Vogt v City of Hays; City of Haysville et al.

Vogt appealed the dismissal of his complaint against Cities and several police officers alleging violation of his 5th Amendment right against self-incrimination alleging his statements had been compelled and used in a probable cause hearing. The panel affirmed in part, reversed in part and reamed. Resolving an open question in the circuit, the panel joined the three circuit ( and declined to join three others)  and held that the self-incrimination right applies in the probable cause hearing setting because the language of the 5th Amendment does not limit the right to trial, defendants were barred from testifying in their own behalf at the time of the adoption of the 5th Amendment, the right was limited during drafting to criminal cases and the language was understood to extend beyond trial as evidenced by trial rights being gathered in the 6th Amendment. The panel noted that the United States Supreme Court has stated in dicta that self-incrimination privilege is a trial right, but, noted it extended the right to sentencing hearings suggesting a broader application. It affirmed qualified immunity for the officers as the applicability of the self-incrimination right at a probable cause hearing was not established when the statements were taken as no case on point was decided by either the Supreme Court or 10th Circuit and other circuits were split on the issue. It affirmed as to Haysville because the requirement to tell Hays police about a knife or not be hired as a police officer was not coercive as Vogt could have not made the statement and remained a hays police officer. It reversed as to Hays because the complaint states enough facts (required incriminating statements about possessing knife, threat of firing if statements were not made and obtaining more details which were forwarded to another agency requesting criminal investigation) to prove causation, the police chief is alleged to have final decision-making authority over police employees under circuit precedent and fifth amendment violations can support 1983 liability. One judge added a concurrence emphasizing that the panel only decided if the self-incrimination privilege applies at probable cause hearings and nothing else.

Helget v City of Hays

Helget appealed summary judgment to City on her First Amendment retaliation claim. The panel, with one member adding a concurrence, affirmed. It held that summary judgment was appropriate here as City’s interest in having its police department operate smoothly was strong given Helget was the department’s secretary, handled confidential information and by disclosing confidential information without authorization in an affidavit supporting the claim of a fired officer, Helget lost the trust of the police chief why could have interfere with department operations by preventing Helget from doing her job and serving as the central information point for the department and Helget’s interest in her affidavit was low as it did not reveal misconduct and was done in support of an adverse party to the department without raising the issue with the new police chief before doing so and thus City’s interest as employer outweighed Helget’s first Amendment rights. It held that there was no reversible error in the district court’s failure to rule on Helget’s spoliation motion before granting summary judgment as Helget failed to notify the district court that the spoliation issue needed to be decided first to prevent a premature grant of judgment. The concurrence argued that Helget’s affidavit was not per se a matter of public concern as it was not live testimony in a civil proceeding and was done voluntarily.

In re the Appointment of Umpire for Hayes Family Trust v State Farm Fire & Casualty Company

Trust appealed the vacation of a judgment confirming an appraisal amount and the denial of its motion for prejudgment interest, attorney fees and costs. The panel affirmed. It held there was jurisdiction over the appeal because the vacating order actually ended the litigation and is thus a final order. It rejected trust procedural argument holding that State Farm was allowed to argue in its motion to vacate that the district court erroneously rejected its legal argument in its objection to confirmation that Trust’s acceptance of the award amount without reservation resolved the dispute about the amount owed under the policy and the district court explained its change of reasoning. It affirmed the vacating order holding that State Farm’s voluntary payment with  reservation of rights and Tryst’s unconditional acceptance of the payment settled the claim in question as the award amount only bound Trust Under Oklahoma law and there was no reservation in connection with the acceptance of the payment and there was no confession of judgment as the only issue in this case was the appointment of an umpire not the underlying liability or damage amount which was at issue in a separate case between trust and State arm. It finally held that Trust’s argument what it was a prevailing party entitled to interest, attorney fees and costs was unpreserved as the district court never ruled on it and failed on the merits as there was no judgment entered in this case which is a perquisite for prevailing party status.

Front Range Equine Rescue v Vilsack and Valley Meat Company, LLC

Valley appealed the denial of its motion to collect on the injunction bond posted by Rescue. The panel affirmed. It held that while damages are presumed in a wrongful enjoinder situation under the earliest circuit case on point, that presumption does not apply here as no court held Valley had been wrongly enjoined and denial of a motion to permanently enjoin cannot be the basis for such a finding and, in any event, Valley never even moved for such a finding.

United States v Juszczyk

Juszczyk appealed the denial of his motion to suppress. The panel affirmed. It held the record supported the district court’s conclusion that Juszczyk abandoned his backpack with drugs in it when he threw it on someone’s roof, the owner of the property only allowed him to fix his bicycle in her backyard and neither would have got the backpack for Juszczyk or allowed him to get it.

United States v Harris

Harris appealed the denial of his motion to vacate his sentence arguing his Colorado robbery conviction was not a violent felony for career criminal purposes. The panel, with one judge concurring, affirmed. It held that a violent felony under the elements test requires that the crime be committed with violent force meaning force capable of causing physical pain or injury to another, that the Colorado robbery statute has been interpreted by the Colorado supreme court to require violence or placing the victim in fear as set out in both common law decision and prior Colorado precedent or by threats or intimidation which must involve physical violence against a person as threats to property support a theft conviction not a robbery conviction and thus the conviction here meets the criteria for violent felony and the enhanced sentence given to Harris was correct. The concurrence argued that Harris never raised the issue of whether robbery based on threat or intimidation meet the elements test and thus the majority’s analysis was dicta which got the issue wrong because Colorado precedent allows conviction for threats to rights in addition to threats of violence force.

United States v Walker

The government appealed Walker’s sentence arguing it was too short. The panel, with one member adding a concurrence, reversed and remanded. It held the district court failed to consider mandatory factors of punishment, general deterrence, the need to incapacitate a 12 time bank robber, respect for the law and the need to not have unwarranted sentencing disparities as no similar bank robber that the panel could find ever received a 33 day time served sentence before. The panel noted this was consistent with circuit precedent as a 57 month sentence for a robber of many banks was deemed dot low. The concurrence added that the fact Walker robbed two banks in the current case outweighed his drug rehabilitation or any other characteristic argued below.

In re Natural Gas Royalties Qui Tam Litigation (Grynberg, realtor)

Grynberg appealed the district court orders awarding attorney fees at district court level and o appeal. The panel affirmed in part and reversed in part. It affirmed as to district court level fees as Grynberg intentionally omitted key evidence that many of those he accused of paying improperly low royalties through artificially low measurements of gas extracted were not in fact responsible to pay royalties and in fact provide no evidentiary support for his low royalty theory and thus his claims were frivolous. It reversed the appeals fee award because no statute authorized the award, the first appeal dealt with the final judgment of dismissal not an interlocutory order and the prevailing parties in the first appeal were prevailing parties when the compliant was dismissed and they did not move for fees in the 10th Circuit. It denied the appellees motion for fees in this appeal as Grynberg’s appeal was not frivolous and the motion was in the appellees’ brief not a spate motion as required under Rule of Appellate Procedure 38.

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