                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                     September 24, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JULIAN MORENO,

             Plaintiff - Appellant,

v.                                                          No. 13-2152
                                                (D.C. No. 6:10-CV-01097-WJ-ACT)
TAOS COUNTY BOARD OF                                         (D. N.M.)
COMMISSIONERS; DEPUTY CARLOS
ARCHULETA, in his individual
capacity,

             Defendants - Appellees,

and

DEPUTY PAUL GARCIA, in his
individual capacity,

             Defendant.


                            ORDER AND JUDGMENT*


Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Julian Moreno appeals from a jury verdict in favor of the Taos County Board

of Commissioners and Deputy Carlos Archuleta on his excessive force claim under

42 U.S.C. § 1983 and state-law tort claims. Moreno challenges certain evidentiary

rulings by the district court, and argues that he is entitled to a new trial. We have

jurisdiction under 28 U.S.C. § 2191, and we affirm.

                                    I.     Background

      In June 2009, Deputy Archuleta, a deputy in the Taos County Sheriff’s

Department, arrested Moreno after he caused an auto accident while driving under

the influence of alcohol. Moreno was handcuffed and placed in the back of Deputy

Archuleta’s police vehicle. Another Taos County deputy, Paul Garcia, was also at

the scene investigating the auto accident. According to Deputy Garcia, Moreno was

banging his head inside the police vehicle. Eventually, Moreno became more irate,

kicking his feet and attempting to flee the vehicle. Deputy Garcia had to use physical

measures to restrain Moreno. Deputy Archuleta ultimately grabbed Deputy Garcia’s

Taser from his holster and tased Moreno in the drive-stun mode.

      Moreno filed this action in New Mexico state court against the Board of

County Commissioners and Deputies Archuleta and Garcia in their individual

capacities. He alleged unreasonable seizure and excessive use of force in violation of

the Fourth Amendment, and state torts of battery and negligent hiring, training, and

supervision. Defendants removed the action to the United States District Court for




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the District of New Mexico. The parties disputed whether Moreno was tased once, as

claimed by Deputies Archuleta and Garcia, or three times, as claimed by Moreno.

      Before trial, the district court ruled on certain motions, including a motion

filed by Moreno alleging spoliation of evidence related to the Taser, and a motion in

limine filed by defendants seeking to exclude evidence of violations of Taos County

policy. As to Moreno’s motion, he argued that the Tasers used by Taos County have

the capability of recording use of the Taser, and defendants failed to preserve this

information. He also argued that defendants failed to photograph the Taser, book the

Taser and Taser cartridges, and photograph the Taser impact sites on Moreno’s body,

as required by Taos County policy. Moreno requested spoliation sanctions in the

form of an adverse inference instruction to the jury. The district court denied the

motion on the grounds that Moreno failed to prove that defendants acted in bad faith.

      As to defendants’ motion, they argued that violation of standard police

operating procedures is insufficient to support a claim of a constitutional violation.

Accordingly, they sought to exclude testimonial or documentary evidence related to

violation of Taos County policy related to the use of the Taser. The district court

granted defendants’ motion.

      The action was tried to a jury. Moreno did not testify in support of his claims

at trial. Accordingly, defendants’ trial testimony providing that Deputy Archuleta

tased Moreno once in the arm for a very short duration, while in the Taser’s




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drive-stun mode, was uncontroverted. The jury returned a verdict for defendants, and

Moreno appeals.1

                                     II.    Discussion

       Moreno challenges the district court’s evidentiary rulings arguing that the

district court abused its discretion. He contends the court erred (1) by refusing to

give the jury an adverse inference instruction based on defendants’ spoliation of the

Taser; and (2) by excluding evidence of violation of Taos County policy regarding

the use of Tasers. Moreno claims these errors constitute reversible error entitling

him to a new trial. As discussed below, we conclude the district court did not abuse

its discretion.

       A. Spoliation of Taser Evidence

       We review a district court’s decision to give or refuse an adverse inference

instruction for abuse of discretion. Gilbert v. Cosco Inc., 989 F.2d 399, 406

(10th Cir. 1993). We review its finding of bad faith or mere negligence for clear

error. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149-50 (10th Cir. 2009).

       “Spoliation is . . . the intentional destruction of evidence that is presumed to be

unfavorable to the party responsible for its destruction.” United States v. Copeland,

321 F.3d 582, 597 (6th Cir. 2003). Sanctions for spoliation of evidence are

appropriate when the party “had a duty to preserve the evidence because it knew or

should have known that litigation was imminent, and [the other party] was prejudiced
1
       Moreno does not appeal the district court’s decisions regarding Deputy Garcia.


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by the destruction of the evidence.” 103 Investors I, L.P. v. Square D Co., 470 F.3d

985, 989 (10th Cir. 2006). An adverse inference instruction may be an appropriate

sanction for spoliation of evidence. See id. at 988. But to warrant an adverse

inference instruction, a party must submit evidence of intentional destruction or bad

faith. Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008);

see also Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (“The

adverse inference must be predicated on the bad faith of the party destroying the

records.”). “Mere negligence in losing or destroying records is not enough because it

does not support an inference of consciousness of a weak case.” Aramburu, 112 F.3d

at 1407.

      Moreno argues that the Taser was “the one piece of evidence that would have

objectively indicated the number of times and duration that [he] was tased by

[Deputy] Archuleta.” Aplt. Opening Br. at 13. He claims that because Taos County

had a policy concerning the preservation of a Taser after its use, and Deputy

Archuleta should have understood the importance of securing this evidence, then

Deputy Archuleta’s failure to preserve was done in bad faith. See id. at 15-16.

Accordingly, he argues that the district court “abused its discretion and prejudiced

[Moreno] in presenting his case at trial” by refusing to give an adverse inference

instruction. Id. at 13. He requests that this court “reverse the district [c]ourt [o]rder

precluding an adverse inference jury instruction” and remand for a new trial. Id. at

18.


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      Although this matter went to trial, we construe Moreno’s argument as an

appeal from the district court’s denial of his pretrial motion seeking an adverse

inference instruction. In his motion to the district court, Moreno argued that

defendants failed to preserve the Taser by failing to book the Taser and its cartridges

into evidence, photograph the Taser, and photograph the Taser impact sites on his

body. He also argued that Deputy Archuleta failed to include use of the Taser in the

initial incident report. Moreno claimed these actions violated Taos County policy

and evidenced bad faith. The district court denied the motion, finding no evidence of

bad faith on the part of defendants.

      Relying on deposition testimony of Taos County officers, the district court

reasoned that Taos County policy regarding the booking and collection of evidence

after a Taser discharge did not apply. The policy to which Moreno referred was

entitled “Responsibilities after Taser Discharge.” Taos County officers explained

that “discharge” of a Taser requires use of a Taser in dart-mode, when the cartridge is

discharged. The district court concluded that because Deputy Archuleta did not

discharge the Taser, but, instead, used it in drive-stun mode, which does not use a

cartridge, the policy was inapplicable. It further considered Deputy Archuleta’s

deposition testimony that he understood Taos County policy to require booking the

Taser and cartridge into evidence only when a cartridge had been used. The district

court determined that Moreno failed to submit evidence showing that the failure to

preserve was in bad faith, as opposed to mere negligence. Additionally, it


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determined Moreno failed to show that defendants had an obligation to preserve the

Taser evidence because they were aware that litigation might be imminent.

       We have reviewed the record and conclude the district court’s factual finding

that there was no bad faith is not clearly erroneous. See Turner, 563 F.3d at 1149-50.

The district court therefore did not abuse its discretion in denying Moreno’s pretrial

motion requesting an adverse inference instruction.

       We further note that although this action proceeded to trial, Moreno does not

tell us whether he asked for a trial ruling regarding a proposed adverse inference

instruction. Nor does he point to the record that he presented evidence at trial in

support of an adverse inference instruction. He also does not argue that he proffered

an adverse inference jury instruction at trial that was denied by the district court.

And he does not provide us with a transcript of the jury instruction conference held in

this matter. To the extent that Moreno seeks to challenge any such adverse trial

ruling, Moreno has waived appellate review. See Perry v. Woodward, 199 F.3d 1126,

1141 n.13 (10th Cir. 1999) (“This court will not craft a party’s arguments for him.”);

see also Fed. R. App. P. 28(a)(8)(A) (explaining that appellant’s argument must

contain contentions with citations to the authorities and parts of the record on which

he relies).

       B. Exclusion of Taos County Policy Evidence

       We review a district court’s ruling on motions in limine, and its determination

to exclude evidence, for abuse of discretion. Cavanaugh v. Woods Cross City,


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718 F.3d 1244, 1249 (10th Cir. 2013) (motion in limine); Tanberg v. Sholtis,

401 F.3d 1151, 1162 (10th Cir. 2005) (exclusion of evidence).

      Moreno argues that the district court erred in excluding evidence of violation

of Taos County policy related to the use of the Taser because such evidence was

relevant to his state-law tort claims. In ruling on defendants’ motion in limine to

exclude evidence of violation of the policy, the district court observed the irrelevance

of such a violation to the determination of Moreno’s Fourth Amendment excessive

force claim. It further determined that the probative value of evidence of violation of

the policy was outweighed by the danger that the jury would use a violation of the

policy to find a constitutional violation. Accordingly, it granted defendants’ motion

in limine. We find no abuse of discretion by the district court.

      The violation of police operating procedures is insufficient to ground a § 1983

claim for excessive force under the Fourth Amendment. Tanberg, 401 F.3d at 1163;

Marquez v. City of Albuquerque, 399 F.3d 1216, 1222 (10th Cir. 2005) (stating that

“violations of state law and police procedure generally do not give rise to a [§] 1983

claim for excessive force” (internal quotation marks omitted)). This principle stems

from the requirement to assess the constitutionality of an officer’s conduct under the

Fourth Amendment’s objective reasonableness standard. Marquez, 399 F.3d at 1222;

see also Cavanaugh, 718 F.3d at 1248 (stating that the reasonableness of an officer’s

use of force must be “judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight” (internal quotation marks


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omitted)). “That an arrest violated police department procedures does not make it

more or less likely that the arrest implicates the Fourth Amendment, and evidence of

the violation is therefore irrelevant.” Tanberg, 401 F.3d at 1163-64. The district

court’s finding that evidence of violation of Taos County policy was inadmissible as

to the excessive force claim comports with our Fourth Amendment jurisprudence.

      Further, we “accord considerable deference to a trial court’s determination that

evidence is likely to cause jury confusion.” Id. at 1164. In Tanberg, we affirmed a

district court’s determination that evidence of police standard operating procedures

was inadmissible because the evidence was irrelevant to the Fourth Amendment

excessive force claim and was likely to cause jury confusion regarding state-law

claims for assault and battery. See id. at 1162, 64. Similarly here, we conclude that

it was not an abuse of discretion for the district court to exclude evidence of the

violation of Taos County policy on the basis of jury confusion with regard to

Moreno’s state-law claims. Finally, even if the district court’s exclusion of evidence

amounted to an abuse of discretion, such error is not reversible error as it did not

affect Moreno’s substantial rights. See Fed. R. Evid. 103(a); United States v.

Charley, 189 F.3d 1251, 1270 (10th Cir. 1999) (stating that an error affects the

substantial rights of a party if it “had a substantial influence on the outcome or which

leaves one in grave doubt as to whether it had such effect” (internal quotation marks,

brackets, omitted)).




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                                   III.    Conclusion

      For the foregoing reasons, we find no error in the district court’s evidentiary

rulings that would entitle Moreno to a new trial on his claims against the Board and

Deputy Archuleta. The judgment of the district court is affirmed.


                                                   Entered for the Court


                                                   Timothy M. Tymkovich
                                                   Circuit Judge




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