In the United States Court of Federal Claims

No. 13-227L

Filed: July 8, 2020

FOR PUBLICATION

DEBRA JONES and ARDEN C. POST 

individually and as the natural parents of 

Todd R. Murray;

DEBRA JONES as personal representative 

of the Estate of Todd R. Murray, deceased, 

for and on behalf of the heirs of Todd R. 

Murray; and the

UTE INDIAN TRIBE OF THE UINTAH 

AND OURAY RESERVATION,

Plaintiffs,

v.

UNITED STATES,

Defendant.

Keywords: Summary 

Judgment, Sufficiency of 

Evidence, Issue Preclusion, 

“Bad Men” Provision

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

plaintiffs.

Kristofor R. Swanson with Terry Petrie, Natural Resources Section, Environment & Natural 

Resources Division, U.S. Department of Justice, for the defendant. Christopher R. Donovan, 

Office of the General Counsel, Federal Bureau of Investigation, and James W. Porter, Office of 

the Solicitor, U.S. Department of the Interior, of counsel.

MEMORANDUM OPINION

HERTLING, Judge

Todd Murray, a member of the Ute Indian Tribe, died of a close-contact gunshot wound 

after he and the driver of the car in which he rode were pursued by state and local police officers 

acting without law-enforcement jurisdiction on the tribe’s reservation in northeastern Utah. One 

of the pursuing officers reported seeing Mr. Murray shoot himself while the officer stood about 

100 yards from Mr. Murray. Another officer standing farther away saw significant distance 

between the first officer and Mr. Murray shortly before seeing Mr. Murray fall to the ground. A 

state medical examiner found Mr. Murray’s head wound consistent with suicide.
2

Mr. Murray’s parents brought both a district-court civil rights action against the state and 

local officers and this case, a treaty claim against the United States. In both actions, Mr. 

Murray’s parents have argued that the officers murdered Mr. Murray and conspired to destroy 

any evidence that the plaintiffs could have offered to prove the alleged homicide. In both 

actions, the plaintiffs have attributed a lack of conclusive evidence to the success of officers’ and 

federal agents’ alleged cover-up. The plaintiffs have, therefore, sought to prove their allegations 

by obtaining an evidentiary inference or default judgment against the local officers or the United 

States as a sanction for the respective defendants’ alleged spoliation of evidence.

In the civil-rights action, the district court found that the officers’ and state medical 

examiner’s testimony supporting suicide were uncontroverted because the plaintiffs offered only

speculation, not evidence, and the state and local officers could not be sanctioned for spoliating 

evidence in a federal investigation. The district court found insufficient evidence for a 

reasonable fact-finder to conclude that Mr. Murray’s death was not a suicide. The district court 

considered the officers’ liability for other parts of the pursuit and their conduct after the shooting

but granted summary judgment for the officers and their employing municipalities on all claims.

This Court found the plaintiffs’ treaty claims non-cognizable or precluded by the district 

court’s decision. The Federal Circuit reversed and remanded the case for this Court to 

reconsider, after first considering whether sanctions for the federal agents’ alleged spoliation of 

evidence might affect the preclusive effect of the district court’s decision. 

On remand, the case was transferred to this judge, and the Court found no intentional 

cover-up involving federal agents. This Court found, however, that federal agents negligently

spoliated the alleged suicide weapon that investigators had found near the spot where Mr. 

Murray was shot. As a sanction, this Court prohibited the defendant from relying on the gun or

on any inferences favorable to the defendant that could be drawn from it.

With the spoliation issue resolved, the defendant has moved for summary judgment under 

Rule 56 of the Rules of the Court of Federal Claims (“RCFC”). The Court finds that the Utah 

district court’s decision precludes the plaintiffs from proving facts essential to their treaty claims.

Moreover, some of the plaintiffs’ claims are not cognizable under the treaty’s “bad men”

provision, or are inadequately supported by evidence to conclude that crimes had been

committed against Mr. Murray, a predicate to recovery under the treaty’s “bad men” provision. 

Accordingly, the defendant’s motion for summary judgment is granted.

I. FACTS

The apparent facts of Mr. Murray’s death are described in the district court’s decision 

granting summary judgment for the local authorities. Jones v. Norton, 3 F. Supp. 3d 1170 (D. 

Utah 2014) [hereinafter Jones D. Ct. Merits], aff’d, 809 F.3d 564 (10th Cir. 2015) [hereinafter 

Jones 10th Cir.]. Those facts, as they relate to the United States, are summarized in this Court’s 

earlier opinion dismissing this case and the Federal Circuit opinion reversing that dismissal, see 

Jones v. United States, 122 Fed. Cl. 490 (2015) [hereinafter Jones Fed. Cl. Dismissal], vacated 

and remanded, 846 F.3d 1343 (Fed. Cir. 2017) [hereinafter Jones Fed. Cir.], and in this Court’s 

opinion granting-in-part and denying-in-part the plaintiffs’ motion for spoliation sanctions, 146 

Fed. Cl. 726 (2020) [hereinafter Jones Fed. Cl. Spoliation].
3

The Court draws its recitation of the facts from these previous opinions, the parties’ Joint 

Stipulations Regarding Spoliation (ECF 77), the transcript of the district court’s evidentiary 

hearing on spoliation (ECF 77-1), and the Supplemental Joint Appendix of documents from the 

district court litigation (ECF 127).1 The parties also agreed to submit as evidence the depositions 

of their respective experts (ECF 144). The Court references the plaintiffs’ allegations from the 

Amended Complaint (ECF 17) for contextual facts that are not covered by the Stipulations or 

undisputed elements of the testimony before the district court.

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

On April 1, 2007, a Utah state trooper radioed the state Central Police Dispatch advising 

that he was pursuing a car containing “two tribal males” for a speeding violation. (ECF 17 ¶ 21.) 

Mr. Murray was the passenger in the vehicle being pursued. (ECF 77 ¶ 5.) The vehicle 

eventually stopped within the boundaries of the Ute reservation, where Mr. Murray and the 

driver exited and stood on either side of the vehicle. (ECF 17 ¶ 26.) The trooper approached the 

driver and Mr. Murray, ordering them to the ground multiple times. (Id. ¶ 26.) Mr. Murray and 

the driver ran off in opposite directions. (Id. ¶ 26.) The trooper pursued and apprehended the 

driver. (Id.)

As the trooper returned to his patrol car with the handcuffed driver, off-duty Vernal City 

police officer Larry “Vance” Norton arrived on the scene wearing plain clothes and driving his 

personal car. (Id. ¶ 27.) The trooper asked Officer Norton to pursue Mr. Murray. (Id.). Another 

state trooper and a county deputy arrived next and joined the search for Mr. Murray. (Id. ¶ 29.) 

The parties stipulated that none of the state, county, or municipal officers involved could 

lawfully exercise authority over Mr. Murray on the Ute reservation. (See ECF 77 ¶¶ 8-10.)

Officer Norton testified that, after a foot chase, Mr. Murray fired at Officer Norton. (Id. ¶ 

21). Officer Norton testified that he then fired two shots back at Mr. Murray with a .40-caliber 

handgun before retreating while watching Mr. Murray over his shoulder. (Id. ¶¶ 21-22, as 

clarified by ECF 152 at 2.) Officer Norton testified that “Mr. Murray put a gun to his head as 

Officer Norton shouted at Mr. Murray to put it down, that Mr. Murray then pulled the trigger, 

and . . . collapsed.” (ECF 77 ¶ 23.) Officer Norton was the only witness to the gunshot that 

killed Mr. Murray. (See ECF 77-1 at 251.)

After Mr. Murray was shot, while he was still alive, the deputy, Anthoney Byron,

handcuffed him. (ECF 17 ¶ 33; ECF 139 at 4.) The plaintiffs allege that, half an hour after Mr. 

 

1 Because the Joint Stipulations Regarding Spoliation (ECF 77) had been submitted for the 

limited purpose of the plaintiffs’ motion for spoliation sanctions, the Court ordered (ECF 151) 

the parties to advise if they disavowed any of those stipulated facts and informed the parties that 

any facts not specifically disavowed would be accepted as true for purposes of the defendant’s 

summary judgment motion. The defendant filed a notice (ECF 152) disavowing or clarifying 

several of the stipulated facts, but the notice does not put into dispute any facts material to the 

resolution of the motion for summary judgment; the plaintiffs did not file any notice disavowing 

any of the previously stipulated facts.
4

Murray was reported shot, an ambulance arrived and took Mr. Murray—who was still alive—to 

a hospital, where he was declared dead shortly after arriving. (ECF 17 ¶¶ 39, 41.)

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

At the hospital, the plaintiffs allege, state, county, and municipal officers removed Mr. 

Murray’s clothes, unnecessarily photographed and manipulated his unclothed remains, and 

photographed one officer “sticking a finger into Murray’s head wound.” (Id. ¶ 42.) U.S. Bureau 

of Indian Affairs (“BIA”) Officer Kevin Myore was allegedly also present at the hospital. (Id.)

State, county, and municipal officers then transported Mr. Murray’s body to a mortuary 

to store it overnight until it could be transported to the state medical examiner’s office the next 

day. (Id. ¶ 43.) At the mortuary, the plaintiffs allege, the officers drew two vials of blood from 

Mr. Murray’s body by inserting a needle into Mr. Murray’s heart and asking a mortuary 

employee to make an incision in Mr. Murray’s neck. The plaintiffs allege that Federal Bureau of 

Investigation (“FBI”) Agent Rex Ashdown arrived at the mortuary and was “informed that a 

sample of Mr. Murray’s blood had been drawn earlier at the [hospital],” but did nothing to stop 

the officers from drawing more blood. (Id. ¶ 44.)

The next day, Mr. Murray’s body was moved to the state medical examiner’s office in a 

body bag. (ECF 17 ¶ 48; see ECF 77-1 at 54.) The medical examiner reported that Mr. 

Murray’s remains arrived with hands bagged. (ECF 17 ¶ 52.) He found no soot on either hand. 

(Id.) Mr. Murray’s left hand was “clean and free of any debris or blood.” (Id.) Mr. Murray’s 

right hand was “caked in blood.” (Id.)

The FBI requested that the medical examiner perform an autopsy. (ECF 77 ¶ 43.) The

state medical examiner performed an external examination of Mr. Murray but did not conduct an 

autopsy. (Id. ¶ 44.)

C. Federal Investigation

The FBI had jurisdiction to investigate Mr. Murray’s death on the reservation. (Id. ¶ 25.) 

Agent Ashdown of the FBI’s Vernal Resident Agency arrived on the scene after the ambulance 

had transported Mr. Murray to the hospital. (Id. ¶¶ 13, 24.)

Agent Ashdown testified that, on his arrival at the scene of the shooting, someone he only 

remembered as a “senior supervisory officer” told him that Mr. Murray had shot himself. (ECF 

77 ¶ 26.) Agent Ashdown documented the scene and collected evidence. The parties stipulated 

that “some or all of” the evidence collected was ultimately entered into the FBI Salt Lake City 

Division’s evidence room. (Id. ¶ 37.) The parties further stipulated that the collected evidence 

included photographs and GPS coordinates documenting the scene and the relative location of its 

elements, a .380-caliber handgun found near Mr. Murray’s body, two spent .380-caliber shell 

casings found near the .380 handgun, and two spent .40-caliber shell casings found 113 yards 

from the location of Mr. Murray’s body (Id. ¶ 34).
5

a. Documenting the Scene

Agent Ashdown “took photographs of various angles of the scene[,] . . . identified photos, 

marked exhibits, and photographed the exhibits in place from various positions, . . . collected

those items he believed had evidentiary value[,] . . . [and] placed yellow evidence placards . . . to 

mark [at least some of] the evidence he observed for later purposes to identify what he was 

looking at.” (Id. ¶¶ 27-28.) Agent Ashdown “marked and photographed some of the blood and 

blood splatter that could be identified as blood.” (Id. ¶ 29.) Agent Ashdown took GPS 

measurements of the location of found shell-casings and Mr. Murray’s body. (Id. ¶ 33.)

b. .380 Handgun

Agent Ashdown collected as evidence the .380 handgun found next to Mr. Murray’s 

body. (Id. ¶¶ 29-30.) Agent Ashdown photographed a spent shell-casing that apparently had 

failed to eject properly, “jammed” inside the .380 handgun. (Id. ¶ 36.) The FBI retained 

possession of the .380 handgun. (Id. ¶ 31.) Agent Ashdown did not request a test firing of the 

.380 handgun, later testifying that the only purpose of test firing it would have been to confirm 

that it functioned and had been fired. (Id. ¶ 35.)

c. Shell-Casings

Agent Ashdown testified that he also collected two spent .380 shell-casings from the 

ground from within the expected ejection-radius of the .380 handgun’s location. The FBI 

retained possession of the .380 shell casings. (Id. ¶ 34.)

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

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

The parties stipulated that Agent Ashdown “testified that he did not perform or request 

any testing of Officer Norton’s clothing because he did not observe anything on Officer Norton’s 

body and did not see any blow back blood or blood splatter type evidence on the clothes.” (Id.

¶ 48.) Officer Norton’s supervisor, Chief Gary Jensen of the Vernal City Police Department, 

also testified he did not see any blood or tissue on Officer Norton when Chief Jensen arrived at 

the scene. (ECF 77-1 at 215-16.)

Chief Jensen testified that he took custody of Officer Norton’s .40-caliber handgun at the 

scene and saw no blood or tissue on the gun. (Id. at 215-16.) The weapon was later returned to 

Officer Norton. (See id. at 238.) When the district court asked about his motivation for 

believing that it was not necessary to test Officer Norton’s gun or clothing, Chief Jensen 

responded:

The motivation is that, with all due respect, Vance Norton was a 

very good Detective. Vance Norton was involved in a situation. He 

described the situation. The scene appeared to be as he described it. 

It appeared to be a suicide and it was believable. I didn’t feel it was 

necessary.
6

(Id. at 222.)

e. Reliance on Officer Norton’s Account

Agent Ashdown testified that he spoke with Officer Norton at the scene to arrange an 

interview, and the conversation ended after Officer Norton stated that he would want an attorney 

present. (ECF 77-1 at 159-60.) Agent Ashdown did not remember receiving an account directly 

from Officer Norton at the scene. (Id. at 158-59.) Agent Ashdown testified that his partner later 

conducted an interview with Officer Norton and his attorney while Agent Ashdown was out of 

town. (Id. at 159-60.)

Agent Ashdown testified that he had a professional but not a personal relationship with 

Officer Norton, and that he “knew him to be a credible officer in all of the interactions I ha[d]

during the past 10 years prior to this, and I had no reason to discount the story I had been given 

as I approached that scene.” (Id. at 157.)

During the district court’s spoliation hearing, Agent Ashdown was asked whether, due to 

his reliance on Officer Norton’s account, he had neglected to document the location of various 

elements at the scene of Mr. Murray’s death to a degree that would allow a recreation of that 

scene. Agent Ashdown testified that he had not: 

Because I took the information received regarding what Officer 

Norton had reported. I had gone down to the crime scene, reviewed 

the crime scene and everything had been consistent with what I had 

been told. There was nothing inconsistent that I could see, and it 

had been determined at that time it was a suicide, and the FBI office 

and the FBI lab don't have the resources or does any department 

have the resources to take a suicide investigation to an Nth degree 

to prove something that we already know.

(Id. at 164.)

D. Alleged Meeting with the Family and Promise to Investigate

One of the plaintiffs, Ms. Jones, Mr. Murray’s mother, submitted a declaration recounting 

a meeting with Agent Ashdown on April 25, 2007, together with other members of Mr. Murray’s 

family. (ECF 14-3 ¶¶ 5-8.) Ms. Jones explains that she “understood [her] son [had] died from a 

gunshot wound to the head,” however, “when his body was returned to the family for burial, we 

were shocked to see that his neck had been slashed and then stitched together in a horrific, 

unsightly manner.” (Id. ¶ 10.)

Ms. Jones alleges that, in this meeting with Agent Ashdown, she “pleaded” with him to 

investigate the circumstances of Mr. Murray’s death. (Id. ¶ 7.) Agent Ashdown, she declared, 

“promised” the victim’s family and her that he would conduct a “full investigation.” (Id. ¶ 8.)

In this same meeting, Ms. Jones recounts, family members told Agent Ashdown that Mr. 

Murray was right-handed and asked Agent Ashdown to demonstrate on himself how a righthanded person could have shot himself on the left-side of his head above and behind his left ear.
7

(Id. ¶ 6.) Ms. Jones recounts that Agent Ashdown was “unable to position a gun in a manner 

consistent with the bullet trajectory that was reported by the medical examiner.” (Id.)

E. Forfeiture of the .380 Handgun

After Agent Ashdown’s May 2007 retirement, FBI Special Agent David Ryan took over 

the investigation of Mr. Murray’s death. (ECF 77 ¶ 14.) Agent Ryan investigated the purchase 

of the .380 handgun and assisted in the criminal prosecution of the handgun’s straw purchaser. 

(Id. ¶¶ 14, 38.) This investigation linked the gun to the driver of the vehicle in which Mr. 

Murray had been a passenger. (See ECF 118-6 at JONES0018324-25). The .380 handgun’s 

straw-purchaser was indicted in January 2008, and the indictment contained a notice of intent to 

seek forfeiture of the gun. (ECF 77 ¶ 38.)

On March 2, 2008, Ms. Jones sent a “Notice of Claims” to the Vernal City police 

department, state highway patrol, county sheriff, Uintah County, and Officer Norton. See Jones

v. Norton, No. 2:09-CV-730-TC, 2014 WL 909569, at *4 (Mar. 7, 2014) [hereinafter Jones D. 

Ct. Spoliation] (describing the Notice). Officer Norton testified that he received the Notice on 

April 1. (ECF 77-1 at 240.) The Notice summarized the facts of Mr. Murray’s death from the 

police pursuit to the examination of Mr. Murray’s body. (Id.) The Notice indicated that Ms. 

Jones intended to bring claims against the recipients for violations of Fourth Amendment 

protections against unreasonable search and seizure, Fourteenth and Fifth Amendment 

guarantees of due process, the Fourteenth Amendment guarantee of equal protection, and the 

Fifth Amendment right not to be compelled to be a witness against oneself, violation of the 

equivalent state constitutional provisions, assault and battery, intentional and/or negligent 

infliction of emotional distress, negligence, and wrongful death. Jones D. Ct. Spoliation, 2014 

WL 909569, at *4-5. The first paragraph of the Notice provided “[t]his notice should not be 

deemed to waive any cause of action that Debra Jones may have against any individual or entity, 

governmental or otherwise, who may later be determined to be ultimately responsible for the 

damages she has sustained.” Id.

The .380 handgun’s straw purchaser pleaded guilty, and the district court entered a 

preliminary forfeiture order in May 2008. (ECF 77 ¶¶ 38-40.) Pursuant to this order, the United 

States published a notice on www.forfeiture.gov for anyone to claim an interest in the gun within 

30 days. (Id. ¶ 40.)

An FBI memorandum dated September 17, 2008, recommended closing the investigation 

of Mr. Murray’s death. (ECF 118-3 at JONES0010902.) The memorandum described Mr. 

Murray’s death as a suicide and reported that the FBI had completed the prosecution of the .380 

handgun’s straw purchaser. (Id.) The memorandum further reported that “[t]he firearm 

recovered from Murray after he shot himself has been forfeited” and continued “[d]ue to an 

active civil suit involving [redacted] and the [Vernal City Police Department], items 1Bl - 1B4 
8

have been removed from FBI evidence and provided to VPD. No other items remain in FBI 

evidence.”2 (Id. (redaction in original)).

On November 14, 2008, the district court found that adequate notice had been given and 

that no one had claimed an interest in the .380 handgun. (ECF 77 ¶ 41.) The court ordered the 

.380 handgun forfeited to the United States and “disposed of according to law.” (Id.) The FBI 

took the .380 handgun “out of evidence” on November 26, 2008, and provided it to the U.S. 

Marshals Service on December 2, 2008. (Id. ¶ 42.) The Marshals Service destroyed the 

handgun, as is its routine practice.

The FBI turned over the two .380-caliber shell-casings and two .40-caliber shell-casings 

to a Vernal City police detective on December 15, 2008, “because of the Utah District Court 

litigation.” (Id. ¶ 34.)

II. PROCEDURAL HISTORY

A. Civil Rights Claims Against Local Authorities

In July 2009, the individual plaintiffs and Mr. Murray’s estate filed federal-law civil 

rights claims in state court against Uintah County, Vernal City, the state troopers, the county 

sheriff’s deputies, and Officer Norton, along with state-law “assault and battery” and wrongful 

death claims against Officer Norton individually. In August 2009, the defendants removed the 

case to the United States District Court for the District of Utah. (ECF 117-2 at JONES001018-

87.) The plaintiffs argued that Officer Norton killed Mr. Murray by shooting him in the head at 

point-blank range either with Officer Norton’s own gun or with the .380 handgun found near Mr. 

Murray’s body, and that the state, county, and municipal officers spoliated the evidence of 

Officer Norton’s act. Jones D. Ct. Merits, 3 F. Supp. 3d at 1191.

In 2014, the district court granted summary judgment for the defendant state, county, and 

municipal officers and Vernal City, holding that there was insufficient evidence for a reasonable 

jury to conclude that Officer Norton shot Mr. Murray in the head at point-blank range. Jones D. 

Ct. Merits, 3 F. Supp. 3d at 1192, 1213. In a separate decision denying spoliation sanctions 

against the defendants in that case, the district court found that certain elements of spoliation 

were met as to some evidence, but, in part because the FBI had the jurisdiction to investigate Mr. 

Murray’s death, the state, county, and municipal defendants did not have a duty to preserve the 

allegedly spoliated evidence. See Jones D. Ct. Spoliation, 2014 WL 909569, at *8 (“None of the 

named Defendants [except possibly Vernal City] can be held liable for these alleged misdeeds, 

because Agent Ashdown and Keith Campbell were in charge of the investigation.”); Jones D. Ct. 

Spoliation, 2014 WL 4825894, at *1 n.6 (D. Utah Sept. 25, 2014) (noting that the district court 

denied the motion for spoliation sanctions against Vernal City after the opportunity for additional 

briefing). 

 

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

shell casings that the FBI had collected at the shooting scene. (See ECF 77 ¶ 34.) 
9

The plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit, which 

affirmed the district court’s decisions. See Jones 10th Cir., 809 F.3d at 568.

B. Treaty Claim Against the United States

While the civil rights action against the local officers was still pending before the district 

court in February 2012, the plaintiffs notified the BIA and the Department of Justice of Mr. 

Murray’s death. (ECF 17 ¶ 75.) They sent a Statement of Claim for damages, typically a 

required precursor to filing suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, 

in March 2013. (Id. ¶ 76.) The plaintiffs never pursued a FTCA action for Mr. Murray’s death.

The plaintiffs, on April 1, 2013, filed suit against the United States in this Court. (ECF 

1.) The plaintiffs’ claims were founded on the “bad men” provision of the 1868 Treaty between

the United States and the Ute Tribe.

1. The “Bad Men” Provision

By 1868, Congress had concluded that the “aggressions of lawless white men” were the 

cause of most “Indian” wars. Jones Fed. Cir., 846 F.3d at 1348. That year, the United States 

entered into a treaty with the Ute Tribe of the Uintah & Ouray Reservation aimed at “peace 

between the Ute Tribe and white settlers.” Id. at 1348. The treaty provides:

If bad men among the whites or among other people, subject to the

authority of the United States, shall commit any wrong upon the

person or property of the Indians, the United States will . . . cause 

the offender to be arrested and punished according to the laws of the

United States, and also reimburse the injured person for the loss

sustained.

See Treaty with the Ute, art. 6, Mar. 2, 1868, 15 Stat. 619. The “bad men” clause made the 

federal government “responsible for what white men do within the Indian’s territory.” Janis v. 

United States, 32 Ct. Cl. 407, 410 (1897).

2. Court of Federal Claims Dismissal

While the appeal of the civil rights action was still pending at the Tenth Circuit, this 

Court granted the United States’ motion to dismiss for failure to state a claim. 122 Fed. Cl. at 

490, 522, 529-30. Judge Horn held that the United States could only be liable under the treaty’s 

“bad men” provision for “affirmative” criminal acts committed on the reservation, and, further,

that the plaintiffs were collaterally estopped from relitigating “the factual circumstances of Todd 

Murray’s death, and the allegations of the destruction of evidence.” Id.

3. Federal Circuit’s Reversal and Remand

The plaintiffs appealed the dismissal to the U.S. Court of Appeals for the Federal Circuit. 

The Federal Circuit vacated the dismissal and remanded the case. The Federal Circuit’s opinion

provides standards for this Court to determine which specific crimes are cognizable as wrongs 

under the “bad men” provision. See Jones Fed. Cir., 846 F.3d at 1357 (“Jones has not yet 
10

explained what particular crimes each alleged omission constituted, so we do not have concrete 

criminal-law duties to analyze.”) The Court of Appeals also directed this Court to consider 

whether federal agents spoliated evidence, and whether that spoliation affected the plaintiffs’ full 

and fair opportunity to litigate otherwise precluded issues decided by the district court in the civil 

rights action. Id. at 1363-64. The Federal Circuit’s holding and instructions are discussed more 

fully below in the relevant portions of the Court’s analysis.

4. Spoliation Sanctions

On remand, this Court found that the United States had spoliated the .380 handgun. 

Federal agents failed to disclose to the judge who ordered the illegally purchased handgun’s 

routine forfeiture and destruction that handgun’s character as potential evidence in what was then 

foreseeable litigation. The Court found no evidence of a spoliation conspiracy and further held 

that the federal agents’ discretionary choices not to collect specific pieces of evidence did not 

constitute spoliation.

As a sanction for the spoliation of the .380 handgun, the Court prohibited the United 

States from relying on any evidence related to the .380 handgun, “including the presence of an 

unejected shell casing in the destroyed handgun and the presence or absence of fingerprints or 

blowback on the handgun, to support the United States’ conclusion that Mr. Murray died by 

suicide.” Jones Fed. Cl. Spoliation, 146 Fed. Cl. at 742.

The Court declined to infer that testing of the spoliated handgun would have proven that 

Officer Norton killed Mr. Murray, finding that conclusion to be speculation based largely on the 

perceived unlikelihood that Mr. Murray would use his non-dominant hand to discharge the 

firearm and Officer Norton’s circumstance as the lone witness. Id. at 742-43. The Court found

“no basis sufficient for the Court to distinguish [the plaintiffs’] theory from other possibilities 

that incorporate the same facts.” Id. at 743.

5. Discovery and Motion for Summary Judgment

Following the Federal Circuit’s mandate to apply the “bad men” provision to specific 

crimes and to consider the effect of any spoliation sanctions on the preclusion of specific issues, 

the Court directed limited discovery as to specific crimes the plaintiffs allege as “wrongs.” (ECF 

148.) On January 24, 2020, the defendant served the plaintiffs with requests for admission and 

interrogatories (ECF 150-5), noting a 30-day deadline to respond. The defendant requested that

the plaintiffs identify the specific individuals that they allege to be “bad men” under the treaty 

provision, the crimes each is alleged to have committed, and citations to the federal or Utah 

criminal statutes for each crime. On February 7, the defendant filed its answer.

The plaintiffs served the defendants with their responses on March 3, 2020, 39 days after 

the defendant served its requests, and 25 days after the defendant served its answer.3 The 

 

3 The defendant argues that its requests for admissions are admitted because the plaintiffs

responded nine days late. See RCFC 36(a)(3). The plaintiffs argue that their responses were six 
11

plaintiffs qualified their responses with objections that the requests and interrogatories called for

legal conclusions and that their responses are protected work product. The responses allege that 

Officer Norton committed murder, negligent or reckless homicide, battery, and any lesser 

included offenses against Mr. Murray.

4

 (ECF 150-6 at 3.)

As additional “bad men,” the plaintiffs identify 21 individuals, mostly law enforcement 

officials, who were presumably present or supervised others who were present at the shooting 

scene, hospital, mortuary, or medical examiner’s office; they also identify eight government

entities and a private business related to the individuals:

FBI Agent Rex Ashdown

FBI Agent David Ryan

United States Federal Bureau of Investigations

United States Bureau of Indian Affairs

Vance Norton, Uintah County Sheriff's office

Craig Young, Utah Highway Patrol

Anthony Byron, Uintah County Sheriff's Department

Jeff Chugg, Utah Highway Patrol

Troy Slaugh, Uintah County Sheriff's Department

Sean Davis, Utah Division of Wildlife Resources

 

days early because the 30-day clock to respond to the defendant’s requests started when the 

defendant filed its Answer on February 7, not when the requests were served. See RCFC 

26(d)(1) (providing the Joint Preliminary Status Report conference as the start of discovery); 

RCFC Appendix A ¶ 3 (providing that parties confer on the Joint Preliminary Status Report 

(“JPSR”) after the Answer is filed). The defendants maintain that the 30-day clock started at 

service of the requests because the parties had already conferred on a JPSR and some discovery 

had already occurred in this case before the defendant served the requests for admission.

The Court deems the plaintiffs’ argument regarding the deadline as a timely request to 

withdraw and amend its deemed admissions. See United States v. Petroff-Kline, 557 F.3d 285, 

294 (6th Cir. 2009) (“Despite its failure to have filed a formal motion to withdraw its claimed 

admissions, the Government's filing of a slightly overdue response effectively served as such a 

withdrawal.”). The defendant has not been prejudiced by the nine-day delay, and permitting 

withdrawal promotes the resolution of this case on the merits. See RCFC 36(b); Gwynn v. City 

of Philadelphia, 719 F.3d 295, 299 (3d Cir. 2013) (“The prejudice contemplated by Rule 36(b), 

however is not simply that the party who obtained the admission now has to convince the [fact 

finder] of its truth. Something more is required.”) (citation omitted).

4 The plaintiffs listed the relevant statutory provisions as 18 U.S.C. §§ 13, 1111, 1112, 1117, 

1152 and Utah Code §§ 76-5-202 (e), (f), (k), (s); 76-5-201 76-5-205, 206,209.
12

Gary Jensen, Logan Police Department, Logan, Utah

Rex Olsen, Utah Highway Patrol

Bevan Watkins, Uintah County Sheriff's Department

Keith Campbell, Vernal City Police Department

Ben Murray, Vernal City Police Department

Dave Swenson, Utah Highway Patrol

James Beck, . . . Bureau of Indian Affairs

("BIA") Police Chief at the time

Terrance Cuch

Kevin Myore

Colby Decamp, . . . St. George, Utah

Mitch Blackburn, Vernal, Utah, owner of Blackburn Mortuary

Dr. Edward Leis, M.D., Office of Medical Examiner, State of Utah

Vernal City Police Department

Uintah County Sheriff's office

Uintah County, Utah

State of Utah Office of Medical Examiner

State of Utah Highway Patrol

State of Utah

Blackburn Mortuary

(ECF 150-6 at 1-2.)

The plaintiffs intend to assert that all these alleged “bad men,” along with Officer Norton,

conspired to commit the following crimes defined by federal statute:

Criminal trespass, 18 U.S.C. §§ 13, 1152, 1165[;] 1868 Treaty Art[.]

2.

Obstruction of justice, 18 U.S.C. §§ 13, 1152, 1503, 1505, 1506, 

1510, 1511, 1512, 1513, 1519.

Unlawful arrest and detention, [18 U.S.C.] §§ 13, 1152.

Kidnapping, 18 U.S.C. § 13, 1152, 1201.

Conspiracy against rights, 18 U.S.C. §§ 13, 1152, 241, 242.

Hate crimes, 18 U.S.C. §§ 249.

False claims and conspiracy to defraud United States, 18 U.S.C. §§ 

13, 1152, 286, 287, 371.
13

Wire fraud, 18 U.S.C. § 1343.

Injury to government property, 18 U.S.C. §§ 13, 1152, 1361.

Pe[r]jury and subornation of perjury, 18 U.S.C. §§ 13, 1152, 1621, 

1622.

Destruction of records or evidence, 18 U.S.C. §§ 13, 1152, 2071, 

2232.

RICO, [18] U.S.C. Ch. 96. [§§ 1962, 1963(a)]

Conspiracy to commit each of the above, §§13, 1152.

Accessory after the fact for all of the above and for Norton's crimes, 

18 U.S.C. §§ 3, 13, 1152.

Misprision of felony related to all of the above and related to 

Norton's crimes, 18 U.S.C. §§ 4, 13, 1152.

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

Further, the plaintiffs intend to prove that the alleged “bad men,” including Officer 

Norton, committed the following crimes defined by Utah statute and incorporated into federal 

law, 18 U.S.C. § 13, 1152, or, alternatively directly under general principles of Utah criminal 

law, Utah Code §§ 76-2-101; 76-2-202; 76-2-204; 76-2-205, and the Utah conspiracy and 

attempt statutes, §§ 76-4-201; 76-4-202; 76-4-101:

Assault, §76-5-102.

Reckless endangerment §76-5-112.

Kidnapping, §76-5-301.

Criminal mischief, §76-6-106.

Criminal Trespass, §76-6-206.

Official or unofficial misconduct §§76-8-201, 203.

Interference with public servant or peace officer, §§76-8-301; 76-8-

305.

Obstruction of criminal investigation, §76-8-306.

Doing business without a license, §76-8-410.

Destruction of government property §76-8-412 or 413.

False statement and pe1jury; §§76-8-502 to 506.

Retaliation against a witness, victim, or information, § 76-8-508.3.

Tampering with evidence, falsification or alternation of government 

record, §§76-8-

510.5, 511.

Impersonation of officer, §76-8-512.
14

Disorderly conduct §76-9-102.

Disrupting a funeral or memorial service, §76-9-108.

Abuse or desecration of a dead human being, §76-9-704.

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

The defendant moves for summary judgment on all the plaintiffs’ claims. The defendant 

argues that for the plaintiffs to prove the elements of many of the crimes they cite, they would be

required to relitigate factual findings and legal conclusions previously litigated and resolved by

the district court. According to the defendant, the doctrine of issue preclusion forbids the 

plaintiffs from relitigating these claims, now that the Court has refused to grant the plaintiffs’ 

request for adverse evidentiary inferences against the defendant based on the defendant’s alleged 

spoliation of evidence. The defendant further argues that the crimes the plaintiffs allege 

occurred that were not resolved by the district court are not cognizable under the “bad men”

provision.

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

III. ANALYSIS

Summary judgment is appropriate when no material fact is in genuine dispute and the law 

entitles the moving party to judgment. See RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). One way a defendant can demonstrate that no material fact is genuinely 

disputed is by showing that the plaintiffs lack sufficient evidence to prove an essential element of 

their claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (“[A] complete failure of 

proof concerning an essential element of the nonmoving party’s case necessarily renders all other 

facts immaterial.”) If the plaintiffs respond to such a motion by pointing to sufficient evidence 

for the Court reasonably to find an essential element of the plaintiffs’ claim, the Court will find a 

genuine dispute, deny summary judgment, and allow the plaintiffs a chance to prove their claim 

at trial. See Anderson, 477 U.S. at 248. The plaintiffs’ response “must point to an evidentiary 

conflict created on the record; mere denials or conclusory statements are insufficient.” SRI Int'l v. 

Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985) (en banc).

In this case, for the plaintiffs to prevail, they must prove that a non-Indian committed one 

or more federally punishable crimes against Mr. Murray’s person or property on the reservation 

or as a direct result of actions on the reservation. The plaintiffs identify 26 federal- and state-law 

crimes (or categories of crimes) that they intend to prove were committed as “wrongs” 

compensable under the “bad men” provision by the 30 officials or entities the plaintiffs have 

identified.

The defendant’s motion for summary judgment exhaustively demonstrates, on a crimeby-crime and fact-by-fact basis, how issue preclusion, the terms of the “bad men” provision, or a 

complete lack of evidence prevents the plaintiffs from proving each identified crime at trial. For 

many of the crimes, the defendant identifies multiple bases for summary judgment in its favor.

The plaintiffs respond that issue preclusion is inapplicable but otherwise do not 

comprehensively rebut all the defendant’s more specific arguments regarding proof of specific 
15

crimes that the plaintiffs have identified. The plaintiffs’ response argues in essence that they do 

not need to respond. They argue that the defendant has the burden on summary judgment, and 

that the defendant’s motion tries impermissibly to shift the burden to the plaintiffs. The plaintiffs 

have failed to meet the defendant’s demonstration of specific material facts by pointing to 

evidence that tends to contravene or put those facts into dispute. 

Even having accepted some of the plaintiffs’ more specific legal objections and rejected 

some of the defendant’s arguments, the Court finds that the defendant is entitled to judgment as a 

matter of law on other bases suggested in its motion, and the plaintiffs point to no genuine issue 

of material fact that would preclude summary judgment. 

Some of the identified crimes are not plausibly relevant to the allegations in the amended 

complaint, and the plaintiffs have not clarified their relevance. Others are not cognizable under 

the “bad men” provision because they are not federally punishable or were not committed 

“against the person or property of the Indians,” as the treaty provision’s language requires. 

Summary judgment is appropriate for all these claims.

Establishing liability for the remaining, cognizable crimes requires the plaintiffs to prove

that the bad men they have identified committed arrestable, prosecutable criminal acts with the 

intent specified in the federal or state statute defining each crime. The plaintiffs made clear 

when amending their complaint that they based their claims on the action or inaction of 

“individual federal officers,” not their employing federal agencies. See Fed. Cl. Dismissal, 122 

Fed. Cl. at 501. The state of Utah, its agencies, and political subdivisions listed by the plaintiffs

are not arrestable, and thus cannot be “bad men” under a provision that is limited to arrestable 

wrongs. See Jones Fed. Cir., 846 F.3d at 1356 (relying on the provision’s reference to the arrest 

of “bad men” as a basis to limit cognizable wrongs to arrestable conduct or omissions, and

rejecting broader, less literal interpretations of the word “arrest”). Summary judgment is 

therefore appropriate as to these claims. 

As for the officials that the plaintiffs identify as “bad men,” the district court’s decision 

precludes the plaintiffs from litigating many of the facts relevant to their acts or intent. For the 

crimes addressing conduct based on stipulated facts, the plaintiffs lack sufficient evidence for 

this Court—as a trier of fact—to find reasonably the necessary criminal intent. Accordingly, 

summary judgment is also appropriate as to these claims.

A. Issue Preclusion and Spoliation

Finding that federal agents spoliated the .380 handgun has not changed the evidentiary 

landscape for the central issues relevant in this case decided by the district court, such as the 

cause of Mr. Murray’s death. The district court’s decision of these issues precludes relitigating 

them in this Court.

Whether issue preclusion applies is a question of law and is therefore appropriately 

resolved on summary judgment. See United States v. Gallardo-Mendez, 150 F.3d 1240, 1242 
16

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

case.5

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

1. The issue previously decided is identical with the one presented 

in the action in question;

2. The prior action has been finally adjudicated on the merits;

3. The party against whom the doctrine is invoked was a party, or in 

privity with a party, to the prior adjudication; and

4. The party against whom the doctrine is raised had a full and fair 

opportunity to litigate the issue in the prior action.

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

1132, 1136 (10th Cir. 2004)).

As between this case and the district-court action, the plaintiffs conceded the second and 

third elements to support issue preclusion before the Federal Circuit. Id. at 1362. Accordingly, 

the Court need only consider the first and fourth elements: (1) whether an issue raised in this 

case is identical to an issue decided in the district court, and (2) whether the plaintiffs had a full 

and fair opportunity to litigate the issue in the district court.

The Federal Circuit held that the plaintiffs were not, as Judge Horn had held for this 

Court, collaterally estopped from litigating whether Mr. Murray had shot himself, and whether 

federal agents had spoliated evidence. The Federal Circuit explained that collateral estoppel, or 

“issue preclusion,” requires, among other things, identical issues and a full and fair chance to 

litigate the issues that were decided in the prior action. Jones Fed. Cir., 846 F.3d at 1362-64. 

The Federal Circuit held that “[t]he culpability of the federal officers for spoliation” could not 

 

5 Following Judge Horn’s decision to apply Tenth Circuit issue-preclusion law, the Federal 

Circuit concluded that “[t]he elements of issue preclusion are essentially the same under Federal 

Circuit and Tenth Circuit law,” and that choice of law was thus not dispositive of the issues it 

decided on appeal. Jones Fed. Cir., 846 F.3d at 1361 n.7. Unlike res judicata between courts of 

different states, there appears to be no clear choice-of-law rule for a federal court measuring the 

preclusive effect of an earlier federal-court decision. At least one other circuit has applied the 

Federal Circuit’s issue-preclusion precedent to measure the preclusive effect of a patentinfringement action. See Matter of Provider Meds, L.L.C., 907 F.3d 845, 852 & n.21 (5th Cir. 

2018), cert. denied, 139 S. Ct. 1347, 203 L. Ed. 2d 570 (2019); Edward H. Cooper, Res Judicata 

Between Federal Courts, 18B Fed. Prac. & Proc. Juris. (Wright & Miller) § 4466 (2d ed. 2020). 

This approach is consistent with the rule proposed by legal scholars, that “[a]ny court, state or 

federal, must ascribe to the judgment of any other state or federal court the res judicata effects 

that would be recognized by the court that rendered the judgment.” Edward H. Cooper, Res 

Judicata Between Federal Courts, 18B Fed. Prac. & Proc. Juris. (Wright & Miller) § 4466 (2d 

ed. 2020).
17

have been precluded by the district court’s resolution of the plaintiffs’ civil rights suit because 

the issue “[had] never been decided.” Id. at 1363. The Federal Circuit noted that the district 

court had denied spoliation sanctions not because it found no spoliation, but merely because it 

found that the named-defendant local authorities could not have been responsible for any 

spoliation by federal investigators who were not named defendants in the district-court action. 

Id. at 1362-63.

Additionally, the Federal Circuit held that this Court could not determine that the 

plaintiffs had had a full and fair chance to litigate the substantive issues decided in the district 

court without first deciding how any spoliation might have affected the evidence available to 

prove various elements of the plaintiffs’ discrete claims. The Federal Circuit instructed:

If the [Court of Federal Claims (“CFC”)] concludes on remand that 

spoliation sanctions are not appropriate, or that the appropriate 

sanctions would not change the evidentiary landscape for particular 

issues, the CFC may reconsider the application of issue preclusion. 

If it determines that sanctions are appropriate and do change the 

evidentiary landscape, the CFC should independently consider 

Jones’s substantive allegations of bad men violations.

Id. at 1363-64.

In their task to prove that the “bad men” they identify committed the crimes they identify, 

the plaintiffs do not start with a clean slate. Many of the act and intent requirements of the 

crimes they identify implicate facts that were decided against them by the district court. 

Principles of issue preclusion prohibit relitigating these facts in this Court.

The plaintiffs in this case, by needing to prove acts and intent inconsistent with the 

district court’s factual findings, raise issues identical to those decided in their district court case. 

Although the district court’s ultimate legal conclusions used the legal standards for civil rights

violations, the district court explicitly described the facts that it found and applied to those 

standards as insufficient evidence to prove the alternative explanation of Mr. Murray’s death

alleged by the plaintiffs. Relitigating those same facts on the basis of the same evidence, even if 

applying them to a different legal standard, raises issues identical to those already decided by the 

district court. Further, the federal agents’ spoliation did not deprive the plaintiffs of a full and 

fair opportunity to litigate these identical issues in the district court.

1. “Identical” Issue

The issue resolved in the prior litigation and the issue presented in this case must be 

identical for issue preclusion to apply. When an earlier decision addresses a purely factual 

question, such as what happened, the issue in the later case need only address those same events 

to be considered “identical.” See Overseas Motors, Inc. v. Import Motors Ltd., Inc., 375 F. 

Supp. 499, 518 n.66 (E.D. Mich. 1974), judgment aff'd, 519 F.2d 119 (6th Cir. 1975). When an 

earlier decision addresses the legal significance of a fact, such as whether what happened was 

reasonable or constituted a criminal act or tort, the issue in the later case must implicate the same 

legal standards and tests that the earlier decision applied in order to be considered “identical.”
18

Id.; see also Bobby v. Bies, 556 U.S. 825, 834-35 (2009) (considering a defendant’s “mental 

retardation” under a newly decided legal standard for Eighth Amendment purposes even though

the sentencing court had already considered mental retardation as a mitigating factor).

The body of issues that the earlier court decides is not strictly limited to the ultimate

questions the earlier court answers but may include other issues necessarily decided along the 

way, including issues necessarily implied in the definition of a claim or defense. For example, in

Fenwick v. Pudimott, the D.C. Circuit held that a civil rights plaintiff’s assault conviction in D.C.

superior court for the same incident in which the plaintiff alleged that police used excessive force 

“constrained[ed]” how the court viewed the facts in deciding whether the defendant-officers 

were entitled to qualified immunity. 778 F.3d 133, 138 (D.C. Cir. 2015) (“[T]he Superior Court 

Judge, in finding that Fenwick committed felony assault on [the officer], necessarily determined 

that [the plaintiff-driver] created ‘a grave risk of causing significant bodily injury’ to [the officer]

when, ‘without justifiable [and] excusable cause,’ he drove the car forward in a manner that put 

the deputy in danger of being hit.”) (citation omitted, quoting the relevant assault statute); see 

also Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1273 (10th Cir. 1995) (rejecting claims 

alleging facts that were “inconsistent with facts underlying the prior judgment”).

The district court’s grant of summary judgment to the local officers and municipalities 

necessarily decided the following issues that constrain this Court’s view of facts the plaintiffs 

must prove to prevail on their “bad men” claims:

a. The Officers’ Distance from Mr. Murray

In the district court, the plaintiffs argued that the officers had violated Mr. Murray’s 

Fourth Amendment right against unreasonable seizure by surrounding him with a “perimeter” of 

police officers, shooting Mr. Murray in the head, or handcuffing Mr. Murray at gunpoint after 

the shooting—all without any law-enforcement jurisdiction to pursue or arrest a tribe member on 

the reservation. Except for the extra-jurisdictional handcuffing of Mr. Murray after he was shot, 

the district court found no seizure. See Jones D. Ct. Merits, F. Supp. 3d at 1186-93. 

Specifically, the district court found that there was insufficient evidence for a jury reasonably to

conclude that any officers, including Officer Norton, were ever less than 100 yards from Mr. 

Murray in terms of surrounding him to prevent his escape. Id. at 1187, 1191 (“The officers were 

one to two hundred yards away from Mr. Murray and did not have him 

surrounded. . . . Detective Norton was more than 100 yards away when Mr. Murray was shot.”). 

b. The Cause of Mr. Murray’s Death

The district court found insufficient evidence that Officer Norton had shot Mr. Murray in 

the head. Id. at 1192 (“Because direct evidence (unrefuted by admissible evidence) that Mr. 

Murray's gunshot wound was self-inflicted, it could not be a physical restraint imposed by 

Detective Norton. Consequently, the fatal shot was not a seizure by a law enforcement 

officer.”). The district court concluded, “[b]ased on the evidence in the record, no reasonable 

jury could find that Detective Norton inflicted the mortal blow to Mr. Murray.” The district 

court noted that the plaintiffs had offered mere “speculation” that Officer Norton shot Mr. 

Murray in the head at point-blank range, “not evidence.” Id. at 1191.
19

c. No Harm from Handcuffing

The plaintiffs’ excessive force claim, as it related to handcuffing, required the district 

court to find some physical or emotional harm to Mr. Murray caused by the alleged use of force. 

Id. at 1194. The district court found “no evidence of physical harm or emotional harm to Mr. 

Murray” from the handcuffing. It noted that “[t]he manner in which Deputy Byron handcuffed 

Mr. Murray was simple and the least intrusive way to secure the scene for the EMTs.”

d. The Officers’ Motives

The civil-rights-specific, ultimate questions of fact that the district court answered are 

not, themselves, identical to the criminal act and intent elements that the plaintiffs must prove to 

prevail on their “bad men” claims. While deciding whether Deputy Byron was entitled to

qualified immunity for handcuffing Mr. Murray without jurisdiction, whether the officers used 

excessive force, and whether the officers acted with racial animus, however, the district court 

considered and accepted as uncontroverted the officers’ explanations of the knowledge and 

motives driving their conduct. For example, when finding that Deputy Byron was entitled to 

qualified immunity, the district court considered what Deputy Byron knew and when he knew it. 

The district court supported its conclusion that Deputy Byron’s actions were reasonable with 

these facts:

Here, Deputy Byron did not know the identity of Mr. Murray or 

anything about him other than his involvement in the high-speed 

chase, his flight from a police officer, subsequent exchange of gun 

shots, and a gun on the ground next to Mr. Murray. He rushed onto 

the scene and had little time to assess the situation before he 

handcuffed Mr. Murray. He knew he had a wounded suspect and 

that emergency personnel were on the way. He secured the scene, 

as he was trained to do. Securing the scene, no matter what it might 

present, is a reasonable response by a police officer.

Id. at 1194. To defeat Deputy Byron’s motion for summary judgment, the plaintiffs could have 

pointed to evidence that Deputy Byron knew more or was acting based on an impermissible 

motive. The district court’s grant of summary judgment for Deputy Byron relying on these facts 

precludes, or at least severely limits, the plaintiffs’ ability in this case to prove criminal 

knowledge and intent without relitigating what Deputy Byron knew and why Deputy Byron took 

the actions that he did.

The district court’s grant of summary judgment for the local officers on the plaintiffs’ 

excessive-force claim required a similar examination of the state of mind of each officer when 

pursuing Mr. Murray. For the plaintiffs to prove that the officers’ pursuit amounted to excessive 

force under the Due Process Clause, the plaintiffs needed to point to evidence that the officers’ 

conduct was “arbitrary, or conscience shocking, in a constitutional sense,” in that it could be 

characterized as the “most egregious official conduct.” Id. at 1195. The district court found that 

“[a]ll of the Plaintiffs’ claims of egregious behavior stem from their complaint that the actions 

took place on the Reservation and were aimed at an enrolled member of the tribe.” The district 

court then relied on the officers’ accounts to find the pursuit was not egregious but “reasonable 
20

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

reasonableness finding:

Mr. Murray was part of a high speed chase and fled from Trooper 

Swenson. This information created sufficient concern in the 

officers’ minds about Mr. Murray's motives for the flight and the 

danger he posed, if any. They reasonably believed he had 

committed at least one crime (flight from a police officer) and 

pursuing him for that was reasonable. Even though the BIA police 

had been called as a precaution, no BIA police officer was there at 

the time. It was completely reasonable to apprehend the fleeing 

suspect so they could fully investigate and turn him over to the 

proper authorities, if necessary. There is no evidence that the 

officers were acting like a posse to capture the “Indian,” as Plaintiffs 

have argued. Although Plaintiffs paint it that way, they do so 

without evidence to support their theory.

Id.

The district court further concluded that Officer Norton’s firing his gun at Mr. Murray 

was reasonable because “Mr. Murray shot at [Officer] Norton first,” and Officer Norton “was 

retreating to protect himself when he shot back.” Id. The district court concluded that “[n]one of 

the officers' actions were egregious or conscience shocking,” and that “[t]heir attempt to 

apprehend Mr. Murray while protecting themselves—and the means they used to do so—were 

expected police behavior in light of the circumstances.” Id.

Finally, the district court’s grant of summary judgment for the officers on the plaintiffs’ 

hate-crimes conspiracy claims directly considered the officers’ motives, not only as a supporting 

fact but as an ultimate question of fact. After considering the perspective and information 

available to each officer involved, the district court concluded that “no reasonable jury could find 

that the facts offered by the Plaintiffs amount to invidious racial animus toward Native 

Americans generally, or Mr. Murray in particular.” Id. at 1201. With the plaintiffs’ having 

presented some evidence of racial tension between law enforcement and Native Americans, see 

id. at 1201 n.89, this issue offered the plaintiffs their best opportunity to present evidence of the 

criminal knowledge or intent that they must prove to prevail in this case. The plaintiffs failed to 

do so.

Despite answering different ultimate questions than those presented in this case, these 

and the district court’s other reasonableness findings rely on state-of-mind facts that include the 

officers’ knowledge and motives for the officers’ conduct. These knowledge-and-intent issues

are identical to those at stake in this case. This Court applies these and other examples from the 

district court’s factual findings as it considers the factual issues raised by the actus reus and 

intent requirements of each alleged crime identified by the plaintiffs as having been committed in 

violation of the “bad men” provision. Overall and with respect to their particular elements, the

crimes that the plaintiffs have alleged and must prove in this case raise issues identical to those 

decided by the district court.
21

2. Full and Fair Opportunity to Litigate

The Federal Circuit overturned this Court’s earlier application of issue preclusion 

because this Court had not considered whether the alleged spoliation of evidence by federal 

agents had deprived the plaintiffs of evidence that they might have used to litigate their factual 

contentions fully and fairly before the district court. The Federal Circuit explained:

Though the district court did ultimately decide that Murray shot 

himself and that there was no conspiracy, the preclusive effect of 

that conclusion is explicitly limited to situations where no additional 

evidence (possibly in the form of spoliation sanctions) arises out of 

the federal officers’ actions with respect to the evidence.

The culpability of the federal officers for spoliation has never been 

decided, and to assume the resolution of such a central issue ipse 

dixit without substantive consideration “depriv[es] litigants of their 

first chance[ ] to litigate an issue,” and is an improper application of 

issue preclusion.

Jones Fed. Cir., 846 F.3d at 1363 (citation omitted) (quoting Levi Strauss & Co. v. Abercrombie 

& Fitch Trading Co., 719 F.3d 1367, 1371 (Fed. Cir. 2013)).

The Federal Circuit’s mandate on remand instructed this Court to consider the plaintiffs’ 

spoliation allegations in the first instance and the appropriate sanction for such spoliation, if any. 

Id. at 1363-64. It then provided that if “the appropriate spoliation sanctions would not change 

the evidentiary landscape for particular issues, the [Court of Federal Claims] may reconsider the 

application of issue preclusion.” Id.

The evidentiary prohibition this Court imposed for the United States’ spoliation of the 

.380 handgun reduces the evidence available to the United States to argue that Mr. Murray shot

himself, but it does not augment the evidence that is available to the plaintiffs now—or was 

available in the district court—to prove that Officer Norton shot Mr. Murray. As the defendant 

notes, Officer Norton’s motion for summary judgment in the district court did not rely on the gun

this Court found had been subject to spoliation by the defendant. 

This Court’s spoliation sanction changes the evidence, but does not change the 

evidentiary “landscape” for any particular question at issue. The plaintiffs argue that a reduction

in the evidence available to the defendants in this Court versus that available to them in the 

district court is necessarily a change in the evidentiary landscape. That view is inconsistent with 

how courts typically use the term—to distinguish between harmless and prejudicial error 

affecting proof of a particular issue.

6

 

6 Courts have consistently described changes or differences in an “evidentiary landscape” as

“material” or otherwise legally or factually determinative. The Court finds it unlikely that the 
22

The district court’s finding of insufficient evidence of an execution-style shooting, racial 

animus, or a conspiracy did not depend on the .380 handgun that federal agents spoliated. This 

Court has prohibited the defendant from relying on the .380 handgun as evidence in this case, but 

that prohibition adds nothing to the evidence available to the plaintiffs to prove their factual 

contentions of homicide, conspiracy, and cover-up. The sanction applied for the spoliation of the 

gun also does not affect the evidentiary landscape as to the police pursuit or the existence of a 

cover-up or other alleged conspiracy.

The federal agents’ spoliation did not deprive the plaintiffs of a full and fair opportunity 

to litigate whether Officer Norton shot and killed Mr. Murray or whether local authorities and 

federal agents conspired to destroy evidence of Mr. Murray’s homicide before the district court. 

Accordingly, the district court’s decision precludes relitigating identical issues raised in this case.

B. Cognizable Claims

Summary judgment for the defendant is proper for any of the crimes that the plaintiffs 

identify as “wrongs” that are not federally punishable because they are preempted by federal 

statute or implicate only off-reservation conduct.

The Federal Circuit affirmed that a “wrong” cognizable under the treaty’s “bad men”

provision must be an arrestable, prosecutable crime. Id. at 1356. Further, cognizable wrongs 

under “the laws of the United States” include state criminal offenses made federally punishable 

by the Assimilative Crimes Act, 18 U.S.C. § 13, “which makes federally punishable any act or 

omission committed on ‘[a]ny lands reserved or acquired for the use of the United States, and 

 

Federal Circuit’s concise omission of “material,” “essential,” “determinative,” or another similar 

legally descriptive term was meant to depart from the uniform sense in which courts have

referred to a “change” in the “evidentiary landscape.” See, e.g., Musladin v. Lamarque, 555 F.3d 

830, 850 (9th Cir. 2009) (finding no violation of a criminal defendant’s due process rights, 

reasoning that the trial was not “fatally infected” by the exclusion of evidence when “the 

essential evidentiary landscape—that the only evidence of Musladin's self-defense was his own 

statements—would remain the same had the proffered testimony been allowed”); see also United 

States v. Ribota, 792 F.3d 837, 841 (7th Cir. 2015) (discussing substitution of charges in 

response to a “materially altered evidentiary landscape”); United States v. LaDeau, 734 F.3d 

561, 571 (6th Cir. 2013) (finding that the government failed to demonstrate that the “evidentiary

landscape has materially altered” for substitution of charges); Griffin v. Johnson, 350 F.3d 956, 

959 (9th Cir. 2003) (describing a fingerprint expert’s reversal of his earlier conclusion that would 

have exculpated the defendant as a “sudden shift in the evidentiary landscape [that compromised 

the] defense strategy”); United Elec. Radio & Mach. Workers of Am. (UE) v. 163 Pleasant St. 

Corp., 987 F.2d 39, 47 (1st Cir. 1993) (finding “perceived voids in the evidentiary landscape” 

that required finding a lack of jurisdiction); Tie Tech, Inc. v. Kinedyne Corp., 296 F.3d 778, 784 

(9th Cir. 2002) (distinguishing case from precedent as presenting a “decidedly different 

evidentiary landscape”).
23

under the exclusive or concurrent jurisdiction thereof,’ where that act or omission would be 

punishable under state law if committed within the state’s jurisdiction.” Id. at 1357 (quoting 18 

U.S.C. § 7 (defining the territorial jurisdiction to which 18 U.S.C. § 13 applies)).

The Federal Circuit rejected, however, some of this Court’s conclusions as to the nature 

of cognizable wrongs and the territorial applicability of the “bad men” provision. The Federal 

Circuit rejected this Court’s requirement that a “wrong” be an affirmative act. See id. at 1355-

57. Instead, the Federal Circuit held that an omission, i.e., the failure to act, could also constitute 

a “wrong” under the “bad men” provision. Id. Finding that the plaintiffs had, however, failed to 

identify the alleged omissions with specific crimes, the Federal Circuit left this Court to 

reconsider the “bad men” provision’s application to omissions in the context of specific crimes,

in the event that the plaintiffs could establish any of the omissions they alleged to be cognizable 

crimes under the “laws of the United States.” Id.

Additionally, the Federal Circuit rejected the requirement from this Court’s dismissal of 

the plaintiffs’ claims that the conduct constituting a wrong must occur entirely on the 

reservation. Id. at 1361. The Federal Circuit cautioned that it was not rejecting the existence of 

a geographic limitation. Id. Rather, it specified that this Court had “erred in summarily 

dismissing Jones’s allegations of off-reservation wrongs without considering the connection 

those alleged wrongs had, if any, to the alleged on-reservation wrongs.” Id. The Federal Circuit 

left to this Court to determine, “in the first instance, whether any of the[] off-reservation acts 

demonstrate the alleged continuation of on-reservation acts so as to be cognizable under the bad 

men provision.” Id. at 1361.

Some of the state-law crimes identified by the plaintiffs implicate conduct outside of the

reservation’s boundaries. The defendant acknowledges that the Assimilative Crimes Act makes 

state-law crimes, such as desecration of a corpse, federally punishable when committed on the 

reservation, but argues that any assimilated state-law offenses are not federally punishable, 

cognizable wrongs when committed outside of the reservation’s boundaries.

Some of the federal-law crimes identified by the plaintiffs also implicate off-reservation 

conduct. The defendant argues that, for off-reservation conduct like the destruction of the .380 

handgun to constitute a cognizable wrong under the treaty’s “bad men” provision, the wrong 

must be a clear continuation of an on-reservation wrong. Thus, according to the defendant, even 

if the local officers’ or federal agents’ off-reservation conduct can be established as 

independently-punishable federal crimes, those crimes are not cognizable wrongs under the 

treaty’s “bad men” provision because they do not clearly continue an on-reservation wrong.

The defendant argues that some of the identified state-law crimes are preempted by 

analogous federal crimes or only implicate off-reservation conduct not federally punishable, and 

thus not cognizable as a “bad men” claim. The defendant further argues that the plaintiffs’ 

failure to prove an on-reservation wrong precludes them from proving off-reservation wrongs.

1. State-Law Crimes

Conduct must be criminally punishable under federal law in order to constitute a wrong 

under the “bad men” provision. State-law crimes can only be cognizable wrongs under the “bad 
24

men” provision if they are not preempted by federal law and were committed on the reservation.

Otherwise, state-law crimes are not punishable under federal law and, thus, not cognizable 

wrongs under the “bad men” provision.

a. Preemption of State-Law Crimes

As explained above, the Federal Circuit held that the universe of crimes cognizable as 

“wrongs” under the “bad men” provision includes state-law crimes made federally punishable

within federal enclaves by the Assimilative Crimes Act, 18 U.S.C. § 13, and applied to Indian 

reservations by the Indian Country Crimes Act, 18 U.S.C. § 1152. The Assimilative Crimes Act 

does not, however, assimilate into federal law state-law crimes consisting of conduct that 

Congress punishes under an independent federal statute. Lewis v. United States, 523 U.S. 155, 

159-66 (1998); see Jones Fed. Cir., 846 F.3d at 1357. The plaintiffs identify several state-law 

crimes with obvious federal analogs, like murder, manslaughter, assault, kidnapping, attempt, 

and conspiracy. The defendant argues that the Court should not consider these state-law crimes 

as cognizable wrongs because they are preempted by their federal-statute analogs.

When deciding whether federal law makes punishable the same conduct prohibited by a 

state criminal statute, the Supreme Court has rejected both a broad reading of the Assimilative 

Crimes Act’s exception that would let “any” federal crime, like assault, preempt even a

qualitatively different state crime, like murder. See Lewis, 523 U.S. at 162. The Supreme Court 

also has rejected a narrower reading of the Act’s exception that would make an additional 

element or a different definition in a state offense sufficient to displace Congress’s considered

approach to punishing the same harm. Id. at 164. Instead, the Court has provided a specific test 

that accounts for both the Assimilative Crimes Act’s language and its gap-filling purpose.

A court must focus on the “act or omission” prohibited by the state statute. If (literally)

“any” federal statute punishes that “act or omission,” a court must ask whether the applicable 

federal statutes preclude application of the state law in question because the state law would 

“interfere with the achievement of a federal policy” by “effectively rewrit[ing] an offense 

definition that Congress carefully considered or because federal statutes reveal an intent to 

occupy so much of a field as would exclude use of the particular state statute at issue.” Id. at 

164-65 (citations omitted).

The Supreme Court rejected a one-size-fits-all answer to the question of Assimilative 

Crimes Act preemption but offered three rules of thumb. First, the Act does not apply when both 

statutes “seek to punish approximately the same wrongful behavior—where, for example, 

differences among elements of the crimes reflect jurisdictional, or other technical, 

considerations, or where differences amount only to those of name, definitional language, or 

punishment.” Id. at 165.

Second, “assimilation may not rewrite distinctions among the forms of criminal behavior 

that Congress intended to create.” Id. “[O]rdinarily, there will be no gap for the [Assimilative 

Crimes] Act to fill where a set of federal enactments taken together make criminal a single form 

of wrongful behavior while distinguishing (say, in terms of seriousness) among what amount to 

different ways of committing the same basic crime.” Id. (citation omitted).
25

“At the same time, a substantial difference in the kind of wrongful behavior” covered by 

the federal versus the statute statutes “will ordinarily indicate a gap for a state statute to fill—

unless Congress, through the comprehensiveness of its regulation, or through language revealing 

a conflicting policy, indicates to the contrary in a particular case.” Id. at 165-66. The Supreme 

Court emphasized that “[t]he primary question . . . is one of legislative intent: Does applicable 

federal law indicate an intent to punish conduct such as the defendant's to the exclusion of the 

particular state statute at issue?” Id.

This issue raises a list of complex questions as long as the list of state-law crimes 

identified by the plaintiffs. In this case, it raises these questions in an uncommon context, far 

less concrete than the appeal of an individual criminal conviction. Although the Court might 

have held some of the identified state-law crimes preempted by their obvious federal analogs, 

harmonizing those conclusions with the scores of other decisions to consider these issues in 

criminal prosecutions would delay decision and add complexity to a case that can be resolved

fairly on other grounds. The application of issue preclusion and consideration of analogous 

intent requirements in both the federal and state versions of the crimes the plaintiffs identify 

eliminate the need for the Court to consider whether the identified state-law crimes are 

preempted by their analogous federal statutes.

b. Off-Reservation State-Law Crimes

The state-law crimes that are made federally punishable by the Assimilative Crimes Act 

and applied to Indian reservations by the Indian Country Crimes Act are not federally 

punishable, as a general matter, outside of the reservation’s boundaries. See 18 U.S.C. § 13; 

Gov’t of Virgin Islands v. Dowling, 866 F.2d 610, 615 (3d Cir. 1989) (rejecting a defendant’s 

argument based on the Assimilative Crimes Act because the defendant acted outside of a federal 

enclave and within the jurisdiction of the local legislature). As a result, state-law crimes 

committed outside of the reservation cannot be wrongs under the “bad men” provision.7

The plaintiffs’ allegations that Mr. Murray’s corpse was desecrated rely solely on 

provisions of Utah criminal law. Mr. Murray was not pronounced dead until he arrived at the 

hospital, which was located outside of the reservation. The mortuary and medical examiner’s 

office were also outside of the reservation. State-law desecration of a corpse might be a 

federally punishable crime, and thus a cognizable wrong under the “bad men” provision, if 

committed on the reservation. The treatment of Mr. Murray’s body at the hospital, mortuary, 

and state medical examiner’s office, however, fall outside of the geographical reach of the 

 

7 While it may be possible to commit some of an assimilated state-law crime’s elements 

within the reservation while committing other elements outside of the reservation, all of the 

state-law crimes at issue in this case other than conspiracy include a location-based element that 

would likely be jurisdictionally determinative if, in other circumstances, the same crime were 

committed partially in-state and partially out-of-state. In any case, the plaintiffs do not allege 

these types of crimes here.
26

Assimilative Crimes Act. Accordingly, these state-law crimes do not constitute federal crimes in 

this case and, therefore, are not “wrongs” under the “bad men” provision.

2. Federal-Law Crimes Committed Outside of the Reservation

To be cognizable as wrongs under the “bad men” provision, independently-punishable 

federal crimes (those not dependent on the Assimilative Crimes Act for their application) 

committed outside of the reservation’s boundaries must be a clear continuation of on-reservation 

conduct. See Jones Fed. Cir., 846 F.3d at 1360-61.

The defendant argues that the Federal Circuit set a narrower standard, that an offreservation wrong must be a clear continuation of an entirely on-reservation “wrong”—a 

complete on-reservation crime. Examination of the language of the Federal Circuit’s opinion 

shows ambiguity as to this point. This Court concludes, however, that the defendant’s reading of 

the Federal Circuit’s decision as requiring an independently sufficient on-reservation predicate 

crime misconstrues the Federal Circuit’s holding.

The Federal Circuit’s opinion referred to on-reservation “wrongs,” “acts,” and 

“activities” interchangeably when discussing the predicate condition for a cognizable offreservation wrong. See Jones Fed. Cir., 846 F.3d at 1361. Its use of “wrong,” strictly construed, 

suggests that a complete crime must occur on the reservation and then continue off the 

reservation or result in a separate off-reservation crime. Other sentences in the opinion, 

however, referred to “acts” or “activities” that must be directly continued for an off-reservation 

wrong. The use of “acts” or “activities” suggests that a single crime, with on-reservation 

conduct satisfying some elements and off-reservation conduct satisfying the remaining elements, 

might constitute a cognizable “wrong” under the “bad men” provision.

Moreover, the need to consider off-reservation conduct at all suggests that on-reservation 

conduct insufficient to constitute a complete crime is cognizable under the “bad men” provision 

when considered together with off-reservation conduct that is a clear continuation of the onreservation conduct. If the Federal Circuit’s rejection of this Court’s prior holding that ignored 

off-reservation conduct was meant to ensure that a plaintiff could prove two completed wrongs 

instead of one, then the defendant’s interpretation makes sense. If, on the other hand, the Federal 

Circuit’s rejection of a strictly territorial application of the “bad men” provision was meant to 

allow a plaintiff to prove a single completed wrong when the plaintiff could otherwise prove 

none, then this Court’s interpretation rejecting the defendant’s reading of the Federal Circuit’s 

decision is more appropriate.

Although the Court disagrees with the defendant’s reading of the Federal Circuit’s ruling, 

the Court nevertheless reaches the result the defendant urges. Even without considering the 

location where specific acts occurred, the plaintiffs have failed otherwise to prove the act or 

intent requirements for the identified, federally-punishable crimes that reach and implicate their 

allegations of off-reservation conduct, like conspiracy, perjury, false statements, or destruction of 

evidence or official records. The Court addresses the insufficiency of the evidence for each 

category of crime below.
27

C. Proof of Particular Crimes

As a preliminary matter, the defendant argues that the following crimes alleged by the 

plaintiffs do not plausibly fit within the allegation of the amended complaint and therefore 

cannot form the basis for liability under the “bad men” provision: hunting, trapping, or fishing on 

Indian lands; conspiracy to defraud the United States to obtain payment or allowance; false 

claims against the United States; conspiracy to commit an offense against or defraud the United 

States; wire fraud (requiring intent to obtain money or property); injuries to or depredation of 

federal property; racketeering; obstruction of criminal investigations through bribery; obstruction 

of state or local law enforcement to facilitate illegal gambling; intimidation of jurors or judicial 

officers; theft or alteration of judicial records; intentional destruction of property through 

criminal mischief; doing business without a license; disorderly conduct in refusing a law 

enforcement order or causing public inconvenience; and disruption of a funeral or memorial 

service. (See ECF 150-1 at 15.)

With the exception of “conspiracy to commit an offense against or defraud the United 

States,” which serves as the general federal conspiracy provision, the Court agrees that the 

relevance of these identified crimes is unclear. The plaintiffs fail to clarify how their allegations

of these crimes and the evidence they can present are sufficient to prove the act and intent 

elements of these crimes; indeed, the plaintiffs merely accuse the defendants of impermissibly 

shifting the burden of production to the plaintiffs. (ECF 156 at 5-6.) The Court has 

independently reviewed the record in the case, with no assistance or guidance from the plaintiffs,

and has found the allegations of these offenses identified by the plaintiffs unsupported by any 

facts. Accordingly, the Court finds no issue of material fact as to these potential wrongs that 

would preclude summary judgment for the defendant.

The Court considers the other crimes identified by the plaintiffs as the basis for liability 

under the “bad men” provision as they relate to the plaintiffs’ allegations and the facts before the 

Court.

1. Homicide

The crux of this case is the plaintiffs’ allegation that Officer Norton murdered Mr. 

Murray. The parties agree that Mr. Murray died from a close-contact gunshot wound to the 

head. Proving murder or any of the other homicide crimes identified by the plaintiffs requires 

proof that Officer Norton caused this close-contact gunshot wound. The district court found that 

none of the officers was closer than 100 yards from Mr. Murray before Mr. Murray was shot. 

The district court decision finding that Mr. Murray shot himself precludes the plaintiffs from 

litigating this fact.

The plaintiffs may also contend that the officers involved in the pursuit (and those 

arriving before Mr. Murray was taken away in the ambulance) are guilty of some form of 

criminal homicide because they did not provide appropriate on-scene medical aid. To prove that 

allegation, the plaintiffs would need to show both intent and proximate cause. See United States 

v. Serawop, 410 F.3d 656, 663–64 (10th Cir. 2005) (discussing mens rea); United States v. 

Swallow, 109 F.3d 656, 659 (10th Cir. 1997) (proximate cause).
28

Here too, the plaintiffs are collaterally estopped as to the State and local officers’ 

inaction. The district court already considered the questions of the officers’ state of mind and 

whether the alleged failure to provide medical aid was a proximate cause of Mr. Murray’s death. 

Jones D. Ct. Merits, 3 F. Supp. 3d at 1208 (finding no evidence to support a conclusion that the

defendants were “deliberately indifferent” or knew there was a substantial risk of harm); id. at 

1208–09 (finding no evidence to support conclusion that aid at scene would have saved Mr. 

Murray’s life). The district court also held that the officers fulfilled any duty owed to Mr. 

Murray when they called the ambulance. See id. at 1207.

Because the alleged commission of a homicide or related criminal behavior was fully and 

fairly litigated before the district court by the plaintiffs in reliance on the same evidentiary 

landscape before this Court, the plaintiffs are precluded from pursuing their “bad men” claim by 

proving a homicide crime.

2. Assault and Reckless Endangerment

The plaintiffs’ allegations of state-law assault and reckless endangerment appear to stem 

from Officer Norton having fired his gun in retreat and from Deputy Byron having handcuffed 

Mr. Murray. See Am. Compl. ¶¶ 32, 33, 67; accord Jones 10th Cir., 809 F.3d at 575 (noting 

allegations of excessive force allegedly committed by Officer Norton, Trooper Young, and 

Deputy Byron). The plaintiffs do not dispute the defendant’s supposition that these claims rest 

on the actions cited in the amended complaint in the referenced paragraphs.

The plaintiffs did not identify the federal assault statute as a potential wrong they intend 

to prove at trial. See 18 U.S.C. § 113. Without deciding whether the federal assault statute 

preempts the Utah assault statute, the Court nevertheless finds that the plaintiffs would not be 

able to prove criminal liability under the Utah statute if this claim were to proceed to trial. Utah

law justifies the reasonable use of force by Officer Norton and Deputy Byron, and the district 

court’s decision precludes the plaintiffs from arguing that these officers’ use of force was not 

reasonable.

The Utah criminal-assault provision on which the plaintiffs rely requires “unlawful force 

or violence.” Utah Code Ann. § 76-5-102(1). The Utah reckless endangerment statute makes it a 

crime to “recklessly engage[ ] in conduct that creates a substantial risk of death or serious bodily 

injury to another person.” Utah Code Ann. § 76-5-112(1). This standard requires proof that the 

officers’ conduct was “a gross deviation from the standard of care that an ordinary person would 

exercise under all the circumstances as viewed from the actor’s standpoint.” State v. Robinson, 

63 P.3d 105, 107 (Utah Ct. App. 2003) (stating the general standard for criminal recklessness); 

Utah v. Carter, 2005 UT App. 232, No. 20040637-CA, 2005 WL 1177063, at *1 (Utah Ct. App.

May 19, 2005) (unpublished) (applying general recklessness standard to reckless endangerment

offense).

Utah law, however, justifies the use of “any force, except deadly force, which [the actor] 

reasonably believes to be necessary to effect an arrest or to defend himself or another from 

bodily harm while making an arrest.” Utah Code Ann. § 76-2-403. A peace officer is justified 

in using even deadly force if “the officer reasonably believes that the use of deadly force is
29

necessary to prevent death or serious bodily injury to the officer or another person.” Utah Code

Ann. § 76-2-404(1)(c).

The plaintiffs already had a full and fair opportunity to litigate the question of whether 

Officer Norton and Deputy Byron acted reasonably. The excessive-force question before the 

district court—like the assault and reckless endangerment claims that would be before this 

Court—presented for necessary resolution the issue of the reasonableness of the officers’ actions. 

See Jones D. Ct. Merits, 3 F. Supp. 3d at 1194 (quoting Graham v. Connor, 490 U.S. 386, 396–

97 (1989)). The district court determined that it was “reasonable under the circumstances for 

Detective Norton to fire his gun at Mr. Murray. Mr. Murray shot at Detective Norton first.

Detective Norton was retreating to protect himself. . . . [The officers’] attempt[s] to apprehend 

Mr. Murray while protecting themselves—and the means they used to do so—were expected

police behavior in light of the circumstances.” Id. at 1195. Plaintiffs are therefore precluded

from arguing in this Court that Officer Norton’s or Deputy Byron’s actions were unreasonable 

such that either could be found guilty under Utah’s assault or reckless endangerment statutes.

3. Kidnapping

The plaintiffs cannot prove that the officers kidnapped Mr. Murray when they pursued 

and handcuffed him. See Pls.’ Resp. to U.S. Interrog. No. 5 (citing 18 U.S.C. § 1201; Utah Code 

Ann. § 76-5-301). The federal kidnapping statute punishes anyone who, within certain territorial 

and other limitations, “unlawfully seizes” a person. 18 U.S.C. § 1201(a). As with assault, the 

existence of a federal kidnapping statute may preclude the Assimilative Crimes Act from 

incorporating into federal law the state-law kidnapping offense identified by the plaintiffs. 

Without deciding that issue, however, the Court finds that the plaintiffs would not be able to 

prove either the federal- or state-law elements of kidnapping at trial.

The defendant argues that the officers did not “unlawfully” seize Mr. Murray because the 

district court found that most of the officers’ conduct did not amount to a seizure for Fourth 

Amendment purposes, and the one act that did—handcuffing Mr. Murray without lawenforcement jurisdiction—was reasonable. This argument takes the district court’s 

reasonableness finding out of its qualified-immunity context.

The district court first concluded that, under binding Tenth Circuit precedent, Deputy 

Byron’s handcuffing of Mr. Murray without law-enforcement jurisdiction was per se unlawful as

an unreasonable seizure that violated Mr. Murray’s Fourth Amendment rights. Jones Dist. Ct. 

Merits, 3 F. Supp. 3d at 1192 (citing Ross v. Neff, 905 F.2d 1349, 1353–54 (10th Cir.1990)). The 

district court then considered whether Deputy Byron was entitled to qualified immunity, finding

him immune from suit for the Fourth Amendment violation. Finding Deputy Byron’s actions 

reasonable for qualified immunity did not excuse, justify, or render the handcuffing “lawful” so 

as to preclude proof of an “unlawful[ ]” seizure under the federal kidnapping statute.

Nevertheless, both the federal and Utah kidnapping statutes require that the unlawful

seizure, detention, or restraint be intentional or knowing. While considering the reasonableness 

of Deputy Byron’s conduct, the district court found that the officers did not learn that Mr. 

Murray was a Ute Tribe member until the EMTs retrieved Mr. Murray’s identification card while 

tending to him, 30 minutes after the shooting and after Mr. Murray had been handcuffed. See
30

Jones Dist. Ct. Merits, 3 F. Supp. 3d at 1183. Thus, the officers did not know that they lacked 

jurisdiction to arrest him when Deputy Byron handcuffed him. Relatedly, the district court found 

no evidence of racial animus and no evidence of intent to “hunt” an Indian. Id. at 1199-1201. 

The plaintiffs had the full and fair opportunity to litigate these facts and thus are precluded from 

relitigating them here. Although Deputy Byron seized Mr. Murray “without authority of law,” 

the plaintiffs are precluded from proving that Deputy Byron did so intentionally or knowingly. 

The plaintiffs cannot prove the federal- or state-law crime of kidnapping. 

4. Criminal Trespass

The defendant ascribes the plaintiffs’ identification of criminal trespass, Utah Code Ann. 

§ 76-6-206, as a potential “wrong,” to the officers’ lack of law-enforcement authority on the Ute 

Tribe’s reservation. Criminal trespass in this context, however, would be an alleged wrong

against the Tribe, not against Mr. Murray. The Ute Tribe does not have standing to bring a claim

under the treaty’s “bad men” provision. See Hebah v. United States, 428 F.2d 1334, 1337 (Ct. 

Cl. 1970); Hernandez v. United States, 93 Fed. Cl. 193, 200 (2010). This Court reached that

conclusion in granting the United States’ motion to dismiss. See Jones Fed. Cl. Dismissal, 122 

Fed. Cl. at 528 n.31. Additionally, the plaintiffs conceded the point before the Federal Circuit. 

Pl.-Appellants’ Principal Br. at 37 n.8, filed Dec. 14, 2015, Jones Fed. Cir., No. 2015-5148.

5. Conspiracy

The plaintiffs allege that the officers conspired to kill Mr. Murray and cover up their 

actions. See Am. Compl. ¶¶ 17, 67, 70. To prove a conspiracy, the plaintiffs would need to 

prove an agreement or “meeting of the minds” to murder Mr. Murray and cover it up. See

United States v. Anderson, 981 F.2d 1560, 1563–64 (10th Cir. 1992) (under federal law); Utah

Code Ann. § 76-4-201 (conspiracy is when one “agrees with one or more persons to engage in or 

cause the performance of the conduct. . . .”). With respect to the State and local officers, the 

plaintiffs litigated and lost this exact issue in the district court. See Jones D. Ct., 3 F. Supp. 3d at 

1197–99, 1201–06. The district court found no direct evidence of a “meeting of the minds.” The 

district court then considered whether the plaintiffs had produced any circumstantial evidence of 

a conspiracy to violate Mr. Murray’s rights. It considered whether the officers decided not to 

provide CPR to Mr. Murray after the shooting so that he would not survive to contradict Officer 

Norton’s version of events and rejected the claim.

That finding leaves no conspiracy for the federal agents to have joined, and the plaintiffs

offer no evidence of a purely federal conspiracy to cover up the local officers’ alleged conduct. 

The federal agents also could not have conspired to murder Mr. Murray because no federal 

agents arrived at the scene until after the shooting. See Pls.’ Resp. to Req. for Admis. No. 2.

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

Evidence

The defendant argues that crimes related to interference with government investigations 

or judicial proceedings, including witness tampering and retaliation, perjury, and interference 

with public servants are not cognizable under the specific language of the “bad men” provision.

1868 Treaty, art. 6, 15 Stat. 619 (“any wrong upon the person or property of the Indians . . .” 
31

(emphasis added)); see also Banks v. Guffy, No. 1:10-cv-2130, 2012 WL 72724, at *6 (M.D. Pa. 

Jan. 10, 2012) (no viable “bad men” claim for property belonging to someone else). The “bad

men” provision’s language, the defendant argues, focuses on the individual tribal victim rather 

than on the tribe or some “broader sense of societal harm” because Article 6 of the treaty 

“concerns the rights of and obligations to individual Indians. . . .” Hebah, 428 F.2d at 1337. The

procedural crimes identified by the plaintiffs, the defendant further argues, “would be crimes 

against a public interest in achieving justice, not against Mr. Murray’s “person or property.” Nor 

would these crimes, the defendant concludes, be “peace-shattering crimes of ‘moral turpitude’

that the ‘bad men’ provision was intended to cover.” ECF 150-1 at 30-31 (quoting Hernandez, 

93 Fed. Cl. at 199 & n.5).

The Court is skeptical that perjury or other procedural offenses can fairly be construed as

categorically victimless crimes when committed in the course of an investigation or judicial 

proceeding to determine whether an individual’s constitutional rights were violated. The Court, 

however, need not decide whether these crimes can be wrongs “against the person or property of 

the Indians” because all these crimes include an intent element that the plaintiffs cannot prove. 

See, e.g., 18 U.S.C. § 1519 (“Whoever knowingly alters, [or] destroys, . . . with the intent to 

impede, obstruct, or influence the investigation or proper administration of any matter within the

jurisdiction of any department or agency of the United States . . . .” (emphasis added)). The 

same points apply to the identified crimes relating to destruction or manipulation of judicial or 

government records, and abuse or unauthorized use of official power. See 18 U.S.C. §§ 1519, 

2071, 2232; Utah Code Ann. §§ 76-8-201, 76-8-203, 76-8-412, 76-8-413, 76-8-510.5, 76-8-511, 

76-8-512.

This Court found no intent to destroy or withhold evidence on the part of federal agents,

see Jones Fed. Cl. Spoliation, 146 Fed. Cl. at 737–41, and the record is bereft of any evidence of 

any such intent. If the plaintiffs had evidence that federal or local officers engaged in a coverup or destroyed evidence, they ought to have presented it to support their motion for spoliation 

sanctions. The plaintiffs offered no such evidence when they had both the chance to present it 

and the maximum incentive to convince the Court that anything beyond the federal agents’ 

negligent destruction of the .380 handgun occurred. Likewise, the plaintiffs offered no evidence 

of a conspiracy involving federal or local officers to destroy evidence. Having failed to bring 

forth such evidence on their motion for spoliation sanctions, the plaintiffs fail to point to any 

evidence sufficient to create a genuine issue of material fact in response to this motion for 

summary judgment.

The Court finds no disputed material facts with respect to the obstruction of justice, false 

statements, and destruction of evidence or government records crimes identified by the plaintiffs. 

Without evidence of the requisite intent on the part of any federal or local officer to commit 

these crimes, summary judgment for the defendant on these claims is appropriate.

7. Criminal Civil Rights Violation

The defendant argues that the plaintiffs are precluded from seeking to prove that the state 

and local officers violated Mr. Murray’s constitutional rights under § 1983’s criminal analog, 42 

U.S.C. § 242. The plaintiffs may be precluded from relitigating the same civil rights allegations 

rejected by the district court, but it is unclear why the similarity in subject matter between the 
32

two statutes, by itself, would preclude the plaintiffs from proving violations of Mr. Murray’s 

civil rights not considered by the district court.

Moreover, the district court found that Deputy Byron violated Mr. Murray’s Fourth 

Amendment rights by handcuffing Mr. Murray without enforcement jurisdiction. Deputy Byron

escaped liability for that violation by asserting qualified immunity. Deputy Byron’s personal 

immunity from civil suit for the violation, however, does not extend to the United States, should 

it be found liable for his conduct that would otherwise amount to a crime via the “bad men”

provision. The Tenth Circuit appears to have erred in recognizing that Deputy Byron’s extrajurisdictional handcuffing of Mr. Murray was a seizure violating Mr. Murray’s rights, but 

treating the finding of qualified immunity for Deputy Byron as if it had found that no violation 

had occurred—effectively imputing Deputy Byron’s immunity from suit for the violation to 

Uintah County.8 See Owen v. City of Indep., Mo., 445 U.S. 622, 638 (1980) (“[T]the 

municipality may not assert the good faith of its officers or agents as a defense to liability under 

§ 1983.”).

The Court respects the Tenth Circuit’s decision as to Uintah County but will not accept 

the defendant’s argument and perpetuate the error by imputing Deputy Byron’s qualified 

immunity from civil suit for the seizure to the United States. Deputy Byron’s good-faith belief 

that he had enforcement jurisdiction over Mr. Murray garners Deputy Byron immunity from civil 

suit, but it does not make the handcuffing at gunpoint any more lawful.

Although the district court’s qualified immunity holding does not preclude “bad men” 

liability for the United States, the district court’s subsidiary finding that the officers’ actions 

were reasonable relies on state-of-mind facts inconsistent with the intent that § 242 requires. A 

criminal violation of civil rights must be “willful.” Screws v. United States, 325 U.S. 91, 101-04

(1945) (plurality opinion) (“[Willful] generally means an act done with a bad purpose. . . . 

[M]ore is required than the doing of the act proscribed by the statute. . . . [T]he specific intent

required by the Act is an intent to deprive a person of a right. . . .”), narrowed on other grounds

by United States v. Lanier, 520 U.S. 259, 259-60 (1997).

The district court’s finding that the officers’ actions were reasonable, based on its 

examination of the officers’ knowledge and motives, precludes the plaintiffs from both 

relitigating and proving that Deputy Byron’s handcuffing, or any other potential constitutional 

 

8 The Tenth Circuit cited Apodaca v. Rio Arriba County Sheriff’s Department, 905 F.2d 

1445, 1447-48 (10th Cir.1990), which cites City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986). In those cases, unlike in the Jones civil rights action, however, no constitutional 

violation was found. Indeed, in Ross v. Neff, 905 F.2d 1349, 1353–54 (10th Cir.1990), the 

precedent that required the district court and Tenth Circuit panel to acknowledge that the extrajurisdictional handcuffing was a per se Fourth Amendment violation, the Tenth Circuit granted 

the arresting officer qualified immunity but remanded the case for a trial against the County, 

citing Owen v. City of Indep., Mo., 445 U.S. 622 (1980).
33

violations not already precluded, were willfully criminal. Accordingly, summary judgment for 

the defendant is appropriate on this claim.

IV. CONCLUSION

The Court GRANTS the United States’ motion for summary judgment on all the 

plaintiffs’ claims. An order is being issued concurrently with this Memorandum Opinion

directing the entry of judgment for the defendant on all counts.

s/ Richard A. Hertling

Richard A. Hertling

Judge