[00:00:15] Speaker 01:
Okay, the next argued case is number 20, 2182, Jones against the United States.

[00:00:22] Speaker 01:
Mr. Rasmussen.

[00:00:30] Speaker 00:
Good morning.

[00:00:31] Speaker 00:
May I please support?

[00:00:34] Speaker 00:
The issue in this case, or the issues in this case, are really related to the

[00:00:44] Speaker 00:
mandate rule, first of all, and then the scope of exfoliation, and then finally the remedy.

[00:00:50] Speaker 00:
So those are the three primary issues we're going to be talking about.

[00:00:54] Speaker 00:
With regard to the evidence in this case, the idioms in our own language are really pertinent here.

[00:01:03] Speaker 00:
We talk about a smoking gun as the pinnacle of evidence.

[00:01:08] Speaker 00:
And here we had, allegedly, two smoking guns.

[00:01:13] Speaker 00:
The United States didn't

[00:01:14] Speaker 00:
Collected one of them and then destroyed it after it knew about litigation collected it and destroyed it the other one.

[00:01:21] Speaker 00:
It didn't even collect We also talked about somebody being caught red-handed In the United States didn't test mr. Murray's hand to determine whether it had blood on it Didn't test officer Norton's hand to determine whether it had blood on it didn't test his clothing to determine whether it had blood on it and

[00:01:40] Speaker 00:
Those would have been the pieces of evidence that would have told us what happened on April 1st of 2007.

[00:01:46] Speaker 02:
Even if we accept your proposition that the criminal due process standards are not the appropriate things we should be looking at when we're talking about a civil lawsuit, at some point in any civil lawsuit, in order to have spoliation, you have to have anticipation of a civil litigation.

[00:02:05] Speaker 02:
So at what point would the government

[00:02:09] Speaker 00:
should the government have anticipated or reasonably anticipated a civil litigation?

[00:02:20] Speaker 00:
in her prior decision in this case said, yeah, of course, we knew, we reasonably anticipated litigation here.

[00:02:27] Speaker 00:
This was an officer, a state officer who'd come 25 miles into the reservation without jurisdictional authority.

[00:02:35] Speaker 00:
There was a well-known history of these types of disputes going to court.

[00:02:40] Speaker 00:
And we have an officer who is the only living witness to what happened here.

[00:02:45] Speaker 00:
And so, yes, there should have been an anticipation of litigation at that point in time.

[00:02:49] Speaker 00:
OK, so as of the events happening?

[00:02:51] Speaker 02:
Yes.

[00:02:53] Speaker 01:
OK.

[00:02:53] Speaker 01:
So at what stage in the proceedings was the gun destroyed?

[00:02:58] Speaker 01:
How much time passed from the initial event to the decision in the actual destruction?

[00:03:08] Speaker 00:
I think it was the same year.

[00:03:11] Speaker 00:
So I think it was December of 2007.

[00:03:14] Speaker 00:
I might be wrong.

[00:03:15] Speaker 00:
It was at least that long.

[00:03:17] Speaker 00:
One of the things that we did in this case and one of the significant things that happened is we had the FBI officer say, I didn't anticipate litigation.

[00:03:26] Speaker 00:
He came and testified to that.

[00:03:29] Speaker 00:
But we found the needle in the haystack here.

[00:03:31] Speaker 00:
We found a piece of paper that showed that he did know about it.

[00:03:34] Speaker 00:
And it's at page 362 in the appendix.

[00:03:39] Speaker 00:
And in that document, he says,

[00:03:42] Speaker 00:
there's this case going on and so I'm going to turn the bullet casings over to the to the Vernal Police Department but then he doesn't do that with the gun and that's why we ended up with the spoliation order with regard to the gun is we found that needle in the haystack that says I did know about it

[00:04:04] Speaker 00:
So there was, by that point, when that gun was destroyed, there was no question the United States knew about the litigation.

[00:04:10] Speaker 00:
No question it knew that the evidence should be preserved.

[00:04:13] Speaker 00:
It preserved part of it, and then it destroyed the gun.

[00:04:18] Speaker 02:
So you argue that the spoliation sanction should have gone all the way and basically should have said we enter judgment in favor of the Murray family.

[00:04:33] Speaker 02:
Right.

[00:04:35] Speaker 02:
And in this case, the spoliation sanction was simply that the government couldn't use the gun, which doesn't seem like much of a sanction to me.

[00:04:43] Speaker 02:
But there are middle grounds, right?

[00:04:46] Speaker 02:
I mean, wouldn't maybe an appropriate sanction be the typical default, which is a negative inference against the government?

[00:04:54] Speaker 00:
Well, I don't know what the Court of Federal Claims meant when it said the government couldn't rely on the gun or evidence from the gun.

[00:05:03] Speaker 00:
Because as I see it, I don't know how you prove your case without the gun.

[00:05:08] Speaker 00:
You've got, if you don't have the gun, what you've got is the officer saying, well, he shot himself with a gun, and we don't have a gun.

[00:05:16] Speaker 00:
So I didn't understand what exactly that level of sanction was.

[00:05:21] Speaker 00:
My view of it was that it was more substantial than this when it says you can't use the evidence from the gun.

[00:05:27] Speaker 04:
Can I just ask, I thought there was material in the record, maybe from the

[00:05:32] Speaker 04:
Mr. Fitzers, is that his name?

[00:05:34] Speaker 04:
I forget.

[00:05:35] Speaker 04:
That says when you have a jammed casing,

[00:05:41] Speaker 04:
that is associated with a suicide because the hand holding the gun goes limp and the casing force is not going to be met with any resistance to push the casing out of the chamber because the whole gun and hand is moving back and that that was actually a significant piece of evidence for

[00:06:04] Speaker 04:
the suicide conclusion and that's what the sanction precluded the government from asserting.

[00:06:11] Speaker 00:
The sanction certainly precluded the government from using that.

[00:06:15] Speaker 00:
One of the other pieces though of evidence that should have been excluded would have been anything related to the testing of that gun.

[00:06:25] Speaker 00:
One of the significant pieces of evidence, the two most significant pieces of evidence would have been which of these guns had blood on it.

[00:06:33] Speaker 00:
Probably, most likely, much more probable than not, the gun that caused the fatal shot had blood on it.

[00:06:42] Speaker 00:
It had aerated blood droplets on it.

[00:06:47] Speaker 00:
So we don't have the testing of the gun, either gun, to see whether they had blood on the guns.

[00:06:53] Speaker 00:
That was the basic evidence that really should have been collected.

[00:06:56] Speaker 00:
So if we're talking about the United States had the gun,

[00:07:01] Speaker 00:
and didn't test the gun, as we say in our brief, the sanction order with regard to the gun itself, which the United States did know about when it destroyed the gun.

[00:07:12] Speaker 00:
The sanction order didn't go far enough because it didn't talk about that evidence.

[00:07:16] Speaker 04:
It didn't talk about... Just to be clear, my understanding is the government destroyed the gun in December 2008.

[00:07:22] Speaker 04:
The event was April 1st, 2007, so a year and a half or so later.

[00:07:29] Speaker 04:
Did Judge Hurtling make a finding about when the United States should reasonably have anticipated litigation?

[00:07:37] Speaker 00:
I don't know that he did make a finding.

[00:07:40] Speaker 00:
I don't recall a specific finding from him on when the government should have reasonably anticipated litigation.

[00:07:46] Speaker 00:
That kind of goes into the next issue, which is he made this decision based upon this other legal basis that isn't really part of spoliation, which is saying the government doesn't have a duty to collect any evidence.

[00:08:00] Speaker 00:
that everything there is discretionary.

[00:08:03] Speaker 00:
And that's not our interpretation of either the due process case law or the exfoliation case law.

[00:08:09] Speaker 04:
Right, but I guess the reason I think maybe the reasonable anticipation of litigation is relevant is that it may well have been present, the reasonable anticipation, in December of 2008.

[00:08:23] Speaker 04:
but may not have been present right on or around April 1, 2007 when this other evidence might have been collected.

[00:08:33] Speaker 00:
I agree with you, Your Honor.

[00:08:34] Speaker 00:
Yes, I think that it was significant.

[00:08:36] Speaker 00:
There were a couple different significant dates that it could have been.

[00:08:38] Speaker 00:
So that's where, when the gun was destroyed, we know the United States knew about the litigation and destroyed the gun anyway.

[00:08:47] Speaker 00:
and destroyed with it any evidence of whether that gun had blood on it.

[00:08:52] Speaker 02:
Some of the other evidence was... Well, at what point was the body no longer in... in at least the... was no longer accessible to the government?

[00:09:03] Speaker 00:
Well, I would say that the body was no longer accessible at the time that it was buried.

[00:09:09] Speaker 00:
Which was when?

[00:09:10] Speaker 00:
About two days later, I believe.

[00:09:12] Speaker 00:
Three days later, maybe.

[00:09:13] Speaker 00:
The body was transported to Utah, Salt Lake City, the day after the shooting.

[00:09:24] Speaker 00:
The government had ordered an autopsy and then didn't have one conducted.

[00:09:28] Speaker 00:
Really the main piece of evidence that would have come from the body, I mean there's a bunch of different possibilities.

[00:09:33] Speaker 00:
The main piece of evidence that would have come from the body was did Mr. Murray's left hand

[00:09:40] Speaker 00:
have aerated blood on it.

[00:09:42] Speaker 00:
That's the main piece of evidence that would have come from that body.

[00:09:45] Speaker 00:
If it did, that would have been some evidence in favor of the United States.

[00:09:50] Speaker 00:
If it didn't, that would be substantial evidence in favor of the Murray family.

[00:09:55] Speaker 00:
Because, again, much more probably than not, if he had put a gun to his head and shot himself, there would be aerated blood on that gun.

[00:10:04] Speaker 00:
or on his hand, iron on the gun.

[00:10:06] Speaker 00:
And there would be potentially tissue and other matter.

[00:10:09] Speaker 00:
So you could test that and say, oh, OK, it did have this or it didn't have this.

[00:10:13] Speaker 00:
That wasn't done.

[00:10:14] Speaker 00:
That's something that the body was within the United States control.

[00:10:20] Speaker 01:
So was the government and Alaska government as well?

[00:10:23] Speaker 01:
What was their explanation for why they destroyed the gun but preserved the shell casings?

[00:10:30] Speaker 00:
They didn't offer an explanation for that.

[00:10:32] Speaker 00:
Their explanation was actually the FBI officer testifying that he didn't know at that time.

[00:10:36] Speaker 00:
So we had proven that he actually

[00:10:38] Speaker 00:
you know, misspoken under oath about that issue, because we have his later document where it is shown.

[00:10:46] Speaker 00:
But that was the government's explanation.

[00:10:48] Speaker 00:
We didn't know about it.

[00:10:49] Speaker 00:
And that's where we had to find the document in the record that showed that they did to counteract his testimony.

[00:10:54] Speaker 00:
So that was basically their argument.

[00:10:56] Speaker 01:
But that was why I asked, because they did preserve the shell casings.

[00:11:02] Speaker 01:
And as you pointed out in the record, that they knew that there was something going on.

[00:11:09] Speaker 01:
To me, that's very curious.

[00:11:12] Speaker 00:
It was very curious to us as well, because it would seem, yeah, obviously you'd do the same thing with both.

[00:11:17] Speaker 00:
In fact, the gun is going to be the much more significant.

[00:11:20] Speaker 00:
And you can't test the shell casings to match to the gun unless you have both, obviously.

[00:11:25] Speaker 00:
You can't test the gun for blood if you don't have the gun.

[00:11:28] Speaker 00:
So when the judge then just only imposed the order

[00:11:32] Speaker 00:
regarding the gun and didn't go further and say, for example, let's impose an adverse inference that this gun doesn't have blood on it.

[00:11:44] Speaker 00:
Then we'd know most likely this gun didn't fire the fatal shot.

[00:11:49] Speaker 00:
I want to turn back briefly to the mandate rule, though, because we were here five years ago.

[00:11:55] Speaker 00:
Two of you, I believe, were here five years ago with me.

[00:11:58] Speaker 00:
And we had this argument about

[00:12:02] Speaker 00:
collateral estoppel.

[00:12:04] Speaker 00:
And this court said, well, if the expoliation order changes the evidentiary landscape, the judge has to conduct his own independent review of the evidence.

[00:12:17] Speaker 00:
And so the United States is left now before you with this argument that the expoliation of the gun, that they're not challenging

[00:12:26] Speaker 00:
before you, the spoliation of the gun doesn't change the evidentiary landscape at all.

[00:12:32] Speaker 04:
But it's compared to what?

[00:12:33] Speaker 04:
It certainly changes the evidentiary landscape compared to what it would be if the gun were present.

[00:12:39] Speaker 04:
Isn't the question whether it changes the evidentiary landscape on which the Utah district judge relied to come to the conclusion that

[00:12:50] Speaker 04:
even under the summary judgment standard, you did not have proof that a reasonable jury could buy that Mr. Norton, Officer Norton was

[00:13:01] Speaker 04:
basically next to Mr. Murray.

[00:13:04] Speaker 04:
So we have to look at what the district court's judgment was.

[00:13:10] Speaker 04:
Take the pieces of evidence that favored the government and say that is that the district court cited.

[00:13:20] Speaker 04:
And then the district court said, well, you don't have nearly enough to overcome that and ask, does any of that change according to whether the gun

[00:13:30] Speaker 04:
Is now out of the picture.

[00:13:33] Speaker 00:
Yeah, I know I agree with you.

[00:13:34] Speaker 00:
I think that's exactly right Where what we're looking at though is that when the court makes a summary judgment decision It is looking at the evidence that is before it is making a decision based upon that evidence and here if you had said to judge Campbell this gun

[00:13:53] Speaker 00:
that you know you couldn't deal with as far as foliation this gun the United States foliated and it didn't have Mr. Murray's blood on it and that therefore most likely it didn't fire the fatal shot which he had reached the same result we don't know

[00:14:09] Speaker 00:
That's why we need to have the independent evaluation of the evidence.

[00:14:12] Speaker 00:
We can no longer just say, well, she found it when she was looking at all this evidence.

[00:14:16] Speaker 00:
One of the things she said was, well, Norton's story, besides these other things, Norton's story was supported, corroborated by this independent evidence.

[00:14:26] Speaker 00:
She was pointing specifically to, you know, he says that Mr. Murray shot himself in the head with a gun, and there was a gun.

[00:14:33] Speaker 00:
So yeah, she did rely on the gun.

[00:14:35] Speaker 00:
And that's where I think the United States argument on that was almost humorous to say that that summary judgment order didn't rely on the gun.

[00:14:44] Speaker 00:
Of course it relied on the gun.

[00:14:46] Speaker 00:
It said, this is the independent evidence to corroborate the story, and you don't have enough to now overcome that.

[00:14:52] Speaker 00:
So that's why we just, all we need now is that independent evaluation of that piece of the evidence with that new knowledge

[00:15:03] Speaker 00:
regarding the gun that it can't be used with the knowledge that the blood evidence either can't, to do something with that blood evidence that should have been dealt with by the judge here.

[00:15:15] Speaker 00:
I think I'll reserve the rest of my time.

[00:15:18] Speaker 01:
Thank you.

[00:15:29] Speaker 03:
please the court.

[00:15:30] Speaker 03:
I'd first like to address a key difference here that is relevant to how this court resolves the issue of the exfoliation findings made by the CFC and the sanction.

[00:15:41] Speaker 03:
A failure to collect potentially useful evidence is

[00:15:45] Speaker 03:
different than the destruction of evidence that has already been collected.

[00:15:48] Speaker 03:
And no court has held that government law enforcement's failure to collect evidence should result in a spoliation sanction.

[00:15:57] Speaker 03:
And that question has been addressed in the Second Circuit, the Sixth Circuit, the Ninth Circuit, and the Tenth Circuit.

[00:16:03] Speaker 02:
Well, that's always, always, always in the context of criminal trials, correct?

[00:16:08] Speaker 03:
The Second Circuit has addressed it in the context of criminal trials and the CFC's decision in the appendix at 15 to 17 discusses a variety of cases, some of which were addressed in the civil context.

[00:16:20] Speaker 03:
In particular, a Tenth Circuit case that looked at whether prison officials should have been sanctioned or spoliated evidence when a prisoner had hung himself and they found him in the act of hanging himself and dying.

[00:16:35] Speaker 03:
And the next day, they cleaned and repainted his cell and didn't collect any evidence there.

[00:16:44] Speaker 03:
And the tense circuit held there that no spoliation sanctions would have been appropriate.

[00:16:48] Speaker 02:
But those were fact-specific conclusions, right?

[00:16:52] Speaker 02:
Sure.

[00:16:52] Speaker 02:
I mean, you argued that there's some per se rule that there's no obligation to ever collect evidence, even when you should be aware of the potential for litigation.

[00:17:03] Speaker 03:
Well, what we've argued is that no court has actually imposed such a rule.

[00:17:08] Speaker 03:
And the burden here is on the plaintiffs because they're the ones seeking the spoliation sanctions.

[00:17:15] Speaker 02:
My problem with the spoliation sanction is 15 years on the district court, I saw lots of spoliation issues.

[00:17:23] Speaker 02:
Never once have I ever seen a sanction that didn't include a negative inference.

[00:17:28] Speaker 02:
I mean, that's the fallback.

[00:17:29] Speaker 02:
That's the standard.

[00:17:31] Speaker 02:
I mean, in this case, not only was there no negative inference, but then the court did rely on the fact of the gun.

[00:17:37] Speaker 02:
So I don't know, I mean, I don't even understand how there was a sanction of any sort here in this case.

[00:17:45] Speaker 03:
Well, I think as was discussed earlier, the sanction was the fact that, I think the sort of meat of the sanction, if you will, was the fact that the government could not rely on the un-injected, un-injected shell casing to establish that the gun had been

[00:18:00] Speaker 02:
Yeah, but they still got to rely on the fact of the gun.

[00:18:03] Speaker 02:
They got to rely on other aspects.

[00:18:04] Speaker 02:
And there was no negative inference that the gun would not have shown evidence that would support the government.

[00:18:12] Speaker 03:
The government's position here is that a negative inference would have in fact been overly prejudicial to the United States, and here's why.

[00:18:19] Speaker 03:
So the plaintiffs have argued that testing the gun would have been useful, and there's a couple of different tests that could have been... Well, there's a difference between prejudicial and overly prejudicial.

[00:18:28] Speaker 02:
I mean, it's the government who destroyed the gun.

[00:18:31] Speaker 03:
Sure, but any sanction has to be narrowly tailored to remedy the violation.

[00:18:39] Speaker 03:
Here, the plaintiffs have not appealed the CFC's negligence finding, so we are stuck with the district court's finding that the government was only negligent in destroying the gun, didn't act in bad faith.

[00:18:58] Speaker 02:
Again,

[00:18:59] Speaker 02:
Maybe he doesn't get the whole enchilada.

[00:19:03] Speaker 02:
Maybe there's no complete order that says you lose.

[00:19:09] Speaker 02:
But to have no negative inference doesn't make a lot of sense to me.

[00:19:13] Speaker 03:
The reason why it doesn't matter, there's two reasons why it doesn't matter.

[00:19:17] Speaker 03:
First is that, well, I guess it

[00:19:21] Speaker 03:
First is that any negative inference is already supported by the... I guess it depends on the negative inference you're talking about.

[00:19:28] Speaker 02:
But assume that, you know, the plaintiffs... The negative inference would be that the gun wouldn't show anything beneficial to the government, including blood.

[00:19:37] Speaker 03:
And that's fine, because the existing evidence... I mean, that wouldn't... Even if the CFC had imposed that negative inference, it wouldn't have changed the outcome, because the existing evidence here

[00:19:48] Speaker 03:
is photographic evidence of gun that shows that there was no blood on it.

[00:19:53] Speaker 03:
And there was also expert testimony that in

[00:19:57] Speaker 03:
blowback doesn't uniformly occur in all cases of contact shootings so it is certainly plausible that there was the gun was used at point blank range to shoot Mr. Murray and that there would be no blowback and the plaintiffs here had the photographic evidence of the gun with no blood on it and they could have relied on that to argue that there was no blood and therefore you know wasn't

[00:20:26] Speaker 03:
that the gun wasn't used at close range.

[00:20:28] Speaker 03:
But I would also point out that the plaintiffs did agree here that the gun was used at close contact, meaning it was touching Mr. Murray's head to shoot him.

[00:20:38] Speaker 03:
So the existence of gun on the blood or non-existence of gun on the blood isn't relevant.

[00:20:44] Speaker 02:
Well, they don't concede that the gun that was destroyed was at his temple, right?

[00:20:50] Speaker 02:
They say a gun was at his temple.

[00:20:52] Speaker 02:
They believe it was the officer's gun that was at his temple.

[00:20:56] Speaker 03:
So now if you're looking at the question of whether the FBI should have in fact taken possession of Officer Norton's gun and tested Officer Norton's gun to see if there was blood on it, which the FBI didn't do, then you get back to the question of was that spoliation in the first place?

[00:21:15] Speaker 03:
And the FBI didn't ever collect that evidence or perform that test.

[00:21:20] Speaker 03:
So then you get to the question of whether a decision not to collect evidence as part of an investigation into a crime can result in spoliation.

[00:21:29] Speaker 04:
Can I just understand?

[00:21:31] Speaker 04:
I think I remember from your brief that you make the argument that non-collection of evidence is never a basis for spoliation, but that you make a narrower argument that the non-collection

[00:21:45] Speaker 04:
in these circumstances was reasonable and you go through a variety of arguments.

[00:21:50] Speaker 04:
Do I understand the relationship between those arguments that you don't need the broader categorical proposition for the argument you're making?

[00:21:59] Speaker 03:
Yes.

[00:22:00] Speaker 03:
This court does not need to issue a blanket ruling that a failure to collect evidence, even if negligent, could not result in spoliation.

[00:22:10] Speaker 04:
And how much of the narrower argument did Judge Hurtling make findings on to support your view that

[00:22:19] Speaker 04:
not collecting Norton's 40 caliber gun was reasonable and not going, not insisting on the autopsy, not doing other things.

[00:22:33] Speaker 03:
I don't believe that there were any factual findings made, although I am happy to the extent that the CFC's decision was very thorough.

[00:22:42] Speaker 03:
It's certainly possible that there were, but in the discussion specifically on the question whether there was a legally enforceable duty to collect particular evidence, the CFC... Right, but the answer to that question can be sometimes.

[00:22:58] Speaker 04:
Will the CFC... Unless you have a categorical position that there's never spoliation even for an unreasonable bad faith non-collection.

[00:23:07] Speaker 03:
Well, the CFC didn't make that finding, that categorically there can't be spoliation if there is bad faith.

[00:23:14] Speaker 03:
But what the CFC found is that no court had ever applied spoliation sanctions in cases where there's a failure to collect evidence.

[00:23:25] Speaker 02:
But the CFC took the position that basically the government is held to a lower standard than any other private civil litigant.

[00:23:33] Speaker 03:
Well, I don't think that that's necessarily a fair characterization of the CFC's decision.

[00:23:38] Speaker 03:
I mean, if there is a bad faith, the CFC noted that in criminal prosecutions, if there's a bad faith failure to preserve evidence, that's a constitutional violation, for example.

[00:23:49] Speaker 02:
Right, that's a very different question.

[00:23:51] Speaker 03:
But I would also say that I think that the distinction that the CFC made depends on the fact that

[00:23:59] Speaker 03:
federal law enforcement officers have a lot of discretion when they're investigating a crime.

[00:24:05] Speaker 03:
And here, the FBI only has statutory authority to investigate certain crimes.

[00:24:10] Speaker 02:
Right, but we're not talking about investigating a crime.

[00:24:13] Speaker 02:
We're talking about the question of whether or not there's anticipation of civil litigation.

[00:24:20] Speaker 02:
Sure.

[00:24:20] Speaker 02:
And what the standards should be.

[00:24:23] Speaker 02:
And so the question is, it may be true

[00:24:25] Speaker 02:
that in a criminal prosecution, there would be no constitutional violation.

[00:24:30] Speaker 02:
But that doesn't mean that no negative inference gets drawn when something as obvious as not testing a body or not testing a weapon occurs.

[00:24:43] Speaker 03:
What I would say is that what

[00:24:46] Speaker 03:
Even when presented with that situation, with the question of whether law enforcement officers should collect not only evidence of a crime, but also evidence that could be used in future civil litigation relating to the same set of facts, no court has imposed such a duty on law enforcement officers.

[00:25:04] Speaker 04:
Can I ask two related questions?

[00:25:06] Speaker 04:
One is, we had some discussion earlier about

[00:25:10] Speaker 04:
What findings there were about the time at which the government reasonably anticipated litigation?

[00:25:17] Speaker 04:
And can I maybe get a quick answer to that and then get to the to me more interesting?

[00:25:21] Speaker 03:
Sure.

[00:25:22] Speaker 03:
At appendix 18, the CFC does state that that the court agreed with the district court judge that there was that there was a reasonable expectation that litigation could result at the time of the death.

[00:25:35] Speaker 03:
And then also noted that in as of

[00:25:38] Speaker 03:
the time the gun was destroyed in December 2008, the FBI should have been on notice.

[00:25:45] Speaker 04:
Reasonable anticipation of litigation, does that standard mean for purposes of spoliation that the United States government had to reasonably anticipate litigation against itself or against somebody else?

[00:26:01] Speaker 04:
I don't know how familiar the FBI agent Ashdown was with

[00:26:08] Speaker 03:
the treaty kinds of claims, whether it's well-known or kind of... And that's what we argued in the CFC, that the FBI didn't have a reasonable expectation of litigation against the United States.

[00:26:21] Speaker 03:
The CFC, I believe the CFC didn't address that with respect to the earlier date, the April 2007 date.

[00:26:29] Speaker 04:
I do believe that the CFC... Well, what's the law on spoliation generally?

[00:26:36] Speaker 04:
is a litigant charged with for when a litigant pre-litigation has destroyed some evidence right so bringing it into the realm of spoliation at least at the first step does that litigant to actually get into the realm of spoliation have to have reasonably anticipated litigation against itself or is it enough if that litigant

[00:27:05] Speaker 04:
reasonably anticipated litigation against someone else without making the mental connection, this may come back to me.

[00:27:13] Speaker 03:
The case law that I have seen on this issue is only the former.

[00:27:18] Speaker 03:
That is that a

[00:27:21] Speaker 03:
litigant only has obligation to preserve evidence and litigation that it anticipates against itself, not against a third party.

[00:27:32] Speaker 02:
Is it your problem though that when we're talking about the reservation, the only entity with jurisdiction

[00:27:39] Speaker 02:
to collect the evidence, to deal with the evidence, is the federal government.

[00:27:43] Speaker 02:
And that the federal government, at that point, is actually standing in the shoes of the state governments, because the state governments don't have the authority.

[00:27:52] Speaker 02:
They shouldn't have been there in the first place.

[00:27:55] Speaker 02:
And so we've got all that.

[00:27:57] Speaker 02:
So in this case, it's a very different relationship between the FBI and the state jurisdiction than would exist outside of the reservation.

[00:28:09] Speaker 03:
Yes, that's right.

[00:28:10] Speaker 03:
But even so, no court has imposed a duty on any law enforcement officers, whether they're the ones with the jurisdiction over the investigation or not, to collect evidence for use in subsequent civil litigation.

[00:28:26] Speaker 01:
Judge, just to be clear, you're saying that the FBI is held to a lower standard with respect to exfoliation because it's not disputed.

[00:28:37] Speaker 01:
The gun was destroyed by the FBI.

[00:28:40] Speaker 03:
We haven't appealed the district court's spoliation ruling with respect to the gun.

[00:28:47] Speaker 03:
What we are saying, because the gun was collected, it was held as evidence in the possession of the FBI.

[00:28:54] Speaker 04:
And you went through the forfeiture procedures and didn't tell the district judge somebody else may need this.

[00:29:00] Speaker 03:
Correct.

[00:29:00] Speaker 03:
Now I would note along those lines, the plaintiffs also didn't request, the notice was public, the district court found the notice was sufficient, the plaintiffs didn't request it.

[00:29:09] Speaker 03:
The state defendants didn't request it either.

[00:29:12] Speaker 03:
So apparently nobody thought of the gun.

[00:29:16] Speaker 03:
Now that's not, you know, that's sort of neither here nor there because we're not appealing the civilization ruling with respect to the gun.

[00:29:22] Speaker 03:
But I think your question goes to uncollected evidence.

[00:29:27] Speaker 03:
And for evidence that when the FBI gets onto the scene, they're not looking for any sort of evidence.

[00:29:36] Speaker 03:
They're looking for evidence that they think is relevant to the crime.

[00:29:40] Speaker 03:
And in Agent Ashdown's opinion, which our experts subsequently testified to as being reasonable, he arrived on the scene.

[00:29:51] Speaker 03:
He was told a brief description of events by a supervisory officer.

[00:29:55] Speaker 03:
And he observed the scene.

[00:29:57] Speaker 03:
He walked to the various elements of the crime scene, the shell casings where Officer Norton was located, where Mr. Murphy's body was located, and the shell casings and the gun there.

[00:30:08] Speaker 03:
He set evidence tags down, took GPS locations, photographed it, and observed Officer Norton, who had no blood on him, and determined that everything he had been told was consistent with

[00:30:25] Speaker 03:
Mr. Murray shooting himself He spoke with other officers at the scene and so that that Again, our expert testified that that was reasonable and given that law enforcement officers have discretion over what evidence they choose to What items they choose to take into evidence?

[00:30:47] Speaker 03:
and

[00:30:49] Speaker 03:
for the court here to find that a failure to collect evidence could be enforceable through a spoliation sanction would impose a really broad obligation on the part of law enforcement officers to collect

[00:31:04] Speaker 03:
all kinds of evidence and run every single possible test even if they're in their expert opinion the test wouldn't have shown anything as here you know the blowback the existing photographic evidence shows there was no blowback so the plaintiff still had that available to them.

[00:31:22] Speaker 02:
Does a civil litigant that's not a law enforcement officer have discretion to decide whether or not something's important or not?

[00:31:31] Speaker 03:
I would say that the case law

[00:31:34] Speaker 03:
does not indicate that a civil litigant does have the discretion.

[00:31:38] Speaker 03:
If something is obviously relevant, it would be relevant for evidence.

[00:31:44] Speaker 02:
Civil litigant can't choose to decide what's relevant, right?

[00:31:48] Speaker 03:
I mean, I think inherently there is some choice in setting something aside or not.

[00:31:53] Speaker 03:
And then the question that the court seemed to have grappled with was, was it relevant or not?

[00:31:57] Speaker 03:
I mean, I think there's always inherently some choice on the part of a civil litigant, whether to preserve something or not.

[00:32:04] Speaker 02:
Is it your position that when the FBI agent arrives and he's told

[00:32:11] Speaker 02:
by the law enforcement officer who's not even supposed to be on the reservation, that it was suicide, that he's allowed to accept that at face value and does not have to otherwise collect any evidence.

[00:32:23] Speaker 03:
Well, let me just note, I think this is helpful for the court, because the state police officers were not supposed to be there.

[00:32:32] Speaker 03:
What they have testified and what is true is that the reservation is in fact in a checkerboard pattern with

[00:32:40] Speaker 03:
non-reservation lands and at the time that they pulled over and chased the suspects on foot they didn't know

[00:32:47] Speaker 03:
what the land was, whether it was federal or state.

[00:32:51] Speaker 03:
And they also didn't know that the defendants were members of tribe.

[00:32:56] Speaker 03:
Or that Mr. Murray was a tribal member.

[00:33:00] Speaker 03:
And they only figured that out.

[00:33:01] Speaker 02:
They were 25 miles past the reservation border.

[00:33:04] Speaker 02:
Are you saying the state law enforcement officers had no idea where the reservation border was?

[00:33:09] Speaker 02:
And we addressed this in the last time we were here.

[00:33:12] Speaker 02:
Sure.

[00:33:13] Speaker 02:
There are some absurd things that happened in this case.

[00:33:17] Speaker 03:
I'm not disputing that.

[00:33:19] Speaker 03:
I'm simply repeating what they said.

[00:33:24] Speaker 03:
And I think that's helpful for context.

[00:33:28] Speaker 02:
Right.

[00:33:28] Speaker 02:
The context is they were 25 miles past the border.

[00:33:33] Speaker 03:
My understanding is that the border was still a checkerboard pattern.

[00:33:39] Speaker 03:
But regardless, they shouldn't have been there.

[00:33:42] Speaker 03:
as you've said, they had no jurisdiction.

[00:33:46] Speaker 03:
But even so, the discretion is still within the FBI agent arriving on the scene to observe what he saw and to make investigatory decisions.

[00:33:59] Speaker 03:
And he did not observe anything inconsistent with the suicide.

[00:34:04] Speaker 04:
And can I just return to something?

[00:34:07] Speaker 04:
I just want to really fully understand this.

[00:34:10] Speaker 04:
And maybe these two questions are related, but it seems to me there's one question whether

[00:34:16] Speaker 04:
the FBI agent coming on the scene because at that point he knew that he was on the reservation and there's federal jurisdiction and therefore criminal jurisdiction and state criminal jurisdiction is at least limited, maybe nonexistent.

[00:34:31] Speaker 04:
And another question, whether the FBI agent coming on the scene also anticipated that the United States might be civilly sued.

[00:34:42] Speaker 04:
What

[00:34:42] Speaker 04:
And you said I think in passing that in the CFC you made an argument to the effect that only the anticipation of suit against oneself subjects to subjects what not personally I mean the institution of the United States subjects one to exfoliation sanction.

[00:35:01] Speaker 04:
What if any evidence was there and what if any findings have there been in either of the two forums about whether the FBI agent Ashdown

[00:35:11] Speaker 04:
anticipated that the United States might be sued.

[00:35:15] Speaker 03:
I believe Agent Ashton testified that he did not anticipate litigation at all.

[00:35:21] Speaker 03:
Now, I don't know if his testimony was specific enough to the United States or to the state, just that he didn't anticipate litigation.

[00:35:28] Speaker 03:
And if it would help, Your Honor, I'm happy to file a very short 28-J letter pointing to court to where we made these arguments, not re-raising these arguments, but where we made these arguments in the CFC, if it would be helpful.

[00:35:44] Speaker 03:
But I think that at the time, and again the CFC's ruling about when litigation was reasonably anticipated wasn't clear as to whether it was anticipated against the United States or the state defendants.

[00:36:04] Speaker 04:
The document, the so-called smoking gun document,

[00:36:09] Speaker 04:
some FBI knowledge of the state of the, I guess, not yet formally filed, but private litigation against the non-Feds.

[00:36:21] Speaker 04:
Did that involve Agent Ashdown specifically or other

[00:36:24] Speaker 04:
persons within the FBI.

[00:36:27] Speaker 03:
So the author of the report is redacted, but Agent Ashdown had retired by then.

[00:36:32] Speaker 03:
And a different agent had taken over, Agent Ryan, I believe.

[00:36:37] Speaker 03:
And I would also say...

[00:36:42] Speaker 04:
The agents or government attorneys involved in the forfeiture proceeding were the same ones that this doc or there's some overlap that this document shows were aware of the Utah litigation about to be filed.

[00:36:59] Speaker 03:
I know the document is... It's not two separate hands?

[00:37:02] Speaker 03:
No, right, that's correct.

[00:37:03] Speaker 03:
And the document... I'm sorry, what's correct?

[00:37:05] Speaker 04:
I said it's not two separate hands?

[00:37:07] Speaker 03:
No, no, it is two separate.

[00:37:10] Speaker 03:
Two separate agencies.

[00:37:13] Speaker 03:
The document was a case report authored but within the FBI.

[00:37:17] Speaker 03:
Your question relates to whether the attorneys handling the forfeiture would have known about the case report?

[00:37:25] Speaker 04:
government representatives or agents, here I mean small A agents, not big A agents, who were involved in the proceeding that produced the destruction of the gun, the forfeiture proceeding, whether they were the same people who knew something, as this document shows, about the impending Utah litigation.

[00:37:47] Speaker 03:
That I don't know.

[00:37:48] Speaker 02:
But what I do know is that... Who made the decision to not conduct the autopsy that the FBI originally requested?

[00:37:58] Speaker 03:
That was exclusively the decision of the medical examiner.

[00:38:02] Speaker 02:
So the medical examiner, after allowing the state officers to defame the body, then made the decision not to do the autopsy that the FBI said to do?

[00:38:14] Speaker 03:
Will the inappropriate probing of the head wound occurred before the body was delivered to the medical examiner?

[00:38:20] Speaker 03:
That occurred the day before?

[00:38:22] Speaker 02:
The probing of the head wound and the

[00:38:25] Speaker 02:
the insertion of the needle into the heart and the slicing of the neck.

[00:38:29] Speaker 02:
That all occurred by law enforcement officer before it went to the medical examiner.

[00:38:34] Speaker 03:
Before the body went to the medical examiner.

[00:38:35] Speaker 02:
But the medical examiner had to be aware of those things on the body.

[00:38:40] Speaker 03:
Yes, and the medical examiner testified that the probing of the head wound would not have made any difference to his conclusion that the wound was caused by a close contact gunshot wound because of the

[00:38:55] Speaker 02:
Were any of those officers charged with abusing a corpse?

[00:38:59] Speaker 03:
I don't believe they were charged with anything in Utah.

[00:39:05] Speaker 03:
Any crime or, and I don't know what the internal investigation procedures were.

[00:39:11] Speaker 03:
I believe that this litigation was the only, you know, the civil rights litigation in Utah was the only follow-up.

[00:39:20] Speaker 04:
Can I just ask you, I realize this is like starting the second half of the argument, and I apologize for that, but what do you think the relevant comparator is in the phrase of changing the litigation landscape, or the evidentiary landscape, compared to what?

[00:39:39] Speaker 04:
Obviously, it's in some sense a potentially significant change in what the pool of evidence would be if we had the gun.

[00:39:48] Speaker 04:
Is that the comparator or is it what evidence was relied on by the Utah District Judge in reaching, as affirmed by the 10th Circuit, in reaching the conclusion that no reasonable jury could, comparing the plaintiff's evidence and the defendant's evidence, make a finding that Norton was near Murray when Murray fell?

[00:40:12] Speaker 03:
It's the second, Your Honor.

[00:40:17] Speaker 03:
Whether there's been a change in the evidentiary landscape refers to the specific question that was before the Utah District Court and was then before the CFC.

[00:40:27] Speaker 02:
Right, so that if there's a different evidentiary landscape, there's no preclusive effect.

[00:40:32] Speaker 03:
That's correct.

[00:40:33] Speaker 02:
And here... So it's not whether or not, given the change in evidence, you might weigh it differently.

[00:40:39] Speaker 02:
It's whether the evidence is different from what the district court had and therefore needed to all be re-weighed.

[00:40:48] Speaker 03:
as to the precise issue to which the doctrine of issue preclusion applies.

[00:40:54] Speaker 03:
And while I agree that the gun would be, the ability of the United States to rely on the gun might change the evidentiary landscape with respect to the larger question of whether Mr. Murray shot himself, it's not relevant to the, it didn't change the evidentiary landscape with respect to the question of Officer Norton's location.

[00:41:16] Speaker 03:
The district court

[00:41:17] Speaker 03:
explicitly at page 1191 of its decision relied only on Officer Norton's testimony and Officer Byron's testimony to find that Officer Norton was more than 100 yards away from Mr. Murray.

[00:41:32] Speaker 03:
And Officer Byron testified, so it wasn't just Officer Norton's self-serving testimony that he was far away and didn't shoot Mr. Murray.

[00:41:41] Speaker 03:
It was also officer Byron who testified that he saw he was going over rough terrain.

[00:41:48] Speaker 03:
He saw officer Norton on a hill about 400 to 500 yards away from where he was standing.

[00:41:54] Speaker 03:
And then he heard crackling.

[00:41:58] Speaker 03:
He continued on.

[00:42:00] Speaker 03:
Crackling being gunshots?

[00:42:01] Speaker 03:
Gunshots.

[00:42:03] Speaker 03:
He continued on for a brief period, looked up, saw another person who ended up being Mr. Murray.

[00:42:10] Speaker 03:
about 200 yards from him.

[00:42:12] Speaker 03:
So the space between Officer Norton and Mr. Murray was about roughly two to three hundred yards according to Officer Byron.

[00:42:22] Speaker 03:
And he saw Mr. Murray waving his arms and then he heard more crackling noises and saw Mr. Murray fall to the ground.

[00:42:30] Speaker 03:
And nobody else was anywhere near Mr. Murray when he fell and when Officer Byron heard the gunshots.

[00:42:38] Speaker 03:
So that precludes, I mean that unless, you know, I mean there's no affirmative evidence that places Officer Norton next to Mr. Murray, the plaintiffs have agreed that Mr. Murray died as a result of a close contact gunshot wound.

[00:42:55] Speaker 03:
They don't dispute that.

[00:42:58] Speaker 03:
That means that somebody had to hold the gun next to Mr. Murray's head.

[00:43:03] Speaker 03:
With no evidence in the record to support

[00:43:06] Speaker 03:
the position that there was anyone near Mr. Murray, the plaintiffs cannot prove that Officer Norton shot Mr. Murray and that's what the district court found.

[00:43:17] Speaker 02:
And Officer Norton's hands were not tested, his clothes were not tested.

[00:43:21] Speaker 03:
No, but as the 10th Circuit in affirming the district court ruling found, Agent Ashdown testified that he did not see any blood on Officer Norton when he arrived on the scene.

[00:43:32] Speaker 03:
And no other officers testified to that either.

[00:43:35] Speaker 03:
I would also note that as far as other independent evidence that we have, this was not considered by the district court.

[00:43:41] Speaker 03:
So it wouldn't factor in, but just for this own court's knowledge, the other independent evidence is from the

[00:43:49] Speaker 03:
Dispatch transcript and our expert testified or submitted a report.

[00:43:54] Speaker 03:
I believe it's around appendix 456 That that looked at the dispatch record which said that there there was a minute and 55 seconds between the time that Officer Byron saw detective Norton first on the hill and between when

[00:44:14] Speaker 03:
Officer Norton reported that shots were fired and Mr. Murray was on the ground.

[00:44:19] Speaker 03:
And that it would not be possible for Officer Norton to run more than 100 yards, shoot Mr. Murray at close range, while at the same time, Byron, Officer Byron, and Trooper Young are advancing.

[00:44:31] Speaker 03:
For neither of those officers to have seen him, for Officer Norton to have manipulated the evidence, changed his clothing, planted a gun, and then got back.

[00:44:43] Speaker 02:
Because again, this case is not about who ultimately prevails.

[00:44:48] Speaker 02:
This case at this point is about what the CFC should have done in considering all of the evidence.

[00:44:55] Speaker 03:
Yes.

[00:44:56] Speaker 02:
And so you're basically arguing the evidence that the CFC

[00:45:02] Speaker 02:
throughout on summary judgment.

[00:45:04] Speaker 03:
Yes, you're right.

[00:45:05] Speaker 03:
And I agree that for our purposes, this court doesn't need to look at that evidence.

[00:45:12] Speaker 03:
There is other corroborating evidence in the record that supports Officer Norton's story.

[00:45:17] Speaker 03:
And the plaintiffs have argued that the testimony is self-serving and that there's nothing else there.

[00:45:23] Speaker 03:
But that is, in fact, not true.

[00:45:24] Speaker 03:
I think what this court should look at is the fact that the Utah District Court

[00:45:32] Speaker 03:
relied on Officer Noren's testimony and Officer Byron's testimony.

[00:45:35] Speaker 02:
What I don't understand is why, given the remand, given the spoliation, the clear spoliation, why didn't the government avoid going through a summary judgment exercise again and simply say, let's just try this case?

[00:45:52] Speaker 02:
If you think the evidence is so good, why didn't you just try the case like the remand implied?

[00:45:58] Speaker 03:
Respectfully, Your Honor, the plaintiffs brought, I believe, more than 30 alleged crimes in the CFC.

[00:46:05] Speaker 03:
There was a lot of them.

[00:46:06] Speaker 03:
It was not even clear how they were relevant.

[00:46:09] Speaker 02:
Well, that goes to motions in Lemonade, not your overall summary judgment for the whole case after we've already been up here.

[00:46:16] Speaker 03:
And the United States, you know, makes litigation decisions to, you know, it's not, there's not endless resources that the government has to try cases just to flesh out the facts.

[00:46:28] Speaker 03:
I mean, the United States, we looked at the evidence that was available and made a determination that on the basis of the issues decided by the district court, specifically Officer Norton's location, that he was more than 100 yards from Mr. Murray at the time Mr. Murray was shot.

[00:46:46] Speaker 03:
There is no way that a reasonable jury could conclude that Officer Norton shot Mr. Murray or that he was near him.

[00:46:56] Speaker 03:
And that factual finding by the district court precludes any grant of summary judgment for the plaintiffs in the CFC.

[00:47:07] Speaker 03:
You know, I think to go forward to a trial, I mean, a lot of litigants prefer not to go to trial.

[00:47:13] Speaker 03:
It's expensive.

[00:47:14] Speaker 03:
It's costly.

[00:47:15] Speaker 03:
And if there's a legitimate way to resolve a case before reaching trial, that should be addressed.

[00:47:24] Speaker 03:
I mean, just as the court would generally try to prefer to conserve judicial resources.

[00:47:35] Speaker 01:
Are you ready?

[00:47:35] Speaker 01:
Anything else, Kate, that you want to ask?

[00:47:38] Speaker 01:
Any more questions that you want to ask?

[00:47:41] Speaker 01:
Okay.

[00:47:41] Speaker 03:
Thank you, Your Honors.

[00:47:42] Speaker 03:
We would ask that this Court affirm the CSC's ruling.

[00:47:51] Speaker 01:
Mr. Rasmussen.

[00:47:53] Speaker 00:
Thank you.

[00:47:54] Speaker 00:
Wanted to start off with the United States discussion of Officer Byron because this was a dispute that we had in the CFC as to whether there was one witness or two.

[00:48:06] Speaker 00:
So I'm going to direct you to page 24, appendix page 24, the judge's decision.

[00:48:12] Speaker 00:
Officer Norton was the only witness to the gunshot that killed Mr. Murray.

[00:48:16] Speaker 00:
because we had this dispute.

[00:48:19] Speaker 00:
Officer Byron five years later said, I saw something and etc.

[00:48:23] Speaker 04:
He said he saw Murray fell.

[00:48:25] Speaker 04:
He saw Murray fall and Norton wasn't there.

[00:48:30] Speaker 04:
Mert, that is, there was nobody there when he saw Morton.

[00:48:33] Speaker 00:
He said that five years later.

[00:48:35] Speaker 00:
So this is the discussion we had.

[00:48:36] Speaker 00:
And so the judge.

[00:48:37] Speaker 04:
But you think that there is a, for summary judgment purposes, a genuine issue of fact about that.

[00:48:42] Speaker 00:
Yeah.

[00:48:43] Speaker 00:
So that's where I think when the judge is deciding this on summary judgment, he's saying, yeah, there was only the one witness.

[00:48:49] Speaker 00:
That was Morton.

[00:48:50] Speaker 00:
That's what we've got here.

[00:48:53] Speaker 00:
So all that discussion, again, as Judge O'Malley was pointing out, that was the argument we would love to make to the finder of facts in this case about these different allegations, like, oh, he couldn't have possibly run and done this and that sort of stuff.

[00:49:09] Speaker 00:
Those are the fact issues that the judge now needs to make an independent determination of because he can't rely on the prior Utah decision.

[00:49:22] Speaker 00:
The Utah decision does obviously use the gun.

[00:49:28] Speaker 00:
The gun is one of the big pieces of evidence.

[00:49:32] Speaker 00:
So you've got Officer Norton saying one thing.

[00:49:36] Speaker 00:
Our view is that that's not credible.

[00:49:40] Speaker 00:
The judge is saying there's corroboration of it.

[00:49:42] Speaker 00:
That included the gun.

[00:49:44] Speaker 00:
We don't have the same evidentiary landscape.

[00:49:48] Speaker 00:
Judge Campbell said, one of the reasons I'm rejecting this is because there is this other corroborating evidence, fiscal evidence.

[00:49:59] Speaker 04:
What exactly was that?

[00:50:03] Speaker 04:
That Judge Campbell referred to?

[00:50:06] Speaker 00:
My understanding is she was referring to the fact that there was one gun here, one gun there, the shell casings.

[00:50:12] Speaker 04:
The shell casings are in existence and the photographs were taken, right?

[00:50:16] Speaker 00:
Yes.

[00:50:17] Speaker 04:
So that's not missing.

[00:50:19] Speaker 00:
No, that's not missing, but what we have though is

[00:50:24] Speaker 00:
The gun itself was not tested, so we don't have the evidence from that.

[00:50:31] Speaker 00:
We don't have the evidence from either gun.

[00:50:33] Speaker 00:
And so she's saying, well, that corroborates it for me, yes.

[00:50:37] Speaker 00:
But that's where, when we change the evidentiary landscape and say this gun can't be used, or if we change the evidentiary landscape and say the other collected evidence can't be used, then we don't, for collateral estoppel purposes, that's what we're talking about here, collateral estoppel purposes

[00:50:54] Speaker 00:
We can't say, oh, we can just rely on what she said there, because if she had said, oh, I can't rely on that gun, would she have reached the same conclusion?

[00:51:03] Speaker 00:
We don't know.

[00:51:03] Speaker 00:
That's why this court in the prior case said, if it changes the evidentiary landscape, we have to then require this court, the CFC, to reevaluate that evidence.

[00:51:16] Speaker 00:
And that's what we're asking for here.

[00:51:22] Speaker 00:
The United States makes a reference.

[00:51:24] Speaker 00:
I hope the court will let me go a little longer, since they were able to.

[00:51:29] Speaker 00:
The United States references the Trentedue case out of Utah, the CFC cited that case.

[00:51:35] Speaker 00:
And I think that's a good example.

[00:51:37] Speaker 00:
In that case, there was a four-week trial.

[00:51:40] Speaker 00:
And so after that, the case is on appeal, and the judge is on appeal, saying, the standard that we have now at this point, we can't overturn that decision on spoliation.

[00:51:52] Speaker 00:
But that was after a four-week trial, where the judge

[00:51:57] Speaker 00:
the judge had all the witnesses come in, did get to evaluate credibility, all of those sorts of things.

[00:52:04] Speaker 00:
And I think there's several times here where the judge here seems to be more acting like an appellate court judge.

[00:52:09] Speaker 00:
So he's saying, you know, citing cases say, well, if I make this decision, it's under discretionary review, those sorts of things, instead of making the decision itself.

[00:52:19] Speaker 00:
The other point I wanted to make was really

[00:52:26] Speaker 00:
the remedies issue.

[00:52:29] Speaker 00:
We are not arguing here that the remedy should be dispositive because under some of the case law, it says you've got to have bad faith to have a dispositive sanction.

[00:52:44] Speaker 00:
Under the civil case law, the Micron case, for example, this court says, yeah, that's normally the case.

[00:52:50] Speaker 00:
Normally, you do have to have bad faith.

[00:52:52] Speaker 00:
But when we're looking at a case, we also have, for spoliation, we have three factors that we have to look at.

[00:53:01] Speaker 00:
And one of them is deterrence, but the other one is how do we try to re-level the playing field?

[00:53:05] Speaker 00:
And that's really where the problem we've got here, which is the evidence that was destroyed was so important, it was going to be the dispositive evidence one way or the other.

[00:53:16] Speaker 00:
The guns were going to be the dispositive evidence.

[00:53:20] Speaker 04:
I thought Judge Hurdling not only found no bad faith, but only negligence, and also said you didn't make, I think the language for Micron is something like concrete showing of prejudice, which is to say concrete showing of what it is that there is a plausible reason to expect the evidence to show that would favor you.

[00:53:50] Speaker 04:
as opposed to it's possible that there was blood on the gun, as opposed to a concrete showing of it, which you would have to show notwithstanding the photographs, which I gather don't show that.

[00:54:07] Speaker 00:
So for the civil litigation standard, we look at a number of factors.

[00:54:16] Speaker 00:
We look at the importance of the evidence.

[00:54:18] Speaker 00:
We look at the cause.

[00:54:21] Speaker 04:
I thought that this prejudice component was where Judge Hurtling was trying to figure out how do we get, how do we don't

[00:54:30] Speaker 04:
I'm sorry, overshoot the, you know, for the remedy to try to get to the, you said level the playing field.

[00:54:39] Speaker 04:
Right.

[00:54:40] Speaker 04:
And when there's prejudice, you need more of a remedy.

[00:54:44] Speaker 04:
But he at least found that he didn't think he showed that.

[00:54:50] Speaker 00:
His holding is contrary to the basic law with regard to spoliation.

[00:54:54] Speaker 00:
So for example, the case out of Puerto Rico with Walmart, or not the United States, Walmart made that same argument of, oh, well, you can't show it because we destroyed it.

[00:55:07] Speaker 00:
Or the United States here saying, well, you can't show that there was blood on Norton's gun because it wasn't tested.

[00:55:13] Speaker 00:
There could have been blood, for example, in the barrel of the gun.

[00:55:18] Speaker 00:
That is a common thing when you have a close contact wound.

[00:55:22] Speaker 00:
Blood droplets on the gun.

[00:55:24] Speaker 00:
It wasn't tested.

[00:55:25] Speaker 00:
And so, yeah, you can't show it.

[00:55:27] Speaker 00:
And this foliation law then deals with that problem.

[00:55:31] Speaker 00:
And it deals with it by saying, if it's this significant evidence that you can't just get away with saying, well, you can't show what that significant evidence was going to be.

[00:55:41] Speaker 00:
If you have something less significant, then you get into more of a, well, is there something more concrete you can point to?

[00:55:50] Speaker 00:
But when you're talking about something that is the obvious evidence, then you don't have to say, well, if it had been there, here's what it would have shown.

[00:55:59] Speaker 00:
You have to say, you have to show what

[00:56:03] Speaker 00:
would be appropriate inferences from the evidence here.

[00:56:08] Speaker 00:
So, for example, that Mr. Murray doesn't have any blood on him, that the gun doesn't seem to have any blood on it, that Norton's gun, therefore, must have been the gun that did the shooting.

[00:56:19] Speaker 00:
That's a reasonable inference.

[00:56:20] Speaker 00:
That's the most likely inference from those two facts.

[00:56:23] Speaker 00:
So, again, that's why you need to have tested it.

[00:56:26] Speaker 04:
Can you just remind me, what's the status of Norton's gun, the 40?

[00:56:31] Speaker 00:
that no one is able to say where that gun is at this point in time, but if it had blood on it, it was briefly taken by his supervisor.

[00:56:43] Speaker 00:
They swapped guns for some reason at the scene, which concerns me.

[00:56:48] Speaker 00:
They swapped guns at the scene so that Norton had his chief's gun, and then the gun was returned to Norton a couple days later.

[00:56:59] Speaker 00:
Unless there's further questions.

[00:57:01] Speaker 01:
Any more questions?

[00:57:03] Speaker 01:
Okay, thank you.

[00:57:04] Speaker 01:
Thanks to both counsels.

[00:57:32] Speaker 01:
Council, please come forward.