of the bullets written

on the rim of the spent shell casings. (ECF 199 at 300:5-301:9.) The FBI’s decision not to

collect Officer Norton’s weapon was therefore reasonable, in Mr. Fitzer’s opinion, because

neither physical evidence nor witness testimony at the scene indicated that any of Officer

Norton’s rounds had struck Mr. Murray. (ECF 200 at 518:4-18.)

In any case, Mr. Fitzer opined that Chief Jensen’s inspection of Officer Norton’s weapon

was equivalent to any inspection the FBI would have performed, except for not confirming the

23

gun’s make, model, and serial number. (Id. at 560:5-20.) Because there were only two weapons

fired at the scene on April 1, 2007, a .40 caliber and a .380 caliber, Mr. Fitzer opined that there

was no reason to conduct further testing to tie those weapons to the shell casings found at the

scene because those casings were clearly identified by their caliber. (Id. at 528:1-10.)

Mr. Fitzer also explained that the FBI had stopped conducting gunshot residue tests

before April 1, 2007, because they had proven unreliable due to an unacceptable number of false

negatives and false positives. (Id. at 522:1-16.) Mr. Fitzer also opined that gunshot residue

testing would not have added any evidentiary value because the testimonial and physical

evidence at the scene showed that both Officer Norton and Mr. Murray had fired weapons on

April 1, 2007. (Id. at 522:17-24.)

Mr. Fitzer concluded that the FBI properly identified, preserved, collected, and analyzed

the physical evidence from the scene. (Id. at 499:6-11.) Mr. Fitzer added that crime scene

investigations cannot operate in a vacuum; instead, an investigator must assimilate all available

information and apply it to what the investigator observes at the scene. (Id. at 499:20-500:2.)

Mr. Fitzer opined that the FBI maintained a proper chain of custody for the evidence that was

collected. (Id. at 516:11-23.)

In Mr. Fitzer’s opinion, a search for any fired bullets was unnecessary due to the

exorbitant effort that would have been required to find them, and because all the evidence at the

scene supported the conclusion that Mr. Murray had suffered a self-inflicted gunshot wound to

his head. (Id. at 523:6-525:8.) When asked if the FBI should have searched for the projectiles

fired at the scene, Mr. Fitzer testified that “[t]he amount of effort that would have been needed to

even undertake searching for the rounds would have been exorbitant and beyond reasonable

given the facts and circumstances known.” (Id. at 522:25-523:11.) With regards to the

projectiles from the .380 Hi-Point, Mr. Fitzer described the effort involved as searching an area

of approximately 240,000 square yards, or 37 football fields, to find objects “roughly twice the

size of a pencil eraser.” (Id. at 523:12-525:8.)

b. Dr. Joseph Cohen

The Court qualified Dr. Joseph Cohen as an expert in forensic pathology, and he testified

at the evidentiary hearing. (Id. at 426-34.) He has performed 7,000 autopsies, 15,000 external

examinations, and 15,000 to 20,000 medical record reviews during his career. (Id. at 430:24-

431:8.)

According to Dr. Cohen, forensic pathologists or medical examiners generally perform

three levels of service: (a) medical record review, (b) external examination, and (c) autopsy.

When performing a medical record review, the medical examiner only reviews medical charts to

determine the cause and manner of death. When performing an external examination, the

medical examiner examines the outside of the body, documents injuries, and draws biological

fluids. When performing an autopsy, the medical examiner performs an external examination

but also makes incisions on the body and removes organs one-by-one. All three “levels of

service are for the same purpose, for cause and manner of death certification.” (Id. at 429:21-

430:21.)

24

In Dr. Cohen’s opinion, Mr. Murray’s gunshot wound was a contact wound, meaning that

the weapon that fired the fatal shot was very near Mr. Murray’s skull. (Id. at 440:21-443:12.)

More specifically, a contact wound is “when the muzzle of the gun . . . abuts, it’s touching the

skin surface or the scalp.” (Id. at 444:4-7.) Dr. Cohen noted that Dr. Leis, who conducted the

external examination of Mr. Murray’s body, reported finding soot in the wound track, which is

consistent with a contact wound. (Id. at 436:13-15, 442:7-10, 443:14-445:7.)

Dr. Leis determined that Mr. Murray’s entrance wound was near his left temple slightly

above and behind his left ear. (Id. at 440:21-441:7; see also Def. Exs. 29 and 32.) According to

Dr. Cohen, Dr. Leis also determined that the exit wound was in the back-right portion of Mr.

Murray’s head, behind and above his right ear. (ECF 200 at 446:6-16; Def. Exs. 30 and 31.) By

knowing the locations of the entrance and exit wounds, Dr. Leis could deduce the bullet’s path

through Mr. Murray’s brain, which, according to Dr. Cohen, was “left to right, slightly upward,

and slightly front to back.” (ECF 200 at 446:19-447:10.)

According to Dr. Cohen, a third party sticking a finger into the entrance wound in the

form of “a simple prod [of] the wound, [to] palpate or touch inside of the wound . . . would not

alter the [evidentiary] landscape significantly.” (Id. at 445:9-21.) Likewise, Dr. Cohen opined

that a post-mortem cut in Mr. Murray’s neck would not have affected the ability of a medical

examiner to determine the cause and manner of death. (Id. at 478:18-21.)

Dr. Cohen noted that Dr. Leis also took an x-ray of Mr. Murray’s brain, which in Dr.

Cohen’s opinion revealed no discernible projectiles or projectile fragments. (Id. at 449:8-450:1.)

According to Dr. Cohen, an internal examination of Mr. Murray’s skull and brain would not have

changed Dr. Leis’s determinations regarding cause and manner of death. (Id. at 452:3-8.) The x-

ray revealed no bullet fragments that were large enough to be seen, so even if an autopsy had

been conducted, Dr. Cohen opined that no “reasonable forensic pathologist would [have]

search[ed] for” any minute fragments that were not visible on the x-ray. (Id. at 455:17-456:7.)

Dr. Cohen also noted that Dr. Leis took blood samples from Mr. Murray’s body, and that these

samples revealed that Mr. Murray was under the influence of alcohol and methamphetamine

when he died. (Id. at 447:13-448:4.)

According to Dr. Cohen, Dr. Leis had noted in his Medical Examiner’s report that Mr.

Murray’s right hand was “caked in blood.” (Id. at 448:5-11.) Reviewing the photographs of Mr.

Murray’s right hand, Dr. Cohen opined that the blood on Mr. Murray’s right hand came from the

effects of the discharge of the weapon, or from Mr. Murray’s hand lying in a pool of his own

blood, or from both causes. (Id. at 448:5-449:7.) Dr. Cohen also opined that the blood could

have been transferred to Mr. Murray’s hand when Mr. Murray was moved prior to the

paramedics arriving or after he was moved into the ambulance and later into the hospital. (Id.)

Dr. Cohen agreed that the physical information could only reveal that Mr. Murray had

suffered a close contact wound and not who had inflicted it. (Id. at 477:24-478:6.) Dr. Cohen

opined that the manner of death had to be either suicide or by a shot from someone else holding a

firearm that was in contact with Mr. Murray’s head at the time it was fired. (Id. at 478:22-

479:13.)

25

III. ANALYSIS 12

As noted above, the plaintiffs have narrowed their requests for spoliation sanctions. They

now seek sanctions for the spoliation of only three pieces of unavailable evidence: (1) the .380

Hi-Point, (2) Officer Norton’s clothing, and (3) the .40 Glock.

A. Spoliation Sanctions for the .380 Hi-Point

Jones III previously held that the defendant had negligently spoliated the .380 Hi-Point;

based on that finding, the Court imposed a sanction that limited the defendant’s use of that

weapon as evidence to support the theory that Mr. Murray had committed suicide with it. Jones

III, 146 Fed. Cl. at 741-43. The Federal Circuit reversed the spoliation sanction and remanded

for a redetermination of “the exact bounds of the appropriate remedy, such as an adverse

inference or inferences, that should apply to any spoliated evidence in this case.” Jones V, 2022

WL 473032, at *11.

As a sanction for the defendant’s spoliation of the .380 Hi-Point, the plaintiffs seek an

irrebuttable adverse inference that “the .380 gun did not have Mr. Murray’s blood, tissue,

fingerprints, or DNA on it” and “that the .380 gun was not operational.” (ECF 201 at 25-26.) 13

If the Court were to award the plaintiffs their requested sanction of several adverse, irrebuttable

inferences, the defendant would not be allowed to offer any evidence or argument against any

adverse inference imposed, and the Court would have to accept any such adverse inferences as

fact.

The defendant, after reasserting that no sanction should have been imposed and that the

original sanction was sufficient, argues that “the Court should limit any sanction to a permissive

negative inference related to [the .380 Hi-Point].” (ECF 203 at 2, 29 n.8, 42.) Specifically, the

defendant argues that the appropriate sanction for the FBI’s negligent destruction of the .380 Hi-

Point is a “rebuttable, permissive inference” that “‘the .380 gun did not have Mr. Murray’s

blood, tissue, fingerprints, or DNA on it.’” (Id. at 42, 48 (quoting ECF 201 at 26).) The

defendant opposes the plaintiffs’ requested adverse inference that the .380 Hi-Point was not

operational because such an inference “does not fill an evidentiary gap, but instead contradicts

credible testimonial and physical evidence that the Hi-Point .380 was fired at the scene on April

1, 2007.” (Id. at 48-49.) Importantly, other than “re-assert[ing] that the Court’s original

sanction” imposed in Jones III “was sufficient,” a position the Federal Circuit rejected in Jones

V, the defendant has not argued that any sanction less than an adverse inference is appropriate for

the spoliation of the .380 Hi-Point. The defendant, however, has argued that it should not be

12

The Court’s analysis contains additional findings of fact, as well as conclusions of law

predicated on the facts found.

13

Although not clear from the plaintiffs’ filings, the plaintiffs clarified during their closing

summation that they were seeking irrebuttable adverse inferences as sanctions for the alleged

spoliation.

26

precluded from presenting secondary evidence related to the .380 Hi-Point because Agent

Ashdown, Investigator Campbell, and Officer Norton can credibly testify about their

observations of the weapon and because such a sanction would be “a highly punitive, default

judgment-type sanction” when combined with an adverse inference. 14 (Id. at 47-48.)

The Federal Circuit specifically held that an appropriate sanction for the destruction of

the .380 Hi-Point “should be molded to serve the prophylactic, punitive, and remedial rationales

underlying the spoliation doctrine.” Jones V, 2022 WL 473032, at *9 (cleaned up). The

appropriate sanction must “(1) deter parties from engaging in spoliation; (2) place the risk of an

erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced

party to the same position he would have been in absent the wrongful destruction of evidence by

the opposing party.” Id. at *10 (cleaned up). The Federal Circuit also noted that an appropriate

sanction might include “an adverse inference or inferences.” Jones V, 2022 WL 473032, at *11.

Because the imposition of a spoliation sanction for the destruction of the .380 Hi-Point is

levied pursuant to the Court’s inherent power, “restraint and discretion” are necessary.

Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). “[G]iven the potential harshness of negative

inferences, the discretion of the court must be exercised in a common sense manner.” Chapman

Law Firm, LPA v. United States, 113 Fed. Cl. 555, 611 (2013), aff’d, 583 F. App’x 915 (Fed.

Cir. 2014).

To accomplish the goals set out by the Federal Circuit, the imposition of a rebuttable

adverse inference is warranted because any lesser sanction would be ineffective, see Jones V,

2022 WL 473032, at *9-11, and because the parties have both argued that some form of adverse

inference is an appropriate sanction.

With the “prophylactic, punitive, and remedial rationales underlying the spoliation

doctrine” in mind, Jones V, 2022 WL 473032, at *9 (cleaned up), the following two sanctions are

imposed on the defendant for the spoliation of the .380 Hi-Point:

1. A rebuttable adverse inference that the .380 Hi-Point did not have Mr. Murray’s

blood, tissue, fingerprints, or DNA on it. The defendant may rebut this adverse

inference only with physical evidence or corroborating testimony from at least

one witness other than Officer Norton. If the defendant rebuts this adverse

inference, the question of what the .380 Hi-Point would have shown will be

treated as unknowable.

2. To prevent circumvention of the first sanction, the defendant may not rely on any

secondary evidence as to what may have been found on the .380 Hi-Point or

secondary evidence concerning the un-ejected (or stovepiped) shell casing found

in the destroyed handgun to support its arguments on the merits that Mr. Murray

14

Here, secondary evidence refers to “evidence related to the spoliated gun in the form of

photographs and testimony . . . .” Jones V, 2022 WL 473032, at *11.

27

died by a self-inflicted gunshot wound. The defendant may on the merits,

however, present physical evidence or testimony from witnesses to corroborate

Officer Norton’s testimony to show that Mr. Murray was in possession of and

used the .380 Hi-Point on April 1, 2007, and to provide evidence concerning the

origin, ownership, and destruction of the weapon.

These sanctions provide the plaintiffs with an adverse inference that the .380 Hi-Point

would have produced evidence favorable to their assertion that Mr. Murray did not commit

suicide. These sanctions also prevent the defendant from benefiting from any evidence that

might have been found on the .380 Hi-Point, other than to rebut the adverse inference and render

the question of blood, tissue, fingerprints, or DNA on the handgun unknowable. These sanctions

ameliorate the prejudice done to the plaintiffs by placing upon the defendant the burden to show

the .380 Hi-Point would not have provided evidence favorable to the plaintiffs. They prevent the

defendant from using whatever evidence would likely have been found or had been missing on

the .380 Hi-Point, even if the defendant rebuts the adverse inference favorable to the plaintiffs,

because the defendant was negligently culpable in the destruction of the .380 Hi-Point.

To ensure that the risk of an incorrect judgment is placed on the defendant,

commensurate with its negligence, and to deter future spoliation, the defendant will face

limitations on the evidence it may use to rebut the adverse inference. The defendant will not be

able to rely solely on the testimony of Officer Norton to overcome the adverse inference.

Instead, the defendant will have to provide physical evidence or credible corroborating testimony

from at least one witness other than Officer Norton to rebut the adverse inference being imposed

with respect to the .380 Hi-Point.

These limitations are necessary to prevent prejudice to the plaintiffs. Officer Norton is

the only surviving eyewitness to the actual shooting of Mr. Murray. If the defendant were

allowed to rebut the adverse inference by relying simply on his testimony, the plaintiffs would

not be able to mount a meaningful rebuttal except by undercutting Officer Norton’s credibility.

To rebut the adverse inference being imposed, the defendant will therefore have to rely

on physical evidence from the scene or from the testimony of other officers who were present

near the shooting or who investigated the scene. Officer Norton will be permitted to testify

about the events, but that testimony will not be sufficient to rebut the adverse inference. If the

evidence produced by the defendant is sufficient to rebut the adverse inference, any evidence that

would or would not have been found on the .380 Hi-Point will be treated as unknowable.

These sanctions permit the defendant to use secondary evidence to rebut the adverse

inference but not to prove or to argue what testing of the .380 Hi-Point may have revealed to

support its theory of the case. As the Federal Circuit noted, allowing the defendant to present

secondary evidence regarding the .380 Hi-Point to support its theory of the case could render a

spoliation sanction meaningless. See Jones V, 2022 WL 473032, at *10-11. The gravamen of

the plaintiffs’ claimed spoliation concerning the .380 Hi-Point is that the plaintiffs were denied

an opportunity to test that weapon for blood, tissue, fingerprints, and DNA (see ECF 201 at 25-

26), evidence that plausibly could have been on the gun but not visible to the naked eye (see ECF

144-1 at 82:3-7). Allowing the defendant to rely on secondary evidence to support its theory of

28

the case would undermine the effectiveness of the rebuttable adverse inference sanction.

Therefore, secondary evidence related to what was on the gun can only be used to rebut the

adverse inference being imposed but may not be used affirmatively by the defendant to argue

that Mr. Murray committed suicide.

In other words, if the defendant rebuts the adverse inference, what may have been found

on the .380 Hi-Point will be treated as unknowable. To do otherwise would allow the defendant

to use secondary evidence to show what may have been on the .380 Hi-Point for use in support

of arguments on the merits. To allow the defendant to make such arguments on the merits would

allow the defendant to circumvent the spoliation sanction with secondary evidence and benefit

from its destruction of the primary evidence, i.e., the .380 Hi-Point. That outcome would be

inconsistent with the Federal Circuit’s direction.

As the .380 Hi-Point was undisputedly present at the scene of the shooting, however, the

defendant may still present evidence to corroborate Officer Norton’s testimony, that the .380 Hi-

Point was present and operable on April 1, 2007. The plaintiffs have offered no arguments that

the destruction of the .380 Hi-Point somehow led to the prejudicial loss of evidence related to the

presence, origin, or ownership of the .380 Hi-Point. Questions about the ownership and origin of

the .380 Hi-Point were also the subject of other federal court proceedings, and the plaintiffs have

presented no reason to question the reliability of previous conclusions related to that weapon.

(ECF 199 at 401:15-402:7; Def. Ex. 19.) Therefore, the defendant may rely on secondary

evidence, in addition to Officer Norton’s testimony, to show the origins of the .380 Hi-Point and

how it came to be at the scene of the shooting. The defendant will also be able to introduce

physical evidence, such as photographs of the .380 Hi-Point, to show that it was found at the

scene of the shooting but may not rely on any evidence to argue on the merits that the weapon

was free of blood, tissue, fingerprints, and DNA.

Because the defendant’s destruction of the .380 Hi-Point was at most negligent, the

adverse inference imposed will be rebuttable. 15 The evidence shows that the defendant

15

There is a circuit split as to whether negligence alone suffices for the imposition of an

adverse inference as a sanction for spoliation of evidence, or whether a state of mind more

culpable than negligence, such as bad faith, is required. See Jandreau v. Nicholson, 492 F.3d

1372, 13776 n.3 (Fed. Cir. 2007) (noting that the Second and Sixth Circuits permit an adverse

inference for “mere negligence,” while the First, Third, Fifth, Ninth, Tenth, and Eleventh

Circuits do not). The Federal Circuit held in Jandreau that the “general rules of evidence law”

require that the spoliated evidence be “destroyed with a culpable state of mind” before a court

may impose an adverse inference. Id. at 1375; Burns v. McDonough, No. 2021-1878, 2022 WL

2899087, at *3 n.4 (Fed. Cir. July 22, 2022); Alexce v. Shinseki, 447 F. App’x 175, 178 (Fed.

Cir. 2011) (quoting Jandreau, 492 F.3d at 1375). The Federal Circuit, however, has never

specified what level of culpability is required for the imposition of an adverse inference. Burns,

2022 WL 2899087, at *3 n.4; Kirkendall v. Dep’t of Army, 573 F.3d 1318, 1327 n.6 (Fed. Cir.

2009) (noting that Jandreau “presented . . . the question of whether negligent, as opposed to bad

29

destroyed the .380 Hi-Point pursuant to a forfeiture order signed by a federal district judge.

(ECF 199 at 401:15-402:7; Def. Ex. 19.) As was noted in Jones III, the weapon was destroyed

only after public notice of its forfeiture and impending destruction were provided. 146 Fed. Cl.

at 733 (citing ECF 77 at ¶ 40). That public notice undercuts any claim that the defendant’s

employees were acting in secrecy and bad faith to destroy useful evidence. Further, no evidence

has been presented that the defendant destroyed the weapon to prevent its usage as evidence in

this or any other case arising from Mr. Murray’s death. There is no evidence that the defendant

or any of its employees, including agents and employees of the FBI or the Marshals Service,

acted with bad faith or with an improper motive.

Additionally, although litigation was reasonably foreseeable as early as April 1, 2007, the

plaintiffs apparently took no steps themselves to request that the defendant preserve the .380 Hi-

Point for use in the litigation the plaintiffs were contemplating at the time the weapon was

destroyed, following public notice of that impending action. See Jones III, 146 Fed. Cl. at 742

n.8. This is not a case in which the plaintiffs notified the defendant of their need for the .380 Hi-

Point or requested that the defendant preserve the weapon, and the defendant subsequently

ignored any such notice or request and destroyed the weapon. Instead, the evidence shows that

the .380 Hi-Point was destroyed in accordance with routine FBI procedures. (ECF 199 at

402:18-404:11). Although those procedures proved inadequate for preserving evidence for the

reasonably foreseeable litigation in this civil case, the plaintiffs are not entirely blameless,

having taken no action to request that the defendant preserve the .380 Hi-Point.

The plaintiffs also did not offer any evidence indicating that the FBI’s routine procedures

that were relied upon here have previously resulted in the spoliation of evidence such that relying

on them was reckless or grossly negligent. While the plaintiffs have questioned Agent

Ashdown’s motives and investigation methods, Agent Ashdown had been retired for more than a

year by the time the .380 Hi-Point was destroyed in December 2008. (ECF 189 at ¶ 12; ECF 199

at 406:20-25); Jones III, 149 Fed. Cl. at 344. Therefore, as was previously found, Jones III, 146

Fed. Cl. at 741-42, the .380 Hi-Point was spoliated due to negligence and not a more culpable

mental state.

faith, destruction of documents can give rise to an adverse inference” and that the issue “was not

decided in that case”); Advanced Powder Sols., Inc. v. United States, 160 Fed. Cl. 575, 582 n.10

(2022), reconsideration denied, No. 20-137C, 2022 WL 2720193 (Fed. Cl. July 13, 2022). Both

parties to this case have argued that some form of adverse inference is appropriate; based on the

defendant’s concession that its negligent spoliation of the .380 Hi-Point supports the imposition

of an adverse inference, the Court need not decide whether mere negligence is a sufficiently

culpable state of mind for the imposition of an adverse inference as a spoliation sanction. (ECF

203 at 2, 42, 44-49 (the defendant conceding that negligence can support a rebuttable adverse

inference after noting that “the FBI, at most, acted negligently,” and arguing “[a]nything more

than a permissive, rebuttable adverse inference would be ‘disproportionate to the offense,’”

(quoting Cencast Servs., L.P. v. United States, 94 Fed. Cl. 425, 444 (2010))).)

30

The adverse inference imposed for the negligent destruction of the .380 Hi-Point will

therefore not be irrebuttable, as that degree of sanction would be a greater punishment than

necessary and appropriate given the defendant’s culpability. See Cencast Servs., L.P. v. United

States, 94 Fed. Cl. 425, 444 (2010) (noting that “[u]nder any applicable test, the level of

culpability is relevant to the propriety of a sanction”), aff’d, 729 F.3d 1352 (Fed. Cir. 2013). The

Court must also “‘construct a sanction that is just and proportionate in light of the circumstances

underlying the failure to preserve relevant evidence, as well as the punitive, prophylactic,

remedial and institutional purposes to be served by such sanctions.’” Id. (quoting United Med.

Supply Co. v. United States, 77 Fed. Cl. 257, 270 (2007)).

An irrebuttable adverse inference would put the plaintiffs in a better position than they

would have been in had the evidence not been spoliated because the significance and accuracy of

any favorable evidence and related testing could normally be subject to challenge and cross-

examination. The defendant’s negligence lessens the need for a more severe prophylactic

sanction to deter or punish the defendant. An irrebuttable adverse inference therefore would

excessively and unfairly place on the defendant the burden of an incorrect determination of the

claims at trial beyond what is necessary and appropriate based on the facts of this case.

Additionally, the defendant has conceded that “a permissive inference sanction is not

toothless in that it may create a genuine dispute sufficient to preclude summary judgment.”

(ECCF 203 at 46.) These sanctions therefore will further deter the defendant because they will

likely prevent a complete disposition of this case on summary judgment and allow the plaintiffs

to test their theory of the case at a trial. As the Federal Circuit noted:

If absence of blowback on Officer Norton is evidence that he did not

shoot Mr. Murr[a]y, it is a plausible and concrete suggestion that

absence of blowback on the Hi-Point .380 handgun is evidence that

it was not used to shoot Mr. Murray. Had the government not

destroyed the gun, these suggestions may have been evidence that

constituted a key part of Mr. Murray’s parents’ case.

Jones V, 2022 WL 473032, at *11.

The adverse inference being imposed will likely create disputes over material facts

regarding who fired the shot that killed Mr. Murray because it is unlikely that the .380 Hi-Point

would have been clean of blood and tissue if Mr. Murray had used it on himself in a contact

shooting. (ECF 144-1 at 82:3-16.) A permissive inference concerning the .380 Hi-Point and the

evidence that the Court will infer was on it when it was recovered on April 1, 2007, will provide

an effective sanction that will likely require a trial on the merits.

The plaintiffs’ requested sanction concerning the inoperability of the .380 Hi-Point is

denied. That proposed adverse inference is counterfactual to such an extent as to render it

implausible.

The plaintiffs’ request for the sanction that the .380 Hi-Point was not operational appears

to be based on the stovepiped round and Agent Ashdown’s testimony regarding that round. (See

31

ECF 201 at 25-26.) Specifically, the plaintiffs rely on Agent Ashdown’s testimony that the

round was stovepiped in the .380 Hi-Point due either to the shooter gripping the weapon weakly

when firing or to the weapon not being properly maintained. (ECF 199 at 294:19-295:5.)

The conclusion that the .380 Hi-Point was not operable after the stovepiped round was

fired would be supported because such a blockage would prevent the proper action of the gun.

(See ECF 198 at 182:16-24; ECF 199 at 294:15-25.) The plaintiffs, however, request an

inference that the gun was not operable at all on April 1, 2007. (See ECF 201 at 25-26.)

That inference is implausible. Two expended .380 caliber cartridges were found very

close to where Mr. Murray had lain. This evidence reflects that a .380 caliber firearm had been

fired at that location. While a stovepiped round would have prevented the .380 Hi-Point from

firing subsequent rounds, the existence of the stovepiped round indicates that the weapon had in

fact been fired in the first place. (See id. at 294:19-25; Pl. Ex. 2 at 12, 15-16.) The plaintiffs

argue those cartridges did not come from a firearm carried by Mr. Murray, and they remain free

to attempt to prove that point.

Only a couple of scenarios could account for expended .380 cartridges being at the scene

of the shooting so close to Mr. Murray’s location if the .380 Hi-Point was not operable. One

would be that someone else fired a .380 weapon at that precise location at some time in the past,

and the spent cartridges had remained there. This scenario appears exceedingly unlikely, given

the remote location of the shooting. (Def. Ex. 45 at E-I (Jones0011716-20), M-P

(Jones0011724-27), V-Y (Jones0011733-36), DD-JJ (Jones0011742-48, WW-ZZ

(Jones0011761-64).) Another would be that one of the officers planted them or manipulated the

evidence at the scene. There is no evidence to show or even suggest that the physical evidence at

the scene of the shooting was manipulated, let alone fabricated. (ECF 198 at 175:8-14; ECF 199

at 295:9-12; ECF 200 at 514:12-17.) Given that multiple officers were involved in securing the

scene (ECF 198 at 99:7-12, 102:12-103:2, 104:13-18, 173:7-12), manipulating the evidence

would have required a conspiracy among several officers. The record is devoid of any evidence

of such a conspiracy, and the plaintiffs have neither attempted to show the existence of such a

conspiracy nor proffered any proposed finding of fact or conclusion of law regarding such a

conspiracy.

Awarding an adverse inference against the physical evidence of expended cartridges of

the same caliber as the .380 Hi-Point would therefore impose too severe a sanction on the

defendant for its negligence and excessively risks of an incorrect conclusion at trial.

In addition, any inference that the .380 Hi-Point was not operable before the shooting on

April 1, 2007, would be improper because it is not plausibly related to what testing of the

weapon would have shown had it not been destroyed. See Jones V, 2022 WL 473032, at *11

(cleaned up) (emphasis added) (noting “a party may satisfy its burden to show prejudice by

coming forward with plausible, concrete suggestions as to what the destroyed evidence might

have been”). The plaintiffs have not provided any evidence that a test exists that could identify

when the stovepiped round was fired. Without such a test, even had the .380 Hi-Point not been

destroyed, it would be impossible to determine if the weapon was rendered inoperable before or

on April 1, 2007. Without some reason to think such a test exists, the plaintiffs cannot plausibly

32

suggest that they could have shown that the .380 Hi-Point was inoperable had the weapon not

been spoliated.

B. Standards for Spoliation

Having imposed sanctions for the destruction of the .380 Hi-Point handgun, the Court

turns to the remaining question of whether Officer Norton’s .40 Glock and his clothing were

spoliated, based on the Federal Circuit’s guidance on spoliation standards.

“Spoliation is the breach of the duty to preserve evidence, either through destruction of

evidence or through failure to properly preserve it.” Id., at *4. “A duty to preserve evidence

arises when a party knows or reasonably should know that evidence in its control may be

relevant to a reasonably foreseeable legal action.” Id.

“Reasonable foreseeability ‘is an objective standard, asking not whether the party in fact

reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances

would have reasonably foreseen litigation.’” Id., at *9 n.5 (quoting Micron Tech., Inc. v.

Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011)). 16

Control is the “right to obtain or control that evidence.” Id at *4. The defendant is held

to the same standard as “any other civil litigant,” and therefore “‘controls’ evidence under the

duty to preserve where it has a legal right to obtain or control that evidence.” Id. “[C]ontrol

requires only a legal right to obtain evidence, not a legal requirement to obtain evidence.” Id. at

*6.

In cases involving law enforcement, “the extent of the government’s control over an

investigation scene is dependent on its suspicion of a crime.” Id. at *8. “[L]aw enforcement’s

16

During their closing argument, the plaintiffs argued that the defendant should not be

allowed to argue that reasonable foreseeability is a claim-specific inquiry that must consider

whether the claim was foreseeable against a specific defendant. The plaintiffs argued that if the

defendant had wanted to preserve this argument, the defendant should have appealed the Jones

III decision. The defendant could not, however, have appealed Jones III, because the defendant

had succeeded on the merits and was not aggrieved by the collateral ruling on spoliation. See

Deposit Guar. Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 333 (1980) (“Ordinarily, only a

party aggrieved by a judgment or order of a district court may exercise the statutory right to

appeal therefrom. A party who receives all that he has sought generally is not aggrieved by the

judgment affording the relief and cannot appeal from it.”); SkyHawke Techs., LLC v. Deca Int’l

Corp., 828 F.3d 1373, 1375 (Fed. Cir. 2016) (“Even if the prevailing party alleges some adverse

impact from the lower tribunal’s opinions or rulings leading to an ultimately favorable judgment,

the matter is generally not proper for review.”) Therefore, the defendant was free to make new

arguments concerning the proper scope of the reasonable-foreseeability analysis when the case

was remanded for reconsideration of the spoliation issue.

33

‘control’ over an investigation scene is not unlimited and, therefore, neither is its duty to

preserve evidence on that investigation scene.” Id.

“The Fourth Amendment . . . constrains the government’s legal right to obtain or control

evidence in an investigation.” Id.; see also Mincey v. Arizona, 437 U.S. 385, 395 (1978)

(holding that the fourth and fourteenth amendments do not contain a “murder scene exception”).

Generally, law enforcement officers who are legally present and have lawful access to criminal

evidence in plain view may seize it without a warrant when “its incriminating character” is

“immediately apparent.” Horton v. California, 496 U.S. 128, 136-37 (1990) (cleaned up).

Underpinning the plain view doctrine is that an officer has probable cause that whatever he

searches or seizes is evidence of a crime. Arizona v. Hicks, 480 U.S. 321, 326-27 (1987); see

United States v. Soussi, 29 F.3d 565, 572 (10th Cir. 1994) (describing Horton’s “immediately

apparent” incriminating character requirement as being “i.e. did the agents have probable cause

to believe that the items were evidence of a crime or illegal contraband”).

In general, probable cause is loosely defined as “reasonable ground for belief of guilt, and

[ ] the belief of guilt must be particularized with respect to the person to be searched or seized.”

Maryland v. Pringle, 540 U.S. 366, 371 (2003) (cleaned up). Probable cause “depends on the

totality of the circumstances.” Id.

The plain view doctrine does not authorize anything other than plain view searches of

evidence to find probable cause. See Hicks, 480 U.S. at 323-25, 328-29 (holding that moving

stereo equipment even a few inches to find its serial number, as opposed to reading a serial

number already in view, to confirm whether something is stolen property was an unconstitutional

search in the absence of existing probable cause to seize the stereo equipment).

If probable cause exists to arrest someone, further searches and seizure of evidence may

be authorized as searches incident to arrest or inventory searches. Illinois v. Lafayette, 462 U.S.

640, 643-44 (1983) (noting that “the interests supporting a search incident to arrest would hardly

justify disrobing an arrestee on the street, but the practical necessities of routine jail

administration may even justify taking a prisoner’s clothes before confining him”). As applied

to the question of control, if law enforcement has probable cause to detain someone, then law

enforcement has a legal right to control the evidence on the detainee. Jones V, 2022 WL 473032,

at *8.

In short, for the defendant to spoliate evidence for purposes of civil litigation, evidence

relevant to objectively reasonably, foreseeable litigation must have been lost or destroyed, and

the government must have had a legal right to obtain or control the relevant evidence. In cases

involving evidence at a crime scene, the key question as to control is whether the defendant had

the legal right to obtain or control the evidence in compliance with the fourth amendment.

C. Reasonable Foreseeability

In Jones III, the Court found that litigation was reasonably foreseeable by the time the .380

Hi-Point was destroyed, but the question of precisely when litigation became reasonably

foreseeable was left unresolved. The Federal Circuit remanded for a resolution of the question of

34

when litigation became reasonably foreseeable. In resolving that issue, the Circuit required the

consideration of “all information the federal officers gleaned from their observations at the scene,

morgue, and coroner’s office, including the coroner’s failure to carry out the ordered autopsy.”

Jones V, 2022 WL 473032, at *9 n.5.

“When litigation is ‘reasonably foreseeable’ is a flexible fact-specific standard” that

considers “whether a reasonable party in the same factual circumstances would have reasonably

foreseen litigation.” Micron Tech., Inc., 645 F.3d at 1320, quoted in part in Jones V, 2022 WL

473032, at *9 n.5. A determination of reasonable foreseeability is an objective one, not dependent

on the subjective awareness of the relevant participants. Jones V, 2022 WL 473032, at *9 n.5

(quoting Micron Tech., Inc., 645 F.3d at 1320).

The extensive and extended litigation over the boundaries of the Ute reservation on which

Mr. Murray was fatally injured and over the authority and activities of state and local law

enforcement agencies on the reservation lands outside their jurisdiction, as well as the seriousness

of an incident resulting in death combine to weigh in favor of a finding that litigation was

reasonably foreseeable relatively early in the case. See Jones III, 146 Fed. Cl. at 741. The

existence of the bad men provision of the treaty between the defendant and the Ute Tribe leads to

the conclusion that litigation against the United States was also reasonably foreseeable as early as

April 1, 2007.

Any reasonable person involved in law enforcement in Indian country in northeastern Utah

should have been familiar with the long-running litigation about the boundaries of the Ute

reservation and the jurisdiction thereon of state law enforcement. See Ute I-V. The district court

in the earlier litigation against the state and local actors arising from Mr. Murray’s death found

that “in light of the seriousness of the incident and the involvement of officers on the Reservation

where they did not have jurisdiction, litigation could reasonably be expected,” although the district

court did not clearly specify that litigation was reasonably foreseeable on April 1, 2007. Jones v.

Norton, No. 2:09-CV-730-TC, 2014 WL 909569, at *7 (D. Utah Mar. 7, 2014), aff’d, 809 F.3d

564 (10th Cir. 2015).

In accordance with the Federal Circuit’s directive to examine the facts available to Agent

Ashdown based on the scene of the shooting and the mortuary, a short summary of those facts

follows.

Agent Ashdown arrived on the scene of the shooting. At the scene, consistent with his

practice in such cases, he spoke to the highest-ranking officers to get a sense of what had

happened. (ECF 199 at 277:16-278:13, 348:18-349:11.) During that briefing, Agent Ashdown

likely would have been informed of the version of events that Officer Norton had provided to

other officers about how the shooting occurred. (ECF 198 at 102:12-15; ECF 199 at 259:18-23,

261:24-262:3, 279:2-16, 281:5-11, 281:25-282:12.) Agent Ashdown would have likely heard

through second- or third-hand sources that Officer Norton was on a hill when he spotted Mr.

Murray, that Mr. Murray appeared to have a gun in his hand, that Officer Norton raised his gun

towards Mr. Murray and commanded him to surrender, that Mr. Murray then fired twice at

Officer Norton (id. at 259:18-260:14), and that Officer Norton returned fire (id. at 282:4-12)

before retreating to the top of the hill he had been standing on. (ECF 198 at 93:3-94:3; ECF 199

35

at 316:11-16; see also Def. Ex. 6.) Agent Ashdown also would have indirectly been made aware

of Officer Norton’s claim that he saw Mr. Murray put his firearm to his head and shoot himself.

(ECF 199 at 259:18-260:14; Def. Ex. 6.)

Agent Ashdown investigated the scene and found a .380 Hi-Point handgun along with

two matching spent casings near where he was told Mr. Murray had lain; that location was

confirmed by the blood at that site. (ECF 199 at 291:1-7, 294:5-14; Def. Ex. 4 at 1

(Jones0038082), 3-5 (Jones0038084-86).) Agent Ashdown also found two bullet casings, whose

caliber matched the .40 Glock that he knew Officer Norton used, approximately 113 yards from

Mr. Murray’s location. (ECF 199 at 281:6-11, 300:22-301:11; Def. Exs. 4 at 9-13

(Jones0038089-93), 6.) Agent Ashdown also observed Officer Norton and saw nothing to

indicate that he had been in a physical altercation with Mr. Murray or that there was any blood,

viscera, or anything else noteworthy on Officer Norton’s clothing, describing it as “clean and

pristine.” (ECF 199 at 283:4-11; see Pl. Ex. 2 at 13 (photograph of Officer Norton).) Agent

Ashdown should also have seen from the blood spatter that the shot that killed Mr. Murray

traveled north to south at a right angle from where the spent .40 caliber bullet casings indicated

was the location from which Officer Norton had fired. (ECF 199 at 258:18-259:1, 260:16-18,

262:4-24; Def. Ex. 41 at 2 (Jones0011385).)

It should have been apparent at the scene that Officer Norton “was not cross-deputized by

the United States o[r] the Ute Indian Tribe on April 1, 2007, to exercise law enforcement

authority on the Ute Reservation.” (ECF 189 at ¶ 8.) Further, it should have been apparent to

Agent Ashdown that Officer Norton’s jurisdiction as a Vernal City police officer was “wholly

outside the Ute Indian Reservation.” (Id.) It also should have been apparent that the only

witness to Mr. Murray’s shooting was Officer Norton himself, a fact that should have made

Agent Ashdown seek to corroborate the hearsay telling of Officer Norton’s potentially self-

interested account. (Id. at ¶ 37.)

Based on the testimony of Investigator Campbell, there were no tracks that connected

where Officer Norton had been standing to where Mr. Murray was found. (ECF 199 at 262:11-

24, 263:13-22.) Investigator Campbell’s testimony also indicates that an officer would have

been able to determine that the bullet that killed Mr. Murray was fired at a right angle from

where Officer Norton stood on the hill. (Id. at 258:18-259:1, 262:4-24; Def. Ex. 41 at 2

(Jones0011385).) That said, Officer Norton did, by his own admission, approach Mr. Murray to

take photographs of the crime scene. (ECF 189 at ¶ 38; ECF 198 at 108:11-14, 191:19-192:10.)

Therefore, there should have been footprints connecting Officer Norton to sites close to Mr.

Murray, even if these footprints did not reach Mr. Murray directly. Further, it is not evident how

an observer at the scene could have differentiated Officer Norton’s footprints from those of

Deputy Byron and Trooper Young, who went from Officer Norton’s location on the hill down to

Mr. Murray and placed him in handcuffs. (ECF 198 at 95:8-17, 102:12-15, 102:25-103:2, 173:7-

22.)

After finishing with the scene, Agent Ashdown went to the mortuary to examine Mr.

Murray’s body. (ECF 199 at 307:5-13.) At the mortuary, he was unable to determine the

entrance and exit wounds (ECF 199 at 307:21-25), and he did not collect any evidence (id. at

311:22-24, 312:24-313:15). Agent Ashdown would have been able to see that Mr. Murray’s

36

right hand was “caked in blood” and that his left hand was clean. (ECF 200 at 448:5-10; Def.

Ex. 51.) Agent Ashdown was offered vials of Todd Murray’s blood by Officer Ben Murray but

rejected them due to “a questionable chain of custody” and a lack of a way to properly store the

blood. (ECF 199 at 313:12-25, 364:11-18.) Officer Byron also inappropriately handled Mr.

Murray’s body to examine it for beveling, although Agent Ashdown did not believe that

improper handling would have altered any evidence. (Id. at 309:5-311:21.)

Taken together, a reasonable person presented with this information should have

anticipated litigation. Mr. Murray died after a shooting involving an officer who was not

authorized to engage in law enforcement activities vis-à-vis Indians on a reservation where that

officer was the only witness to the shooting. While the evidence at the scene, particularly the

direction of the blood spatter and the location of the expended shell casings, strongly suggests

that Mr. Murray shot himself, it did not conclusively establish a suicide as the only possible

scenario. For example, the .380 Hi-Point was apparently clean of any visible signs of blood or

viscera, despite having allegedly been used by Mr. Murray to commit suicide by a contact

shooting. Further, the evidence at the scene did not clearly establish who fired the first shot such

that it was clear that Officer Norton was acting in self-defense by shooting at Mr. Murray.

Understanding much of the evidence also requires Officer Norton’s explanation, whose

presumptive reliability as a witness a reasonable person might find questionable, given his role in

events.

There is no doubt that Agent Ashdown’s investigation left evidentiary gaps resulting in

some unanswered questions. Agent Ashdown did not interview any officer who had been

present at or near the shooting, leaving him without contemporaneous evidence as to what those

officers saw and heard. (Id. at 304:25-305:2.) While Officer Norton had refused to speak with

Agent Ashdown (id. at 282:13-23), Agent Ashdown could have spoken with Deputy Byron and

Trooper Young to learn what they had seen and heard. Agent Ashdown never asked to look at

Officer Norton’s gun, even though it had been involved in a shooting. (Id. at 360:6-12.) Agent

Ashdown never tested the .380 Hi-Point for blood. (Id. at 321:25-322:6.) Even though no blood

was observable on it (Pl. Ex. 2 at 12, 15-16; Def. Ex. 45OO (Jones0011753)), testing the weapon

for any residue might have confirmed its likely use in the close-contact shooting.

A reasonable person living and working near the Ute reservation should also have been

aware that there had been frequent litigation involving the exact boundaries of the reservation

and the authority of state and local law enforcement officers thereon before the shooting. See

Ute I-V. Those cases should have put any reasonable person on notice that infringement of tribal

sovereignty was not likely to be ignored, especially where it involved the death of a tribal

member.

Further, litigation did in fact occur. While this fact cannot bootstrap the plaintiffs’

argument that litigation was reasonably foreseeable into proving that argument, the eventual

litigation notably found a substantive violation of Mr. Murray’s rights. Specifically, the Utah

district court found that Deputy Byron’s handcuffing of Mr. Murray “was a per se violation of

Mr. Murray’s Fourth Amendment right, albeit a technical violation.” Jones, 3 F. Supp. 3d at

37

1192 (citing Ross v. Neff, 905 F.2d 1349, 1353-54 (10th Cir.1990)). 17 While Deputy Byron’s

actions were protected by qualified immunity because “[e]ven if the rule of law regarding an

officer’s jurisdiction was clearly established in Ross, that decision did not address how or when a

police officer must determine the tribal status of the suspect.” Id. at 1192-93. That said, the

facts that led to this litigation were readily apparent from the scene: state and local officers had

seized Mr. Murray, a tribal member, on reservation land without being cross-deputized. Even if

litigation should only have been anticipated as to Deputy Byron’s actions, his act of placing Mr.

Murray in handcuffs would inevitably implicate questions of what led to that handcuffing.

Therefore, litigation concerning Deputy Byron would necessarily involve litigation about Officer

Norton’s actions.

The defendant argues that before it can be held liable for spoliating evidence, litigation

had to be reasonably foreseeable against the United States and not simply the state and local

officers. Litigation involving Mr. Murray’s death would be based on the allegedly illegal acts of

law enforcement. Illegal acts involving the use of force by law enforcement could easily

constitute crimes, even if only of a technical nature. For example, an unlawful use of force,

either by unlawfully shooting at Mr. Murray or placing him in handcuffs, could at least arguably

constitute assault under 18 U.S.C. § 113 or a criminal deprivation of rights under color of law

under 18 U.S.C. § 242, depending on the officers’ mens rea.

A reasonable person should have expected a tribal decedent’s family would seek to hold

the defendant liable for such crimes pursuant to a “bad men” treaty claim. See Tsosie v. United

States, 825 F.2d 393, 400 (Fed. Cir. 1987) (“In addition, the ‘bad men’ provision is not confined

to ‘wrongs’ by government employees. The literal text of article I and the ‘legislative history’ of

the treaty show that any ‘white’ can be a ‘bad man’ . . . .”); see also Richard v. United States,

677 F.3d 1141, 1150-53 (Fed. Cir. 2012) (reaffirming Tsosie); Jones II, 846 F.3d at 1353 (noting

Richard’s “holding that bad men need not be agents of the federal government.”).

It appears that claims under treaty “bad men” provisions were rare prior to 2007. Neither

party has cited to any case raising such claims. It is unlikely that even FBI agents working in

Indian country were informed of the existence of such provisions, although there is no evidence

on that point in the record. That said, the infrequency of “bad men” claims against the United

States and the lack of awareness of such provisions by Agent Ashdown or others is not relevant

to a determination of whether litigation against the United States was reasonably foreseeable.

17

The district court’s opinion suggests that any seizure of an Indian on tribal land by state

and local law enforcement when those officers do not have jurisdiction is a per se violation of an

Indian’s Fourth Amendment rights. Jones, 3 F. Supp. 3d at 1192 (citing Ross v. Neff, 905 F.2d

1349, 1353-54 (10th Cir.1990)). This issue was not disputed on appeal. Jones v. Norton,

809 F.3d 564, 573 n.1 (10th Cir. 2015). The Tenth Circuit, however, also has suggested that

temporarily detaining Indians on tribal land to inquire into their tribal status, as opposed to

arresting and prosecuting them, is lawful, citing the Jones district opinion as evidence that law

enforcement was already following this practice in 2007. Ute VI, 790 F.3d at 1006-07 (citing

Jones, 3 F. Supp. at 1192).

38

Because reasonable foreseeability is an objective standard, a person’s subjective ignorance of the

law is no defense to reasonable foreseeability. Cf. Jerman v. Carlisle, McNellie, Rini, Kramer &

Ulrich LPA, 559 U.S. 573, 581-83 (2010) (cleaned up) (“We have long recognized the common

maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly

or criminally.”)

The facts available on April 1, 2007, at the scene of the shooting made litigation

reasonably foreseeable to a reasonable person. The facts available to Agent Ashdown at the

mortuary did not diminish the reasonable foreseeability of litigation. If anything, the “grossly

inappropriate” acts of state and local officers in obtaining a blood draw with a questionable chain

of custody and their manipulation of Mr. Murray’s body made litigation more foreseeable. Jones

III, 146 Fed. Cl. at 737; (ECF 199 at 309:5-311:21, 313:10-25, 364:11-18.) The existence of the

“bad men” provision of the treaty between the Ute Tribe and the United States meant that any

reasonable prospect of litigation against the officers also made litigation against the defendant

reasonably foreseeable on April 1, 2007.

D. Control of Evidence

For the plaintiffs to show spoliation of evidence, the plaintiffs must first show that the

defendant had “a legal right to obtain or control that evidence.” Jones V, 2022 WL 473032, at

*4.

As relevant to the current case, Agent Ashdown may have had the legal right to seize

evidence at the scene of Mr. Murray’s shooting without a warrant in three ways. First, if a

weapon or other evidence is in plain view, to seize such evidence, “the government must

establish probable cause that [the possessor of the firearm] had committed, or was committing, a

crime involving the firearm.” See United States v. Chavez, 985 F.3d 1234, 1246 (10th Cir. 2021)

(citing Texas v. Brown, 460 U.S. 730, 738 (1983)). Second, officers may search and seize

evidence with consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (noting that a

consent search is one of the “well settled . . . specifically established exceptions to the

requirements of both a warrant and probable cause”). Third, evidence may also be searched

incident to an arrest and may be seized as part of an inventory of an arrestee’s property.

Lafayette, 462 U.S. at 643-49 (permitting warrantless inventory searches of “the personal effects

of a person under lawful arrest as part of the routine administrative procedure at a police

stationhouse incident to booking and jailing the suspect”); United States v. Robinson, 414 U.S.

218, 224-26 (1973) (“It is well settled that a search incident to a lawful arrest is a traditional

exception to the warrant requirement of the Fourth Amendment.”)

For evidence to be seized without a warrant under the plain view doctrine, an officer must

satisfy the three-prong Horton test. See Soussi, 29 F.3d at 572 (describing how the government

must “scrupulously adhere[] to the three-prong Horton test” to seize evidence in plain view

without a warrant). The Horton test requires that:

(1) the officer was lawfully in a position from which to view the

object seized in plain view; (2) the object’s incriminating character

was immediately apparent-i.e. the officer had probable cause to

39

believe the object was contraband or evidence of a crime; and (3)

the officer had a lawful right of access to the object itself.

Id. at 570 (citing Horton, 496 U.S. 128 at 136-37; United States v. Dixon, 1 F.3d 1080, 1084

(10th Cir. 1993)). 18

For warrantless arrests, “‘[p]robable cause to arrest exists only when the facts and

circumstances within the officers’ knowledge, and of which they have reasonably trustworthy

information, are sufficient in themselves to warrant a man of reasonable caution in the belief that

an offense has been or is being committed.’” 19 Cortez v. McCauley, 478 F.3d 1108, 1116 (10th

Cir. 2007) (quoting United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004)).

18

The first prong of the Horton test was met because Agent Ashdown was lawfully present

on the Ute reservation as an FBI agent investigating a tribal death on a reservation. The third

prong was met because Officer Norton’s clothing and .40 Glock were both also present and in

view such that Agent Ashdown could examine them “at least cursorily.” Soussi, 29 F.3d at 527;

see also United States v. Naugle, 997 F.2d 819, 823 (10th Cir. 1993) (describing the Horton

lawful access requirement as being “implicated in situations such as when an officer on the street

sees an object through the window of a house, or when officers make observations via aerial

photography or long-range surveillance”).

19

Despite reasonable foreseeability and probable cause both being standards that involve

an objective test of reasonableness, they have important differences, traceable to their roles as a

civil and a criminal standard, respectively. These differences mean that the finding that litigation

was reasonably foreseeable does not require a parallel finding that probable cause must have

existed to seize Officer Norton’s .40 Glock or his clothing.

Reasonable foreseeability of civil litigation only requires that a reasonable person

anticipate litigation, even if the reasonable person might think that litigation is ultimately

meritless. To that end, understanding whether similar circumstances or issues led to litigation in

the past is relevant to reasonable foreseeability but not probable cause. Unanswered questions

involving a person’s death also significantly increase the foreseeability of litigation, even if those

unanswered questions might weigh against success on the merits and ultimately cause litigation

to fail. Civil litigation often begins before many facts are developed, with complaints being held

to a low plausibility standard and allegations filed on information and belief. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57

(2007)). The discovery process is also fundamentally different in civil cases versus criminal

cases. Compare Fed. R. Civ. Pro. 26 with Fed. R. Crim. Pro 16. In civil cases, discovery

frequently provides key information necessary for a party to prove its case many months or years

after the case is filed. In contrast, probable cause requires something significantly more than

plausibility. Probable cause requires “‘facts and circumstances within the officers’ knowledge,

and of which they have reasonably trustworthy information, [that] are sufficient in themselves to

40

The Tenth Circuit has explained “probable cause itself is a relatively low threshold of

proof.” Valdez v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999). 20 “Probable cause does

not require the same type of specific evidence of each element of the offense as would be needed

to support a conviction.” United States v. Pollack, 895 F.2d 686, 691 (10th Cir. 1990) (citing

Draper v. United States, 358 U.S. 307, 311-12 (1959)). “The officer’s belief that he is presented

with evidence of a crime need not be certain or even more likely true than false; ‘a practical,

nontechnical probability that incriminating evidence is involved is all that is required.’” United

States v. Padilla, 819 F.2d 952, 962 (10th Cir. 1987) (quoting Brown, 460 U.S. at 742) (partially

cleaned up).

In determining whether an officer has sufficient reasonably

trustworthy information to constitute probable cause, clearly

established case law requires officers to look at the totality of the

circumstances. While officers may weigh the credibility of

witnesses in making a probable cause determination, they may not

ignore available and undisputed facts. Cf. Romero [v. Fay, 45 F.3d

[1472,] 1476-77 & n. 2 [(10th Cir. 1995)] (noting that while officers

do not have [the] duty to interview alleged alibi witness once

probable cause is established, the probable cause standard “requires

officers to reasonably interview witnesses readily available at the

scene, investigate basic evidence, or otherwise inquire if a crime has

been committed at all before invoking the power of a warrantless

arrest and detention”) . . . .

Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1259 (10th Cir. 1998) (partially cleaned up)

(emphasis in original).

1. Officer Norton’s Clothing on April 1, 2007

The plaintiffs argue that the defendant had control over Officer Norton’s clothing because

he could have been expected to consent to a seizure of it. (ECF 201 at 27.) The plaintiffs further

warrant a man of reasonable caution in the belief that an offense has been or is being

committed.’” Cortez, 478 F.3d at 1116 (quoting Valenzuela, 365 F.3d at 896).

In short, not knowing how or why certain events occurred might prompt a civil lawsuit to

find an answer, and the likelihood of such a lawsuit may be influenced by the identity of the

potential plaintiff(s). But neither a lack of information, nor likelihood of potential civil litigants

filing suit, can form the basis of probable cause that would allow the government to exercise its

criminal powers to seize evidence.

20

In its determination of the existence of probable cause, the Court relies on decisions from

the Supreme Court and the Tenth Circuit that predate April 1, 2007, because those cases would

have governed the acts of Agent Ashdown and others on the scene of the shooting on that date.

41

developed this argument during their closing argument by relying on Gardner v. Broderick, 392

U.S. 273 (1968), to argue that Officer Norton in fact could not have refused to give Agent

Ashdown his clothing because he had a duty to assist with any investigation into crimes he may

have committed. The plaintiffs also argue that this evidence is relevant because it was never

tested for blood or tissue that might have indicated that Officer Norton approached Mr. Murray

and shot him at close range.

The Federal Circuit made clear that the defendant has control over evidence only if it has

“a legal right to obtain or control that evidence.” Jones V, 2022 WL 473032, at *4. The

plaintiffs have not identified any legal authority for the proposition that the potential for consent

gives a party control over evidence or requires a party to attempt to gain consent to avoid

spoliation of evidence. In fact, the plaintiffs acknowledge that “if the United States had asked

[Officer Norton] to turn over his clothing, he could have asserted a right not to do so without a

warrant.” (ECF 201 at 27.) If anything, the need for consent to obtain a piece of evidence

indicates that the party requesting access to the evidence did not have a legal right to obtain or

control the evidence.

The plaintiffs’ argument also would greatly expand when a party had control over

evidence. Taken to its logical extreme, the plaintiffs’ position would mean that a party has

control over any evidence over which it could potentially get consent to access. Such an

argument would impose a dramatic expansion of the duty on parties to preserve evidence that

they do not actually possess. The plaintiffs’ argument might be persuasive if Officer Norton had

proactively offered Agent Ashdown his clothing, but there is no evidence that such an offer was

made. (See ECF 199 at 352:3-15, 410:21-23.) As such, any claim that the defendant could have

gotten Officer Norton’s consent to take his clothing is irrelevant to whether the defendant had

control over the clothing. 21

The plaintiffs’ reliance on Gardner is not helpful to their argument. That case involved a

police officer who had been subpoenaed to appear before a grand jury; the officer had been made

aware of his right against self-incrimination but was asked to sign a “waiver of immunity” on

pain of being fired if he refused. Gardner, 392 U.S. at 274-76. The officer refused to sign the

waiver and was fired. Id. The Supreme Court held that the officer’s employer could not fire him

for refusing to waive his immunity to testify. Id. at 278-79. The Supreme Court did note,

however, that the department could have fired him for refusing to “answer questions specifically,

directly, and narrowly relating to the performance of his official duties, without being required to

21

Even if it were proper to rely on the possibility of consent, Officer Norton’s consent

was highly unlikely here. When asked by Agent Ashdown if he would be willing to talk, Officer

Norton invoked his right to an attorney, with whom he had already spoken on the phone. (ECF

198 at 153:25-154:13, 184:7-18; ECF 199 at 282:13-17.) This fact militates strongly in favor of

finding that Officer Norton would not have consented to undressing and providing his clothing to

Agent Ashdown on April 1, 2007, if he had been asked to do so.

42

waive his immunity with respect to the use of his answers or the fruits thereof in a criminal

prosecution of himself.” Id. at 278.

Notably absent from this language or any part of Gardner is anything supporting the

proposition that law enforcement officers surrender their constitutional rights when they are

under investigation. Gardner was a case involving the fifth amendment, and the Supreme Court

held that a police officer could not be forced to give up his fifth amendment right against self-

incrimination. The decision cannot be read to require Officer Norton to give up his rights under

the fourth amendment against unreasonable searches and seizures.

In the absence of consent or a requirement to assist, the plaintiffs have not argued that

probable cause existed to seize Officer Norton’s clothing under the plain view doctrine.

Nevertheless, the Court considers whether probable cause existed for Agent Ashdown to have

seized Officer Norton’s clothing, and since the clothing was in public view, whether the plain

view doctrine applied.

Because Agent Ashdown had no probable cause to believe that the clothing was evidence

of a crime or that Officer Norton had committed a crime for which the clothing was evidence, the

plain view doctrine does not apply. The doctrine requires that to seize evidence its

“incriminating character” must be “immediately apparent.” Horton, 496 U.S. at 136 (cleaned

up). At the very least, this means that Agent Ashdown must have had probable cause that the

clothing was evidence of a crime without anything more significant than a minimal search. See

Hicks, 480 U.S. at 326-27. Agent Ashdown, however, testified that he visually inspected Officer

Norton’s clothing and saw no blood or other viscera on it, calling it “clean and pristine.” (ECF

199 at 283:4-11; see Pl. Ex. 2 at 13 (photograph of Officer Norton).) This credible testimony,

corroborated by the photograph taken on April 1, 2007, of Officer Norton in his clothing, makes

clear that there was no immediately apparent incriminating character to the clothing, and

therefore no probable cause to seize it as evidence of a crime. And, as addressed below, no

probable cause otherwise existed to arrest Officer Norton, and thus there was no possibility of

searching and seizing his clothing incident to an arrest.

In the absence of probable cause, the defendant did not have control over Officer

Norton’s clothing on April 1, 2007.

2. The .40 Glock on April 1, 2007

The second piece of evidence that the plaintiffs argue was spoliated is Officer Norton’s

.40 Glock service weapon, which was owned by the Vernal City Police Department. (ECF 198

at 131:10-23.) The plaintiffs argue that the .40 Glock was evidence of the shooting that occurred

on April 1, 2007. The plaintiffs also argue that the City of Vernal “did not have a legal basis for

refusing to turn the gun over to Agent Ashdown” because there “was no constitutional

prohibition on the United States taking possession of that evidence.” (ECF 201 at 26.) The

plaintiffs argue that Agent Ashdown could have obtained consent from the City of Vernal and

that obtaining evidence by consent is common. (Id. at 27.)

43

The defendant responds by arguing that it did not have the right to seize the .40 Glock,

that there is no evidence that the City of Vernal would have consented to a seizure, and that the

FBI’s ability to ask for consent is insufficient to establish a legal right to obtain evidence. (ECF

203 at 34-36.)

The Court has already rejected the plaintiffs’ argument that the possibility of consent

grants a party control over evidence because the mere possibility of obtaining consent does not

provide a legal right to control evidence.

The .40 Glock was in Chief Jensen’s possession by the time Agent Ashdown arrived on

the scene. Chief Jensen, as the chief of the Vernal City Police Department, had a legitimate

possessory interest in the .40 Glock such as to exclude Agent Ashdown from searching and

seizing it in the absence of probable cause. 22 See Rakas v. Illinois, 439 U.S. 128, 143 n.12

(1978) (“[O]ne who owns or lawfully possesses or controls property will in all likelihood have a

22

Even if Chief Jensen’s possessory rights were not sufficient, Vernal City itself may

have had fourth amendment rights against Agent Ashdown seizing the weapon. To be sure, the

Supreme Court has not addressed whether municipal corporations have fourth amendment rights.

When addressing searches under the fourth amendment generally, however, the Supreme Court

has noted that “[t]he Fourth Amendment proscribes all unreasonable searches and seizures, and it

is a cardinal principle that ‘searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated exceptions.’” Mincey, 437 U.S. at 390

(quoting Katz v. United States, 389 U.S. 347, 357 (1967)) (emphasis added); see also Byrd v.

United States, 138 S. Ct. 1518, 1527 (2018) (cleaned up) (“[I]n the main, one who owns or

lawfully possesses or controls property will in all likelihood have a legitimate expectation of

privacy by virtue of the right to exclude.”).

Municipalities have other constitutional rights. For example, the Supreme Court has

recognized the rights of municipalities under the Takings Clause of the fifth amendment when

property is condemned by the United States. United States v. 50 Acres of Land, 469 U.S. 24, 31

(1984). Other courts have also noted a municipality’s rights under the seventh amendment, Dr.

John’s, Inc. v. City of Sioux City, Iowa, 467 F. Supp. 2d 925, 927 (N.D. Iowa 2006), and to due

process, Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of

Baltimore, 721 F.3d 264, 290-91 (4th Cir. 2013). When courts have found that municipalities do

not have rights under the Constitution, those conclusions tend to be with respect to constitutional

rights against their own state government and not against the federal government. See, e.g.,

Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 (1933) (“A municipal

corporation, created by a state for the better ordering of government, has no privileges or

immunities under the Federal Constitution which it may invoke in opposition to the will of its

creator.”).

Given the finding that probable cause to seize the .40 Glock did not exist, the Court need not

determine whether Vernal City had a right under the fourth amendment.

44

legitimate expectation of privacy by virtue of this right to exclude.”), quoted in Byrd v. United

States, 138 S. Ct. 1518, 1527 (2018).

Accordingly, the defendant’s “control” over the .40 Glock on April 1, 2007, depends on

whether Agent Ashdown had probable cause to seize the .40 Glock from Chief Jensen. See

Hicks, 480 U.S. at 326-27 (noting that the seizure of evidence under the plain view doctrine

requires probable cause); Soldal v. Cook Cnty., Ill., 506 U.S. 56, 66 (1992) (“[I]n the absence of

consent or a warrant permitting the seizure of the items in question, such [plain-view] seizures

can be justified only if they meet the probable-cause standard.”); Brown, 460 U.S. at 738

(cleaned up) (emphasis added) (recognizing “the well-settled rule that objects such as weapons or

contraband found in a public place may be seized by the police without a warrant. The seizure of

property in plain view involves no invasion of privacy and is presumptively reasonable,

assuming that there is probable cause to associate the property with criminal activity.”).

Regardless of whether the right that Agent Ashdown would have to overcome to seize the

.40 Glock on April 1, 2007, belonged to Chief Jensen, Vernal City, or both, there was no

probable cause that Officer Norton committed a crime on April 1, 2007. The absence of

probable cause on that date that Officer Norton had committed a crime means that there was no

probable cause to seize the .40 Glock as evidence of any crime. In other words, Agent Ashdown

did not have “reasonable trustworthy information” that was “sufficient to warrant a prudent man

in believing that [Officer Norton] had committed . . . an offense.” Beck v. State of Ohio, 379

U.S. 89, 91 (1964); see also Valenzuela, 365 F.3d at 896 (discussing Beck and the differences

between probable cause and reasonable suspicion); Baptiste, 147 F.3d at 1259 (cleaned up)

(noting that the probable cause standard requires an officer “to reasonably interview witnesses

readily available at the scene, investigate basic evidence, or otherwise inquire if a crime has been

committed at all before invoking the power of a warrantless arrest and detention”).

The plaintiffs have asserted violations of more than 40 federal and state criminal statues

by state and local law enforcement officers as the basis for their bad men claim against the

defendant. (ECF 150-6 at 3-5.) 23 During their closing argument, the plaintiffs argued that, at

least with respect to some of these alleged crimes, probable cause existed on April 1, 2007, such

that Agent Ashdown could have seized the .40 Glock. The statutes are addressed in turn.

To begin, the plaintiffs cite statutes involving the actual or planned unlawful use of force.

(ECF 150-6 at 3-5.) Under Title 18, these statutes include deprivation of rights under color of

law (§ 242), hate crimes (§ 249), murder (§ 1111), manslaughter (§ 1112), conspiracy to murder

(§ 1117), and kidnapping (§ 1201). Under the Utah Code, these statutes include assault (§ 76-5-

102), reckless endangerment (§ 76-5-112), criminal homicide (§ 76-5-201), aggravated murder

23

The amended complaint is not clear as to the specific criminal statutes alleged as bad men

treaty violations. (See ECF 17 at ¶¶ 67, 69.) The Court relies on the list of crimes and

corresponding statutes that the plaintiffs contend, in their responses to the defendant’s

interrogatories, the various state and local law enforcement officers each committed. (ECF 150-

6 at 3-5.)

45

(§ 76-5-202), manslaughter (§ 76-5-205), negligent homicide (§ 76-5-206), homicide by assault

(§ 76-5-209), kidnapping (§ 76-5-301), and disorderly conduct (§ 76-9-102).

On April 1, 2007, there was no probable cause to suspect that Officer Norton’s use of

force was anything other than lawful. Based on the evidence available that day at the scene,

there was no reason a prudent investigator would think that Officer Norton either approached

Mr. Murray and shot him at close range, that Officer Norton’s shots hit Mr. Murray from more

than 100 yards away, or that Officer Norton assaulted Mr. Murray by firing at Mr. Murray

without lawful cause.

Starting with the circumstantial evidence, Officer Norton was off duty when he decided

to assist another officer in a pursuit; this fact undercuts any inference that Officer Norton had a

pre-meditated plan to commit a crime. (ECF 189 at ¶ 8; ECF 198 at 71:22-74:24). Until Officer

Norton knew that Mr. Murray was a tribal member, Officer Norton could reasonably believe that

he was lawfully in hot pursuit of a person who, as far as he knew, had unlawfully resisted arrest

when he fled from Trooper Swenson. 24 See United States v. Shareef, 100 F.3d 1491, 1503 n.4

(10th Cir. 1996) (citing United States v. Hensley, 469 U.S. 221, 231 (1985)) (“It is well-

established that when an order to stop or arrest a suspect is communicated to officers in the field,

the underlying facts constituting probable cause or reasonable suspicion need not be

communicated, so long as the individual or agency issuing the order can justify the intrusion on

Fourth Amendment rights.”); Utah Code § 76-8-305 (1990) (interference with peace officer)

(amended 2017); § 305.5 (2005) (failure to stop at the command of a peace officer) (amended

2018).

Officer Norton had the authority to detain Mr. Murray, at least temporarily, to determine

his tribal status. Ute V, 790 F.3d at 1005-06 (10th Cir. 2015) (cleaned up) (emphasis in original)

(“The Tribe’s position, they say, would require state officers patrolling [on reservation] rights-of-

way to engage in racial profiling because they would have to hazard a guess about whether a

driver is or isn’t an Indian before pulling her over. But even assuming the relevance of this

concern, it is misplaced. After all, officers could just as easily (and lawfully) inquire into a

motorist’s tribal membership after she is stopped for a suspected offense. Indeed, it seems

Utah’s law enforcement agencies are already doing just that.”); see also Brendlin v. California,

551 U.S. 249, 254-56 (2007) (holding that a passenger in a car stop is seized for purposes of the

24

The parties agree that Trooper Swenson did not inform Officer Norton that Trooper

Swenson had seen Mr. Murray commit any crime. (ECF 189 at ¶ 34.) Although neither party

asked Officer Norton why he pursued Mr. Murray, it is a commonsense inference that Officer

Norton understood Mr. Murray had resisted arrest by fleeing. Trooper Swenson had “pointed out

to Officer Norton where Mr. Murray had gone and provided a general description of Mr.

Murray,” indicating that Trooper Swenson wanted Officer Norton to chase Mr. Murray and

arrest him. (Id. at ¶ 33.) Officer Norton also observed that Trooper Swenson had been in pursuit

of a vehicle with two occupants and saw that vehicle crashed on the side of the road with

Trooper Swenson having one person in handcuffs, suggesting the other occupant had fled. (ECF

198 at 74:25-77:17.)

46

fourth amendment and may challenge whether an officer had reasonable suspicion to initiate the

traffic stop). 25 The record includes no evidence to suggest that Officer Norton knew Mr. Murray

was an enrolled tribal member.

As for the physical evidence, none of it indicates who fired the first shot. The physical

evidence indicates that Officer Norton could not have been close enough to Mr. Murray to inflict

a close-contact wound to the head. While there is some doubt as to the value of the evidence

concerning footprints between Officer Norton’s and Mr. Murray’s locations, this evidence does

not support an inference or finding that Officer Norton got close to Mr. Murray outside the

presence of other officers. (ECF 198 at 175:8-14; ECF 199 at 262:11-24, 263:13-22, 295:9-12;

ECF 200 at 514:12-17.) Further, the blood spatter indicates that the lethal shot traveled from

north to south, at a right angle from where Officer Norton was apparently standing. (ECF 199 at

258:18-259:1, 260:16-18, 262:4-24; Def. Ex. 41 at 2 (Jones0011385).) There also were

expended .40 caliber shell casings approximately 110 yards from where Mr. Murray fell, near

where the expended .380 caliber shell casings and the .380 Hi-Point were found.

Officer Norton was the only apparent eyewitness to the shooting. (See ECF 189 at ¶ 37.)

Yet Officer Norton’s account, while admittedly provided to Agent Ashdown second- or third-

hand (ECF 198 at 102:12-15; ECF 199 at 259:18-23, 261:24-262:3, 279:2-16, 281:5-11, 281:25-

282:12), was consistent with the physical evidence at the scene. This physical evidence included

footprints, bullet casings, and the direction of the blood spatter. Mr. Murray was also found in

the possession of a gun, and no evidence indicates that Officer Norton had approached Mr.

Murray outside the presence of other officers such that he could have manipulated the scene. 26

(ECF 198 at 175:8-14; ECF 199 at 262:11-24, 263:13-22, 295:9-12; ECF 200 at 514:12-17.)

25

If Mr. Murray had not been a tribal member, then state criminal laws would have

unquestionably applied to Mr. Murray for any state crime not involving an Indian victim, such as

resisting arrest. United States v. McBratney, 104 U.S. 621, 622-24 (1881). In such a case,

Officer Norton could have arrested Mr. Murray pursuant to that state criminal law jurisdiction,

even though Officer Norton was outside his usual jurisdiction. Section 77-9-3 of the Utah Code

defines four cases in which a Utah police officer can exercise jurisdiction beyond his usual

jurisdiction; two of those situations likely apply to Officer Norton’s conduct. First, under

subsection 1(a), Officer Norton was in “fresh pursuit of [Mr. Murray] for the purpose of arresting

and holding [Mr. Murray] in custody or returning [Mr. Murray] to the jurisdiction where the

offense was committed.” Second, under subsection 1(d), Officer Norton was “called to assist

peace officers of another jurisdiction” when he contacted dispatch and when Trooper Swenson

effectively indicated he wanted Officer Norton to pursue and arrest Mr. Murray. (See ECF 189

at ¶ 33.)

26

To be clear, none of this evidence proves that Mr. Murray shot himself or that Officer

Norton did not shoot Mr. Murray; it is relied on here not to resolve the merits of the plaintiffs’

claim but merely to determine the existence of probable cause to seize Officer Norton’s service

weapon on April 1, 2007.

47

For Agent Ashdown to have had probable cause that Officer Norton assaulted or

murdered Mr. Murray, and thus that the .40 Glock was evidence of a crime, Agent Ashdown

would have needed to disregard the circumstantial and physical evidence surrounding the

shooting to conclude that a prudent person would have found that there was a fair

This text is long and has been trimmed here. Open the source document for the complete record.