Browder v City of Albuquerque

Browder sued City and an officer under 42 USC 1983 alleging an off duty police officer for his own pleasure sped through numerous intersections with his lights flashing before colliding with a car killing Browder’s daughter. The officer moved for judgment based on qualified immunity. The district court denied his motion. The panel, with one judge adding a concurrence, affirmed. It held that the officer’s acts were arbitrary, were of the type that were punished at common law and are prohibited by modern state law and were done with reckless disregard of the daughter’s rights and thus were not covered by qualified immunity. The panel held the officer waived the issue of whether there is an adequate state tort remedy here, rejected the officer’s arguments for immunity as ignoring the complaint’s recitation of facts or view the facts favorable to him not Browder and held that misuse of an official vehicle has been declared a violation of the due process clause of the 14th Amendment by the United states Supreme Court and the 10th Circuit. The author of the panel’s opinion added a concurrence arguing state law here is adequate and federal courts should abstain even in substantive due process cases like this.

Mathias v Huff & Puff Trucking, Inc.

Mathias sued trucking for injuries sustained in a truck on truck collision. The district court found no permanent injuries and awarded damages to Mathias. He appealed arguing he had permanent injuries and that the district court’s law clerk had a conflict of interest. The panel affirmed. It held the district court did not clearly error in finding no permanent back injury based on medical records, Mathias’ two years of strenuous work after the accident and the weight of expert testimony. It held there was no clear error in the conclusion there was no head trauma based on the lack of documentation of memory loss or other indicia of head trauma and the weight of Matthias’ and other testimony. The panel held Mathias’ challenge to an expert witness was forfeited as he failed to object to the testimony in a timely manner. It finally held there was no need for a new trial as the law clerk’s alleged conflict of interest (her husband represented Trucking’s insurer and monitored the trial) did not violate judicial canons of ethics actually exist and there was no appearance of impropriety as the clerk played no part in drafting of the decision in the case.

Carter v Bigelow

Cater appealed the denial of his habeas petition and denial of his motion to supplement. The panel affirmed in part, reversed in part and remanded. It reversed on the supplementing issue holding that the new evidence of additional payments to the key prosecution witnesses by the police which were not disclosed to the defense should be considered as it was relevant to the existing prosecutorial misconduct claim, was timely brought given the state’s continuing obligation to provide Brady material and consideration was not barred by an earlier appeal in the case as the district court misunderstood the discussion on new claims for the supplemental evidence is part of an existing claim. It affirmed on claims of ineffective assistance of counsel as Carter’s signed confession made any error not obtaining certain files from the state harmless, the mitigation evidence presented refuted any claim of insufficient investigation. The panel held that Carter’s confession was voluntary as the interrogation was relatively brief, he was allowed breaks and mere mention of the possibility that the woman who harbored him could be arrested did not amount to coercion. It rejected Carter’s conformation claim as the confrontation clause does not apply in capital sentencing hearings. It also held the alleged misconduct at closing argument did not justify relief as one comment was not directed at Carter’s silence and the other was a stay comment about a witness’ veracity and was harmless given the confession and other evidence. The panel noted that the newly discovered evidence could change the cumulative error analysis and remanded for consideration of this claim.