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Estate of Redd v. Love

United States Court of Appeals, Tenth Circuit

February 13, 2017

THE ESTATE OF JAMES D. REDD, M.D., by and through Jeanne H. Redd, the personal representative for and on behalf of Plaintiffs Decedent James D. Redd, and his heirs as an individual in a survivorship action and in a wrongful death action, Plaintiff - Appellant,
v.
DANIEL LOVE, Bureau of Land Management Special Agent, in his individual capacity, Defendant-Appellee,

         Appeal from the United States District Court for the District of Utah (D.C. No. 2:11-CV-00478-RJS)

          Shandor S. Badaruddin, (Edward P. Moriarity, with counsel on the briefs), Moriarity & Badaruddin, Missoula, Montana, for Plaintiff-Appellant.

          Laura K. Smith, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Mark B. Stern and Sonia K. McNeil, Attorneys, with counsel on the brief), United States Department of Justice, Washington, D.C., for Defendant-Appellee.

          Before BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.

          PHILLIPS, Circuit Judge.

         In June 2009, as part of a federal law-enforcement investigation known as "Operation Cerberus, " FBI and Bureau of Land Management ("BLM") agents arrested twenty-three people and searched twelve properties in and near three Utah cities-Blanding, Monticello, and Moab. The operation targeted persons possessing and trafficking in Native American artifacts illegally taken from the Four Corners region of the United States.[1] One day after agents searched Dr. James D. Redd's home, arrested him as part of this operation, and released him on bond, Dr. Redd committed suicide.

         Dr. Redd's Estate ("the Estate") sued sixteen named FBI and BLM agents and twenty-one unnamed agents under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming that the agents had violated Dr. Redd's Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The district court granted the Defendants' motions to dismiss all of the Estate's claims except one-a Fourth Amendment excessive-force claim against the lead BLM agent, Daniel Love. Later, on qualified-immunity grounds, the district court granted Agent Love summary judgment on that final claim. The Estate appeals the district court's dismissal of the excessive-force claim. We affirm.

         BACKGROUND

         I. Operation Cerberus

         To deal with the problem of people illegally taking and trafficking Native American artifacts from federal lands, BLM agents and FBI agents jointly investigated these crimes occurring in southern Utah and the Four Corners region. As part of their investigation, the two agencies arranged controlled sales of illegally taken artifacts. Agent Love served as the lead BLM agent for the operation. After presenting a judicial officer an affidavit about these undercover transactions, the agents obtained many search and arrest warrants, including warrants to arrest Dr. and Mrs. Redd and to search their house.[2]

         On June 10, 2009, twelve teams of BLM and FBI agents simultaneously executed search warrants at different locations in and near Blanding, Monticello, and Moab, Utah. Each team assigned to the scattered search locations comprised between eight and twenty-one federal agents and at least one cultural specialist. Upon completing their assigned searches, agents reported to other search locations to help as needed.

         Team members were concerned for their safety because some local citizens had previously acted hostilely toward federal officials. Partly for that reason, each team had an operations plan identifying its target location and any expected obstacles. FBI and BLM policy required agents to wear soft body armor and to carry a firearm when executing warrants or when confronting potentially dangerous situations. For a high-risk search at one house, the FBI's Salt Lake City SWAT team furnished ten members to assist in executing that search warrant.

         Based on evidence seized during the searches, the agents arrested twenty-three people for allegedly possessing or trafficking stolen Native American artifacts. Sixteen of the arrestees, including Dr. and Mrs. Redd, resided in Blanding, Utah.

         II. Search and Arrest Warrants for the Redds

         The operations plan for the team assigned to search the Redds' house advised that three adults and one child lived there-Dr. and Mrs. Redd, their adult daughter Jericca Redd, and her minor son. The plan further advised that the Redds' house stood on elevated terrain, making its one-eighth-of-a-mile-long driveway visible from the house. Before arriving, the agents didn't know whether the Redds owned guns, or whether anything prevented entry onto the property or barricaded the house.

         Upon arriving, the agents knocked on the front door. When Mrs. Redd answered, agents arrested her without incident and took her to the kitchen. Agents took Jericca Redd to the piano room upstairs.[3] Dr. Redd wasn't then at the house, but agents arrested him when he arrived home at 6:55 a.m. Dr. and Mrs. Redd waived their Miranda rights and spoke with the agents, at least intermittently, until no later than 10:34 a.m., when the agents drove the Redds to Monticello, Utah for booking.[4]Jericca Redd drove her parents back to their house after their initial court appearances in Moab, Utah. When the Redds arrived home at about 5:00 p.m., agents were still searching the house, so the Redds waited outside for them to finish. By about 5:30 p.m., the agents had completed their search, and the Redds reentered their house. The next day, Dr. Redd committed suicide.

         III. Number of Agents

         The parties disagree about how many agents were on the Redds' property during the search and arrests. An official list of search locations and agents ("Search Warrant Locations List") shows that those directing the entire operation apportioned 130 agents among the twelve locations. Each search location had between eight and twenty-one agents. The Search Warrant Locations List shows that at least one "cultural specialist" was also assigned to each search location. R. vol. 7 at 784-85. A list of command agents and their locations ("Command Locations List") identifies twenty command agents unassigned to any particular location. These command agents moved between search warrant locations and command-post locations as needed.

         The Search Warrant Locations List shows that those directing the operation assigned twelve agents to the Redds' house. Upon arriving at and departing from the Redds' house, all agents were required to sign a log identifying their arrival and departure times. This sign-in log reveals that twelve agents and one cultural specialist were present when Dr. Redd arrived home at 6:55 a.m. When Dr. Redd arrived, some of these agents were already inside the house with Mrs. Redd and Jericca Redd, so Dr. Redd initially encountered fewer than twelve agents. Two agents met Dr. Redd at the end of the driveway and escorted him to the garage, and two other agents joined them in questioning Dr. Redd inside the garage. Beyond this, the record provides no help in determining how many agents Dr. Redd saw that morning.

         The Estate agrees that the initial team comprised no more than twelve BLM and FBI agents and one cultural specialist. It also agrees that a team this size was lawful. But the Estate contends that over the course of the hours-long search of the Redds' house, as many as sixty-nine agents arrived there. In support, it relies on a simple but problematic mathematical calculation.

         First, it contends that 150 agents participated in the searches, pointing to an FBI press release saying that "[t]he law enforcement operation was conducted on June 10, 2009 by approximately 150 agents and employees from the FBI and the BLM." R. vol. 17 at 1237. Second, it subtracts from this figure 91 agents-those identified by Agent Love as searching at locations other than the Redds' house. From this, the Estate argues that it is "reasonable to infer that one or more, and likely more, of the remaining sixty-nine agents (150 minus 91) were at the Redd Home."[5]Appellant's Opening Br. at 25. But Agent Love's list of agents searching the eleven locations besides the Redds' house in southern Utah that day totals 122 agents and employees[6] (not 91 as the Estate says). This means that at most, twenty-eight agents were not listed at a specific search location.

         As additional support to show a large number of agents on the Redds' property, the Estate relies on the Declaration of Jericca Redd, who says she saw "as many as 50 agents at any one time, " not specifying where or when she saw them, instead saying only that they had been "everywhere." R. vol. 17 at 1241, 1243. Perhaps to help confirm her estimate, Jericca Redd also recounts that she heard Agent Love call other agents on a telephone to come assist in searching the Redds' house. But she also says she left the house "sometime after 12:00 pm" to pick up her parents from their court appearance in Moab. Id. at 1244. So she was able to see agents who arrived at the Redds' house after her parents had left for booking in Monticello.[7]

         Agent Love disputes the Estate's calculations. He testified that no more than twenty-two agents were at the Redds' house while Dr. Redd was there between 6:55 a.m. and 10:34 a.m.[8] He also testified that some agents came to the Redds' house after completing their assigned searches to help identify and catalog the unexpectedly high number of artifacts found at the Redds' house. To support his count, Agent Love relied on the sign-in log at the Redds' house.[9] Twenty-two agents signed the log before agents took Dr. Redd and Mrs. Redd to Monticello for booking. Among these ...


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