           In the United States Court of Federal Claims
                                          No. 13-227L
                                       Filed: July 8, 2020
                                      FOR PUBLICATION


 DEBRA JONES and ARDEN C. POST
 individually and as the natural parents of
 Todd R. Murray;

 DEBRA JONES as personal representative
 of the Estate of Todd R. Murray, deceased,
 for and on behalf of the heirs of Todd R.
 Murray; and the                                          Keywords: Summary
                                                          Judgment, Sufficiency of
 UTE INDIAN TRIBE OF THE UINTAH                           Evidence, Issue Preclusion,
 AND OURAY RESERVATION,                                   “Bad Men” Provision
                     Plaintiffs,

 v.

 UNITED STATES,

                     Defendant.


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

Kristofor R. Swanson with Terry Petrie, Natural Resources Section, Environment & Natural
Resources Division, U.S. Department of Justice, for the defendant. Christopher R. Donovan,
Office of the General Counsel, Federal Bureau of Investigation, and James W. Porter, Office of
the Solicitor, U.S. Department of the Interior, of counsel.

                                   MEMORANDUM OPINION

HERTLING, Judge

        Todd Murray, a member of the Ute Indian Tribe, died of a close-contact gunshot wound
after he and the driver of the car in which he rode were pursued by state and local police officers
acting without law-enforcement jurisdiction on the tribe’s reservation in northeastern Utah. One
of the pursuing officers reported seeing Mr. Murray shoot himself while the officer stood about
100 yards from Mr. Murray. Another officer standing farther away saw significant distance
between the first officer and Mr. Murray shortly before seeing Mr. Murray fall to the ground. A
state medical examiner found Mr. Murray’s head wound consistent with suicide.
        Mr. Murray’s parents brought both a district-court civil rights action against the state and
local officers and this case, a treaty claim against the United States. In both actions, Mr.
Murray’s parents have argued that the officers murdered Mr. Murray and conspired to destroy
any evidence that the plaintiffs could have offered to prove the alleged homicide. In both
actions, the plaintiffs have attributed a lack of conclusive evidence to the success of officers’ and
federal agents’ alleged cover-up. The plaintiffs have, therefore, sought to prove their allegations
by obtaining an evidentiary inference or default judgment against the local officers or the United
States as a sanction for the respective defendants’ alleged spoliation of evidence.

       In the civil-rights action, the district court found that the officers’ and state medical
examiner’s testimony supporting suicide were uncontroverted because the plaintiffs offered only
speculation, not evidence, and the state and local officers could not be sanctioned for spoliating
evidence in a federal investigation. The district court found insufficient evidence for a
reasonable fact-finder to conclude that Mr. Murray’s death was not a suicide. The district court
considered the officers’ liability for other parts of the pursuit and their conduct after the shooting
but granted summary judgment for the officers and their employing municipalities on all claims.

        This Court found the plaintiffs’ treaty claims non-cognizable or precluded by the district
court’s decision. The Federal Circuit reversed and remanded the case for this Court to
reconsider, after first considering whether sanctions for the federal agents’ alleged spoliation of
evidence might affect the preclusive effect of the district court’s decision.

        On remand, the case was transferred to this judge, and the Court found no intentional
cover-up involving federal agents. This Court found, however, that federal agents negligently
spoliated the alleged suicide weapon that investigators had found near the spot where Mr.
Murray was shot. As a sanction, this Court prohibited the defendant from relying on the gun or
on any inferences favorable to the defendant that could be drawn from it.

         With the spoliation issue resolved, the defendant has moved for summary judgment under
Rule 56 of the Rules of the Court of Federal Claims (“RCFC”). The Court finds that the Utah
district court’s decision precludes the plaintiffs from proving facts essential to their treaty claims.
Moreover, some of the plaintiffs’ claims are not cognizable under the treaty’s “bad men”
provision, or are inadequately supported by evidence to conclude that crimes had been
committed against Mr. Murray, a predicate to recovery under the treaty’s “bad men” provision.
Accordingly, the defendant’s motion for summary judgment is granted.

I.     FACTS

        The apparent facts of Mr. Murray’s death are described in the district court’s decision
granting summary judgment for the local authorities. Jones v. Norton, 3 F. Supp. 3d 1170 (D.
Utah 2014) [hereinafter Jones D. Ct. Merits], aff’d, 809 F.3d 564 (10th Cir. 2015) [hereinafter
Jones 10th Cir.]. Those facts, as they relate to the United States, are summarized in this Court’s
earlier opinion dismissing this case and the Federal Circuit opinion reversing that dismissal, see
Jones v. United States, 122 Fed. Cl. 490 (2015) [hereinafter Jones Fed. Cl. Dismissal], vacated
and remanded, 846 F.3d 1343 (Fed. Cir. 2017) [hereinafter Jones Fed. Cir.], and in this Court’s
opinion granting-in-part and denying-in-part the plaintiffs’ motion for spoliation sanctions, 146
Fed. Cl. 726 (2020) [hereinafter Jones Fed. Cl. Spoliation].

                                                  2
         The Court draws its recitation of the facts from these previous opinions, the parties’ Joint
Stipulations Regarding Spoliation (ECF 77), the transcript of the district court’s evidentiary
hearing on spoliation (ECF 77-1), and the Supplemental Joint Appendix of documents from the
district court litigation (ECF 127).1 The parties also agreed to submit as evidence the depositions
of their respective experts (ECF 144). The Court references the plaintiffs’ allegations from the
Amended Complaint (ECF 17) for contextual facts that are not covered by the Stipulations or
undisputed elements of the testimony before the district court.

       A.      On-Reservation Events: Pursuit, Gunshot Wound, and Handcuffing

        On April 1, 2007, a Utah state trooper radioed the state Central Police Dispatch advising
that he was pursuing a car containing “two tribal males” for a speeding violation. (ECF 17 ¶ 21.)
Mr. Murray was the passenger in the vehicle being pursued. (ECF 77 ¶ 5.) The vehicle
eventually stopped within the boundaries of the Ute reservation, where Mr. Murray and the
driver exited and stood on either side of the vehicle. (ECF 17 ¶ 26.) The trooper approached the
driver and Mr. Murray, ordering them to the ground multiple times. (Id. ¶ 26.) Mr. Murray and
the driver ran off in opposite directions. (Id. ¶ 26.) The trooper pursued and apprehended the
driver. (Id.)

         As the trooper returned to his patrol car with the handcuffed driver, off-duty Vernal City
police officer Larry “Vance” Norton arrived on the scene wearing plain clothes and driving his
personal car. (Id. ¶ 27.) The trooper asked Officer Norton to pursue Mr. Murray. (Id.). Another
state trooper and a county deputy arrived next and joined the search for Mr. Murray. (Id. ¶ 29.)
The parties stipulated that none of the state, county, or municipal officers involved could
lawfully exercise authority over Mr. Murray on the Ute reservation. (See ECF 77 ¶¶ 8-10.)

         Officer Norton testified that, after a foot chase, Mr. Murray fired at Officer Norton. (Id. ¶
21). Officer Norton testified that he then fired two shots back at Mr. Murray with a .40-caliber
handgun before retreating while watching Mr. Murray over his shoulder. (Id. ¶¶ 21-22, as
clarified by ECF 152 at 2.) Officer Norton testified that “Mr. Murray put a gun to his head as
Officer Norton shouted at Mr. Murray to put it down, that Mr. Murray then pulled the trigger,
and . . . collapsed.” (ECF 77 ¶ 23.) Officer Norton was the only witness to the gunshot that
killed Mr. Murray. (See ECF 77-1 at 251.)

      After Mr. Murray was shot, while he was still alive, the deputy, Anthoney Byron,
handcuffed him. (ECF 17 ¶ 33; ECF 139 at 4.) The plaintiffs allege that, half an hour after Mr.


   1
     Because the Joint Stipulations Regarding Spoliation (ECF 77) had been submitted for the
limited purpose of the plaintiffs’ motion for spoliation sanctions, the Court ordered (ECF 151)
the parties to advise if they disavowed any of those stipulated facts and informed the parties that
any facts not specifically disavowed would be accepted as true for purposes of the defendant’s
summary judgment motion. The defendant filed a notice (ECF 152) disavowing or clarifying
several of the stipulated facts, but the notice does not put into dispute any facts material to the
resolution of the motion for summary judgment; the plaintiffs did not file any notice disavowing
any of the previously stipulated facts.


                                                  3
Murray was reported shot, an ambulance arrived and took Mr. Murray—who was still alive—to
a hospital, where he was declared dead shortly after arriving. (ECF 17 ¶¶ 39, 41.)

       B.      Off-Reservation Events: Hospital, Mortuary, and Medical Examiner’s Office

        At the hospital, the plaintiffs allege, state, county, and municipal officers removed Mr.
Murray’s clothes, unnecessarily photographed and manipulated his unclothed remains, and
photographed one officer “sticking a finger into Murray’s head wound.” (Id. ¶ 42.) U.S. Bureau
of Indian Affairs (“BIA”) Officer Kevin Myore was allegedly also present at the hospital. (Id.)

        State, county, and municipal officers then transported Mr. Murray’s body to a mortuary
to store it overnight until it could be transported to the state medical examiner’s office the next
day. (Id. ¶ 43.) At the mortuary, the plaintiffs allege, the officers drew two vials of blood from
Mr. Murray’s body by inserting a needle into Mr. Murray’s heart and asking a mortuary
employee to make an incision in Mr. Murray’s neck. The plaintiffs allege that Federal Bureau of
Investigation (“FBI”) Agent Rex Ashdown arrived at the mortuary and was “informed that a
sample of Mr. Murray’s blood had been drawn earlier at the [hospital],” but did nothing to stop
the officers from drawing more blood. (Id. ¶ 44.)

        The next day, Mr. Murray’s body was moved to the state medical examiner’s office in a
body bag. (ECF 17 ¶ 48; see ECF 77-1 at 54.) The medical examiner reported that Mr.
Murray’s remains arrived with hands bagged. (ECF 17 ¶ 52.) He found no soot on either hand.
(Id.) Mr. Murray’s left hand was “clean and free of any debris or blood.” (Id.) Mr. Murray’s
right hand was “caked in blood.” (Id.)

       The FBI requested that the medical examiner perform an autopsy. (ECF 77 ¶ 43.) The
state medical examiner performed an external examination of Mr. Murray but did not conduct an
autopsy. (Id. ¶ 44.)

       C.      Federal Investigation

        The FBI had jurisdiction to investigate Mr. Murray’s death on the reservation. (Id. ¶ 25.)
Agent Ashdown of the FBI’s Vernal Resident Agency arrived on the scene after the ambulance
had transported Mr. Murray to the hospital. (Id. ¶¶ 13, 24.)

        Agent Ashdown testified that, on his arrival at the scene of the shooting, someone he only
remembered as a “senior supervisory officer” told him that Mr. Murray had shot himself. (ECF
77 ¶ 26.) Agent Ashdown documented the scene and collected evidence. The parties stipulated
that “some or all of” the evidence collected was ultimately entered into the FBI Salt Lake City
Division’s evidence room. (Id. ¶ 37.) The parties further stipulated that the collected evidence
included photographs and GPS coordinates documenting the scene and the relative location of its
elements, a .380-caliber handgun found near Mr. Murray’s body, two spent .380-caliber shell
casings found near the .380 handgun, and two spent .40-caliber shell casings found 113 yards
from the location of Mr. Murray’s body (Id. ¶ 34).




                                                 4
                       a.      Documenting the Scene

        Agent Ashdown “took photographs of various angles of the scene[,] . . . identified photos,
marked exhibits, and photographed the exhibits in place from various positions, . . . collected
those items he believed had evidentiary value[,] . . . [and] placed yellow evidence placards . . . to
mark [at least some of] the evidence he observed for later purposes to identify what he was
looking at.” (Id. ¶¶ 27-28.) Agent Ashdown “marked and photographed some of the blood and
blood splatter that could be identified as blood.” (Id. ¶ 29.) Agent Ashdown took GPS
measurements of the location of found shell-casings and Mr. Murray’s body. (Id. ¶ 33.)

                       b.      .380 Handgun

         Agent Ashdown collected as evidence the .380 handgun found next to Mr. Murray’s
body. (Id. ¶¶ 29-30.) Agent Ashdown photographed a spent shell-casing that apparently had
failed to eject properly, “jammed” inside the .380 handgun. (Id. ¶ 36.) The FBI retained
possession of the .380 handgun. (Id. ¶ 31.) Agent Ashdown did not request a test firing of the
.380 handgun, later testifying that the only purpose of test firing it would have been to confirm
that it functioned and had been fired. (Id. ¶ 35.)

                       c.      Shell-Casings

        Agent Ashdown testified that he also collected two spent .380 shell-casings from the
ground from within the expected ejection-radius of the .380 handgun’s location. The FBI
retained possession of the .380 shell casings. (Id. ¶ 34.)

       Agent Ashdown also photographed and collected Officer Norton’s two .40-caliber shell-
casings approximately 113 yards from where Mr. Murray had fallen. (Id. ¶ 32.)

                       d.      Officer Norton’s Gun, Person, Clothes, and Vehicle

        The parties stipulated that Agent Ashdown “testified that he did not perform or request
any testing of Officer Norton’s clothing because he did not observe anything on Officer Norton’s
body and did not see any blow back blood or blood splatter type evidence on the clothes.” (Id.
¶ 48.) Officer Norton’s supervisor, Chief Gary Jensen of the Vernal City Police Department,
also testified he did not see any blood or tissue on Officer Norton when Chief Jensen arrived at
the scene. (ECF 77-1 at 215-16.)

        Chief Jensen testified that he took custody of Officer Norton’s .40-caliber handgun at the
scene and saw no blood or tissue on the gun. (Id. at 215-16.) The weapon was later returned to
Officer Norton. (See id. at 238.) When the district court asked about his motivation for
believing that it was not necessary to test Officer Norton’s gun or clothing, Chief Jensen
responded:

               The motivation is that, with all due respect, Vance Norton was a
               very good Detective. Vance Norton was involved in a situation. He
               described the situation. The scene appeared to be as he described it.
               It appeared to be a suicide and it was believable. I didn’t feel it was
               necessary.

                                                 5
(Id. at 222.)

                       e.      Reliance on Officer Norton’s Account

        Agent Ashdown testified that he spoke with Officer Norton at the scene to arrange an
interview, and the conversation ended after Officer Norton stated that he would want an attorney
present. (ECF 77-1 at 159-60.) Agent Ashdown did not remember receiving an account directly
from Officer Norton at the scene. (Id. at 158-59.) Agent Ashdown testified that his partner later
conducted an interview with Officer Norton and his attorney while Agent Ashdown was out of
town. (Id. at 159-60.)

        Agent Ashdown testified that he had a professional but not a personal relationship with
Officer Norton, and that he “knew him to be a credible officer in all of the interactions I ha[d]
during the past 10 years prior to this, and I had no reason to discount the story I had been given
as I approached that scene.” (Id. at 157.)

         During the district court’s spoliation hearing, Agent Ashdown was asked whether, due to
his reliance on Officer Norton’s account, he had neglected to document the location of various
elements at the scene of Mr. Murray’s death to a degree that would allow a recreation of that
scene. Agent Ashdown testified that he had not:

                Because I took the information received regarding what Officer
                Norton had reported. I had gone down to the crime scene, reviewed
                the crime scene and everything had been consistent with what I had
                been told. There was nothing inconsistent that I could see, and it
                had been determined at that time it was a suicide, and the FBI office
                and the FBI lab don't have the resources or does any department
                have the resources to take a suicide investigation to an Nth degree
                to prove something that we already know.

(Id. at 164.)

        D.      Alleged Meeting with the Family and Promise to Investigate

       One of the plaintiffs, Ms. Jones, Mr. Murray’s mother, submitted a declaration recounting
a meeting with Agent Ashdown on April 25, 2007, together with other members of Mr. Murray’s
family. (ECF 14-3 ¶¶ 5-8.) Ms. Jones explains that she “understood [her] son [had] died from a
gunshot wound to the head,” however, “when his body was returned to the family for burial, we
were shocked to see that his neck had been slashed and then stitched together in a horrific,
unsightly manner.” (Id. ¶ 10.)

        Ms. Jones alleges that, in this meeting with Agent Ashdown, she “pleaded” with him to
investigate the circumstances of Mr. Murray’s death. (Id. ¶ 7.) Agent Ashdown, she declared,
“promised” the victim’s family and her that he would conduct a “full investigation.” (Id. ¶ 8.)

      In this same meeting, Ms. Jones recounts, family members told Agent Ashdown that Mr.
Murray was right-handed and asked Agent Ashdown to demonstrate on himself how a right-
handed person could have shot himself on the left-side of his head above and behind his left ear.

                                                 6
(Id. ¶ 6.) Ms. Jones recounts that Agent Ashdown was “unable to position a gun in a manner
consistent with the bullet trajectory that was reported by the medical examiner.” (Id.)

       E.     Forfeiture of the .380 Handgun

        After Agent Ashdown’s May 2007 retirement, FBI Special Agent David Ryan took over
the investigation of Mr. Murray’s death. (ECF 77 ¶ 14.) Agent Ryan investigated the purchase
of the .380 handgun and assisted in the criminal prosecution of the handgun’s straw purchaser.
(Id. ¶¶ 14, 38.) This investigation linked the gun to the driver of the vehicle in which Mr.
Murray had been a passenger. (See ECF 118-6 at JONES0018324-25). The .380 handgun’s
straw-purchaser was indicted in January 2008, and the indictment contained a notice of intent to
seek forfeiture of the gun. (ECF 77 ¶ 38.)

         On March 2, 2008, Ms. Jones sent a “Notice of Claims” to the Vernal City police
department, state highway patrol, county sheriff, Uintah County, and Officer Norton. See Jones
v. Norton, No. 2:09-CV-730-TC, 2014 WL 909569, at *4 (Mar. 7, 2014) [hereinafter Jones D.
Ct. Spoliation] (describing the Notice). Officer Norton testified that he received the Notice on
April 1. (ECF 77-1 at 240.) The Notice summarized the facts of Mr. Murray’s death from the
police pursuit to the examination of Mr. Murray’s body. (Id.) The Notice indicated that Ms.
Jones intended to bring claims against the recipients for violations of Fourth Amendment
protections against unreasonable search and seizure, Fourteenth and Fifth Amendment
guarantees of due process, the Fourteenth Amendment guarantee of equal protection, and the
Fifth Amendment right not to be compelled to be a witness against oneself, violation of the
equivalent state constitutional provisions, assault and battery, intentional and/or negligent
infliction of emotional distress, negligence, and wrongful death. Jones D. Ct. Spoliation, 2014
WL 909569, at *4-5. The first paragraph of the Notice provided “[t]his notice should not be
deemed to waive any cause of action that Debra Jones may have against any individual or entity,
governmental or otherwise, who may later be determined to be ultimately responsible for the
damages she has sustained.” Id.

        The .380 handgun’s straw purchaser pleaded guilty, and the district court entered a
preliminary forfeiture order in May 2008. (ECF 77 ¶¶ 38-40.) Pursuant to this order, the United
States published a notice on www.forfeiture.gov for anyone to claim an interest in the gun within
30 days. (Id. ¶ 40.)

        An FBI memorandum dated September 17, 2008, recommended closing the investigation
of Mr. Murray’s death. (ECF 118-3 at JONES0010902.) The memorandum described Mr.
Murray’s death as a suicide and reported that the FBI had completed the prosecution of the .380
handgun’s straw purchaser. (Id.) The memorandum further reported that “[t]he firearm
recovered from Murray after he shot himself has been forfeited” and continued “[d]ue to an
active civil suit involving [redacted] and the [Vernal City Police Department], items 1Bl - 1B4




                                                7
have been removed from FBI evidence and provided to VPD. No other items remain in FBI
evidence.”2 (Id. (redaction in original)).

        On November 14, 2008, the district court found that adequate notice had been given and
that no one had claimed an interest in the .380 handgun. (ECF 77 ¶ 41.) The court ordered the
.380 handgun forfeited to the United States and “disposed of according to law.” (Id.) The FBI
took the .380 handgun “out of evidence” on November 26, 2008, and provided it to the U.S.
Marshals Service on December 2, 2008. (Id. ¶ 42.) The Marshals Service destroyed the
handgun, as is its routine practice.

         The FBI turned over the two .380-caliber shell-casings and two .40-caliber shell-casings
to a Vernal City police detective on December 15, 2008, “because of the Utah District Court
litigation.” (Id. ¶ 34.)

II.       PROCEDURAL HISTORY

          A.   Civil Rights Claims Against Local Authorities

        In July 2009, the individual plaintiffs and Mr. Murray’s estate filed federal-law civil
rights claims in state court against Uintah County, Vernal City, the state troopers, the county
sheriff’s deputies, and Officer Norton, along with state-law “assault and battery” and wrongful
death claims against Officer Norton individually. In August 2009, the defendants removed the
case to the United States District Court for the District of Utah. (ECF 117-2 at JONES001018-
87.) The plaintiffs argued that Officer Norton killed Mr. Murray by shooting him in the head at
point-blank range either with Officer Norton’s own gun or with the .380 handgun found near Mr.
Murray’s body, and that the state, county, and municipal officers spoliated the evidence of
Officer Norton’s act. Jones D. Ct. Merits, 3 F. Supp. 3d at 1191.

        In 2014, the district court granted summary judgment for the defendant state, county, and
municipal officers and Vernal City, holding that there was insufficient evidence for a reasonable
jury to conclude that Officer Norton shot Mr. Murray in the head at point-blank range. Jones D.
Ct. Merits, 3 F. Supp. 3d at 1192, 1213. In a separate decision denying spoliation sanctions
against the defendants in that case, the district court found that certain elements of spoliation
were met as to some evidence, but, in part because the FBI had the jurisdiction to investigate Mr.
Murray’s death, the state, county, and municipal defendants did not have a duty to preserve the
allegedly spoliated evidence. See Jones D. Ct. Spoliation, 2014 WL 909569, at *8 (“None of the
named Defendants [except possibly Vernal City] can be held liable for these alleged misdeeds,
because Agent Ashdown and Keith Campbell were in charge of the investigation.”); Jones D. Ct.
Spoliation, 2014 WL 4825894, at *1 n.6 (D. Utah Sept. 25, 2014) (noting that the district court
denied the motion for spoliation sanctions against Vernal City after the opportunity for additional
briefing).




      The Court understands “items 1B1-1B4” to refer to the two .40-caliber and two .380-caliber
      2

shell casings that the FBI had collected at the shooting scene. (See ECF 77 ¶ 34.)


                                                8
       The plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit, which
affirmed the district court’s decisions. See Jones 10th Cir., 809 F.3d at 568.

       B.      Treaty Claim Against the United States

        While the civil rights action against the local officers was still pending before the district
court in February 2012, the plaintiffs notified the BIA and the Department of Justice of Mr.
Murray’s death. (ECF 17 ¶ 75.) They sent a Statement of Claim for damages, typically a
required precursor to filing suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346,
in March 2013. (Id. ¶ 76.) The plaintiffs never pursued a FTCA action for Mr. Murray’s death.

       The plaintiffs, on April 1, 2013, filed suit against the United States in this Court. (ECF
1.) The plaintiffs’ claims were founded on the “bad men” provision of the 1868 Treaty between
the United States and the Ute Tribe.

               1.      The “Bad Men” Provision

       By 1868, Congress had concluded that the “aggressions of lawless white men” were the
cause of most “Indian” wars. Jones Fed. Cir., 846 F.3d at 1348. That year, the United States
entered into a treaty with the Ute Tribe of the Uintah & Ouray Reservation aimed at “peace
between the Ute Tribe and white settlers.” Id. at 1348. The treaty provides:

               If bad men among the whites or among other people, subject to the
               authority of the United States, shall commit any wrong upon the
               person or property of the Indians, the United States will . . . cause
               the offender to be arrested and punished according to the laws of the
               United States, and also reimburse the injured person for the loss
               sustained.

See Treaty with the Ute, art. 6, Mar. 2, 1868, 15 Stat. 619. The “bad men” clause made the
federal government “responsible for what white men do within the Indian’s territory.” Janis v.
United States, 32 Ct. Cl. 407, 410 (1897).

               2.      Court of Federal Claims Dismissal

        While the appeal of the civil rights action was still pending at the Tenth Circuit, this
Court granted the United States’ motion to dismiss for failure to state a claim. 122 Fed. Cl. at
490, 522, 529-30. Judge Horn held that the United States could only be liable under the treaty’s
“bad men” provision for “affirmative” criminal acts committed on the reservation, and, further,
that the plaintiffs were collaterally estopped from relitigating “the factual circumstances of Todd
Murray’s death, and the allegations of the destruction of evidence.” Id.

               3.      Federal Circuit’s Reversal and Remand

       The plaintiffs appealed the dismissal to the U.S. Court of Appeals for the Federal Circuit.
The Federal Circuit vacated the dismissal and remanded the case. The Federal Circuit’s opinion
provides standards for this Court to determine which specific crimes are cognizable as wrongs
under the “bad men” provision. See Jones Fed. Cir., 846 F.3d at 1357 (“Jones has not yet

                                                  9
explained what particular crimes each alleged omission constituted, so we do not have concrete
criminal-law duties to analyze.”) The Court of Appeals also directed this Court to consider
whether federal agents spoliated evidence, and whether that spoliation affected the plaintiffs’ full
and fair opportunity to litigate otherwise precluded issues decided by the district court in the civil
rights action. Id. at 1363-64. The Federal Circuit’s holding and instructions are discussed more
fully below in the relevant portions of the Court’s analysis.

               4.      Spoliation Sanctions

        On remand, this Court found that the United States had spoliated the .380 handgun.
Federal agents failed to disclose to the judge who ordered the illegally purchased handgun’s
routine forfeiture and destruction that handgun’s character as potential evidence in what was then
foreseeable litigation. The Court found no evidence of a spoliation conspiracy and further held
that the federal agents’ discretionary choices not to collect specific pieces of evidence did not
constitute spoliation.

        As a sanction for the spoliation of the .380 handgun, the Court prohibited the United
States from relying on any evidence related to the .380 handgun, “including the presence of an
unejected shell casing in the destroyed handgun and the presence or absence of fingerprints or
blowback on the handgun, to support the United States’ conclusion that Mr. Murray died by
suicide.” Jones Fed. Cl. Spoliation, 146 Fed. Cl. at 742.

        The Court declined to infer that testing of the spoliated handgun would have proven that
Officer Norton killed Mr. Murray, finding that conclusion to be speculation based largely on the
perceived unlikelihood that Mr. Murray would use his non-dominant hand to discharge the
firearm and Officer Norton’s circumstance as the lone witness. Id. at 742-43. The Court found
“no basis sufficient for the Court to distinguish [the plaintiffs’] theory from other possibilities
that incorporate the same facts.” Id. at 743.

               5.      Discovery and Motion for Summary Judgment

        Following the Federal Circuit’s mandate to apply the “bad men” provision to specific
crimes and to consider the effect of any spoliation sanctions on the preclusion of specific issues,
the Court directed limited discovery as to specific crimes the plaintiffs allege as “wrongs.” (ECF
148.) On January 24, 2020, the defendant served the plaintiffs with requests for admission and
interrogatories (ECF 150-5), noting a 30-day deadline to respond. The defendant requested that
the plaintiffs identify the specific individuals that they allege to be “bad men” under the treaty
provision, the crimes each is alleged to have committed, and citations to the federal or Utah
criminal statutes for each crime. On February 7, the defendant filed its answer.

        The plaintiffs served the defendants with their responses on March 3, 2020, 39 days after
the defendant served its requests, and 25 days after the defendant served its answer.3 The


   3
     The defendant argues that its requests for admissions are admitted because the plaintiffs
responded nine days late. See RCFC 36(a)(3). The plaintiffs argue that their responses were six



                                                 10
plaintiffs qualified their responses with objections that the requests and interrogatories called for
legal conclusions and that their responses are protected work product. The responses allege that
Officer Norton committed murder, negligent or reckless homicide, battery, and any lesser
included offenses against Mr. Murray.4 (ECF 150-6 at 3.)

        As additional “bad men,” the plaintiffs identify 21 individuals, mostly law enforcement
officials, who were presumably present or supervised others who were present at the shooting
scene, hospital, mortuary, or medical examiner’s office; they also identify eight government
entities and a private business related to the individuals:

               FBI Agent Rex Ashdown
               FBI Agent David Ryan
               United States Federal Bureau of Investigations
               United States Bureau of Indian Affairs
               Vance Norton, Uintah County Sheriff's office
               Craig Young, Utah Highway Patrol
               Anthony Byron, Uintah County Sheriff's Department
               Jeff Chugg, Utah Highway Patrol
               Troy Slaugh, Uintah County Sheriff's Department
               Sean Davis, Utah Division of Wildlife Resources



days early because the 30-day clock to respond to the defendant’s requests started when the
defendant filed its Answer on February 7, not when the requests were served. See RCFC
26(d)(1) (providing the Joint Preliminary Status Report conference as the start of discovery);
RCFC Appendix A ¶ 3 (providing that parties confer on the Joint Preliminary Status Report
(“JPSR”) after the Answer is filed). The defendants maintain that the 30-day clock started at
service of the requests because the parties had already conferred on a JPSR and some discovery
had already occurred in this case before the defendant served the requests for admission.

    The Court deems the plaintiffs’ argument regarding the deadline as a timely request to
withdraw and amend its deemed admissions. See United States v. Petroff-Kline, 557 F.3d 285,
294 (6th Cir. 2009) (“Despite its failure to have filed a formal motion to withdraw its claimed
admissions, the Government's filing of a slightly overdue response effectively served as such a
withdrawal.”). The defendant has not been prejudiced by the nine-day delay, and permitting
withdrawal promotes the resolution of this case on the merits. See RCFC 36(b); Gwynn v. City
of Philadelphia, 719 F.3d 295, 299 (3d Cir. 2013) (“The prejudice contemplated by Rule 36(b),
however is not simply that the party who obtained the admission now has to convince the [fact
finder] of its truth. Something more is required.”) (citation omitted).
   4
    The plaintiffs listed the relevant statutory provisions as 18 U.S.C. §§ 13, 1111, 1112, 1117,
1152 and Utah Code §§ 76-5-202 (e), (f), (k), (s); 76-5-201 76-5-205, 206,209.


                                                 11
               Gary Jensen, Logan Police Department, Logan, Utah
               Rex Olsen, Utah Highway Patrol
               Bevan Watkins, Uintah County Sheriff's Department
               Keith Campbell, Vernal City Police Department
               Ben Murray, Vernal City Police Department
               Dave Swenson, Utah Highway Patrol
               James Beck, . . . Bureau of Indian Affairs
               ("BIA") Police Chief at the time
               Terrance Cuch
               Kevin Myore
               Colby Decamp, . . . St. George, Utah
               Mitch Blackburn, Vernal, Utah, owner of Blackburn Mortuary
               Dr. Edward Leis, M.D., Office of Medical Examiner, State of Utah
               Vernal City Police Department
               Uintah County Sheriff's office
               Uintah County, Utah
               State of Utah Office of Medical Examiner
               State of Utah Highway Patrol
               State of Utah
               Blackburn Mortuary

(ECF 150-6 at 1-2.)

       The plaintiffs intend to assert that all these alleged “bad men,” along with Officer Norton,
conspired to commit the following crimes defined by federal statute:

               Criminal trespass, 18 U.S.C. §§ 13, 1152, 1165[;] 1868 Treaty Art[.]
               2.
               Obstruction of justice, 18 U.S.C. §§ 13, 1152, 1503, 1505, 1506,
               1510, 1511, 1512, 1513, 1519.
               Unlawful arrest and detention, [18 U.S.C.] §§ 13, 1152.
               Kidnapping, 18 U.S.C. § 13, 1152, 1201.
               Conspiracy against rights, 18 U.S.C. §§ 13, 1152, 241, 242.
               Hate crimes, 18 U.S.C. §§ 249.
               False claims and conspiracy to defraud United States, 18 U.S.C. §§
               13, 1152, 286, 287, 371.

                                                  12
               Wire fraud, 18 U.S.C. § 1343.
               Injury to government property, 18 U.S.C. §§ 13, 1152, 1361.
               Pe[r]jury and subornation of perjury, 18 U.S.C. §§ 13, 1152, 1621,
               1622.
               Destruction of records or evidence, 18 U.S.C. §§ 13, 1152, 2071,
               2232.
               RICO, [18] U.S.C. Ch. 96. [§§ 1962, 1963(a)]
               Conspiracy to commit each of the above, §§13, 1152.
               Accessory after the fact for all of the above and for Norton's crimes,
               18 U.S.C. §§ 3, 13, 1152.
               Misprision of felony related to all of the above and related to
               Norton's crimes, 18 U.S.C. §§ 4, 13, 1152.

(ECF 150-6 at 3-4, as amended by ECF 150-7 at 1-2.)

       Further, the plaintiffs intend to prove that the alleged “bad men,” including Officer
Norton, committed the following crimes defined by Utah statute and incorporated into federal
law, 18 U.S.C. § 13, 1152, or, alternatively directly under general principles of Utah criminal
law, Utah Code §§ 76-2-101; 76-2-202; 76-2-204; 76-2-205, and the Utah conspiracy and
attempt statutes, §§ 76-4-201; 76-4-202; 76-4-101:

               Assault, §76-5-102.
               Reckless endangerment §76-5-112.
               Kidnapping, §76-5-301.
               Criminal mischief, §76-6-106.
               Criminal Trespass, §76-6-206.
               Official or unofficial misconduct §§76-8-201, 203.
               Interference with public servant or peace officer, §§76-8-301; 76-8-
               305.
               Obstruction of criminal investigation, §76-8-306.
               Doing business without a license, §76-8-410.
               Destruction of government property §76-8-412 or 413.
               False statement and pe1jury; §§76-8-502 to 506.
               Retaliation against a witness, victim, or information, § 76-8-508.3.
               Tampering with evidence, falsification or alternation of government
               record, §§76-8-
               510.5, 511.
               Impersonation of officer, §76-8-512.

                                                13
               Disorderly conduct §76-9-102.
               Disrupting a funeral or memorial service, §76-9-108.
               Abuse or desecration of a dead human being, §76-9-704.

(ECF 150-6 at 4, as amended by ECF 150-7 at 1-2.)

        The defendant moves for summary judgment on all the plaintiffs’ claims. The defendant
argues that for the plaintiffs to prove the elements of many of the crimes they cite, they would be
required to relitigate factual findings and legal conclusions previously litigated and resolved by
the district court. According to the defendant, the doctrine of issue preclusion forbids the
plaintiffs from relitigating these claims, now that the Court has refused to grant the plaintiffs’
request for adverse evidentiary inferences against the defendant based on the defendant’s alleged
spoliation of evidence. The defendant further argues that the crimes the plaintiffs allege
occurred that were not resolved by the district court are not cognizable under the “bad men”
provision.

       The motion has been fully briefed. (See ECF 150, 156, 157.)

III.   ANALYSIS

         Summary judgment is appropriate when no material fact is in genuine dispute and the law
entitles the moving party to judgment. See RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). One way a defendant can demonstrate that no material fact is genuinely
disputed is by showing that the plaintiffs lack sufficient evidence to prove an essential element of
their claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (“[A] complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.”) If the plaintiffs respond to such a motion by pointing to sufficient evidence
for the Court reasonably to find an essential element of the plaintiffs’ claim, the Court will find a
genuine dispute, deny summary judgment, and allow the plaintiffs a chance to prove their claim
at trial. See Anderson, 477 U.S. at 248. The plaintiffs’ response “must point to an evidentiary
conflict created on the record; mere denials or conclusory statements are insufficient.” SRI Int'l v.
Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985) (en banc).

        In this case, for the plaintiffs to prevail, they must prove that a non-Indian committed one
or more federally punishable crimes against Mr. Murray’s person or property on the reservation
or as a direct result of actions on the reservation. The plaintiffs identify 26 federal- and state-law
crimes (or categories of crimes) that they intend to prove were committed as “wrongs”
compensable under the “bad men” provision by the 30 officials or entities the plaintiffs have
identified.

       The defendant’s motion for summary judgment exhaustively demonstrates, on a crime-
by-crime and fact-by-fact basis, how issue preclusion, the terms of the “bad men” provision, or a
complete lack of evidence prevents the plaintiffs from proving each identified crime at trial. For
many of the crimes, the defendant identifies multiple bases for summary judgment in its favor.

      The plaintiffs respond that issue preclusion is inapplicable but otherwise do not
comprehensively rebut all the defendant’s more specific arguments regarding proof of specific

                                                 14
crimes that the plaintiffs have identified. The plaintiffs’ response argues in essence that they do
not need to respond. They argue that the defendant has the burden on summary judgment, and
that the defendant’s motion tries impermissibly to shift the burden to the plaintiffs. The plaintiffs
have failed to meet the defendant’s demonstration of specific material facts by pointing to
evidence that tends to contravene or put those facts into dispute.

       Even having accepted some of the plaintiffs’ more specific legal objections and rejected
some of the defendant’s arguments, the Court finds that the defendant is entitled to judgment as a
matter of law on other bases suggested in its motion, and the plaintiffs point to no genuine issue
of material fact that would preclude summary judgment.

       Some of the identified crimes are not plausibly relevant to the allegations in the amended
complaint, and the plaintiffs have not clarified their relevance. Others are not cognizable under
the “bad men” provision because they are not federally punishable or were not committed
“against the person or property of the Indians,” as the treaty provision’s language requires.
Summary judgment is appropriate for all these claims.

        Establishing liability for the remaining, cognizable crimes requires the plaintiffs to prove
that the bad men they have identified committed arrestable, prosecutable criminal acts with the
intent specified in the federal or state statute defining each crime. The plaintiffs made clear
when amending their complaint that they based their claims on the action or inaction of
“individual federal officers,” not their employing federal agencies. See Fed. Cl. Dismissal, 122
Fed. Cl. at 501. The state of Utah, its agencies, and political subdivisions listed by the plaintiffs
are not arrestable, and thus cannot be “bad men” under a provision that is limited to arrestable
wrongs. See Jones Fed. Cir., 846 F.3d at 1356 (relying on the provision’s reference to the arrest
of “bad men” as a basis to limit cognizable wrongs to arrestable conduct or omissions, and
rejecting broader, less literal interpretations of the word “arrest”). Summary judgment is
therefore appropriate as to these claims.

       As for the officials that the plaintiffs identify as “bad men,” the district court’s decision
precludes the plaintiffs from litigating many of the facts relevant to their acts or intent. For the
crimes addressing conduct based on stipulated facts, the plaintiffs lack sufficient evidence for
this Court—as a trier of fact—to find reasonably the necessary criminal intent. Accordingly,
summary judgment is also appropriate as to these claims.

       A.      Issue Preclusion and Spoliation

       Finding that federal agents spoliated the .380 handgun has not changed the evidentiary
landscape for the central issues relevant in this case decided by the district court, such as the
cause of Mr. Murray’s death. The district court’s decision of these issues precludes relitigating
them in this Court.

       Whether issue preclusion applies is a question of law and is therefore appropriately
resolved on summary judgment. See United States v. Gallardo-Mendez, 150 F.3d 1240, 1242




                                                  15
(10th Cir. 1998). The Court continues to apply Tenth Circuit issue-preclusion precedent in this
case.5

       To invoke issue preclusion, a party must show four elements:

               1. The issue previously decided is identical with the one presented
               in the action in question;
               2. The prior action has been finally adjudicated on the merits;
               3. The party against whom the doctrine is invoked was a party, or in
               privity with a party, to the prior adjudication; and
               4. The party against whom the doctrine is raised had a full and fair
               opportunity to litigate the issue in the prior action.

Jones 10th Cir., 846 F.3d at 1361 (citing Park Lake Res. Ltd. Co. v. U.S. Dep’t of Ag., 378 F.3d
1132, 1136 (10th Cir. 2004)).

        As between this case and the district-court action, the plaintiffs conceded the second and
third elements to support issue preclusion before the Federal Circuit. Id. at 1362. Accordingly,
the Court need only consider the first and fourth elements: (1) whether an issue raised in this
case is identical to an issue decided in the district court, and (2) whether the plaintiffs had a full
and fair opportunity to litigate the issue in the district court.

         The Federal Circuit held that the plaintiffs were not, as Judge Horn had held for this
Court, collaterally estopped from litigating whether Mr. Murray had shot himself, and whether
federal agents had spoliated evidence. The Federal Circuit explained that collateral estoppel, or
“issue preclusion,” requires, among other things, identical issues and a full and fair chance to
litigate the issues that were decided in the prior action. Jones Fed. Cir., 846 F.3d at 1362-64.
The Federal Circuit held that “[t]he culpability of the federal officers for spoliation” could not


   5
      Following Judge Horn’s decision to apply Tenth Circuit issue-preclusion law, the Federal
Circuit concluded that “[t]he elements of issue preclusion are essentially the same under Federal
Circuit and Tenth Circuit law,” and that choice of law was thus not dispositive of the issues it
decided on appeal. Jones Fed. Cir., 846 F.3d at 1361 n.7. Unlike res judicata between courts of
different states, there appears to be no clear choice-of-law rule for a federal court measuring the
preclusive effect of an earlier federal-court decision. At least one other circuit has applied the
Federal Circuit’s issue-preclusion precedent to measure the preclusive effect of a patent-
infringement action. See Matter of Provider Meds, L.L.C., 907 F.3d 845, 852 & n.21 (5th Cir.
2018), cert. denied, 139 S. Ct. 1347, 203 L. Ed. 2d 570 (2019); Edward H. Cooper, Res Judicata
Between Federal Courts, 18B Fed. Prac. & Proc. Juris. (Wright & Miller) § 4466 (2d ed. 2020).
This approach is consistent with the rule proposed by legal scholars, that “[a]ny court, state or
federal, must ascribe to the judgment of any other state or federal court the res judicata effects
that would be recognized by the court that rendered the judgment.” Edward H. Cooper, Res
Judicata Between Federal Courts, 18B Fed. Prac. & Proc. Juris. (Wright & Miller) § 4466 (2d
ed. 2020).


                                                  16
have been precluded by the district court’s resolution of the plaintiffs’ civil rights suit because
the issue “[had] never been decided.” Id. at 1363. The Federal Circuit noted that the district
court had denied spoliation sanctions not because it found no spoliation, but merely because it
found that the named-defendant local authorities could not have been responsible for any
spoliation by federal investigators who were not named defendants in the district-court action.
Id. at 1362-63.

        Additionally, the Federal Circuit held that this Court could not determine that the
plaintiffs had had a full and fair chance to litigate the substantive issues decided in the district
court without first deciding how any spoliation might have affected the evidence available to
prove various elements of the plaintiffs’ discrete claims. The Federal Circuit instructed:

                  If the [Court of Federal Claims (“CFC”)] concludes on remand that
                  spoliation sanctions are not appropriate, or that the appropriate
                  sanctions would not change the evidentiary landscape for particular
                  issues, the CFC may reconsider the application of issue preclusion.
                  If it determines that sanctions are appropriate and do change the
                  evidentiary landscape, the CFC should independently consider
                  Jones’s substantive allegations of bad men violations.

Id. at 1363-64.

        In their task to prove that the “bad men” they identify committed the crimes they identify,
the plaintiffs do not start with a clean slate. Many of the act and intent requirements of the
crimes they identify implicate facts that were decided against them by the district court.
Principles of issue preclusion prohibit relitigating these facts in this Court.

         The plaintiffs in this case, by needing to prove acts and intent inconsistent with the
district court’s factual findings, raise issues identical to those decided in their district court case.
Although the district court’s ultimate legal conclusions used the legal standards for civil rights
violations, the district court explicitly described the facts that it found and applied to those
standards as insufficient evidence to prove the alternative explanation of Mr. Murray’s death
alleged by the plaintiffs. Relitigating those same facts on the basis of the same evidence, even if
applying them to a different legal standard, raises issues identical to those already decided by the
district court. Further, the federal agents’ spoliation did not deprive the plaintiffs of a full and
fair opportunity to litigate these identical issues in the district court.

                  1.     “Identical” Issue

        The issue resolved in the prior litigation and the issue presented in this case must be
identical for issue preclusion to apply. When an earlier decision addresses a purely factual
question, such as what happened, the issue in the later case need only address those same events
to be considered “identical.” See Overseas Motors, Inc. v. Import Motors Ltd., Inc., 375 F.
Supp. 499, 518 n.66 (E.D. Mich. 1974), judgment aff'd, 519 F.2d 119 (6th Cir. 1975). When an
earlier decision addresses the legal significance of a fact, such as whether what happened was
reasonable or constituted a criminal act or tort, the issue in the later case must implicate the same
legal standards and tests that the earlier decision applied in order to be considered “identical.”


                                                  17
Id.; see also Bobby v. Bies, 556 U.S. 825, 834-35 (2009) (considering a defendant’s “mental
retardation” under a newly decided legal standard for Eighth Amendment purposes even though
the sentencing court had already considered mental retardation as a mitigating factor).

        The body of issues that the earlier court decides is not strictly limited to the ultimate
questions the earlier court answers but may include other issues necessarily decided along the
way, including issues necessarily implied in the definition of a claim or defense. For example, in
Fenwick v. Pudimott, the D.C. Circuit held that a civil rights plaintiff’s assault conviction in D.C.
superior court for the same incident in which the plaintiff alleged that police used excessive force
“constrained[ed]” how the court viewed the facts in deciding whether the defendant-officers
were entitled to qualified immunity. 778 F.3d 133, 138 (D.C. Cir. 2015) (“[T]he Superior Court
Judge, in finding that Fenwick committed felony assault on [the officer], necessarily determined
that [the plaintiff-driver] created ‘a grave risk of causing significant bodily injury’ to [the officer]
when, ‘without justifiable [and] excusable cause,’ he drove the car forward in a manner that put
the deputy in danger of being hit.”) (citation omitted, quoting the relevant assault statute); see
also Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1273 (10th Cir. 1995) (rejecting claims
alleging facts that were “inconsistent with facts underlying the prior judgment”).

       The district court’s grant of summary judgment to the local officers and municipalities
necessarily decided the following issues that constrain this Court’s view of facts the plaintiffs
must prove to prevail on their “bad men” claims:

                        a.      The Officers’ Distance from Mr. Murray

        In the district court, the plaintiffs argued that the officers had violated Mr. Murray’s
Fourth Amendment right against unreasonable seizure by surrounding him with a “perimeter” of
police officers, shooting Mr. Murray in the head, or handcuffing Mr. Murray at gunpoint after
the shooting—all without any law-enforcement jurisdiction to pursue or arrest a tribe member on
the reservation. Except for the extra-jurisdictional handcuffing of Mr. Murray after he was shot,
the district court found no seizure. See Jones D. Ct. Merits, F. Supp. 3d at 1186-93.
Specifically, the district court found that there was insufficient evidence for a jury reasonably to
conclude that any officers, including Officer Norton, were ever less than 100 yards from Mr.
Murray in terms of surrounding him to prevent his escape. Id. at 1187, 1191 (“The officers were
one to two hundred yards away from Mr. Murray and did not have him
surrounded. . . . Detective Norton was more than 100 yards away when Mr. Murray was shot.”).

                        b.      The Cause of Mr. Murray’s Death

        The district court found insufficient evidence that Officer Norton had shot Mr. Murray in
the head. Id. at 1192 (“Because direct evidence (unrefuted by admissible evidence) that Mr.
Murray's gunshot wound was self-inflicted, it could not be a physical restraint imposed by
Detective Norton. Consequently, the fatal shot was not a seizure by a law enforcement
officer.”). The district court concluded, “[b]ased on the evidence in the record, no reasonable
jury could find that Detective Norton inflicted the mortal blow to Mr. Murray.” The district
court noted that the plaintiffs had offered mere “speculation” that Officer Norton shot Mr.
Murray in the head at point-blank range, “not evidence.” Id. at 1191.



                                                  18
                       c.      No Harm from Handcuffing

        The plaintiffs’ excessive force claim, as it related to handcuffing, required the district
court to find some physical or emotional harm to Mr. Murray caused by the alleged use of force.
Id. at 1194. The district court found “no evidence of physical harm or emotional harm to Mr.
Murray” from the handcuffing. It noted that “[t]he manner in which Deputy Byron handcuffed
Mr. Murray was simple and the least intrusive way to secure the scene for the EMTs.”

                       d.      The Officers’ Motives

        The civil-rights-specific, ultimate questions of fact that the district court answered are
not, themselves, identical to the criminal act and intent elements that the plaintiffs must prove to
prevail on their “bad men” claims. While deciding whether Deputy Byron was entitled to
qualified immunity for handcuffing Mr. Murray without jurisdiction, whether the officers used
excessive force, and whether the officers acted with racial animus, however, the district court
considered and accepted as uncontroverted the officers’ explanations of the knowledge and
motives driving their conduct. For example, when finding that Deputy Byron was entitled to
qualified immunity, the district court considered what Deputy Byron knew and when he knew it.
The district court supported its conclusion that Deputy Byron’s actions were reasonable with
these facts:

               Here, Deputy Byron did not know the identity of Mr. Murray or
               anything about him other than his involvement in the high-speed
               chase, his flight from a police officer, subsequent exchange of gun
               shots, and a gun on the ground next to Mr. Murray. He rushed onto
               the scene and had little time to assess the situation before he
               handcuffed Mr. Murray. He knew he had a wounded suspect and
               that emergency personnel were on the way. He secured the scene,
               as he was trained to do. Securing the scene, no matter what it might
               present, is a reasonable response by a police officer.

Id. at 1194. To defeat Deputy Byron’s motion for summary judgment, the plaintiffs could have
pointed to evidence that Deputy Byron knew more or was acting based on an impermissible
motive. The district court’s grant of summary judgment for Deputy Byron relying on these facts
precludes, or at least severely limits, the plaintiffs’ ability in this case to prove criminal
knowledge and intent without relitigating what Deputy Byron knew and why Deputy Byron took
the actions that he did.

        The district court’s grant of summary judgment for the local officers on the plaintiffs’
excessive-force claim required a similar examination of the state of mind of each officer when
pursuing Mr. Murray. For the plaintiffs to prove that the officers’ pursuit amounted to excessive
force under the Due Process Clause, the plaintiffs needed to point to evidence that the officers’
conduct was “arbitrary, or conscience shocking, in a constitutional sense,” in that it could be
characterized as the “most egregious official conduct.” Id. at 1195. The district court found that
“[a]ll of the Plaintiffs’ claims of egregious behavior stem from their complaint that the actions
took place on the Reservation and were aimed at an enrolled member of the tribe.” The district
court then relied on the officers’ accounts to find the pursuit was not egregious but “reasonable

                                                 19
under the circumstances.” The district court described the state-of-mind facts underlying its
reasonableness finding:

               Mr. Murray was part of a high speed chase and fled from Trooper
               Swenson. This information created sufficient concern in the
               officers’ minds about Mr. Murray's motives for the flight and the
               danger he posed, if any. They reasonably believed he had
               committed at least one crime (flight from a police officer) and
               pursuing him for that was reasonable. Even though the BIA police
               had been called as a precaution, no BIA police officer was there at
               the time. It was completely reasonable to apprehend the fleeing
               suspect so they could fully investigate and turn him over to the
               proper authorities, if necessary. There is no evidence that the
               officers were acting like a posse to capture the “Indian,” as Plaintiffs
               have argued. Although Plaintiffs paint it that way, they do so
               without evidence to support their theory.

Id.

        The district court further concluded that Officer Norton’s firing his gun at Mr. Murray
was reasonable because “Mr. Murray shot at [Officer] Norton first,” and Officer Norton “was
retreating to protect himself when he shot back.” Id. The district court concluded that “[n]one of
the officers' actions were egregious or conscience shocking,” and that “[t]heir attempt to
apprehend Mr. Murray while protecting themselves—and the means they used to do so—were
expected police behavior in light of the circumstances.” Id.

         Finally, the district court’s grant of summary judgment for the officers on the plaintiffs’
hate-crimes conspiracy claims directly considered the officers’ motives, not only as a supporting
fact but as an ultimate question of fact. After considering the perspective and information
available to each officer involved, the district court concluded that “no reasonable jury could find
that the facts offered by the Plaintiffs amount to invidious racial animus toward Native
Americans generally, or Mr. Murray in particular.” Id. at 1201. With the plaintiffs’ having
presented some evidence of racial tension between law enforcement and Native Americans, see
id. at 1201 n.89, this issue offered the plaintiffs their best opportunity to present evidence of the
criminal knowledge or intent that they must prove to prevail in this case. The plaintiffs failed to
do so.

         Despite answering different ultimate questions than those presented in this case, these
and the district court’s other reasonableness findings rely on state-of-mind facts that include the
officers’ knowledge and motives for the officers’ conduct. These knowledge-and-intent issues
are identical to those at stake in this case. This Court applies these and other examples from the
district court’s factual findings as it considers the factual issues raised by the actus reus and
intent requirements of each alleged crime identified by the plaintiffs as having been committed in
violation of the “bad men” provision. Overall and with respect to their particular elements, the
crimes that the plaintiffs have alleged and must prove in this case raise issues identical to those
decided by the district court.


                                                 20
               2.      Full and Fair Opportunity to Litigate

       The Federal Circuit overturned this Court’s earlier application of issue preclusion
because this Court had not considered whether the alleged spoliation of evidence by federal
agents had deprived the plaintiffs of evidence that they might have used to litigate their factual
contentions fully and fairly before the district court. The Federal Circuit explained:

               Though the district court did ultimately decide that Murray shot
               himself and that there was no conspiracy, the preclusive effect of
               that conclusion is explicitly limited to situations where no additional
               evidence (possibly in the form of spoliation sanctions) arises out of
               the federal officers’ actions with respect to the evidence.
               The culpability of the federal officers for spoliation has never been
               decided, and to assume the resolution of such a central issue ipse
               dixit without substantive consideration “depriv[es] litigants of their
               first chance[ ] to litigate an issue,” and is an improper application of
               issue preclusion.

Jones Fed. Cir., 846 F.3d at 1363 (citation omitted) (quoting Levi Strauss & Co. v. Abercrombie
& Fitch Trading Co., 719 F.3d 1367, 1371 (Fed. Cir. 2013)).

        The Federal Circuit’s mandate on remand instructed this Court to consider the plaintiffs’
spoliation allegations in the first instance and the appropriate sanction for such spoliation, if any.
Id. at 1363-64. It then provided that if “the appropriate spoliation sanctions would not change
the evidentiary landscape for particular issues, the [Court of Federal Claims] may reconsider the
application of issue preclusion.” Id.

        The evidentiary prohibition this Court imposed for the United States’ spoliation of the
.380 handgun reduces the evidence available to the United States to argue that Mr. Murray shot
himself, but it does not augment the evidence that is available to the plaintiffs now—or was
available in the district court—to prove that Officer Norton shot Mr. Murray. As the defendant
notes, Officer Norton’s motion for summary judgment in the district court did not rely on the gun
this Court found had been subject to spoliation by the defendant.

         This Court’s spoliation sanction changes the evidence, but does not change the
evidentiary “landscape” for any particular question at issue. The plaintiffs argue that a reduction
in the evidence available to the defendants in this Court versus that available to them in the
district court is necessarily a change in the evidentiary landscape. That view is inconsistent with
how courts typically use the term—to distinguish between harmless and prejudicial error
affecting proof of a particular issue.6



   6
    Courts have consistently described changes or differences in an “evidentiary landscape” as
“material” or otherwise legally or factually determinative. The Court finds it unlikely that the



                                                  21
        The district court’s finding of insufficient evidence of an execution-style shooting, racial
animus, or a conspiracy did not depend on the .380 handgun that federal agents spoliated. This
Court has prohibited the defendant from relying on the .380 handgun as evidence in this case, but
that prohibition adds nothing to the evidence available to the plaintiffs to prove their factual
contentions of homicide, conspiracy, and cover-up. The sanction applied for the spoliation of the
gun also does not affect the evidentiary landscape as to the police pursuit or the existence of a
cover-up or other alleged conspiracy.

         The federal agents’ spoliation did not deprive the plaintiffs of a full and fair opportunity
to litigate whether Officer Norton shot and killed Mr. Murray or whether local authorities and
federal agents conspired to destroy evidence of Mr. Murray’s homicide before the district court.
Accordingly, the district court’s decision precludes relitigating identical issues raised in this case.

       B.      Cognizable Claims

        Summary judgment for the defendant is proper for any of the crimes that the plaintiffs
identify as “wrongs” that are not federally punishable because they are preempted by federal
statute or implicate only off-reservation conduct.

       The Federal Circuit affirmed that a “wrong” cognizable under the treaty’s “bad men”
provision must be an arrestable, prosecutable crime. Id. at 1356. Further, cognizable wrongs
under “the laws of the United States” include state criminal offenses made federally punishable
by the Assimilative Crimes Act, 18 U.S.C. § 13, “which makes federally punishable any act or
omission committed on ‘[a]ny lands reserved or acquired for the use of the United States, and



Federal Circuit’s concise omission of “material,” “essential,” “determinative,” or another similar
legally descriptive term was meant to depart from the uniform sense in which courts have
referred to a “change” in the “evidentiary landscape.” See, e.g., Musladin v. Lamarque, 555 F.3d
830, 850 (9th Cir. 2009) (finding no violation of a criminal defendant’s due process rights,
reasoning that the trial was not “fatally infected” by the exclusion of evidence when “the
essential evidentiary landscape—that the only evidence of Musladin's self-defense was his own
statements—would remain the same had the proffered testimony been allowed”); see also United
States v. Ribota, 792 F.3d 837, 841 (7th Cir. 2015) (discussing substitution of charges in
response to a “materially altered evidentiary landscape”); United States v. LaDeau, 734 F.3d
561, 571 (6th Cir. 2013) (finding that the government failed to demonstrate that the “evidentiary
landscape has materially altered” for substitution of charges); Griffin v. Johnson, 350 F.3d 956,
959 (9th Cir. 2003) (describing a fingerprint expert’s reversal of his earlier conclusion that would
have exculpated the defendant as a “sudden shift in the evidentiary landscape [that compromised
the] defense strategy”); United Elec. Radio & Mach. Workers of Am. (UE) v. 163 Pleasant St.
Corp., 987 F.2d 39, 47 (1st Cir. 1993) (finding “perceived voids in the evidentiary landscape”
that required finding a lack of jurisdiction); Tie Tech, Inc. v. Kinedyne Corp., 296 F.3d 778, 784
(9th Cir. 2002) (distinguishing case from precedent as presenting a “decidedly different
evidentiary landscape”).




                                                  22
under the exclusive or concurrent jurisdiction thereof,’ where that act or omission would be
punishable under state law if committed within the state’s jurisdiction.” Id. at 1357 (quoting 18
U.S.C. § 7 (defining the territorial jurisdiction to which 18 U.S.C. § 13 applies)).

        The Federal Circuit rejected, however, some of this Court’s conclusions as to the nature
of cognizable wrongs and the territorial applicability of the “bad men” provision. The Federal
Circuit rejected this Court’s requirement that a “wrong” be an affirmative act. See id. at 1355-
57. Instead, the Federal Circuit held that an omission, i.e., the failure to act, could also constitute
a “wrong” under the “bad men” provision. Id. Finding that the plaintiffs had, however, failed to
identify the alleged omissions with specific crimes, the Federal Circuit left this Court to
reconsider the “bad men” provision’s application to omissions in the context of specific crimes,
in the event that the plaintiffs could establish any of the omissions they alleged to be cognizable
crimes under the “laws of the United States.” Id.

         Additionally, the Federal Circuit rejected the requirement from this Court’s dismissal of
the plaintiffs’ claims that the conduct constituting a wrong must occur entirely on the
reservation. Id. at 1361. The Federal Circuit cautioned that it was not rejecting the existence of
a geographic limitation. Id. Rather, it specified that this Court had “erred in summarily
dismissing Jones’s allegations of off-reservation wrongs without considering the connection
those alleged wrongs had, if any, to the alleged on-reservation wrongs.” Id. The Federal Circuit
left to this Court to determine, “in the first instance, whether any of the[] off-reservation acts
demonstrate the alleged continuation of on-reservation acts so as to be cognizable under the bad
men provision.” Id. at 1361.

        Some of the state-law crimes identified by the plaintiffs implicate conduct outside of the
reservation’s boundaries. The defendant acknowledges that the Assimilative Crimes Act makes
state-law crimes, such as desecration of a corpse, federally punishable when committed on the
reservation, but argues that any assimilated state-law offenses are not federally punishable,
cognizable wrongs when committed outside of the reservation’s boundaries.

         Some of the federal-law crimes identified by the plaintiffs also implicate off-reservation
conduct. The defendant argues that, for off-reservation conduct like the destruction of the .380
handgun to constitute a cognizable wrong under the treaty’s “bad men” provision, the wrong
must be a clear continuation of an on-reservation wrong. Thus, according to the defendant, even
if the local officers’ or federal agents’ off-reservation conduct can be established as
independently-punishable federal crimes, those crimes are not cognizable wrongs under the
treaty’s “bad men” provision because they do not clearly continue an on-reservation wrong.

         The defendant argues that some of the identified state-law crimes are preempted by
analogous federal crimes or only implicate off-reservation conduct not federally punishable, and
thus not cognizable as a “bad men” claim. The defendant further argues that the plaintiffs’
failure to prove an on-reservation wrong precludes them from proving off-reservation wrongs.

               1.      State-Law Crimes

       Conduct must be criminally punishable under federal law in order to constitute a wrong
under the “bad men” provision. State-law crimes can only be cognizable wrongs under the “bad


                                                  23
men” provision if they are not preempted by federal law and were committed on the reservation.
Otherwise, state-law crimes are not punishable under federal law and, thus, not cognizable
wrongs under the “bad men” provision.

                       a.      Preemption of State-Law Crimes

        As explained above, the Federal Circuit held that the universe of crimes cognizable as
“wrongs” under the “bad men” provision includes state-law crimes made federally punishable
within federal enclaves by the Assimilative Crimes Act, 18 U.S.C. § 13, and applied to Indian
reservations by the Indian Country Crimes Act, 18 U.S.C. § 1152. The Assimilative Crimes Act
does not, however, assimilate into federal law state-law crimes consisting of conduct that
Congress punishes under an independent federal statute. Lewis v. United States, 523 U.S. 155,
159-66 (1998); see Jones Fed. Cir., 846 F.3d at 1357. The plaintiffs identify several state-law
crimes with obvious federal analogs, like murder, manslaughter, assault, kidnapping, attempt,
and conspiracy. The defendant argues that the Court should not consider these state-law crimes
as cognizable wrongs because they are preempted by their federal-statute analogs.

         When deciding whether federal law makes punishable the same conduct prohibited by a
state criminal statute, the Supreme Court has rejected both a broad reading of the Assimilative
Crimes Act’s exception that would let “any” federal crime, like assault, preempt even a
qualitatively different state crime, like murder. See Lewis, 523 U.S. at 162. The Supreme Court
also has rejected a narrower reading of the Act’s exception that would make an additional
element or a different definition in a state offense sufficient to displace Congress’s considered
approach to punishing the same harm. Id. at 164. Instead, the Court has provided a specific test
that accounts for both the Assimilative Crimes Act’s language and its gap-filling purpose.

        A court must focus on the “act or omission” prohibited by the state statute. If (literally)
“any” federal statute punishes that “act or omission,” a court must ask whether the applicable
federal statutes preclude application of the state law in question because the state law would
“interfere with the achievement of a federal policy” by “effectively rewrit[ing] an offense
definition that Congress carefully considered or because federal statutes reveal an intent to
occupy so much of a field as would exclude use of the particular state statute at issue.” Id. at
164-65 (citations omitted).

        The Supreme Court rejected a one-size-fits-all answer to the question of Assimilative
Crimes Act preemption but offered three rules of thumb. First, the Act does not apply when both
statutes “seek to punish approximately the same wrongful behavior—where, for example,
differences among elements of the crimes reflect jurisdictional, or other technical,
considerations, or where differences amount only to those of name, definitional language, or
punishment.” Id. at 165.

        Second, “assimilation may not rewrite distinctions among the forms of criminal behavior
that Congress intended to create.” Id. “[O]rdinarily, there will be no gap for the [Assimilative
Crimes] Act to fill where a set of federal enactments taken together make criminal a single form
of wrongful behavior while distinguishing (say, in terms of seriousness) among what amount to
different ways of committing the same basic crime.” Id. (citation omitted).



                                                 24
        “At the same time, a substantial difference in the kind of wrongful behavior” covered by
the federal versus the statute statutes “will ordinarily indicate a gap for a state statute to fill—
unless Congress, through the comprehensiveness of its regulation, or through language revealing
a conflicting policy, indicates to the contrary in a particular case.” Id. at 165-66. The Supreme
Court emphasized that “[t]he primary question . . . is one of legislative intent: Does applicable
federal law indicate an intent to punish conduct such as the defendant's to the exclusion of the
particular state statute at issue?” Id.

        This issue raises a list of complex questions as long as the list of state-law crimes
identified by the plaintiffs. In this case, it raises these questions in an uncommon context, far
less concrete than the appeal of an individual criminal conviction. Although the Court might
have held some of the identified state-law crimes preempted by their obvious federal analogs,
harmonizing those conclusions with the scores of other decisions to consider these issues in
criminal prosecutions would delay decision and add complexity to a case that can be resolved
fairly on other grounds. The application of issue preclusion and consideration of analogous
intent requirements in both the federal and state versions of the crimes the plaintiffs identify
eliminate the need for the Court to consider whether the identified state-law crimes are
preempted by their analogous federal statutes.

                       b.      Off-Reservation State-Law Crimes

       The state-law crimes that are made federally punishable by the Assimilative Crimes Act
and applied to Indian reservations by the Indian Country Crimes Act are not federally
punishable, as a general matter, outside of the reservation’s boundaries. See 18 U.S.C. § 13;
Gov’t of Virgin Islands v. Dowling, 866 F.2d 610, 615 (3d Cir. 1989) (rejecting a defendant’s
argument based on the Assimilative Crimes Act because the defendant acted outside of a federal
enclave and within the jurisdiction of the local legislature). As a result, state-law crimes
committed outside of the reservation cannot be wrongs under the “bad men” provision.7

        The plaintiffs’ allegations that Mr. Murray’s corpse was desecrated rely solely on
provisions of Utah criminal law. Mr. Murray was not pronounced dead until he arrived at the
hospital, which was located outside of the reservation. The mortuary and medical examiner’s
office were also outside of the reservation. State-law desecration of a corpse might be a
federally punishable crime, and thus a cognizable wrong under the “bad men” provision, if
committed on the reservation. The treatment of Mr. Murray’s body at the hospital, mortuary,
and state medical examiner’s office, however, fall outside of the geographical reach of the




   7
      While it may be possible to commit some of an assimilated state-law crime’s elements
within the reservation while committing other elements outside of the reservation, all of the
state-law crimes at issue in this case other than conspiracy include a location-based element that
would likely be jurisdictionally determinative if, in other circumstances, the same crime were
committed partially in-state and partially out-of-state. In any case, the plaintiffs do not allege
these types of crimes here.


                                                 25
Assimilative Crimes Act. Accordingly, these state-law crimes do not constitute federal crimes in
this case and, therefore, are not “wrongs” under the “bad men” provision.

               2.      Federal-Law Crimes Committed Outside of the Reservation

        To be cognizable as wrongs under the “bad men” provision, independently-punishable
federal crimes (those not dependent on the Assimilative Crimes Act for their application)
committed outside of the reservation’s boundaries must be a clear continuation of on-reservation
conduct. See Jones Fed. Cir., 846 F.3d at 1360-61.

       The defendant argues that the Federal Circuit set a narrower standard, that an off-
reservation wrong must be a clear continuation of an entirely on-reservation “wrong”—a
complete on-reservation crime. Examination of the language of the Federal Circuit’s opinion
shows ambiguity as to this point. This Court concludes, however, that the defendant’s reading of
the Federal Circuit’s decision as requiring an independently sufficient on-reservation predicate
crime misconstrues the Federal Circuit’s holding.

        The Federal Circuit’s opinion referred to on-reservation “wrongs,” “acts,” and
“activities” interchangeably when discussing the predicate condition for a cognizable off-
reservation wrong. See Jones Fed. Cir., 846 F.3d at 1361. Its use of “wrong,” strictly construed,
suggests that a complete crime must occur on the reservation and then continue off the
reservation or result in a separate off-reservation crime. Other sentences in the opinion,
however, referred to “acts” or “activities” that must be directly continued for an off-reservation
wrong. The use of “acts” or “activities” suggests that a single crime, with on-reservation
conduct satisfying some elements and off-reservation conduct satisfying the remaining elements,
might constitute a cognizable “wrong” under the “bad men” provision.

        Moreover, the need to consider off-reservation conduct at all suggests that on-reservation
conduct insufficient to constitute a complete crime is cognizable under the “bad men” provision
when considered together with off-reservation conduct that is a clear continuation of the on-
reservation conduct. If the Federal Circuit’s rejection of this Court’s prior holding that ignored
off-reservation conduct was meant to ensure that a plaintiff could prove two completed wrongs
instead of one, then the defendant’s interpretation makes sense. If, on the other hand, the Federal
Circuit’s rejection of a strictly territorial application of the “bad men” provision was meant to
allow a plaintiff to prove a single completed wrong when the plaintiff could otherwise prove
none, then this Court’s interpretation rejecting the defendant’s reading of the Federal Circuit’s
decision is more appropriate.

        Although the Court disagrees with the defendant’s reading of the Federal Circuit’s ruling,
the Court nevertheless reaches the result the defendant urges. Even without considering the
location where specific acts occurred, the plaintiffs have failed otherwise to prove the act or
intent requirements for the identified, federally-punishable crimes that reach and implicate their
allegations of off-reservation conduct, like conspiracy, perjury, false statements, or destruction of
evidence or official records. The Court addresses the insufficiency of the evidence for each
category of crime below.




                                                 26
       C.      Proof of Particular Crimes

        As a preliminary matter, the defendant argues that the following crimes alleged by the
plaintiffs do not plausibly fit within the allegation of the amended complaint and therefore
cannot form the basis for liability under the “bad men” provision: hunting, trapping, or fishing on
Indian lands; conspiracy to defraud the United States to obtain payment or allowance; false
claims against the United States; conspiracy to commit an offense against or defraud the United
States; wire fraud (requiring intent to obtain money or property); injuries to or depredation of
federal property; racketeering; obstruction of criminal investigations through bribery; obstruction
of state or local law enforcement to facilitate illegal gambling; intimidation of jurors or judicial
officers; theft or alteration of judicial records; intentional destruction of property through
criminal mischief; doing business without a license; disorderly conduct in refusing a law
enforcement order or causing public inconvenience; and disruption of a funeral or memorial
service. (See ECF 150-1 at 15.)

        With the exception of “conspiracy to commit an offense against or defraud the United
States,” which serves as the general federal conspiracy provision, the Court agrees that the
relevance of these identified crimes is unclear. The plaintiffs fail to clarify how their allegations
of these crimes and the evidence they can present are sufficient to prove the act and intent
elements of these crimes; indeed, the plaintiffs merely accuse the defendants of impermissibly
shifting the burden of production to the plaintiffs. (ECF 156 at 5-6.) The Court has
independently reviewed the record in the case, with no assistance or guidance from the plaintiffs,
and has found the allegations of these offenses identified by the plaintiffs unsupported by any
facts. Accordingly, the Court finds no issue of material fact as to these potential wrongs that
would preclude summary judgment for the defendant.

       The Court considers the other crimes identified by the plaintiffs as the basis for liability
under the “bad men” provision as they relate to the plaintiffs’ allegations and the facts before the
Court.

               1.      Homicide

         The crux of this case is the plaintiffs’ allegation that Officer Norton murdered Mr.
Murray. The parties agree that Mr. Murray died from a close-contact gunshot wound to the
head. Proving murder or any of the other homicide crimes identified by the plaintiffs requires
proof that Officer Norton caused this close-contact gunshot wound. The district court found that
none of the officers was closer than 100 yards from Mr. Murray before Mr. Murray was shot.
The district court decision finding that Mr. Murray shot himself precludes the plaintiffs from
litigating this fact.

        The plaintiffs may also contend that the officers involved in the pursuit (and those
arriving before Mr. Murray was taken away in the ambulance) are guilty of some form of
criminal homicide because they did not provide appropriate on-scene medical aid. To prove that
allegation, the plaintiffs would need to show both intent and proximate cause. See United States
v. Serawop, 410 F.3d 656, 663–64 (10th Cir. 2005) (discussing mens rea); United States v.
Swallow, 109 F.3d 656, 659 (10th Cir. 1997) (proximate cause).



                                                 27
        Here too, the plaintiffs are collaterally estopped as to the State and local officers’
inaction. The district court already considered the questions of the officers’ state of mind and
whether the alleged failure to provide medical aid was a proximate cause of Mr. Murray’s death.
Jones D. Ct. Merits, 3 F. Supp. 3d at 1208 (finding no evidence to support a conclusion that the
defendants were “deliberately indifferent” or knew there was a substantial risk of harm); id. at
1208–09 (finding no evidence to support conclusion that aid at scene would have saved Mr.
Murray’s life). The district court also held that the officers fulfilled any duty owed to Mr.
Murray when they called the ambulance. See id. at 1207.

         Because the alleged commission of a homicide or related criminal behavior was fully and
fairly litigated before the district court by the plaintiffs in reliance on the same evidentiary
landscape before this Court, the plaintiffs are precluded from pursuing their “bad men” claim by
proving a homicide crime.

               2.      Assault and Reckless Endangerment

        The plaintiffs’ allegations of state-law assault and reckless endangerment appear to stem
from Officer Norton having fired his gun in retreat and from Deputy Byron having handcuffed
Mr. Murray. See Am. Compl. ¶¶ 32, 33, 67; accord Jones 10th Cir., 809 F.3d at 575 (noting
allegations of excessive force allegedly committed by Officer Norton, Trooper Young, and
Deputy Byron). The plaintiffs do not dispute the defendant’s supposition that these claims rest
on the actions cited in the amended complaint in the referenced paragraphs.

        The plaintiffs did not identify the federal assault statute as a potential wrong they intend
to prove at trial. See 18 U.S.C. § 113. Without deciding whether the federal assault statute
preempts the Utah assault statute, the Court nevertheless finds that the plaintiffs would not be
able to prove criminal liability under the Utah statute if this claim were to proceed to trial. Utah
law justifies the reasonable use of force by Officer Norton and Deputy Byron, and the district
court’s decision precludes the plaintiffs from arguing that these officers’ use of force was not
reasonable.

        The Utah criminal-assault provision on which the plaintiffs rely requires “unlawful force
or violence.” Utah Code Ann. § 76-5-102(1). The Utah reckless endangerment statute makes it a
crime to “recklessly engage[ ] in conduct that creates a substantial risk of death or serious bodily
injury to another person.” Utah Code Ann. § 76-5-112(1). This standard requires proof that the
officers’ conduct was “a gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor’s standpoint.” State v. Robinson,
63 P.3d 105, 107 (Utah Ct. App. 2003) (stating the general standard for criminal recklessness);
Utah v. Carter, 2005 UT App. 232, No. 20040637-CA, 2005 WL 1177063, at *1 (Utah Ct. App.
May 19, 2005) (unpublished) (applying general recklessness standard to reckless endangerment
offense).

        Utah law, however, justifies the use of “any force, except deadly force, which [the actor]
reasonably believes to be necessary to effect an arrest or to defend himself or another from
bodily harm while making an arrest.” Utah Code Ann. § 76-2-403. A peace officer is justified
in using even deadly force if “the officer reasonably believes that the use of deadly force is



                                                 28
necessary to prevent death or serious bodily injury to the officer or another person.” Utah Code
Ann. § 76-2-404(1)(c).

         The plaintiffs already had a full and fair opportunity to litigate the question of whether
Officer Norton and Deputy Byron acted reasonably. The excessive-force question before the
district court—like the assault and reckless endangerment claims that would be before this
Court—presented for necessary resolution the issue of the reasonableness of the officers’ actions.
See Jones D. Ct. Merits, 3 F. Supp. 3d at 1194 (quoting Graham v. Connor, 490 U.S. 386, 396–
97 (1989)). The district court determined that it was “reasonable under the circumstances for
Detective Norton to fire his gun at Mr. Murray. Mr. Murray shot at Detective Norton first.
Detective Norton was retreating to protect himself. . . . [The officers’] attempt[s] to apprehend
Mr. Murray while protecting themselves—and the means they used to do so—were expected
police behavior in light of the circumstances.” Id. at 1195. Plaintiffs are therefore precluded
from arguing in this Court that Officer Norton’s or Deputy Byron’s actions were unreasonable
such that either could be found guilty under Utah’s assault or reckless endangerment statutes.

               3.     Kidnapping

       The plaintiffs cannot prove that the officers kidnapped Mr. Murray when they pursued
and handcuffed him. See Pls.’ Resp. to U.S. Interrog. No. 5 (citing 18 U.S.C. § 1201; Utah Code
Ann. § 76-5-301). The federal kidnapping statute punishes anyone who, within certain territorial
and other limitations, “unlawfully seizes” a person. 18 U.S.C. § 1201(a). As with assault, the
existence of a federal kidnapping statute may preclude the Assimilative Crimes Act from
incorporating into federal law the state-law kidnapping offense identified by the plaintiffs.
Without deciding that issue, however, the Court finds that the plaintiffs would not be able to
prove either the federal- or state-law elements of kidnapping at trial.

         The defendant argues that the officers did not “unlawfully” seize Mr. Murray because the
district court found that most of the officers’ conduct did not amount to a seizure for Fourth
Amendment purposes, and the one act that did—handcuffing Mr. Murray without law-
enforcement jurisdiction—was reasonable. This argument takes the district court’s
reasonableness finding out of its qualified-immunity context.

         The district court first concluded that, under binding Tenth Circuit precedent, Deputy
Byron’s handcuffing of Mr. Murray without law-enforcement jurisdiction was per se unlawful as
an unreasonable seizure that violated Mr. Murray’s Fourth Amendment rights. Jones Dist. Ct.
Merits, 3 F. Supp. 3d at 1192 (citing Ross v. Neff, 905 F.2d 1349, 1353–54 (10th Cir.1990)). The
district court then considered whether Deputy Byron was entitled to qualified immunity, finding
him immune from suit for the Fourth Amendment violation. Finding Deputy Byron’s actions
reasonable for qualified immunity did not excuse, justify, or render the handcuffing “lawful” so
as to preclude proof of an “unlawful[ ]” seizure under the federal kidnapping statute.

        Nevertheless, both the federal and Utah kidnapping statutes require that the unlawful
seizure, detention, or restraint be intentional or knowing. While considering the reasonableness
of Deputy Byron’s conduct, the district court found that the officers did not learn that Mr.
Murray was a Ute Tribe member until the EMTs retrieved Mr. Murray’s identification card while
tending to him, 30 minutes after the shooting and after Mr. Murray had been handcuffed. See

                                                29
Jones Dist. Ct. Merits, 3 F. Supp. 3d at 1183. Thus, the officers did not know that they lacked
jurisdiction to arrest him when Deputy Byron handcuffed him. Relatedly, the district court found
no evidence of racial animus and no evidence of intent to “hunt” an Indian. Id. at 1199-1201.
The plaintiffs had the full and fair opportunity to litigate these facts and thus are precluded from
relitigating them here. Although Deputy Byron seized Mr. Murray “without authority of law,”
the plaintiffs are precluded from proving that Deputy Byron did so intentionally or knowingly.
The plaintiffs cannot prove the federal- or state-law crime of kidnapping.

                4.      Criminal Trespass

        The defendant ascribes the plaintiffs’ identification of criminal trespass, Utah Code Ann.
§ 76-6-206, as a potential “wrong,” to the officers’ lack of law-enforcement authority on the Ute
Tribe’s reservation. Criminal trespass in this context, however, would be an alleged wrong
against the Tribe, not against Mr. Murray. The Ute Tribe does not have standing to bring a claim
under the treaty’s “bad men” provision. See Hebah v. United States, 428 F.2d 1334, 1337 (Ct.
Cl. 1970); Hernandez v. United States, 93 Fed. Cl. 193, 200 (2010). This Court reached that
conclusion in granting the United States’ motion to dismiss. See Jones Fed. Cl. Dismissal, 122
Fed. Cl. at 528 n.31. Additionally, the plaintiffs conceded the point before the Federal Circuit.
Pl.-Appellants’ Principal Br. at 37 n.8, filed Dec. 14, 2015, Jones Fed. Cir., No. 2015-5148.

                5.      Conspiracy

         The plaintiffs allege that the officers conspired to kill Mr. Murray and cover up their
actions. See Am. Compl. ¶¶ 17, 67, 70. To prove a conspiracy, the plaintiffs would need to
prove an agreement or “meeting of the minds” to murder Mr. Murray and cover it up. See
United States v. Anderson, 981 F.2d 1560, 1563–64 (10th Cir. 1992) (under federal law); Utah
Code Ann. § 76-4-201 (conspiracy is when one “agrees with one or more persons to engage in or
cause the performance of the conduct. . . .”). With respect to the State and local officers, the
plaintiffs litigated and lost this exact issue in the district court. See Jones D. Ct., 3 F. Supp. 3d at
1197–99, 1201–06. The district court found no direct evidence of a “meeting of the minds.” The
district court then considered whether the plaintiffs had produced any circumstantial evidence of
a conspiracy to violate Mr. Murray’s rights. It considered whether the officers decided not to
provide CPR to Mr. Murray after the shooting so that he would not survive to contradict Officer
Norton’s version of events and rejected the claim.

        That finding leaves no conspiracy for the federal agents to have joined, and the plaintiffs
offer no evidence of a purely federal conspiracy to cover up the local officers’ alleged conduct.
The federal agents also could not have conspired to murder Mr. Murray because no federal
agents arrived at the scene until after the shooting. See Pls.’ Resp. to Req. for Admis. No. 2.

                6.      Obstruction of Justice, Perjury, False Statements, and Destruction of
                        Evidence

        The defendant argues that crimes related to interference with government investigations
or judicial proceedings, including witness tampering and retaliation, perjury, and interference
with public servants are not cognizable under the specific language of the “bad men” provision.
1868 Treaty, art. 6, 15 Stat. 619 (“any wrong upon the person or property of the Indians . . .”


                                                  30
(emphasis added)); see also Banks v. Guffy, No. 1:10-cv-2130, 2012 WL 72724, at *6 (M.D. Pa.
Jan. 10, 2012) (no viable “bad men” claim for property belonging to someone else). The “bad
men” provision’s language, the defendant argues, focuses on the individual tribal victim rather
than on the tribe or some “broader sense of societal harm” because Article 6 of the treaty
“concerns the rights of and obligations to individual Indians. . . .” Hebah, 428 F.2d at 1337. The
procedural crimes identified by the plaintiffs, the defendant further argues, “would be crimes
against a public interest in achieving justice, not against Mr. Murray’s “person or property.” Nor
would these crimes, the defendant concludes, be “peace-shattering crimes of ‘moral turpitude’
that the ‘bad men’ provision was intended to cover.” ECF 150-1 at 30-31 (quoting Hernandez,
93 Fed. Cl. at 199 & n.5).

        The Court is skeptical that perjury or other procedural offenses can fairly be construed as
categorically victimless crimes when committed in the course of an investigation or judicial
proceeding to determine whether an individual’s constitutional rights were violated. The Court,
however, need not decide whether these crimes can be wrongs “against the person or property of
the Indians” because all these crimes include an intent element that the plaintiffs cannot prove.
See, e.g., 18 U.S.C. § 1519 (“Whoever knowingly alters, [or] destroys, . . . with the intent to
impede, obstruct, or influence the investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States . . . .” (emphasis added)). The
same points apply to the identified crimes relating to destruction or manipulation of judicial or
government records, and abuse or unauthorized use of official power. See 18 U.S.C. §§ 1519,
2071, 2232; Utah Code Ann. §§ 76-8-201, 76-8-203, 76-8-412, 76-8-413, 76-8-510.5, 76-8-511,
76-8-512.

        This Court found no intent to destroy or withhold evidence on the part of federal agents,
see Jones Fed. Cl. Spoliation, 146 Fed. Cl. at 737–41, and the record is bereft of any evidence of
any such intent. If the plaintiffs had evidence that federal or local officers engaged in a cover-
up or destroyed evidence, they ought to have presented it to support their motion for spoliation
sanctions. The plaintiffs offered no such evidence when they had both the chance to present it
and the maximum incentive to convince the Court that anything beyond the federal agents’
negligent destruction of the .380 handgun occurred. Likewise, the plaintiffs offered no evidence
of a conspiracy involving federal or local officers to destroy evidence. Having failed to bring
forth such evidence on their motion for spoliation sanctions, the plaintiffs fail to point to any
evidence sufficient to create a genuine issue of material fact in response to this motion for
summary judgment.

        The Court finds no disputed material facts with respect to the obstruction of justice, false
statements, and destruction of evidence or government records crimes identified by the plaintiffs.
Without evidence of the requisite intent on the part of any federal or local officer to commit
these crimes, summary judgment for the defendant on these claims is appropriate.

               7.      Criminal Civil Rights Violation

        The defendant argues that the plaintiffs are precluded from seeking to prove that the state
and local officers violated Mr. Murray’s constitutional rights under § 1983’s criminal analog, 42
U.S.C. § 242. The plaintiffs may be precluded from relitigating the same civil rights allegations
rejected by the district court, but it is unclear why the similarity in subject matter between the

                                                31
two statutes, by itself, would preclude the plaintiffs from proving violations of Mr. Murray’s
civil rights not considered by the district court.

        Moreover, the district court found that Deputy Byron violated Mr. Murray’s Fourth
Amendment rights by handcuffing Mr. Murray without enforcement jurisdiction. Deputy Byron
escaped liability for that violation by asserting qualified immunity. Deputy Byron’s personal
immunity from civil suit for the violation, however, does not extend to the United States, should
it be found liable for his conduct that would otherwise amount to a crime via the “bad men”
provision. The Tenth Circuit appears to have erred in recognizing that Deputy Byron’s extra-
jurisdictional handcuffing of Mr. Murray was a seizure violating Mr. Murray’s rights, but
treating the finding of qualified immunity for Deputy Byron as if it had found that no violation
had occurred—effectively imputing Deputy Byron’s immunity from suit for the violation to
Uintah County.8 See Owen v. City of Indep., Mo., 445 U.S. 622, 638 (1980) (“[T]the
municipality may not assert the good faith of its officers or agents as a defense to liability under
§ 1983.”).

        The Court respects the Tenth Circuit’s decision as to Uintah County but will not accept
the defendant’s argument and perpetuate the error by imputing Deputy Byron’s qualified
immunity from civil suit for the seizure to the United States. Deputy Byron’s good-faith belief
that he had enforcement jurisdiction over Mr. Murray garners Deputy Byron immunity from civil
suit, but it does not make the handcuffing at gunpoint any more lawful.

         Although the district court’s qualified immunity holding does not preclude “bad men”
liability for the United States, the district court’s subsidiary finding that the officers’ actions
were reasonable relies on state-of-mind facts inconsistent with the intent that § 242 requires. A
criminal violation of civil rights must be “willful.” Screws v. United States, 325 U.S. 91, 101-04
(1945) (plurality opinion) (“[Willful] generally means an act done with a bad purpose. . . .
[M]ore is required than the doing of the act proscribed by the statute. . . . [T]he specific intent
required by the Act is an intent to deprive a person of a right. . . .”), narrowed on other grounds
by United States v. Lanier, 520 U.S. 259, 259-60 (1997).

         The district court’s finding that the officers’ actions were reasonable, based on its
examination of the officers’ knowledge and motives, precludes the plaintiffs from both
relitigating and proving that Deputy Byron’s handcuffing, or any other potential constitutional




   8
      The Tenth Circuit cited Apodaca v. Rio Arriba County Sheriff’s Department, 905 F.2d
1445, 1447-48 (10th Cir.1990), which cites City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986). In those cases, unlike in the Jones civil rights action, however, no constitutional
violation was found. Indeed, in Ross v. Neff, 905 F.2d 1349, 1353–54 (10th Cir.1990), the
precedent that required the district court and Tenth Circuit panel to acknowledge that the extra-
jurisdictional handcuffing was a per se Fourth Amendment violation, the Tenth Circuit granted
the arresting officer qualified immunity but remanded the case for a trial against the County,
citing Owen v. City of Indep., Mo., 445 U.S. 622 (1980).


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violations not already precluded, were willfully criminal. Accordingly, summary judgment for
the defendant is appropriate on this claim.

IV.    CONCLUSION

        The Court GRANTS the United States’ motion for summary judgment on all the
plaintiffs’ claims. An order is being issued concurrently with this Memorandum Opinion
directing the entry of judgment for the defendant on all counts.

                                                                 s/ Richard A. Hertling
                                                                 Richard A. Hertling
                                                                 Judge




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