Donohue v. Hoey , 109 F. App'x 340 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 21 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL MASON DONOHUE,
WALTER RICE and BONNIE RICE,
Plaintiff-Appellants,
v. No. 02-1405
District of Colorado
GERALD HOEY, individually former (D.C. No. 97-M-2595)
chief of the City of Montrose Police
Department; THOMAS CHINN,
individually; and CITY OF MONTROSE,
COLORADO,
Defendant-Appellees.
ORDER AND JUDGMENT*
Before KELLY, HARTZ, Circuit Judges, and CASSELL, District Judge.**
Four days before Thanksgiving 1993, Buffy Rice Donohue disappeared. Eighteen
months later her slain body was found abandoned in a wooded area in the neighboring
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
The Honorable Paul G. Cassell, United States District Judge for the District of
Utah, sitting by designation.
county. During the time Buffy was missing, law enforcement officials in Montrose,
Colorado, investigated her disappearance, but the investigation left much to be desired.
Outraged by shortcomings and misconduct in the investigation, Buffy’s parents, Walt and
Bonnie Rice, and her husband, Mason Donohue, (collectively “the Rices”) sued various
members of the Montrose police force and the City of Montrose itself. Although the
Rices did not blame the defendants for Buffy’s death, they alleged that the investigation
was so deficient that it violated their federal and state constitutional and statutory rights.
After several years of litigation, the defendants moved for summary judgment, which the
district court granted. On appeal, the Rices claim that summary judgment was improper
in light of the evidence they offered. We agree with the district court and affirm.
I. BACKGROUND
Because this case is before us on appeal from a district court’s decision granting
summary judgment, “ we review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.”1 “When applying this
standard, we view the evidence and draw reasonable inferences therefrom in the light
most favorable to the nonmoving party.”2 Applying this standard, we consider the facts
of the case as follows.
On Sunday afternoon, November 21, 1993, Buffy Rice Donohue left home to run a
few errands. Several hours later, she had not returned home, and her family began to
1
Simms v. Okla. ex rel Dept. of Mental Health & Substance Abuse Servs., 165 F.3d
1321, 1326 (10th Cir. 1999).
2
Id.
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worry. They soon discovered Buffy’s locked car in a Wal-Mart parking lot. The Rices
promptly filed a missing person report.
The Rices’ biggest complaint about the subsequent investigation is that the police
missed the most obvious suspects: Evonne Haley and David Middleton. In the Rices’
view, these individuals were the prime suspects right from the start. Months prior to
Buffy’s disappearance, Buffy and Mason Donohue had worked with Haley at a local
Sizzler’s and had socialized together outside of work. At some point, Haley moved in
with a man named David Middleton, who had moved to Montrose from Florida. There he
had been charged with the kidnaping and sexual assault of a teenage girl and was
ultimately convicted for false imprisonment and aggravated assault. At the time of
Buffy’s disappearance, he was a prime suspect in the investigation, although he would
never face charges for her death. During the course of the investigation he moved to
Reno, Nevada, where he was later convicted for the slaying of two girls.
A. The Leads
Beginning the day Buffy disappeared, leads started coming in that pointed to Haley
and Middleton, but the police department was unresponsive. That afternoon one of
Buffy’s friends, Annie Bercillio, saw Buffy in a car with a woman whose description
matched Haley’s. Bercillio told another friend, Noreen Cassidy that she had seen Buffy
that day, and Cassidy relayed that lead to the police department. Cassidy spoke
personally with Lieutenant Tom Chinn of the Montrose Police Department, the lead
investigator and a defendant in this case. She informed Lieutenant Chinn that Bercillio
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had seen Buffy with Haley, but Lieutenant Chinn did not contact Bercillio or otherwise
follow up on the lead. In fact, when Bercillio herself called the police department later
that evening to report what she had seen, the police dispatcher responded that they were
not taking calls on that case until after Buffy had been missing for twenty-four hours.
Mrs. Rice also called the police that same evening, but in spite of these reports that
Bercillio had information about Buffy’s disappearance, no one contacted Bercillio that
evening to find out what she knew.
Around midnight that night, Cassidy witnessed another startling event that pointed
to Haley and Middleton. She was working at a convenience store across the street from
the Haley/Middleton apartment. From there she had a clear view of the apartment and
saw Middleton and Haley moving bags to their car. The most startling detail was that one
bag was so large and heavy that Middleton had to carry it with both arms wrapped around
it. Cassidy reported that the bag was big enough to have held a body.
The next morning, Monday, November 22, Cassidy called Bonnie to report what
she had seen, and both of them called the police. Also that day, Haley’s daughter,
Natasha Hunter, told the police that Buffy had been in her mother’s apartment the night
before. Then, two women, Becky Dowden and Vicki Juliano Underwood, appeared at the
police station to report that they had seen Buffy the day before at Wal-Mart with a blonde
lady in a red sports car. These women were not questioned at that time; instead, they
were asked to go home and prepare a written statement and then return their statements to
the police department. They did this, but it is unclear from the record what happened to
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the statements. The record contains an undated, handwritten statement, signed by both
women. Because the statement is undated, it is unclear when it was delivered to the
police department, although the Rices claim it was not until December 10, 1993, which
meant that the police would not have had the statement when they later administered
inconclusive polygraph examinations to Haley and Middleton.
Two days later, on the 24th, another girl, Holly Samples, called Crime Stoppers to
report that she had seen Buffy at Wal-Mart the day before. According to Samples, Buffy
had just put some items into her car when a blonde woman approached her, and the two
drove off in the woman’s red car. Two weeks passed before anyone followed up with
Samples, and she made a statement at that time. Only after Buffy’s body was found a
year later did Lieutenant Chinn call to say he had lost her statements and to ask her to
make another statement. She added her written statement to the statement made by
Dowden and Underwood.
B. The Investigation
In light of the undisputed leads, the Rices argue police investigation was
inadequate. They claim that the police did not contact Haley or Middleton during the
earliest stages of the investigation, but the record contains undisputed evidence that
Lieutenant Chinn actually spoke with Haley on November 22.3 That same day someone
at the Montrose Police Department ran a criminal background check on David Middleton
Inquest into the Death of Buffy Rice Donohue at 442 (R. at 2077).
3
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through the National Crime Information Center (NCIC),4 but that search was not
documented.
Two days after Buffy’s disappearance, Tuesday, November 23, the police went to
the Middleton/Haley apartment to investigate a potential lead. Donohue reported that a
screen at the Middleton/Haley apartment had been pushed outward and that black and
bloody marks were left. In response to this report, Lieutenant Chinn, and two other
officers, Kevin Walters and Diana Curtis, went to the apartment. What happened next is
disputed. Donohue and other witnesses report that they saw the officers taking
photographs and scraping paint samples into a plastic bag.5 The normal procedure for
handling such evidence would have been to place the photographs and paint samples into
an evidence locker or with the case file. However, neither the evidence locker nor the
case file contains any photographs or samples from the investigation of the
Middleton/Haley apartment.
The police officers all explain this omission by claiming they did not collect
evidence at the Middleton/Haley apartment. Officer Walters was at the patrol car talking
to Donohue during the investigation and took neither samples nor photographs. Although
he admits photographs might have been taken, he never saw them.6 Officer Curtis does
4
Dep. of Thomas E. Chinn of Oct. 17, 2000, at 221–22 (R. at 1830).
5
Dep. of Michael Mason Donohue of Sept. 27–28, 2000, at 379–30 (R. at 1867);
Dep. of Evonne Ione Haley of July 12, 2000, at 208 (R. at 1875); Videotaped Dep. of
Natacha Hunter at 141–42 (R. at 1962–63).
6
Dep. of Kevin T. Walters of Oct. 10, 2000, at 228–29 (R. at 1811).
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not recall taking any photographs, and she states that the mark on the window did not
look to her like blood.7 Lieutenant Chinn reports that his first impression was that the
mark on the window was a bloodstain, but that upon closer inspection he realized the
substance was not blood but paint.8 Lieutenant Chinn testified at the Coroner’s Inquest
that he was so convinced that the substance was paint that it was not necessary to run a
chemical test, so samples were not taken.9
Some time after December 1, 1993, Lieutenant Chinn followed up on the lead
from Noreen Cassidy that Middleton and Haley had been seen taking bags to their car on
the night of Buffy’s disappearance. He asked Middleton about the bags, and Middleton
responded that they were laundry bags and showed them to Lieutenant Chinn. Lieutenant
Chinn inspected the inside of the bags but did not see any blood or hair. He apparently
did not search inside the car.
The Rices claim that during this visit Lieutenant Chinn identified Cassidy as his
informant and that as a result Cassidy felt threatened and had to move out of state. The
only record evidence they offer in support of this fact is a newspaper article that quotes
Cassidy for this information.10 Because the article does not lay a foundation that Cassidy
had personal knowledge of what Lieutenant Chinn said to Middleton, it is inadmissible
7
Dep. of Diana Ruth Curtis of Oct. 12 & 16, 2000, at 172 (R. at 1802).
8
Inquest into the Death of Buffy Rice Donohue at 454 (R. at 2080).
9
Inquest into the Death of Buffy Rice Donohue at 454 (R. at 2080).
Lane Mills, MPD Knew Donohue, Middleton Link 1st Day, Witness Indicates,
10
Montrose Daily Press, Oct. 23, 1995 (R. at 2034).
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hearsay11 and cannot be considered in reviewing the motion for summary judgment.12
Accordingly, there is no evidence to support the conclusion.
C. The Waterdog Incident
In the meantime, frustrated by their perception that the investigation was lacking,
the Rices took their own steps to find Buffy. On Friday evening, November 27, 1993, the
Rices received a tip that Middleton and Haley were holding Buffy in a cabin on Waterdog
Mountain. The next morning Bonnie contacted Lieutenant Chinn and asked him to
investigate the lead. Lieutenant Chinn responded that Waterdog Mountain was not within
his jurisdiction and that the Rices should report the lead to the county sheriff. Lieutenant
Chinn suggested that Walt follow the lead himself but refused to deputize him. He told
Bonnie that at worst Walt could be charged with trespassing but that he would “take care
of the charges.”13
With that assurance in mind, Walt, Donohue, another friend named Dan Slover,
and a couple of other individuals went to Waterdog to follow up on the lead. It was after
11:00 p.m. when they went, and they saw an unidentified vehicle traveling with its lights
turned off. A rifle was sticking out of the driver’s window. When the driver saw Walt
and the others coming, he threw his vehicle into reverse and slid into a ditch. Suspicious,
Walt and the others surrounded the car to investigate. The driver was a man named Mike
Fed. R. Evid. 602.
11
See Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir.
12
1995).
Bonnie Aff. at 3 (R. at 1952).
13
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McBride who apparently had been out hunting. He was clearly frightened but consented
to a search of his vehicle. Satisfied that McBride was not connected with Buffy’s
disappearance, Walt let him go.
Three months later, Walt would be charged with felony menacing and false
imprisonment for this incident. The Montrose police department made no effort to “take
care of the charges,” although the felony menacing charges were ultimately dropped.
Since no one from the Montrose police department had intervened on his behalf, Walt
followed his attorney’s advice and pled no contest to the false imprisonment charge. The
record is silent about whether Walt was ever fined or incarcerated for the offense, nor
does it explain what happened with the charges against Donohue.
D. The Search and the Pictures
A few days after the Waterdog incident, on December 1, 1993, the Rices hired
Nelson Jennett as a private investigator. They did not realize at the time that he had close
ties to the Montrose Police Department and that he was reporting back to the department
without the Rices’ consent. When the Rices realized this, they fired him on December
20, 1993. That day, Jennett notified the police department by letter that he was no longer
employed by the Rices but that “I would very much like to continue working with you in
this extraordinary case.”
This short-lived relationship would probably have gone without mention had the
Rices’ dismissal ended Jennett’s investigation, but it did not. On January 2, 1994, Jennett
got a call from a man named Ken Newman, who was manager of the trailer park where
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Buffy and Donohue had lived. Newman reported that during the previous week, Buffy
and Donohue’s trailer had been broken into. When he entered to investigate, he saw a roll
of film just inside the door in a shoebox. Newman continued that the trailer had been
broken into again that morning and that when he entered he saw another roll of film,
which he took back to his office; he left the other roll of film in the trailer.
Jennett relayed this information to Lieutenant Chinn, who told Jennett to go to the
trailer park and get the film from Newman and have it developed that day. Motivated in
part by a desire “to cooperate with the police department,” Jennett went to the trailer park
to get the film. When Jennett arrived at the trailer park, Newman reported that the
Donohues had moved out two or three months before and that he had been cleaning the
place up to rent out again. Newman gave Jennett the roll of film he had taken from the
trailer and suggested that Jennett enter the trailer with the maintenance man to retrieve the
other roll.
There is some dispute as to whether Newman had authority to let Jennett into the
trailer. The Rices claim they owned the trailer at that time,14 but Jennett reports that
Newman had told him he was cleaning the trailer to show it to prospective tenants.15
Once inside, Jennett observed that the trailer was completely empty, except for the roll of
film which was sitting in the middle of the floor in a wicker basket. Jennett had the film
developed and delivered the prints to Lieutenant Chinn; he kept the negatives in his own
14
Bonnie Aff. at 4 (R. at 1953).
15
Jennett Dep. at 216 (R. at 1886).
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file.
The rolls of film turned out to contain photographs from Buffy and Mason’s
honeymoon, including several nude photographs. To the extent the photographs were
relevant to the investigation, they should have been put in an evidence locker, but instead,
Lieutenant Chinn kept them in an unlocked drawer in his desk.
The record is unclear exactly where the photographs went from Lieutenant Chinn’s
desk, but it is undisputed that the photographs got out from time to time. Lieutenant
Chinn claims he never “inappropriately displayed” the pictures, but admits he showed the
nude photographs to others for “identification purposes”16 to eight or nine individuals
connected with the investigation, ostensibly motivated by the hope that “they could point
me in a different direction for this investigation.”17
In addition to these so-called “appropriate” displays, a number of disclosures had
no ostensible relation to the investigation. For example, one officer, Steve Keep, whose
office was near Lieutenant Chinn’s, testified that he once overheard Lieutenant Chinn and
others in his office laughing.18 When he went in the office to see what was going on, he
saw the nude photographs lying on Lieutenant Chinn’s desk. The situation left him with
the impression that Lieutenant Chinn and the others were laughing at the photographs.
Another woman, Crystal Black, who worked at the Montrose County Sheriff’s
Chinn Dep. at 205 (R. at 1828).
16
Id. at 200–202 (R. at 1827); see also Sellers Dep. at 103–106 (R. at 1845).
17
Keep Dep. at 42–46 (R. at 1851).
18
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Department, stated that two uniformed patrolmen from the Montrose Police Department
came to the sheriff’s office to see one of her coworkers.19 The officers held several nude
photographs of Buffy and were laughing and making crude comments about them,
referring to them as if they were pornography, and making disparaging remarks about
Buffy’s character.
Lane Mills, a reporter, also claims to have spoken to confidential sources who
claimed the pictures were inappropriately displayed. She reports that city manager Ted
Barkley felt “relieved he never saw the photographs” and “that they were improperly
handled.”20
On January 6, 1994, the Rices learned the police had these photographs. Mason
promptly asked Lieutenant Chinn to return the pictures, but he refused, claiming they
were evidence in the case. The pictures were finally returned, but it was not until October
of 1995 that the Rices had some idea about what was being done with the photographs. It
was then that reporter Lane Mills told Bonnie about what she had learned.
The Rices did nothing about the disclosures until almost a year later, when on
September 11, 1996, they filed a complaint with the Victim Rights Act Subcommittee of
the Colorado Victims’ Compensation and Assistance Coordinating Committee. On
January 21, 1997, the subcommittee issued its report, finding a number of ways that the
Rices’ victims rights had been violated. Specific to the pictures, the committee concluded
Black Aff. at 1 (R. at 1992).
19
Mills Dep. 31–34 (R. at 1990).
20
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that the police department was at fault for not logging the pictures into evidence, which
created “an opportunity for the pictures to be seen by personnel other than the officers
investigating the case,” but it was “unable to determine what transpired regarding the
allegations that the pictures were passed among Montrose Police Department officers and
coworkers.”21
E. Bonnie’s Arrest
In the meantime, the police department took a number of steps that in hindsight
may have been counterproductive. On February 21, 1994, Bonnie had gone with a friend
named Ed Gullette to talk with Haley and Middleton at their apartment. Bonnie claims
that the two stood in the doorway, talking with Haley, when Middleton came out with a
shotgun and threatened them. It is unclear whether Bonnie was ever inside the house, but
she was subsequently charged with criminal trespassing.
The Rices note four troubling details about this trespassing charge that they claim
are evidence of an improper motive. First, the officer who came to the apartment to
investigate refused to take a statement from Bonnie that she had not gone inside the
apartment but had been threatened by Middleton. Second, the police charged Bonnie but
apparently did not charge Gullette. In a recorded phone conversation between Haley and
Bonnie, Haley claims that the police asked her to bring charges against Bonnie but not
Gullette. Third, although months had gone by without any legal action for the Waterdog
Report of Colorado Victims’ Compensation and Assistance Coordinating
21
Committee to Chief Gary Mecham (Jan. 21, 1997) at 8–9 (R. at 2001–2) (hereinafter
“Victims Rights Committee Report”).
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incident, charges were filed against Walt and Bonnie within three days of each other in
March of 1994. Finally, the Rices claim the charge against Bonnie was baseless because
it was ultimately dropped on May 11, 1994.
F. Asking the Suspect to Leave
The next troubling allegation is that, sometime after the encounter at the
Middleton/Haley apartment, Lieutenant Chinn encouraged Middleton and Haley to leave
Montrose because the police department was receiving pressure to arrest Middleton.
Bonnie and Haley both claim that Middleton told them he had been advised to leave
town. However, the statements by Middleton recounting alleged statements by police
officers are inadmissible hearsay and cannot be considered for summary judgment. Haley
admits she was skeptical that Middleton was telling the truth. Nevertheless, Bonnie
testified in deposition that Lieutenant Chinn and Officer Walters both admitted that
Lieutenant Chinn had encouraged Middleton to leave town.
G. The Reporters
On May 24, 1995, Buffy’s bones were finally discovered in the mountains near
Norwood, Colorado. The autopsy confirmed that she had been murdered. With all doubt
eliminated about whether Buffy had been murdered, the Rices hoped the search for
Buffy’s murderer would intensify. However, the Rices continued to be dissatisfied with
the investigation and became increasingly vocal in their condemnation of the police
department. On October 5, 1995, the Rices and other Montrose citizens voiced their
concerns about the police department at a city council meeting.
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The defendants responded to the Rices’ criticisms by criticizing the Rices in the
local media. On October 16, 1995, Police Chief Hoey, Lieutenant Chinn, and Officer
Curtis met with Associated Press writer Robert Weller at a local restaurant, apparently at
Weller’s request. Chief Hoey acknowledges that they talked about the Rices and their
recent visit to the city council but also stated that they said nothing improper.22 Beyond
Chief Hoey’s vague description of the interchange, however, no participant in that
discussion has testified about what was said. The only direct evidence of what transpired
is a phone call from an unidentified woman who overheard them talking about the Rices.
Bonnie reports that the woman told her that the police officers said “they were just, like,
really really tired of Walter criticizing the Montrose Police Department, and they were
going to turn the tables on him.”23
Besides these accounts of the meeting, Nelson Jennett offers some circumstantial
evidence of what was said. The same day that Weller met with the police officers, he
phoned Jennett to get more information. The call only lasted about five minutes, but
Weller told Jennett he was working on a story about the Rices and that Chief Hoey and
Lieutenant Chinn had told him to contact Jennett. Jennett could not talk at the moment,
but on October 18, 1995, they spoke again at greater length. During this second
conversation, Weller told Jennett a number of details about the Rices, presumably in an
effort to “prime the pump” and persuade Jennett to reveal information that he knew about
Hoey Dep. 195 (R. at 1789).
22
Transcript of Conversation Between Unidentified Woman and Bonnie Rice (R. at
23
2042) (punctuation added).
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the Rices. Jennett’s notes reveal that Weller knew several sensitive details about the
Rices, including (1) Walt and Buffy had used illegal drugs, (2) Walt took a lie detector
test, (3) Buffy had attempted suicide once in the past, (4) Walt was arrested over ten years
earlier for trespassing and assault, (5) Walt had been arrested in 1993 for domestic
violence, and (6) Mason had brought another girl home the night Buffy disappeared.
Of course, the fact that Weller knew these details does not by itself incriminate the
defendants in this case. As will be discussed more fully below, liability will turn on
whether the defendants revealed information in violation of the Constitution. Jennett
claims that he did not know where Weller got his information and that all of these details
were news to him. Some of the information, such as the 1993 arrest, would have been
matters of public knowledge, and Weller told Walt that he got this information through
the Colorado Bureau of Investigation (CBI). However, Walt reports that the CBI has no
record of Weller running a search that would have revealed this information.
Other information, the Rices claim, could have been obtained only through the
police. Furthermore, Walt told the police that he had used drugs with Buffy only because
he thought it might help the investigation, and only because he believed the disclosure
was confidential. Bonnie states that the reference to an alleged suicide attempt is an
exaggerated reference to an incident that happened when Buffy was younger and that the
only record of that incident is a sealed juvenile record. The reference to Donohue
bringing a woman home is another exaggerated fact; Donohue returned home with a
friend that the Rices hoped would help in the investigation, another detail the Rices had
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told to the police.
On October 21, 1995, Weller’s article was published, repeating several of the
details he had told Jennett. Although the article was similarly silent as to its sources for
these details, it directly quoted Lieutenant Chinn as saying, “[The Rices] didn’t call us
and tell us that she might be in David Middleton’s apartment. The question is why.”24
Besides the Weller article, one other consequence of the city council meeting was an
independent assessment of the police department. This study was conducted by
investigative consultant Terry A. Foulke, and the report of that study was issued in March
1996. In addition to the conclusions in the Foulke report, a number of city officials had
misgivings about the police department.25
H. Procedural History
On May 23, 1996, the Rices filed their complaint in state court, which was
subsequently removed to federal court. More than two years later, on October 9, 1998,
they named Lieutenant Chinn for the first time in an amended complaint. One claim
against Lieutenant Chinn—the outrageous conduct claim—was dismissed as untimely
under the one year statute of limitations.
On March 26, 2001, the district court quashed the deposition of two
Robert Weller, Murdered Woman’s Father Withheld Vital Info, Cops Say, The
24
Daily Sentinel, Oct. 21, 1995 (R. at 2049).
25
See, e.g., Haynes Dep. at 262–63 (R. at 2052–53) (former member of the city
council who informed City Manager Barkley about a number of problems he had
observed, although the record does not indicate the nature of the problems Haynes
observed); Expert Report of William H. Kain at 11 (former district attorney who claims
city officials knew of the shortcomings before the Faulke report was issued) (R. at 2158).
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reporters—Robert Weller and Stacie Oulton, another reporter who wrote about the
Rices—and limited discovery from the two reporters to written questions.26 As the
grounds for this decision, the order cited a hearing held three days earlier. Almost a year
later, on March 19, 2002, the court quashed discovery from the reporters, concluding that
the reporters were protected by the reporter privilege.27 Finally, on August 7, 2002, the
court granted summary judgment on all remaining claims.28 The court concluded that the
Rices had not supported their claims against Chief Hoey and Lieutenant Chinn for
outrageous conduct and for violations of § 1983 and that they had likewise not established
their § 1983 claims against the city. This appeal followed.
II. ANALYSIS
The Rices present four issues for our consideration: (1) whether it was error to
quash the depositions of Robert Weller and Stacey Oulton and to deny the Rices relief
under Rule 56(f); (2) whether it was error to grant summary judgment on all § 1983
claims against Chief Hoey and Lieutenant Chinn; (3) whether it was error to grant
summary judgment on all § 1983 claims against the City of Montrose; and (4) whether it
was error to grant summary judgment on the state law tort claims against Chief Hoey and
Lieutenant Chinn. We consider each issue in turn.
Order on Mots. of Mar. 26, 2001 (R. 979) (hereinafter “Mar. 26, 2001 Order”).
26
Order Granting Mots. to Quash Subpoenas on Third Party Witnesses Stacey
27
Oulten and Robert Weller and Order Denying Mot. for Relief Pursuant to Rule 56(f) of
Mar. 19, 2002 (R. at 2372) (hereinafter “Mar. 19, 2002, Order”)
Mem. Op. and Order of Aug. 7, 2002 (R. 2378) (hereinafter “Summ. J. Order”).
28
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A. Reporter Issue
The Rices first claim that the district court improperly denied their efforts to
depose Robert Weller and Stacie Oulton, who, as mentioned above, were reporters who
might offer evidence of the defendants’ unconstitutional and outrageous conduct.
Defendants argue that this court may not review the district court’s orders of March 26,
2001, and March 19, 2002, because (1) the orders were not included in the notice of
appeal and (2) this court may not rule on this issue without hearing from the reporters,
who have a stake in the outcome. Neither argument is persuasive.
First, since the Rices appealed from a final order, this court may review the related
underlying orders. Defendants are correct that to appeal a district court order to this
court, an appellant must file a notice of appeal with the district court clerk.29 Such notice
must, among other things, “designate the judgment, order, or part thereof being
appealed.”30 This requirement does not mean, however, that the notice must identify each
discrete, underlying order, for “a notice of appeal which names the final judgment is
sufficient to support review of all earlier orders that merge in the final judgment.”31 As
we have previously explained:
An appeal from a final judgment usually draws into question all prior non
final orders and all rulings which produced the judgement. Thus, a failure
of the notice of appeal to specifically refer to a preliminary or interlocutory
Fed. R. App. P. 3(a)(1).
29
Fed. R. App. P. 3(c)(1)(B).
30
McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002);
31
Bowdry v. United Airlines, Inc., 58 F.3d 1483, 1489 n.11 (10th Cir. 1995).
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order does not prevent the review of that order on appeal. Having appealed
from the judgment, the appellant is free to attack any nonfinal order or
ruling leading up to it.32
Here, the Rices appealed from the district court’s final judgment, which was entered on
August 7, 2002. Since that order was a final order, the appeal of that order includes an
appeal of the March 26, 2001, and March 19, 2002, orders.
The defendants rely on our decision in Citizens for Responsible Government State
Political Action Committee v. Davidson,33 in which we declined to review an underlying
order that was not included in either the notice of appeal or the docketing statement.34
However, unlike this case, Davidson involved cross-appeals from four different cases
rather than an appeal from a final order in a single case.35 This court concluded that the
interlocutory order at issue there was not folded into any final order of dismissal.36
Accordingly, Davidson provides no basis for declining to review the orders the Rices
challenge.
Nor does the fact that the reporters are not parties to this appeal prevent this court
from reviewing the March 26, 2001, and March 19, 2002, orders. The defendants cite no
authority for their claim that this court must hear from the reporters before it can rule on
McBride, 281 F.3d at 1104 (quoting 20 Moore's Federal Practice P
32
303.21[3][c][iii] (3d ed. 2001)).
236 F.3d 1174, 1186 (10th Cir. 2000).
33
Id. at 1186.
34
Id. at 1181.
35
Id. at 1185–86.
36
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the reporter privilege issue, which was fully briefed and argued below. Instead, they
argue it is unsound policy to review such an order without giving the reporters a chance to
be heard. Because this court affirms the orders protecting the reporters, we need not
resolve the procedural questions of whether appearance by the reporters is necessary, but
must only conclude that this court can review the merits of the district court’s orders.
Having found that we can review the merits of the orders, the issue before us is
whether the district court abused its discretion 37 in deciding: (1) the March 26, 2001,
ruling that limited the Rices to posing written questions to the reporters; (2) the March 19,
2002, ruling granting the reporters’ motion to quash the written questions; (3) and the
March 19, 2002, ruling denying the Rice’s motion pursuant to Rule 56(f) of the Federal
Rules of Civil Procedure for leave to gather more evidence in opposition to the pending
summary judgment motions. We have repeatedly held that “[a]n abuse of discretion
occurs only when the trial court bases its decision on an erroneous conclusion of law or
where there is no rational basis in the evidence for the ruling.”38
The Rices first argue that the March 26, 2001, order was an abuse of discretion
because the judge did not articulate any reason for his ruling. The difficulty we face in
See, e.g., Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir. 2002)
37
(“discovery rulings are reviewed for an abuse of discretion”); In re Grand Jury
Subpoenas Dated December 7 and 8, Issued to Bob Stover, Chief of Albuquerque Police
Department, 40 F.3d at 1100 (reviewing motion to quash for abuse of discretion); Jensen
v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1553 (10th Cir. 1993) (reviewing
Rule 56(f) motion for abuse of discretion).
See, e.g., Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1255 (10th
38
Cir. 2003).
-21-
evaluating this claim is that the court makes it clear that its order was issued pursuant to
reasoning developed at a hearing held three days earlier.39 It is settled that “when an
appeal is based upon a challenge to any ruling or order, a copy of pages of the reporter’s
transcript at which the ruling or order . . . are recorded must be included.”40 Although the
fact of the ruling was memorialized on March 26, 2001, the rationale underlying the
ruling was explained at the March 23, 2001, hearing. The Rices have not certified the
transcript of that hearing as part of the record on appeal, and without that transcript, we
can only speculate as to the district court’s reasoning. The Rices cannot claim that the
trial court abused its discretion without giving this court a chance to review the legal and
evidentiary issues the district court considered.
The Rices’ second claim is that the district court erred in its finding that Oulton
and Weller were entitled to the reporter’s privilege under Silkwood v. Kerr-McGee
Corp.41 The difficulty with this argument is that the Rices seem to agree the district court
applied the correct legal standard, arguing only that it erred in applying the standard. The
applicability of Silkwood was extensively briefed, and the district court made the express
“finding and conclusion that the plaintiffs have failed to make the showing necessary to
overcome the privilege relied on by the motions.”42 The Rices never explain how the
Mar. 26, 2001 Order (R. at 979).
39
McEwen v. City of Norman, Okl., 926 F.2d 1539, 1550 (10th Cir. 1991).
40
563 F.2d 433 (10th Cir. 1977).
41
A.K. Marsh. 19, 2002, Order (R. at 2372).
42
-22-
district court’s application of Silkwood was an abuse of discretion, so we must affirm the
court’s decision to quash the reporter subpoenas.
Since the reporter depositions were the only basis for seeking relief under Rule
56(f), the district court properly denied that motion. Accordingly, we affirm that ruling as
well.
B. Section 1983 Claims
The Rices argue next that the district court erred in concluding that Lieutenant
Chinn and Chief Hoey’s conduct during the investigation of Buffy’s disappearance and
murder did not violate the Rices’ constitutional rights. Although the Rices presented
below a broad range of evidence in support of their constitutional claims, the district court
granted summary judgment for the defendants because none of the facts established a
constitutional violation. We review de novo and can affirm only if “there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”43
In general, to establish a constitutional claim under § 1983, a plaintiff must prove
four elements: “(1) a violation of rights protected by the federal Constitution or created by
federal statute or regulation, (2) proximately caused (3) by the conduct of a ‘person’ (4)
who acted under color of [law].”44 However, even if a viable constitutional claim exists,
a number of legal doctrines may preclude recovery for those violations. In this case, the
Hammons, 348 F.3d at 1254.
43
Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002) (citing Gomez v.
44
Toledo, 446 U.S. 635, 640 (1980)).
-23-
relevant limiting principles are the statute of limitations, qualified immunity, and
vicarious liability.
First, a § 1983 claim is subject to a statute of limitations. Because Congress did
not specify a statute of limitations on § 1983 claims, “the forum state’s personal injury
statute of limitations should be applied to all § 1983 claims.”45 Because no Colorado
statute of limitations expressly applies to personal injury actions, this court has previously
looked to the Colorado residual statute of limitations,46 which provides for a two-year
statute of limitations.47 This court has stated that “[s]ection 1983 claims accrue when the
plaintiff knows or has reason to know of the injury that is the basis of the action.”48
Accordingly, summary judgment is proper on § 1983 claims that the Rices had cause to
know of more than two years before they filed their complaint.
The Rices argue that this court cannot consider the statute of limitations in ruling
on their claims because summary judgment was not granted below on this ground.
However, this court can affirm for any reason that is supported by the record and the
law.49 Thus, if we find that the Rices had reason to know of conduct more than two years
See also Pittsburg County Rural Water Dist. No. 7. v. City of McAlester, 346
45
F.3d 1260, 1277 (10th Cir. 2003); Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.1993).
46
Colo. Rev. Stat. § 13-80-102(1)(i).
47
Blake, 997 F.2d 749; McKay v. Hammock, 730 F.2d 1367, 1370 (10th Cir. 1984);
see also Riel v. Reed, 760 F. Supp. 852, 854–855 (D. Colo.1991).
Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994), cert. denied, 514 U.S.
48
1015 (1995).
49
See, e.g., United States v. Corral, 970 F.2d 719, 726 n.5 (10th Cir. 1992).
-24-
before they filed their complaint, summary judgment must be affirmed.
Second, assuming the claims are timely, we must also determine whether they are
barred by the doctrine of qualified immunity. Where a defendant police officer invokes
the doctrine of qualified immunity (as Lieutenant Chinn and Chief Hoey do), the plaintiff
must satisfy a “heavy two-part burden” to prove (1) “that the defendant’s actions violated
a constitutional or statutory right” and (2) “that the right at issue was clearly established at
the time of the defendant’s unlawful conduct.”50 This court has stated that for a right to
be clearly established, “there must be a Supreme Court or Tenth Circuit decision on point,
or the clearly established weight of authority from other courts must have found the law
to be as the plaintiff maintains.”51 Nevertheless, we must be careful not to require “too
strict a factual correspondence.”52 In short, “the contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.’”53
Third, in addition to qualified immunity, the court must consider an additional
defense with regard to the claims against Chief Hoey. With one exception, he did not
50
Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).
Anderson v. Creighton, 483 U.S. 635, 640 (1987), cited in Horstkoetter v. Dept.
51
of Public Safety, 159 F.3d 1265, 1278 (10th Cir. 1998).
Calhoun v. Gaines, 982 F.2d 1470, 1474 (10th Cir. 1992); see also Bee v.
52
Greaves, 910 F.2d 686, 687 (10th Cir. 1990).
Id. (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)); see also Snell v.
53
Tunnell, 920 F.2d 673, 696 (10th Cir. 1990) (quoting Anderson v. Creighton, 483 U.S. at
640.
-25-
participate in the conduct at issue and is sued solely under a vicarious liability theory. To
prevail against a supervisor on such a theory, the plaintiff must establish that an
“‘affirmative link’ exists between the constitutional violation and either the [supervising
officer’s] personal participation, his exercise of control or direction, or his failure to
supervise.”54
Here, the Rices articulate six theories that could establish constitutional violations:
(1) denial of access to the courts, (2) false arrest, (3) illegal search, (4) violation of their
right to privacy, (5) harm to reputation, and (6) retaliation. Thus, in order to impose
liability for the alleged conduct, we must ask the following questions:
(1) Did Chief Hoey or Lieutenant Chinn’s conduct violate a constitutional right?
(2) Did the Rices have reason to know of the conduct more than two years before
they filed their complaint (May 23, 1996, for Chief Hoey and October 9, 1998, for
Lieutenant Chinn)?
(3) Was that right clearly established?
(4) With respect to defendant Chief Hoey, was there an “affirmative link” between
him and any violation?
The liability of each defendant for each of the Rices’ six theories will be considered in
turn.
1. Denial of Access to the Courts
McKay, 730 F.2d at 1374 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976));
54
see also Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1187 (10th Cir. 2001),
cert. denied, 535 U.S. 1056 (2002); Worrell v. Henry, 219 F.3d 1197, 1214 (10th
Cir.2000), cert. denied, 533 U.S. 916 (2001).
-26-
The Rices’ first constitutional claim is that improprieties during the investigation
denied them their right of access to the courts. The Rices maintain that defendants denied
them access in four primary ways: (1) by Lieutenant Chinn’s refusing to gather evidence,
pursue leads, or interview key witnesses; (2) by labeling key witnesses (Noreen Cassidy,
Dan Slover) as liars; (3) by destroying evidence gathered at the Middleton/Haley
apartment; and (4) by telling Middleton and Haley to leave town without aggressively
interrogating them.
The district court rejected this claim, concluding that the officers’ conduct did not
amount to a denial of access to the courts and that, even if it did, the claim would be
barred by qualified immunity as the right of access to the courts was not clearly
established. We agree with the district court that the Rices have not established a denial
of access in this case.
At the outset, except for the alleged destruction of evidence at the
Middleton/Haley apartment discussed below, the denial of access claims are barred as to
all defendants by the statute of limitations. All of the other conduct alleged in support of
this claim happened before May 23, 1994, which is the earliest date that would allow the
Rices to proceed against any party, and nothing indicates that the Rices did not know of
those alleged violations at or around the time they happened.
Unlike the Rices’ other denial of access claims, however, their claim arising out of
the investigation at the Haley/Middleton apartment is not barred by the statute of
limitations. Until July 1998, when Lieutenant Chinn testified at the coroner’s inquest, the
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Rices had no reason to know that anything unusual had happened to the evidence
gathered at the Middleton/Haley apartment on November 23, 1993. Accordingly, the
statute of limitations does not bar this claim.
On the merits of the claim, this court has long recognized a right of access to the
courts.55 In 1984, we declared: “The right of access to the courts is constitutionally
protected. Thus, conduct under color of law which interferes with that right gives rise to
a cause of action under section 1983.”56 Although the “right of access to the courts is
neither absolute nor unconditional,”57 it is unnecessary to explore every contour of this
right here. We need only recount two principles. First, intentional, bad-faith destruction
or concealment of evidence that burdens a plaintiff’s ability to access the courts is an
unconstitutional denial of access; and, second, allegations that police were negligent in an
investigation or that they negligently lost or destroyed evidence will not support a denial
of access claim.
Several of our opinions are instructive on these two principles. In Wilson v.
Meeks,58 the family of a man who was shot by police sued under § 1983. The plaintiffs
claimed that the police denied them access to the courts by destroying incriminating
evidence that would have helped their wrongful death claim, including photographs.
See, e.g., McKay v. Hammock, 730 F.2d 1367, 1375 (10th Cir. 1984); Shaw v.
55
Neece, 727 F.2d 947, 949 (10th Cir. 1984), cert. denied, 466 U.S. 976 (1984).
McKay, 730 F.2d at 1375.
56
Schlicher v. Thomas, 111 F.3d 777, 781 (10th Cir.1997) (quotation omitted).
57
52 F.3d 1547 (10th Cir. 1995).
58
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Although the Wilson court recognized that destroying evidence could establish a denial of
access claim,59 none of the facts before it did.
Wilson’s analysis of the lost photographs is particularly instructive here. In
Wilson, during the investigation of the shooting, the defendants took a number of
potentially incriminating photographs. The film was sent to a developer but allegedly did
not turn out. The pictures were then discarded. The family sued on the theory that loss of
the incriminating photographs denied them access to the courts. This court agreed that
the police may have negligently handled the pictures but noted that “plaintiffs do not
allege they were purposefully destroyed.”60 We then said, “It may be that the Haysville
Police were careless in their photography, but such behavior does not rise above
negligence. It is well settled that merely negligent acts or omissions will not support a
cause of action under section 1983.”61 Because the family had no evidence that the
photographs had been purposefully destroyed, they could not prevail on this claim.
Under Wilson the defendants did not deny the Rices’ right of access to the courts
because there is no evidence that the defendants intentionally destroyed evidence gathered
at the Haley/Middleton apartment. To be sure, the parties legitimately dispute whether
evidence was taken that day. The Rices offer testimony from witnesses who claim they
saw Lieutenant Chinn and Officer Curtis at the apartment collecting samples of
Id. at 1557.
59
Id.
60
Id.
61
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something that looked like blood and taking photographs of the scene. On the other hand,
none of the police officers who participated in the investigation remember taking any
samples. Lieutenant Chinn and Officer Curtis, the only two who actually saw the
suspicious stains, testified that they had concluded the stain was paint, not blood, and that
testing was unnecessary.
The Rices argue that, taking the evidence in a light favorable to them, we must
infer that the evidence was gathered; and if the evidence was gathered but now cannot be
found, we must infer that the evidence was destroyed. However, even if we resolve all
factual disputes in the Rices’ favor, the evidence does not support their assertion that
Lieutenant Chinn intentionally destroyed evidence gathered that day. The only disputed
fact here is whether samples or photographs were taken at the Middleton/Haley
apartment. Resolving that dispute in favor of the Rices, we must conclude that samples
and photographs were, in fact, taken. However, as to what happened to that evidence, the
record is silent. Under Wilson, the lone fact that the missing evidence would have
incriminated the defendants does not support an inference that the defendants
intentionally destroyed the evidence.62 Of course, evidence collected that day might have
been destroyed. But it just as easily could have been lost or misplaced. Under Wilson, we
cannot infer that the samples and photographs were deliberately destroyed from the mere
fact that they cannot be found. At most, the Rices can establish that the evidence was
effectively destroyed through police negligence, but under the cases cited above such a
Wilson, 52 F.3d at 1558.
62
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showing is inadequate to establish a denial of access claim. Without evidence that the
defendants intentionally destroyed photographs and stain samples collected at the
apartment, summary judgment on this claim was appropriate.
2. Arrest for Improper Purpose
The Rices’ second § 1983 claim is that the defendants wrongly arrested and
charged Walt with felony menacing and false imprisonment on March 4 and charged
Bonnie with criminal trespassing on March 7, 1994. The district court concluded that the
arrests were not a denial of access but did not consider whether they were
unconstitutional false arrests.63 However, both arrests happened more than two years
before the Rices filed their initial complaint on May 23, 1996. Thus, both claims for false
arrests are outside the statute of limitations for all defendants, and we affirm summary
judgment on that basis.
3. Illegal Search
The Rices next claim the defendants violated their Fourth Amendment right to be
free from unreasonable searches when Jennett entered their trailer and retrieved an
undeveloped roll of film. Although we agree with the trial court that there was “no
factual basis for a finding of an illegal search and seizure,”64 we need not discuss the
merits of this claim since it, too, is barred by the statute of limitations. The Rices admit
they knew the police had the film in January 1994 but claim they did not know
Summ. J. Order at 13.
63
Id. at 14.
64
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specifically how the police obtained the film. However, because the film must have been
found at the trailer, and because Mason Donohue had not given any permission for access
to the film, the Rices had reason to know about this claim in January 1994. Accordingly,
the statute of limitations on this claim began to run more than two years before the
original complaint was filed. Accordingly, summary judgment was proper on this claim.
4. Privacy
The Rices argue on appeal that the defendants violated their right to privacy by (1)
passing around Buffy and Mason’s honeymoon photographs and (2) revealing
confidential information to Robert Weller. The trial court recognized that displaying the
photographs violated Donohue’s right to privacy. Nonetheless, the court ruled that the
defendants were entitled to qualified immunity, concluding that a reasonable officer
would believe that the film had been abandoned when Jennett found it in the Donohues’
trailer. The court did not address whether the defendants’ conversation with Robert
Weller violated the Rices’ privacy rights. We hold that summary judgment was proper on
both claims.
The Supreme Court has recognized that the First Amendment privacy right
includes an “individual interest in avoiding disclosure of personal matters.”65 This court
has explained the contours of this right:
Due process implies an assurance of confidentiality with respect to certain
forms of personal information possessed by the state. Disclosure of such
information must advance a compelling state interest which, in addition, must
Whalen v. Roe, 429 U.S. 589, 599 (1977); Mangels v. Pena, 789 F.2d 836, 839
65
(10th Cir. 1986).
-32-
be accomplished in the least intrusive manner. Information is constitutionally
protected when a legitimate expectation exists that it will remain confidential
while in the state’s possession. The legitimacy of an individual’s expectations
depends, at least in part, upon the intimate or otherwise personal nature of the
material which the state possesses.66
Because the defendants dispute even the allegation that they disclosed any information
about the Rices, we must consider the following four issues: (1) whether the defendants
disclosed information about the Rices; (2) whether the Rices had a legitimate privacy
interest in the information; (3) whether the disclosure advanced a compelling state
interest; and (4) whether the disclosure was accomplished in the least intrusive manner.
a. Displaying the Photographs
The first basis for claiming a privacy violation is the Rices’ claim that the
defendants improperly disclosed the nude photographs of Buffy and Mason Donohue.
The district court suggested that Donohue did not have a legitimate privacy interest in the
film because “he failed to protect [it] from others who may discover it.”67 Even had there
been a violation, though, the court also concluded that Lieutenant Chinn and Chief Hoey
had qualified immunity because “[a] reasonable officer would believe the films had been
abandoned when Jennett obtained them.”68 While we conclude that a privacy interest was
violated and that qualified immunity would not apply in this case, we nevertheless affirm
on other grounds.
Mangels, 789 F.2d at 839.
66
Summ. J. Order 15 (R. at 2391).
67
Id.
68
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 (1) Disclosure.
Resolving all factual disputes in the Rices’ favor, we conclude for purposes of
summary judgment that Lieutenant Chinn, and possibly others, disclosed nude
photographs of Buffy and Mason Donohue. It is undisputed that the police department
received two rolls of film that belonged to Buffy and Mason and that this film contained
nude honeymoon pictures of Buffy and Mason. It is also undisputed that Lieutenant
Chinn showed the photographs to numerous others connected with the investigation,
purportedly for “identification purposes” and to get their help in the investigation.
In addition to these disclosures, Steve Keep saw the photographs lying on
Lieutenant Chinn’s desk after he heard people in his office laughing. The fact that the
people in Lieutenant Chinn’s office had been laughing coupled with the fact that the
photographs were lying on his desk caused Keep to believe that Lieutenant Chinn and the
others had been laughing at the photographs. Although Keep testified he could not be
sure they were laughing at the photographs, the circumstantial evidence that gave him that
impression could also reasonably support a jury’s conclusion that Lieutenant Chinn and
the others in his office had been laughing at the photographs. Crystal Black also stated
that two uniformed Montrose police officers showed her nude photographs of Buffy and
made rude comments about Buffy and the photographs. One other individual, reporter
Lane Mills, testified that the photographs had been improperly displayed, but her
testimony is inadmissible on this issue since it lacks the foundation that she had personal
knowledge of the disclosures.
-34-
(2) Legitimate Expectation of Privacy.
Contrary to the district court’s conclusion, Mason Donohue had a legitimate
expectation of privacy in the photographs. As noted above, “The legitimacy of an
individual’s expectations depends, at least in part, upon the intimate or otherwise personal
nature of the material which the state possesses.”69 In Slayton v. Willingham,70 this court
held that allegations that the police disclosed “highly sensitive, personal, and private
photographs” stated a claim for a privacy violation. The plaintiff in Slayton had been
investigated for a crime, and in the course of that investigation police illegally seized
several photographs that were allegedly “highly sensitive, personal, and private.”71 The
plaintiff complained that the defendants then showed these photographs to several of his
friends. Because the record before the court did not indicate the circumstances of the
exhibition, the court clarified that the plaintiff would also have to establish “(a) he had a
legitimate expectation of privacy in the photographs, and (b) his privacy interest
outweighed the public need for their disclosure.”72 It is significant that the privacy
interest in the content of the photographs (i.e., the allegedly illegal disclosure) was
distinct from the privacy interest in the area where they were seized (i.e., the illegal
search).
69
Mangels, 789 F.2d at 839.
70
726 F.2d 631, 635 (10th Cir. 1984).
71
Id.
72
Id.
-35-
Unlike the Slayton court, we know the nature of the photographs at issue, which
were photographs of Donohue and his new bride naked on their honeymoon. From these
facts, it would appear that Donohue had a legitimate privacy interest in the photographs.
The district court reached the opposite conclusion, determining that Donohue no
longer had a privacy expectation in the photographs since they were found in an
apparently abandoned trailer home. We do not need to reach the question of whether
Donohue lost his expectation of privacy at the time the film was seized because he
regained any expectation of privacy by asking the police to return the photographs to him.
As soon as he learned the police had the pictures, he asked for them back. He claims the
police refused to return the film, and the police argue they had permission to keep the film
as evidence in the case. In either event, Donohue regained any lost expectation of privacy
by asking for them back, and even if he allowed the police to keep them, they could only
use the photographs for legitimate law enforcement purposes. Furthermore, the police
ultimately returned Donohue’s pictures to him once the investigation was complete. This
evidence contradicts the district court’s conclusion that the police reasonably believed no
one had an interest in the photographs or that, as a matter of law, Donohue had lost his
privacy interest in these intimate photographs.
(3) Compelling State Interest
We also conclude that Donohue has sufficiently established that the disclosures did
not advance any compelling state interest. Lieutenant Chinn had no reason to leave such
sensitive photographs lying on his desk for Steve Keep to see. He admits that such
-36-
photographs should have been kept in an evidence locker, which would have preserved
the privacy interest in them. Moreover, the circumstantial evidence suggesting that
Lieutenant Chinn and the others were laughing at the pictures undercuts any assertion of
display for a legitimate purpose. Likewise, we see no reason why the unidentified
officers would have shown the pictures of Buffy to Black, who had nothing to do with the
investigation—a point confirmed by their degrading references to a homicide victim.
(4) Least Intrusive Means
Finally, to the extent the disclosures were made to advance a compelling state
interest, they were not made in the least intrusive means. The only legitimate basis
offered for disclosing the photographs was to identify Buffy and to “point [Lieutenant
Chinn] in a different direction for this investigation.”73 However, the defendants have not
explained how these photographs would have given the investigators any meaningful
direction. While there is a state interest in identifying a crime victim, the defendants have
articulated no reason why they could not have used more modest pictures of Buffy to
identify her. Thus, we must conclude that the disclosure of these photographs violated
Donohue’s right to privacy.
(5) Qualified Immunity
Having found that Donohue’s privacy right was violated, we now consider whether
the respective defendants are liable for this violation. The district court concluded that
Chief Hoey and Lieutenant Chinn were protected by qualified immunity because “[a]
Chinn Dep. 200–02, 205 (R. at 1827–28).
73
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reasonable officer would believe the films had been abandoned when Jennett obtained
them.”74 As explained above, however, circumstances changed when Donohue sought
return of the photographs. At that point, a reasonable officer would have understood that
a privacy interest was being asserted. Moreover, in light of Slayton, we conclude that the
privacy right violated here was clearly established. Under Slayton, a reasonable officer
would have known that passing around naked photographs of crime victims for no
legitimate purpose would violate constitutional privacy rights. Thus, neither Lieutenant
Chinn nor Chief Hoey is protected by qualified immunity.
(6) Individual Liability
Nevertheless, recovery from either of the individual defendants is barred by other
doctrines. Recovery from Lieutenant Chinn is barred by the statute of limitations.
Although the Rices learned that the police had the photographs in January 1994, they had
no reason to know the pictures were being mishandled at that time or even in August
1994 when the pictures were returned. However, the Rices acknowledge that in October
1995 reporter Lane Mills informed them of the mishandling of the pictures more than two
years before any claims were filed against Lieutenant Chinn.
However, the Rices argue that they did not know the full extent of their injury until
the Victim Compensation and Assistance Coordinating Committee had investigated the
situation and reported on the violations. Colorado law provides that crime victims may
enforce compliance with various victims’ rights by filing a complaint with the Victim
Summ. J. Order 15 (R. at 2391).
74
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Compensation and Assistance Coordinating Committee, which “review[s] any such report
of noncompliance” and can recommend that the state file suit on behalf of victims to
enforce their rights.75 The Rices filed such a complaint regarding the investigation of
Buffy’s death. The committee investigated their allegations and concluded that the Rices’
rights as victims had been violated. Specific to the pictures, the committee concluded that
the police department was at fault for not logging the pictures into evidence, which
created “an opportunity for the pictures to be seen by personnel other than the officers
investigating the case,” but it was “unable to determine what transpired regarding the
allegations that the pictures were passed among Montrose Police Department officers and
coworkers.”76 The Rices argue that until this report was issued, the Rices had no
knowledge of the offense and that the statute of limitations should be tolled until January
21, 1997, when the Victims Rights Act Subcommittee issued its report.
We disagree. The fact that the Rices did not know the full extent of the disclosure
does not change the reality that in October 1995 they had reason to know of the fact of
disclosure. Thus, the statute of limitations on this claim accrued in October 1995, which
bars the privacy claim against Lieutenant Chinn.
While the statute of limitations does not bar the claim against Chief Hoey since the
original complaint was filed on May 23, 1996, less than two years after the Rices learned
about the misuse of the photographs, summary judgment was nevertheless proper as to
Colo. Rev. Stat. § 24-4.1-303(17).
75
Victims Rights Committee Report 8–9 (R. at 2001–2).
76
-39-
him because there is no “affirmative link” between him and the privacy violation. There
is no evidence that he showed the photographs to anyone, that he approved of Lieutenant
Chinn’s use of the photographs, or that the violation was caused by a lack of supervision.
Accordingly, we find that summary judgment was proper as to Chief Hoey on this claim.
b. Disclosure of Private Information to Reporter Robert Weller
In addition to the improper disclosure of the nude photographs, the Rices claim the
defendants violated their privacy rights by releasing private information to reporter
Robert Weller, such as information about a suicide attempt by Buffy.77 Although the trial
court did not directly consider this issue, we nevertheless affirm the grant of summary
judgment because we find that the defendants did not violate the Rices’ privacy rights.
(1) Disclosure.
The Rices base their privacy claim on an October 21, 1995, newspaper article
written by Weller. However, because the defendants are liable for what they said, not for
what Weller said or wrote, the fact that Weller published private information about the
Rices potentially implicates the defendants only if he got his information from the
defendants. If Weller published information that he could have gotten only from the
defendants, then, construing the facts in the Rices’ favor, it logically follows that the
defendants were the source of that information.
Although the defendants do not dispute that Chief Hoey, Officer Curtis, and
77
The Rices also claim that alleged disclosures to another reporter, Stacey Oulton,
also violated their constitutional rights. However, the record evidence does not sustain
such a claim. Moreover, any such disclosures were outside the statute of limitations.
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Lieutenant Chinn met with Weller to discuss the Rice investigation, they contend that the
Rices have not established that they were the source of Weller’s information. However,
the record contains sufficient evidence from which a jury could conclude Chief Hoey and
Lieutenant Chinn were the source of Weller’s information. Indeed, Weller’s article
identifies the police as its source.
Although the police did not reveal any of the particulars of their conversation in
discovery, Weller opened a window on the conversation by contacting Nelson Jennett,
whom the Rices had originally retained as a private investigator but later fired when they
learned of his ties to the police department. Weller contacted Jennett for information
about the case, and Jennett made detailed notes of their conversation. Weller informed
Jennett that (1) Walt took a lie detector test in connection with the investigation, (2) Walt
and Buffy had used illegal drugs, (3) Walt was arrested on various occasions for various
offenses, (4) Mason had brought another girl home the night Buffy disappeared, and (5)
Buffy had attempted suicide once in the past.
Some of these details could only have been learned from the police department.
For example, the Rices explain that the reference to Buffy’s attempted suicide refers to an
incident that was part of a sealed juvenile record. Because that record was sealed, Weller
could only have learned this information from someone who, like the defendants, was
privy to the sealed record. The other details are all details, such as Walt’s drug use, that
the Rices had shared with the police in confidence, believing the information would used
only in the investigation. We find that there is enough evidence to go to a jury on
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whether the defendants were the source of the information that Weller relayed to Jennett,
which Jennett recorded in his notes.
(2) Legitimate Expectation of Privacy.
Nevertheless, the fact that the police could have been the source of the information
Weller relayed to Jennett does not mean that such disclosure was unconstitutional.
Indeed, we conclude that this disclosure did not violate the Rices’ right to privacy because
they did not have a legitimate expectation of privacy in the information disclosed.
As noted above, the legitimacy of a privacy expectation turns on whether the Rices
had a “legitimate expectation” that these details about them would “remain confidential
while in the state’s possession.”78 In Mangels v. Pena,79 this court considered a case in
which the plaintiffs were firemen who were investigated and fired because of their drug
use. During the course of the investigation, they had signed statements regarding their
drug use, and the information disclosed in those statements was subsequently released to
the media. These statements were made only after signing the following statement:
“These statement and answers to questions are given for departmental administrative
purposes only, and shall be limited in use to the Department of Safety, the Civil Service
Commission, or subsequent hearings relating to any disciplinary action.”80 We rejected
the plaintiffs’ argument that this statement created a legitimate expectation of privacy in
Mangels, 789 F.2d at 839.
78
789 F.2d 836.
79
Id. at 839 n.3.
80
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the information they provided, concluding
Any limited assurances of confidentiality offered by Denver officials to the
[plaintiffs] do not make a difference in this case. Rights of substantive due
process are founded not upon state provisions but upon deeply rooted notions
of fundamental personal interests derived from the Constitution. The
legitimacy of individual expectations of confidentiality must arise from the
personal quality of any materials which the state possesses. Allegations of a
failure on the part of government officials to abide by their own assurances of
confidentiality will not suffice to state a claim. Any disclosed information
must itself warrant protection under constitutional standards.81
Accordingly, while police assurances may give rise to an expectation of privacy in the
colloquial sense, a plaintiff has a constitutional expectation of privacy only if the
disclosed information itself warrants protection.
We recognize some tension between our 1986 decision in Mangels and our 1981
opinion in Denver Policemen’s Protective Association v. Lichtenstein.82 There a group of
police officers sued a state court judge who allowed a criminal defendant to discover
investigative files that they claimed contained private information. Not surprisingly, we
held that confidential statements in a police investigative file could be discovered by a
criminal defendant. However, in analyzing whether the disclosure violated the officers’
constitutional privacy rights, we stated, “The expectation of privacy is found in the fact
that the statements by officers taken in the course of investigation are made with the
understanding that they are confidential and will not be used for other purposes.”83
Id. at 839–40 (emphasis added; citations omitted)
81
660 F.2d 432 (10th Cir. 1981).
82
Id. at 435.
83
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While this language arguably is in tension with our analysis in Mangels, it does not
control our analysis in this case. This language in Denver Policeman’s Association was
dicta since the court “assum[ed] that the police officers have a legitimate expectation of
privacy” but ultimately concluded that any interest they had was “overridden by a
compelling state interest.”84 Because the legitimacy of the privacy expectation was not
dispositive, we had no reason to elaborate on what specific facts had given rise to the
privacy right we assumed might exist. At best, the decision left the door open for future
cases to establish a legitimate expectation of privacy in information contained in police
reports. Four years later in Mangels, we declined to go through that door. While the
Mangels court did not cite this specific language, it is clear that the Mangels court was
aware of Denver Policeman’s Association, citing it prominently in its analysis.85 To the
extent these cases are in tension, we conclude that Mangels controls and hold that the
Rices’ understanding that disclosures to the police were confidential did not create a
constitutional expectation of privacy.
This conclusion does not end the analysis because Mangels contemplates that the
information itself could warrant protection under constitutional standards. However,
none of the information that defendants passed on to Weller warrants such protection. As
noted above, the only information on the record that can arguably be attributed to the
defendants are the following details recorded in Jennett’s notes of his conversation with
84
Id. at 436.
85
See Mangels, 789 F.2d at 839 (citing Denver Policeman’s Association, 660 F.2d
at 435).
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Weller: (1) Walt took a lie detector test in connection with the investigation, (2) Walt and
Buffy had used illegal drugs, (3) Walt was arrested on various occasions for various
offenses, (4) Mason had brought another girl home the night Buffy disappeared, and (5)
Buffy had attempted suicide once in the past. None of these details create a legitimate
expectation of privacy.
In general, for information to be protected, it must deal with facts that are intimate
or personal.86 Plaintiffs cite no authority to support a conclusion that a plaintiff has a
legitimate expectation of privacy in the fact that he took a lie detector test, and we know
of none. Because this fact is neither intimate nor personal, we conclude that Walt does
not have a legitimate expectation of privacy in the fact that he took a lie detector test.
We have already held that an individual does not have a legitimate privacy
expectation in details about illegal drug use,87 so we cannot conclude that information
regarding Walt and Buffy’s illegal drug use was protected.
As for Walt’s arrests, these are all matters of public record, so Walt has no privacy
interest in them. As to the fact that Donohue brought another woman home the night
Buffy disappeared, the Rices seem to conflate two issues. While Donohue may have a
legitimate expectation of privacy in intimate information, the police apparently did not
disclose any intimate information about Donohue. Rather, they only stated (and the Rices
do not dispute) that Donohue brought a woman to the Rices home the night Buffy
Id.
86
Id.
87
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disappeared. The Rices’ objection seems to focus on the insinuation rather than the
factual disclosure itself. We conclude that Donohue did not have a legitimate expectation
of privacy in the fact that a woman accompanied him to his home because anyone could
have seen them walking publicly together.
The final revelation—that Buffy had once attempted suicide—is not protected
since it is not something in which her parents or husband have an expectation of privacy.
Courts have recognized that a state statute can seal records, thus creating a legitimate
privacy expectation for a juvenile. However, we know of no authority—and the Rices
cite none—for the proposition that parents have a legitimate expectation of privacy in
their child’s sealed juvenile record. To the contrary, at least one other court has held that
“the statutory safeguards which prohibit public dissemination of information pertaining to
youthful offender adjudications . . . . are designed solely to protect juveniles, and not their
parents, from the social stigma of a prior criminal conviction.”88 While Buffy might have
had a privacy interest in sealed juvenile records, her parents did not.
In sum, we hold that even if the defendants had told Robert Weller the information
he passed on to Nelson Jennett, none of the disclosures violated the Rices’ right to
privacy, and summary judgment was proper on this claim.
5. Reputation
In addition to arguing police disclosure to Weller led to a privacy violation, the
Rices also argue the disclosure unconstitutionally injured their reputation. The district
Soucie v. County of Monroe, 736 F. Supp. 33, 35 (W.D.N.Y. 1990).
88
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court granted summary judgment on this claim, concluding that the Rices had not shown
injury to a tangible interest as required to prevail on a reputation claim. This court agrees.
State stigmatization of a private individual invokes due process liberty concerns.89
However, without injury to some “tangible interest,” harm to reputation alone does not
create a constitutional cause of action.90 To establish a cognizable constitutional injury,
“a plaintiff must show that the damage to his reputation is combined with an injury to a
right or status established by state law.”91 Put another way, the “right or status” in
question must be “recognized and protected by state law” and then “altered or
extinguished as a result of the state action complained of.”92
Of the various interests the Rices claim were injured, only one is a tangible interest
that arguably could support a reputation claim: harm to Mr. Rice’s “established business
relationships.” The Supreme Court has recognized a tangible interest in the “freedom to
take advantage of . . . employment opportunities.”93 But where the deprived interest is in
a “future employment opportunity,” that interest must have been “initially recognized and
protected by state law.”94 We have held that “damage to ‘prospective employment
See Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
89
Paul v. Davis, 424 U.S. 693, 701, 711-12 (1976); Doe v. Bagan, 41 F.3d 571,
90
575 (10th Cir. 1994).
Bagan, 41 F.3d at 575.
91
Id. at 576.
92
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972).
93
Bagan, 41 F.3d at 576 (quoting Paul, 424 U.S. at 711–12).
94
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opportunities’ is too intangible to constitute a deprivation of a liberty or property
interest.”95 That is, where the stigma merely decreases a plaintiff’s ability to engage in
future work, there is no constitutional violation.96 On the other hand, “present harm to . . .
established business relationships” is sufficient to establish a constitutional claim.97
The Rices’ primary theory is that the defendants conversation with Robert Weller
sullied the Rices’ reputation in the community, damaging Walt’s “established business
relationships” as a home salesman. However, no record evidence would allow a
reasonable factfinder to conclude that established business relationships were injured.
The strongest evidence for this claim is a single statement from Walt’s affidavit:
As a salesman of pre-fabricated homes in a competitive market, my reputation
in the community was vital to my ability to sell this product. My best earning
history was before Buffy’s disappearance. I never sold as much afterward, and
now after more than 20 years in the business, I have had to leave that line of
work. I have left sales in large part because of the reputation I have in the
community as a result of the negative publicity unfairly created by the
Montrose Police Department.
While this statement arguably suggests harm to existing business relationships, it is not
enough to survive a well-plead summary judgment motion. Without any specific tangible
evidence of actual harm to established business relationships, a conclusory assertion
95
Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1268 (10th Cir. 1989) (citing
Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384, 1397 n.18 (10th Cir.
1988)).
See Martin v. Unified School Dist. No. 434, Osage County, Kan., 728 F.2d 453,
96
455 (10th Cir. 1984).
Phelps, 886 F.2d at 1268; Corbitt v. Andersen, 778 F.2d 1471, 1474–75 (10th
97
Cir. 1985).
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cannot sustain such a claim.
Not only is there an absence of evidence that Walt’s business relationships were
hurt, there is record evidence that his established business relationships were not hurt.
When asked in deposition what harm he had suffered in his business, Walt named a single
customer who had recently purchased a home from him. Although the customer reported
she had heard inflammatory statements about Walt, she did not back out of the
transaction.98 Had she or any other of Walt’s customers actually backed out of a deal,
Walt might be able to prevail on this claim. But without such evidence, summary
judgment was proper as to the Rices’ § 1983 claims based on reputation injury.
6. Retaliation
The Rices’ final § 1983 claim is that defendants retaliated against them for
exercising their First Amendment rights by ruining the Rices’ reputation. The district
court did not separately consider this claim, apparently handling it with the reputation
issue. We conclude that while there may remain a question as to whether any injury to the
Rices could have possibly chilled a person of ordinary firmness from exercising her First
Amendment rights, summary judgment is still appropriate because plaintiff failed to
properly and specifically raise this issue in the district court. It is well-established that
this court does not consider issues which are raised for the first time on appeal except for
a review for plain error resulting in manifest injustice.99 Therefore, having reviewed the
98
Walt Dep. 441–42 (R. at 1918–19).
See e.g. U.S. v. Dewitt, 946 F.2d 1497, 1499 (10th Cir. 1991) (“We will not
99
consider issues which are raised for the first time on appeal unless a party demonstrates
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record and seeing no plain error, we find that plaintiffs waived this issue by failing to
raise and preserve it in prior proceedings.
C. City § 1983 Liability
The Rices claim that, not only are Chief Hoey and Lieutenant Chinn liable for the
constitutional violations, but also the City. We agree with the district court below that the
city is not liable for any constitutional violations in this case.
To hold a municipality liable under § 1983, a plaintiff must also establish (1) that a
municipal employee committed a constitutional violation and (2) that the municipality’s
policies are the “moving force behind the constitutional violation.”100 Such policy may be
established either by “lawmakers or by those whose edicts or acts may fairly be said to
represent official policy.”101 In the absence of a formal policy, a policy may be inferred
from a well-established pattern of conduct.102 Where the constitutional violation was
caused by a city’s failure to adequately train its officers, the city will be liable “only
where the failure to train amounts to deliberate indifference to the rights of persons with
an impediment which prevented raising the argument below.”); U.S. v. Chavez-Marquez,
66 F.3d 259, 261 (10th Cir. 1995) (finding that all issues not raised with the district court
are waived on appeal except for a review for plain error resulting in manifest injustice).
100
See City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989); Monell v.
Department of Social Services of City of New York, 436 U.S. 658, 694 (1978); Hinton v.
City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993).
101
Monell, 436 U.S. at 694.
See, e.g., Anaya v. Crossroads Managed Care Systems, Inc., 195 F.3d 584,
102
592–93 (10th Cir. 1999); Pierce v. Delta County Dep’t of Soc. Servs., 119 F. Supp. 2d
1139, 1155 (D. Colo. 2000) (citing Brandon v. Holt, 469 U.S. 464 (1985)).
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whom the police come into contact.”103
At this juncture, the only alleged violation we need to consider is the privacy
violation associated with the nude photographs. The other claims are barred for the
reasons stated above. Either they are barred by the statute of limitations (the claims
against the city were filed in the same pleading as the claims against Chief Hoey) or they
do not support our finding that a right was violated. Unlike those other claims, we
concluded above that the claim against Chief Hoey for improper disclosure of the
photographs was not barred by the statute of limitations. Since Chief Hoey and the City
were both named in the same complaint, this claim is not barred against the city either.
Nonetheless, because the Rices cannot establish that the photograph disclosure was
driven by some city policy, we affirm summary judgment as to this claim against the City.
The primary evidence supporting liability by the City is the Foulke report. That report
concluded that “[a] significant number of policies in the [police department] manual are
not in conformity with modern day law enforcement standards.”104 This general
conclusion is not enough to establish a general failing. In order to prevail against the city,
the Rices must establish specific shortcomings that can be identified as the cause of the
violation. The Rices claimed below that the Foulke report specifically found that the
department suffered from “inadequate evidence maintenance procedures,”105 but the basis
City of Canton, Ohio, 489 U.S. at 389.
103
Foulke Report 62 (R. at 1834).
104
Pls.’ Resp. to Def. City of Montrose’s Mot. for Summ. J. and Req. for Hr’g 61
105
(R. at 1649).
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for that conclusion was contained in “Section III” of the report,106 which they have not
included in the appellate record. Without evidence of what the policy was, we cannot
conclude that the policy was the moving force behind the violation.
The other evidence cited in support of this claim also falls short because it
supports only the fact of a constitutional violation, not the conclusion that the city’s
policy was a moving force behind any violation. For example, the Colorado Victims
Rights Subcommittee concluded that the pictures were improperly handled, but offered no
opinion as to whether the Montrose Police Department policy regarding evidence was
itself deficient. To the contrary, it suggests that the department may have had a policy of
returning evidence within five days, in which case the policy could not have caused the
violation but would itself have been violated.107 Similarly, an independent expert
concluded that the evidence procedures were below “standard police procedures,” but he
reached no conclusion as to whether the deficiency was in the department policy itself or
in the individual officers’ adherence to the policy.108 In short, the plaintiffs have offered
no evidence that the City’s policy caused the violation.
The Rices further argue that even if the policy itself was adequate, the city is liable
for failing to train the officers on that policy. However, while the Rices have challenged
Montrose City’s training program generally, they have shown no evidence that training
Id.
106
See Victims Rights Committee Report 9 (R. at 2002).
107
Letter from L.M. Smith to Keith Killian 5, ¶ 5 (R. at 2185).
108
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with regard to evidence collection and preservation was deficient, much less that the
failure to train amounted “to deliberate indifference to the rights of persons with whom
the police come into contact.”109
Accordingly, we find that summary judgment was proper on the privacy claim
rising out of the nude photographs.
D. Outrageous Conduct Claims
Having addressed the Rices’ § 1983 claims, we now turn to their tort claims
arising under Colorado law. The district court rejected these claims, concluding that the
claim against Lieutenant Chinn were barred by the statute of limitations and that, in any
case, the Rices had not offered enough evidence to support an outrageous conduct claim.
We affirm, concluding that most claims are barred by the applicable statute of limitations
and that the few surviving claims do not amount to outrageous conduct.
Colorado law imposes a one-year statute of limitations on “[a]ll actions against . . .
police officers or any other law enforcement authority.”110 In this case, this statute
arguably conflicts with another statute, which imposes a two-year statute of limitations
for outrageous conduct claims.111 We follow the analysis of the Colorado Supreme Court
in choosing which of two apparently conflicting statute of limitations to apply: (1) a
specific statute preempts a general statute; (2) a later statute is given effect over an earlier
City of Canton, Ohio, 489 U.S. at 389.
109
Colo. Rev. Stat. § 13-80-103(1)(c).
110
Colo. Rev. Stat. § 13-80-102(1)(a).
111
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statute; and (3) a longer period of limitations should prevail where two statutes are
arguably applicable.112
The Rices argue that both statutes are general statutes, which would mean that the
longer statute would apply. This, however, is not the case. In Jones v. Cox, the Colorado
Supreme Court held that the statute applicable to outrageous conduct claims was a
general tort statute.113 Subsequently, in Dawson v. Reider, the court concluded that the
statute applicable to actions against police officers was a specific statute.114 Thus, the
specific statute of limitations that applies to actions against police officers must control,
and the district court did not err in applying the one-year statute of limitations to this case.
Accordingly, this court can only consider Lieutenant Chinn’s conduct after October 9,
1997, for Chief Hoey’s conduct after May 23, 1995.
No event after October 9, 1997, can support an outrageous conduct claim, so the
district court properly dismissed the outrageous conduct claim against Lieutenant Chinn.
The only event after May 23, 1995, that can support an outrageous conduct claim is the
meeting with Robert Weller, which is insufficient to establish an outrageous conduct
claim. The Colorado Supreme Court has stated the elements necessary to establish such a
claim: “1. The defendant engaged in extreme and outrageous conduct; 2. The defendant
engaged in the conduct recklessly or with the intent of causing the plaintiff severe
Jones v. Cox, 828 P.2d 218, 222 (Colo. 1992).
112
828 P.2d at 221.
113
Dawson v. Reider, 872 P.2d 212, 214 (Colo. 1994).
114
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emotional distress[;] and 3. The plaintiff incurred severe emotional distress which was
caused by the defendant’s conduct.”115 The court went on to define outrageous conduct as
“conduct that is so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.”116 We cannot conclude that the conversation with Robert Weller,
though probably mean-spirited and unkind, rose to the level of outrageous conduct
contemplated by this tort. Accordingly, we affirm summary judgment as to the
outrageous conduct claims.
III. CONCLUSION
We hold the district court did not abuse its discretion when it concluded that
Weller and Oulton were protected by the reporter privilege. We also affirm the district
court’s grant of summary judgment on the Rices’ six § 1983 claims: (1) denial of access,
(2) improper arrest, (3) illegal search, (4) privacy violations, (5) harm to reputation, and
(6) retaliation. We also affirm as to the outrageous conduct claims.
AFFIRMED.
Entered for the Court,
Paul G. Cassell
District Court Judge, sitting by designation
Culpepper v. Pearl Street Building, Inc., 877 P.2d 877, 882 (Colo. 1994).
115
Id. at 882.
116
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