BARNARD v. STATE OF MAINE et al
Filing
47
REPORT AND RECOMMENDED DECISION re 43 MOTION to Dismiss filed by SCOTT DUFF. Objections to R&R due by 3/29/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JEFFREY PAUL BARNARD,
Plaintiff
v.
TROY BIRES, et al.,
Defendants
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1:16-cv-00276-JAW
RECOMMENDED DECISION ON MOTION TO DISMISS
In this action, Plaintiff Jeffrey Barnard alleges, pursuant to 42 U.S.C. § 1983, that
Defendants violated his constitutional rights during an encounter on May 31, 2014. The
matter is before the Court on Defendant Scott Duff’s Motion to Dismiss. (ECF No. 43.)
Through his motion, Defendant Duff contends that given Plaintiff’s allegations and
given the Court’s findings at Plaintiff’s sentencing on a criminal charge arising out of the
encounter, Plaintiff cannot prevail on his claim against Defendant Duff.1
After review and consideration of the motion and the relevant filings, I recommend
the Court deny the motion.
1
Plaintiff did not file a response to the motion. Although District of Maine Local Rule 7(b) permits the
court to treat a party’s failure to oppose a motion to dismiss as a waiver of objection, where the record
before the court permits the assessment of the merits of the motion, the failure to oppose should not be
determinative. See, e.g., Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004) (“[A]
court may not automatically treat a failure to respond to a 12(b)(6) motion as a procedural default.”); VegaEncarnacion v. Babilonia, 344 F.3d 37, 41 (1st Cir. 2003) (“If the merits are at issue, the mere fact that a
motion to dismiss is unopposed does not relieve the district court of the obligation to examine the complaint
itself to see whether it is formally sufficient to state a claim.”).
1
BACKGROUND FACTS
The facts set forth herein are derived from Plaintiff’s amended complaint. (ECF
No. 16.)
The factual allegations of the amended complaint are deemed true when
evaluating the motion to dismiss. McKee v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017).
In May 2014, Plaintiff and his wife lived in their mobile home, which was located
on property owned by a third party. Pursuant to an agreement with the landowner, Plaintiff
had use of the landowner’s tractor. (Am. Compl. ¶¶ 11 – 12.) Sometime in May 2014, a
dispute arose between Plaintiff and the landowner over possession of the tractor, which
dispute evidently prompted the landowner to call the Ellsworth Police Department for
assistance. Officer Barton Tokas came to the property and, after learning of the nature of
the dispute, instructed the landowner and Plaintiff that the dispute was a civil matter and
should be handled accordingly. (Id. ¶ 13.)
On or about May 31, 2014, the landowner again sought assistance from the
Ellsworth Police Department. (Id. ¶ 14.) Officer Troy Bires first arrived at the scene, and
Officer Tokas arrived shortly thereafter. (Id. ¶ 15.) The landowner had arranged for a man
to go to the property with a flatbed trailer to remove the tractor from the property. Plaintiff
intervened and removed the key from the tractor while the man was operating the tractor,
thereby preventing the man from taking the tractor. The encounter included some physical
contact between Plaintiff and the person attempting to retrieve the tractor. (Id. ¶ 16.)
When questioned by Officer Bires, Plaintiff told Officer Bires that it was a civil
matter. After speaking with the other individual, Officer Bires returned to Plaintiff’s home
and knocked on the door. According to Plaintiff, when he partially opened the door, Officer
2
Bires drew his firearm, pointed it at Plaintiff, and instructed Plaintiff to show the hand
obstructed by the door. (Id. ¶ 18.) Plaintiff asserts that after Officer Bires repeated the
command, Plaintiff complied, and Officer Bires, with his weapon still pointed at Plaintiff,
told Plaintiff to turn over the key. (Id. ¶ 19.) When Plaintiff protested, Officer Bires told
Plaintiff that if he did not turn over the key, he would be arrested for theft and assault. (Id.)
Plaintiff refused to turn over the key. (Id. ¶ 20.)
Officer Bires holstered his weapon and left, but advised Plaintiff that he would
return. (Id. ¶ 21.) Plaintiff then took a five gallon gas canister that was near his entry and
carried it into the mobile home. (Id.)
Shortly thereafter, Officer Tokas called out Plaintiff’s name. (Id. ¶ 22.) Plaintiff
and Officer Tokas communicated through the doorway. When Officer Tokas directed
Plaintiff to turn over the key, Plaintiff reminded Officer Tokas that he previously told
Plaintiff that the dispute was a civil matter. (Id.) Officer Tokas told Plaintiff he needed to
return the key or he would be arrested. (Id. ¶ 23.) Plaintiff then showed Officer Tokas the
gas can and threatened to use it if law enforcement attempted to enter his home by force.
(Id.)
For the next 20 hours, Plaintiff and the police were in a standoff. (Id.) The standoff
ended on June 1, 2014, at approximately 4:20 a.m., when, after Plaintiff exited the home,
Defendant Duff shot Plaintiff. (Id.) The parties dispute whether Plaintiff possessed a rifle
and raised it in the direction of law enforcement prior to the shooting.
3
Following Plaintiff’s arrest, the United States prosecuted Plaintiff for the unlawful
possession of a firearm, based on Plaintiff’s status as a convicted felon.2 United States v.
Barnard, No. 1:14-cr-00088-JAW. Plaintiff pleaded guilty to the charge. At Plaintiff’s
sentencing hearing on January 4, 2017, in accordance with 18 U.S.C. § 3553(a)(1), the
Court made certain findings of fact concerning the nature and circumstances of the offense.
As part of its assessment, the Court found that during the standoff Plaintiff discharged a
firearm multiple times when he was in the mobile home, and that immediately prior to
being shot, Plaintiff emerged from his home and raised a rifle. (Motion to Dismiss Ex. D,
Sent. Tr. at 153:8-11, 154:6-14, 157:14-16, 159:1 – 160:10, ECF No. 45.)
DISCUSSION
A.
Standard of Review
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of
“a claim for relief in any pleading” if that party believes that the pleading fails “to state a
claim upon which relief can be granted.” In its assessment of the motion, a court must
“assume the truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable
inferences therefrom.” Blanco v. Bath Iron Works Corp., 802 F. Supp. 2d 215, 221 (D.
Me. 2011) (quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). A
court may also “supplement those facts with facts ‘gleaned from … matters of public
record, and facts susceptible to judicial notice.’” Gonzalez v. Velez, 864 F.3d 45, 48 (1st
2
A review of the record in the criminal matter reveals that the standoff occurred as law enforcement
attempted to execute a warrant for Plaintiff’s arrest. Officers secured a warrant for Plaintiff’s arrest, which
warrant was supported by probable cause. (No. 1:14-cr-00088-JAW: Order Denying Motion to Suppress
and Request for Franks Hearing at 26, ECF No. 188.)
4
Cir. 2017) (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)). To overcome
the motion, Plaintiff must establish that his allegations raise a plausible basis for a fact
finder to conclude that the defendant is legally responsible for the alleged claim. Blanco,
802 F. Supp. 2d at 221.
B.
Defendant Duff’s Motion to Dismiss
Defendant Duff argues dismissal is warranted because (1) a finding for Plaintiff
would impermissibly invalidate Plaintiff’s sentence in the related criminal matter, and (2)
given the Court’s sentencing findings, Plaintiff cannot prevail on his claims.3 (Motion at 1
– 2, 8 – 11, 11 – 15.)
1.
Effect on Plaintiff’s Sentence
Defendant Duff argues that the Court should dismiss Plaintiff’s claim because any
finding in Plaintiff’s favor would impermissibly implicate the duration of Plaintiff’s federal
sentence.
In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court held that a state
prisoner cannot bring a § 1983 claim if “the relief he seeks is a determination that he is
entitled to immediate or a speedier release,” and that the sole federal remedy in such a case
is a writ of habeas corpus. Id. at 500. In Heck v. Humphrey, 512 U.S. 477 (1994), the
Supreme Court held that a state prisoner could not maintain a § 1983 claim for damages
where he alleged that his arrest, trial, and conviction were unconstitutional because an
3
In addition to his federal excessive force claim, Plaintiff asserts a claim under state law. The same analysis
applies to both claims. Smith v. Jackson, 463 F. Supp. 2d 72, 81 – 82 (D. Me. 2006). Defendant also argues
Plaintiff has failed to state an actionable claim. (Motion at 15 – 18.) That contention is addressed in the
discussion of Defendant’s other arguments.
5
award of damages on such a claim would implicitly invalidate the conviction. Because the
plaintiff challenged his conviction, the Supreme Court held that the plaintiff must first
obtain relief from the conviction through state or federal habeas proceedings, or similar
proceedings, before seeking a remedy under § 1983. Id. at 487.
More recently, the Supreme Court explained that its decisions on the issue, “taken
together, indicate that a state prisoner’s § 1983 action is barred (absent prior invalidation)
— no matter the relief sought (damages or equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or internal prison proceedings) — if
success in that action would necessarily demonstrate the invalidity of confinement or its
duration.” Wilkinson v. Dotson, 544 U.S. 74, 81 – 82 (2005)4 (emphasis in original).
Although the Supreme Court precedent involves claims of state court convicted
prisoners, courts have extended the Supreme Court’s rationale to civil rights claims brought
by federal prisoners if the claims involve matters that are traditionally the subject of habeas
corpus proceedings or direct appeals. Skinner v. U.S. Dep’t of Justice & Bureau of Prisons,
584 F.3d 1093, 1099 (D.C. Cir. 2009) (involving challenge to federal BOP’s revocation of
good time credits); Beverly v. Reno, 23 F.3d 158, 159 (7th Cir. 1994) (involving claim that
federal statute under which the plaintiff was convicted was unconstitutional). Under this
reasoning, in a claim asserted by a federal prisoner, such as Plaintiff, the issues are whether
4
In Wilkinson, the Court held that two prisoners who challenged a state parole proceeding could proceed
under § 1983 because success on the claim “does not mean immediate release from confinement or a shorter
stay in prison; it means at most new eligibility review, which at most will speed consideration of a new
parole application.” 544 U.S. at 82. Furthermore, at any future parole hearing, the parole authorities would
be required to exercise their discretion and could deny parole, which demonstrates that success on the claim
would not necessarily imply the invalidity of the duration of the prisoners’ sentences. Id.
6
the claim asserted in the § 1983 action could be pursued in a § 2255 habeas petition5 and,
if so, whether success on the asserted § 1983 claim would necessarily invalidate the
prisoner’s sentence. For instance, in Davis v. U.S. Sentencing Commission, 716 F.3d 660
(D.C. Cir. 2013), the district court held that a federal prisoner could proceed with claims
asserted under the Declaratory Judgment Act and Bivens v. Six Unknown Named Agents of
the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), without first pursuing habeas relief,
where the prisoner’s contention was that certain amendments to the U.S. Sentencing
Guidelines were unconstitutional. The court concluded the claim was actionable because
success on the claim would not “necessarily imply the invalidity of [his] confinement or
shorten its duration.” Id. at 666 (quoting Wilkinson, 544 U.S. at 82). The invalidity of the
sentence or its duration was not necessarily implied, the court reasoned, because success
on the prisoner’s claim “would do no more than allow him to seek a sentence reduction,
which the district court retains the discretion to deny.” Id. (citing 18 U.S.C. § 3582(c)(2)).
Here, Defendant Duff argues Plaintiff cannot proceed on his § 1983 claim because
in order to prevail on the claim, Plaintiff must obtain a finding that is inconsistent with the
Court’s determination that immediately before Defendant Duff shot Plaintiff, Plaintiff
5
Federal prisoners have access to habeas relief under 28 U.S.C. § 2241 and § 2255. However, to assert a
petition under § 2241 the prisoner must be “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3). Plaintiff’s claim does not raise a constitutional or other legal
challenge to the Bureau of Prison’s custody of his person. Instead, the issue presented by Defendant’s
motion is whether Plaintiff’s claim requires a factual finding that could demonstrate the invalidity of the
duration of his sentence. Post-conviction challenges to federal sentences are considered under 28 U.S.C. §
2255. Trenkler v. United States, 536 F.3d 85, 97 (1st Cir.2008) (holding that “[a]ny motion filed in the
district court that imposed the sentence, and substantively within the scope of [section 2255], is a motion
under § 2255, no matter what title” the petitioner gives the motion (quoting Melton v. United States, 359
F.3d 855, 857 (7th Cir. 2004))).
7
exited his home with a rifle and raised the rifle. Defendant contends that such a finding
would necessarily implicate Plaintiff’s sentence. Defendant’s argument is unpersuasive.
Even if the Court assumes Plaintiff could challenge in a habeas proceeding the
Court’s factual finding at sentencing, a finding in Plaintiff’s favor on his § 1983 claim does
not necessarily imply the invalidity of his conviction or sentence. Although the Court
found that Plaintiff possessed and raised a rifle when he exited his home, the length of
sentence was discretionary and the Court cited additional factors when, in establishing the
sentence, the Court determined that Plaintiff’s conduct created a substantial risk to the
safety of others. The Court thus conceivably could have imposed the same sentence
without finding that Plaintiff raised his rifle when he exited his home.6 In short, contrary
to Defendant’s contention, a finding in favor of Plaintiff would not implicate the validity
of Plaintiff’s sentence.
2.
Effect of the Court’s Findings at Sentencing
Defendant contends that Plaintiff is precluded from litigating in this case the Court’s
findings during the sentencing proceedings, and that the findings establish that Plaintiff is
entitled to qualified immunity or that Plaintiff does not otherwise state an actionable claim.
Qualified immunity protects police officers and other governmental officials from
personal liability for money damages in civil rights actions, provided the officer’s actions
did not violate rights clearly established by the governing law. Ciolino v. Gikas, 861 F.3d
The Court’s sentence of 78 months was less than the 10-year statutory maximum sentence. 18 U.S.C. §
924(a)(2).
6
8
296, 302 (1st Cir. 2017). While it is clearly established that individuals have a Fourth
Amendment right to be free from the use of excessive force, the availability of qualified
immunity requires an evaluation of the “specific context of the case.” Id.; Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015). The qualified immunity defense fails only if every
reasonable officer would have understood, under the specific circumstances,7 that the force
applied was excessive. Mullenix, 136 S. Ct. at 308.
When the qualified immunity defense is raised, a court initially asks whether the
plaintiff alleged sufficient facts to state a claim for violation of a constitutional right.
Ciolino, 861 F.3d at 303. If so, the court considers whether the right was clearly established
when the alleged violation occurred. Id.
The general test for Fourth Amendment excessive force claims calls for the
consideration of three criteria: (1) “the severity of the crime at issue”; (2) “whether the
suspect poses an immediate threat to the safety of the officers or others”; and (3) “whether
[the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham
v. Connor, 490 U.S. 386, 396 (citing Tennessee v. Garner, 471 U.S. 1, 8 – 9 (1985)). To
assess a qualified immunity defense in an excessive force case, therefore, the Court must
consider the three criteria in light of the specific context in which the force was used, to
determine whether a reasonable officer would have known his actions violated a clearly
established right. Mullenix, 136 S. Ct. at 308.
“[S]pecificity is especially important in the Fourth Amendment context, where … ‘[i]t is sometimes
difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the
factual situation the officer confronts.’” Mullenix, 136 S. Ct. at 308 (quoting Saucier v. Katz, 533 U.S. 194,
205 (2001)).
7
9
Although it is not necessary for the party opposing qualified immunity to cite a case
directly on point in which a violation was found, “existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011). In this way, “qualified immunity protects ‘all but the plainly incompetent or those
who knowingly violate the law.’” Mullenix, 136 S. Ct. at 308 (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)).
The first inquiry is whether Plaintiff has stated a claim of excessive force, and in the
context of the qualified immunity defense, the Court must consider whether Plaintiff’s
allegations “state a claim of violation of clearly established law.” Guzman-Rivera v.
Rivera-Cruz, 98 F.3d 664, 667 (1st Cir. 1996) (quoting Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). In other words, the Court must assess whether Plaintiff has alleged facts that
are sufficiently particularized, as to Defendant Duff, to raise a plausible inference that
Defendant Duff violated a clearly established right. Guzman-Rivera, 98 F.3d at 667. At
the same time, the Court must take care not to impose a heightened pleading standard that
effectively negates the plausibility standard. Garnier v. Rodriguez, 506 F.3d 22, 26 (1st
Cir. 2007). “The complaint need do no more than satisfy the basic notice pleading
requirements of the Civil Rules.” Pagan v. Calderon, 448 F.3d 16, 31 (1st Cir. 2006). “A
complaint satisfies that standard if it contains ‘a short and plain statement of the claim
showing that the pleader is entitled to relief,’ and ‘give[s] the defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.’” Centro Medico del Turabo,
Inc. v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir. 2005) (alteration in original) (quoting
Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus, Plaintiff need
10
only allege “minimal facts as to who did what to whom, when, where, and why.” Id.
(quoting Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir.
2004). For dismissal to be appropriate, “there must be no reasonable basis on which [the
plaintiff] could establish” the elements of his excessive force claim. Garnier, 506 F.3d at
26.
The Court previously determined that Plaintiff has asserted sufficient facts to state
an actionable claim against Defendant Duff. (Recommended Decision, ECF No. 14; Order
Affirming Recommended Decision, ECF No. 29.) The issue is whether Defendant’s
assertion of qualified immunity warrants a different conclusion.
Because qualified immunity is an affirmative defense, Defendant Duff has the initial
burden to present the specific context needed to support his affirmative defense.
Educadores Puertorriquenos en Accion, 367 F.3d at 67 (holding that heightened pleading
standards are not permissible in civil rights cases, regardless of, inter alia, “the availability
vel non of a qualified immunity defense”); see also cf. Ramos v Patnaude, 640 F.3d 485,
488 (1st Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 212 (2007) (prisoner cannot be
required to plead facts to overcome affirmative defense of failure to exhaust administrative
remedies)).
Consistent with the need to resolve immunity questions “at the earliest possible
stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991), a court can in some cases
grant a motion to dismiss based on qualified immunity without converting the motion to a
motion for summary judgment. Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011);
Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008). Defendant Duff attempts to provide
11
the context needed to determine the issue through reference to Plaintiff’s allegations in the
complaint, certain evidence presented during the sentencing proceeding, and some of the
sentencing Court’s findings. While the Court’s findings during the sentencing proceeding
were not addressed to the reasonableness of Defendant’s Duff’s conduct, on a motion to
dismiss, a court may “augment [the] facts and inferences [from the allegations in a
complaint] with data points gleaned from documents incorporated by reference into the
complaint, matters of public record, and facts susceptible to judicial notice.” Haley, 657
F.3d at 46.
A review of the sentencing transcript reveals that the circumstances of the shooting
are disputed. Sergeant Jason Madore testified that Plaintiff exited his home and raised a
rifle just prior to the moment Defendant Duff shot Plaintiff. (Motion to Dismiss Ex. D,
Sent. Tr. at 70; ECF No. 45.) Plaintiff testified that he did not have a rifle in his hand when
he exited his home and was shot. (Id. at 94 – 95.) During the sentencing hearing, the Court
found Sergeant Madore’s version to be credible. (Id. at 159.) However, given that Plaintiff
alleges in his complaint that Defendant Duff shot him during the standoff “unnecessarily”
and “without need or provocation” (Am. Compl. ¶¶ 25, 57), and testified during the
sentencing hearing that he merely “put [his] head out one time and [he] was shot” when he
was not holding a firearm (Sent. Tr. at 92, 94 – 95), unless the Court’s finding during the
sentencing hearing precludes Plaintiff from litigating the circumstances of the shooting,
Plaintiff has asserted a plausible claim and Defendant would not be entitled to dismissal at
this stage of the proceeding.
12
“Issue preclusion reflects the fundamental principle that courts should not revisit
factual matters that a party previously litigated and another court actually decided.” Miller
v. Nichols, 586 F.3d 53, 60 (1st Cir. 2009). “The preclusive effect of a federal-court
judgment is determined by federal common law.” Taylor v. Sturgell, 553 U.S. 880, 891
(2008). Under federal common law, the party asserting issue preclusion must demonstrate
that (1) both proceedings involve the same issue of law or fact, (2) the parties actually
litigated the issue in the prior proceeding, (3) the prior court decided the issue in a final
judgment, and (4) resolution of the issue was essential to judgment on the merits. VargasColon v. Fundacion Damas, Inc., 864 F.3d 14, 26 (1st Cir. 2017).
The preliminary question is whether collateral estoppel, or issue preclusion, applies
to findings made during sentencing proceedings conducted in accordance with the federal
sentencing guidelines.8 The Second Circuit, while not adopting a per se rule that barred
issue preclusion, concluded “in broad and emphatic terms that ‘precluding relitigation on
the basis of [sentencing] findings should be presumed improper.’” United States v. U.S.
Currency in Amount of $119,984.00, 304 F.3d 165, 172 (2d Cir. 2002) (quoting S.E.C. v.
Monarch Funding Corp., 192 F.3d 295, 306 (2d Cir. 1999)). The Second Circuit found
that where “a party seeks to invoke collateral estoppel based upon prior sentencing
8
The analysis of the Supreme Court and the First Circuit suggests that findings made in certain sentencing
proceedings, specifically proceedings conducted under the Federal Death Penalty Act, 18 U.S.C. §§ 3591
– 3599, could preclude future litigation on issues essential to determination of the death penalty question.
Sampson v. United States, 832 F.3d 37 (1st Cir. 2016). Sentencing hearings conducted under the Federal
Death Penalty Act are not the same as sentencing hearings conducted on disputed issues under the United
States Sentencing Guidelines, although the rules governing admission of evidence in criminal trials are not
fully applicable in either proceeding. Accordingly, it is not clear from Bies and Sampson that the Supreme
Court and the First Circuit would give preclusive effect to findings made at hearings conducted on issues
under the Guidelines. Compare 18 U.S.C. § 3593(c) with U.S.S.G. § 6A1.3 and Fed. R. Crim. P. 32(i).
13
findings, estoppel should be applied only if ‘it is clearly fair and efficient to do so.” Id. at
173.
The Second Circuit’s reasoning is sound, and is applied here. The first issue is
whether it would be efficient to preclude further litigation on the circumstances of the
shooting. The Second Circuit described the relevant analysis as follows:
When we weigh the efficiency of applying estoppel, we necessarily speak in
somewhat hypothetical terms. Application of collateral estoppel always is
“efficient,” in a limited sense, because it prevents further litigation of an issue
in the case at hand. But our inquiry does not end there. If we agree with the
District Court that collateral estoppel was properly applied in this case,
parties in similar future cases may anticipate a comparable application of
collateral estoppel in those cases and, as a result, may litigate differently than
they otherwise would. If it is likely that the availability of collateral estoppel
in such cases would result in more streamlined litigation, then the efficiency
rationale underpinning the doctrine would be well served by its application
in this case. If, on the other hand, the availability of collateral estoppel
probably would not save the parties time or effort—if, for example, the risk
of collateral estoppel would create an incentive to aggressively litigate minor
issues early in the litigation—then efficiency would not be promoted by
application of the doctrine.
Id. at 174. In other words, the efficiency consideration involves not only the impact of
collateral estoppel on the case before the court, but also the impact it would have in other
proceedings, in which the litigants would undoubtedly consider the court’s prior
application of issue preclusion. See also Kosinski v. C.I.R., 541 F.3d 671, 678 (6th Cir.
2008) (reasoning that in some cases “giving issue-preclusive effect to sentencing findings
… would increase the parties’ incentives to litigate issues in the sentencing court, …
undercutting the very efficiency goals preclusion is designed to serve” (citing Monarch,
192 F.3d at 306)).
14
The evaluation of the efficiency issue depends on the specific context in which issue
preclusion arises. In many cases, efficiency concerns might militate against a court
affording preclusive effect to a sentencing determination.
For example, a criminal
defendant who anticipates filing a civil rights action might choose not to object to a
presentence report in an effort to avoid the possibility that the sentencing court’s findings
on one or more sentencing factors would later preclude the defendant from litigating the
issue in a civil rights claim.9 Similarly, the government may have little reason to litigate
at sentencing certain disputed issues where the issues would have little or no impact on the
sentencing determination. Kosinski, 541 F.3d at 678 – 79.
This case does not appear to present the concerns that might suggest an inefficiency
if the Court applies issue preclusion. To the contrary, issue preclusion in this case would
likely promote efficiency as, in a contested hearing at sentencing, the Court made findings
that would resolve an important factual issue regarding Defendant’s qualified immunity
defense. In addition, issue preclusion in this case likely would not result in more contested
9
Whether issue preclusion could be avoided by not objecting to facts contained in a presentence report is
uncertain. First Circuit precedent suggests the failure to dispute an issue pressed by an opposing party may
preclude litigation where the opportunity to litigate the issue, fully and fairly, was available. Monarch Life
Ins. Co. v. Ropes & Gray, 65 F.3d 973, 981 (1st Cir. 1995). However, cases decided in the specific context
of federal sentencing determinations suggest issue preclusion would be improper based on guideline
calculations that were not actually litigated due to the lack of an objection. United States v. Graham, 169
F.3d 787, 789 (3d Cir. 1999) (“[T]he government did not object to the presentence report in the previous
sentencing proceeding and the district judge adopted the report and its findings in its entirety. The matter
was thus not actually litigated in the previous sentencing proceeding.”); U.S. v. Duarte-Aldana, 364 F.
App’x 360, 362 (9th Cir. 2010) (collateral estoppel inapplicable where “[n]either the government nor [the
defendant] objected to the PSR’s Guidelines calculation, because the issue was not actually litigated”);
United States v. Hammon, 277 F. App’x 560, 568 & n.2 (6th Cir. 2008) (plea agreement to accept sentence
based on base offense level calculation corresponding to tax loss greater than $1,000,000 did not support
issue preclusion because the amount of tax loss was not fully litigated and the agreement did “not evince a
clear intent … to settle the question of the accuracy of the tax assessment”).
15
sentencing hearings in the future. Future criminal defendants would not be inclined, based
on the application of issue preclusion in this case, to challenge more issues at sentencing.10
Finally, the circumstances under which the Court considered and decided the issue at
sentencing demonstrate that the efficiency assessment would support application of the
doctrine in this case. The Court did not make the findings based solely on the parties’
arguments regarding the presentence investigation report. Rather, the Court made the
pertinent factual determination after a contested evidentiary hearing that included the
testimony of several witnesses, including Plaintiff. Given that the Court conducted an
extensive evidentiary hearing at sentencing, the likelihood that application of issue
preclusion in this case would result in less efficient sentencing hearings in the future is
minimal.
Because application of the doctrine in this case would not undermine the efficiency
rationale on which the doctrine is based, the Court must assess whether the doctrine
precludes litigation of the issue (i.e., Plaintiff’s possession and handling of a rifle just prior
Defendant’s use of force) in this case.11
a. Whether both proceedings involve the same issue of law or fact.
The Second Circuit has reasoned that the efficiency concern is potentially significant because “a
permissive approach to collateral estoppel will probably lead to sentencing proceedings of mushrooming
complexity [with] no guarantee that subsequent civil actions will be made proportionately simpler.” S.E.C.
v. Monarch Funding Corp., 192 F.3d 295, 306 (2d Cir. 1999). However, the Second Circuit did not impose
a “blanket prohibition,” and expressed “confiden[ce] that … trial judges will be able to limit the[] impact
on a case-by-case basis.” Id.
10
11
Whether to apply collateral estoppel or issue preclusion also requires a fairness assessment. U.S. Currency
in Amount of $119,984.00, 304 F.3d at 172. In a fairness assessment, a court considers whether there was
a full and fair opportunity to litigate the issue and whether the issue was actually litigated. Id. Because the
issue preclusion analysis includes consideration of whether the issue was actually litigated, the fairness
issue will be assessed as part of the issue preclusion analysis.
16
“[T]he reach of collateral estoppel ‘must be confined to situations where the matter
raised in the second suit is identical in all respects to that decided in the first proceeding.’”
Faigin v. Kelly, 184 F.3d 67, 78 (1st Cir. 1999) (quoting C.I.R. v. Sunnen, 333 U.S. 591,
599 – 600 (1948)).
Although Plaintiff’s criminal conviction on the felon-in-possession charge did not
require a determination that he threatened an officer with the rifle, the United States
Sentencing Guidelines require consideration of multiple sentencing factors, and the Federal
Rules of Criminal Procedure require that a presentence report be prepared to “identify all
applicable guidelines.” Fed. R. Crim. P. 32(d). Among the applicable guidelines identified
in the report in Plaintiff’s criminal case were Guidelines § 2K2.1(b)(6)(B) (use of firearm
in the course of another felony offense) and § 3C1.2 (reckless creation of a substantial risk
of death or serious injury to another person in the course of fleeing). (Sent. Tr. at 165 –
169; see also No. 1:14-cr-00088-JAW, Findings Affecting Sentencing, ECF No. 280-1.)
Plaintiff objected to the presentence report to the extent it suggested he had used the rifle
in a manner that created a substantial risk of death or serious injury. The evidentiary
hearing at sentencing included evidence of Plaintiff’s use of a firearm, including whether
Plaintiff raised his rifle in the direction of law enforcement officers just before the time
Defendant Duff shot Plaintiff.
b. Whether the parties actually litigated the issue in the prior proceeding.
In order for an issue of fact or law to be “actually litigated,” the issue must not
simply be “resolved,” it must be litigated as a controverted issue. In re Kane, 254 F.3d
17
325, 329 (1st Cir. 2001). Additionally, the party against whom issue preclusion would
apply must have had a “full and fair” opportunity to contest the issue. Id.
First, insofar as Plaintiff objected to and challenged at sentencing the findings in the
presentence report regarding his use of a rifle, and given that the parties presented evidence
and argument on the issue, the issue was plainly litigated at sentencing. The question is
thus whether the sentencing hearing afforded Plaintiff a “full and fair” opportunity to
present his case. The Ninth Circuit’s discussion on the issue is instructive.
In deciding whether an opportunity to litigate is “full and fair,” a court must
make a practical judgment based on at least two considerations. First, the
court must compare the procedures in the prior and subsequent actions. If
“procedural opportunities unavailable in the first action ... could readily
cause a different result” in the second action, then the results of the first
action generally should not be given preclusive effect. Parklane Hosiery,
439 U.S. at 331 & n.15, 99 S. Ct. 645; see also Montana v. United States,
440 U.S. 147, 164 n. 11, 99 S. Ct. 970 (1979) (“Redetermination of issues is
warranted if there is reason to doubt the quality, extensiveness, or fairness of
procedures followed in prior litigation.”). Second, the court must consider
the parties’ incentives to litigate in the two actions. If a party had good reason
not to contest an issue vigorously during the first action and did not, in fact,
vigorously contest the issue, that party generally should be entitled to
relitigate the issue during the second action. See 18 Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure §
4423, at 612 (2d ed. 2002) (“The most general independent concern reflected
in the limitation of issue preclusion by the full and fair opportunity
requirement goes to the incentive to litigate vigorously in the first action.”);
see also Parklane Hosiery, 439 U.S. at 330, 99 S. Ct. 645 (noting that
incentive problems sometimes arise when the second action was not
reasonably foreseeable at the time of the first action).
Maciel v. C.I.R., 489 F.3d 1018, 1023 (9th Cir. 2007). Citing fairness concerns, both the
Ninth Circuit and the Second Circuit concluded that “findings made in a criminal
sentencing proceeding ordinarily should not have preclusive effect in a subsequent civil
case.” Id. (citing Monarch Funding Corp., 192 F.3d at 305). In Monarch, the Second
18
Circuit did not give preclusive effect to certain sentencing findings that favored the
government at a later civil trial, despite relatively extensive criminal sentencing
proceedings, because the later civil trial provided “procedural opportunities that are
unavailable at sentencing and that could command a different result,” noting in particular
differences in the availability of discovery. 192 F.3d at 305.12
The “procedural opportunities” in this case are not materially different from the
opportunities at sentencing. The record of the sentencing hearing reveals no limitations on
Plaintiff’s ability to subpoena witnesses and otherwise to present evidence on the issue.
Plaintiff, in fact, testified in some detail about the circumstances of the shooting. In
addition, Plaintiff had the opportunity to and did cross-examine the law enforcement
officers whom the Government called as witnesses to establish that Plaintiff possessed and
used a rifle.13 After the presentation of the evidence, the Court permitted counsel to argue
12
In U.S. Currency, the Second Circuit stated that giving preclusive effect to sentencing findings
“implicates serious concerns of fairness, while appearing to offer little benefit in terms of increased
efficiency.” 304 F.3d at 172. In U.S. Currency, issue preclusion was asserted against the government.
Cases such as U.S. Currency involve attempts by criminal defendants to avoid the economic consequences
of their criminal convictions in later forfeiture proceedings. See also Kosinski v. C.I.R., 541 F.3d 671, 678
(6th Cir. 2008); United States v. Real Prop. Located at 7401-03 S. Racine Ave., Chicago, Ill., No. 04-cv05885, 2009 WL 806120, at *2 (N.D. Ill. Mar. 25, 2009). Arguably, the cases are in a distinguishable
category of cases because the courts in the cases recognize the practical difficulties of applying issue
preclusion doctrine in a manner that encourages the government to litigate extensively in criminal
proceedings factual issues related to anticipated civil forfeiture or tax collection proceedings, which issues
are often not relevant to the element of the crime.
13
In U.S. Currency, the Second Circuit reasoned that the United States did not have a full and fair
opportunity in the underlying criminal case to litigate issues pertaining to the source of the funds it later
pursued through civil forfeiture proceedings, because the United States could not compel the defendant in
the criminal case to testify or rely on any adverse inference based on his refusal to testify, whereas the civil
forfeiture proceeding enabled the United States to take depositions and to rely on adverse inferences based
on the defendant’s failure to testify. 304 F.3d at 177. Here, officers testified and were subject to crossexamination by Plaintiff’s defense counsel, and Plaintiff testified.
19
the contested issues regarding the encounter,14 and then made specific findings on the
contested issues.15 (Sent. Tr. at 156 – 160.) Under the circumstances, Plaintiff had a full
and fair opportunity to litigate the issue of possession and use of a rifle just prior to
Defendant’s use of force.
In sum, therefore, Plaintiff had a full and fair opportunity to litigate the issue and
the issue was actually litigated.16
c. Whether the prior court decided the issue in a final judgment.
In the criminal proceeding, the Court issued its Judgment, which included a term of
imprisonment of 78 months. In the findings at the sentencing hearing, which findings were
the bases for the judgment, the Court specifically found that Plaintiff raised his rifle as law
enforcement recounted. In its Judgment, the Court incorporated its Statement of Reasons,
to which it appended Exhibit A, Findings Affecting Sentence. (ECF No. 280-1.) The
Findings specifically state that Defendant “recklessly created a substantial risk of death or
serious bodily injury to another person,” for purposes of the United States Sentencing
14
Sent. Tr. at 146 – 156.
15
In Monarch, the court observed that a sentencing hearing might not afford a full and fair opportunity to
litigate based in part on the inapplicability of the Federal Rules of Evidence, because the “judge is largely
unlimited either as to the kind of information he may consider, or the source from which it may come, so
long as the information has sufficient indicia of reliability to support its probable accuracy.” 192 F.3d at
305 (internal quotation marks, citations and brackets omitted). However, in this case, there is no suggestion
that the Court’s sentencing finding rested, even in part, on hearsay or other evidence that would not be
admissible in a civil trial.
16
Fairness, therefore, would not prevent application of issue preclusion in this case. See U.S. Currency in
Amount of $119,984.00, 304 F.3d at 172 (court must assess whether it would be fair to apply collateral
estoppel).
20
Guidelines (U.S.S.G.) § 3C1.2. (Id. ¶ 6.) The issue, therefore, was necessarily decided as
part of the Court’s final judgment.
d. Whether resolution of the issue was essential to judgment on the merits.
Finally, the Court must consider whether the finding regarding Plaintiff’s
threatening use of his rifle just prior to the time Defendant Duff shot him was essential to
the Court’s Judgment in the criminal case. Ordinarily, a criminal conviction is preclusive
of issues that were essential to conviction on the specific charges. See, e.g., Napier v. Town
of Windham, 187 F.3d 177, 184 (1st Cir. 1999). Sentencing determinations, however,
typically involve the Court’s consideration of a variety of factors that are not essential to
conviction on the underlying charges, but which involve “a number of important,
commonly occurring real offense elements.” U.S.S.G. Ch. 1, Pt. A, § 4(a).
In the context of civil actions to recover tax deficiencies following convictions for
tax evasion, some circuit courts have held that a finding in connection with the
penalty/restitution phase of the tax evasion prosecution should not preclude subsequent
litigation because the finding does not pertain to an element of the crime of conviction.
Kosinski v. Comm’r of Internal Revenue, 541 F.3d 671, 676 (6th Cir. 2008) (citing Hickman
v. Comm’r of Internal Revenue, 183 F.3d 535, 538 (6th Cir. 1999)); Morse v. Comm’r of
Internal Revenue, 419 F.3d 829, 834 (8th Cir. 2005) (“Because the amount of restitution
was not essential to the judgment in the criminal prosecution, the Commissioner is not
precluded from litigating Morse’s civil tax liability.”). In such cases, however, the
Guidelines direct the Court to estimate the tax loss for purposes of placing the loss within
21
“broad tax-loss bands.” Kosinski, 541 F.3d at 676 (citing U.S.S.G. § 2T1.1 and describing
a tax loss band spanning from $550,000 to $2,500,000).17
The question is not whether the issue relates to an element of the criminal charge.
Otherwise, there would be no circumstance in which a finding at sentencing could preclude
litigation of the issue in a subsequent civil action. That is, unless the Court, unlike the
Second Circuit, is prepared to adopt a per se rule prohibiting issue preclusion based on
sentencing findings, the question is whether resolution of the issue can fairly be viewed as
essential to the judgment in the criminal case.
In this case, the record reflects that at sentencing, because Plaintiff contested some
of the facts included in the presentence investigation report, the parties presented evidence
regarding the circumstances of Plaintiff’s encounter with law enforcement.
After
consideration of the evidence, the Court made certain findings, including that Plaintiff
raised a rifle in the direction of law enforcement just prior to the time Defendant Duff shot
Plaintiff.
As part of the Court’s calculation of the total offense level under the Sentencing
Guidelines, the Court assessed a two-level enhancement for reckless endangerment under
Guideline 3C1.2, which provides for a two-level enhancement “[i]f the defendant
recklessly created a substantial risk of death or serious bodily injury to another person in
the course of fleeing from a law enforcement officer.” The Court arguably assessed the
The Guidelines tax table contemplates a general determination that the loss was “more than” a given
amount. U.S.S.G. § 2T4.1. The Kosinski court also observed that the Guidelines cannot “constitutionally
cause [the] sentence to turn on the district court’s tax loss finding” under Booker, given the Court’s
discretion “to consider or not consider [the amount of] tax loss” in reaching its sentence. 541 F.3d at 676.
17
22
two-level enhancement based in part on the fact Plaintiff raised the rifle in the direction of
Defendant Duff. Without the two-level enhancement, the Guideline sentencing range
would have been reduced from 63 to 78 months to 51 to 63 months. Given that the Court
imposed a sentence within the sentencing range as found by the Court, Defendant Duff
could contend that the finding that Plaintiff raised his rifle in Defendant Duff’s direction
was essential to the criminal judgment.
A review of the sentencing transcript, however, reveals otherwise. The Court also
found that during the standoff with law enforcement, Plaintiff discharged a firearm six
times, including at a window of his mobile home on at least one occasion. (Sent. Tr. at
158.) Understandably, Plaintiff’s discharge of the firearm was of great concern to the Court
at sentencing when the Court assessed the seriousness of Plaintiff’s conduct:
Short of the actual use of a firearm by a felon to injure or kill someone, from
my perspective, this type of possession is the most egregious and dangerous
possession by a felon imaginable, and as it turns out, unfortunately for the
defendant, the risk of very serious harm, which was present for everybody
on the scene, including these outstanding, I might add, police officers who
come to protect us in situations like this, that the person who suffered the risk
of the danger he had created turned out to be the defendant himself.
(Sent. Tr. at 195.)
The Court’s findings and reasoning demonstrate that in the Court’s view, Plaintiff’s
discharge of firearm multiple times in the context of a standoff with police created a
substantial risk of serious harm to all individuals present, and that the risk was present
regardless of whether Plaintiff raised his rifle in the direction of law enforcement. The
Court, therefore, could have, and likely would have, imposed the two-level enhancement
for reckless endangerment regardless of whether Plaintiff raised his rifle after exiting his
23
home. Because the Guideline sentencing range would likely have been the same regardless
of whether the Court found that Plaintiff raised his rifle in the direction of law enforcement,
and given the Court’s legitimate concern about the risk posed by Defendant’s conduct
during the standoff, including Plaintiff’s discharge of a firearm multiple times during the
standoff, the finding that Plaintiff raised his rifle in the direction of law enforcement before
Defendant shot Plaintiff cannot be deemed essential to the judgment for purposes of issue
preclusion. Plaintiff, therefore, is not collaterally estopped from litigating the issue in this
case.
CONCLUSION
Based on the foregoing analysis, I recommend the Court deny Defendant Duff’s
motion to dismiss.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
Dated this 15th day of March, 2018.
/s/ John C. Nivison
U.S. Magistrate Judge
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