Kristine Bunch v. United States , 880 F.3d 938 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3775
KRISTINE BUNCH,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14-cv-438-WTL-DKL — William T. Lawrence, Judge.
____________________
ARGUED SEPTEMBER 7, 2017 — DECIDED JANUARY 30, 2018
____________________
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
WOOD, Chief Judge. Kristine Bunch spent 17 years in an
Indiana prison based on a state conviction for the murder of
her son. Bunch’s conviction rested on testimony and evidence
apparently fabricated by a federal forensic chemist,
William Kinard. Kinard’s conduct came to light during post-
conviction proceedings in Indiana’s courts, prompting the
Indiana Court of Appeals to reverse her conviction. The
2 No. 16-3775
Indiana Supreme Court later denied transfer. With the
criminal conviction wiped out, Bunch became free to seek
some recompense for the wrongful conviction and years of
liberty she lost. She is attempting to do so in this suit.
At the time of Bunch’s wrongful conviction, Kinard was a
forensic chemist with the federal Bureau of Alcohol, Tobacco,
and Firearms (ATF). Bunch therefore sued the United States
as his employer, invoking the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346, 2671–80. That suit was
consolidated with a separate action Bunch brought against
two Indiana state fire marshal investigators under 42 U.S.C.
§ 1983. With respect to the suit against the United States, the
district court concluded that the intentional-tort exception to
the general waiver of immunity found in the FTCA applied. It
also ruled that the exception to that exception for torts
committed by investigative or law-enforcement officers did
not apply, and on that basis it granted summary judgment in
the United States’s favor. With that work done, the court
certified under Federal Rule of Civil Procedure 54(b) that the
suit against the United States was fully resolved and that there
was no just reason to delay an appeal.
It may well be, in the final analysis, that the intentional-
tort exception precludes suit against the United States. But the
record was not developed fully enough in the district court to
support such a conclusion at this stage. We do not sit as triers
of fact, and so it would be improper for us to supervise the
collection of further evidence. We conclude that summary
judgment was premature and that further proceedings must
occur in the district court before the immunity issue can fi-
nally be resolved.
No. 16-3775 3
I
Bunch’s travails began when a fire consumed her home
and claimed the life of her three-year-old son on June 30, 1995.
Two investigators from the Indiana Fire Marshal’s office,
Bryan Frank and James Skaggs, quickly decided that arson
had caused the fire and that Bunch was the arsonist. They sent
samples from Bunch’s home to ATF for testing. It fell to
Kinard, an ATF forensic chemist and gunshot-residue analyst-
specialist, to analyze the samples. His results did not confirm
Frank and Skaggs’s theory. To the contrary, his draft report
stated that no accelerants were present in the two places
where the Indiana investigators thought the fire had begun:
the boy’s bedroom and a spot in the living room. Although
samples from elsewhere in the house tested positive for heavy
petroleum distillates, Kinard concluded that these results
were “consistent with the presence of kerosene, for which
there was an innocent explanation.”
This was not what Frank and Skaggs wanted to hear.
Bunch alleges that they communicated their disappointment
to Kinard, who agreed to fabricate findings in his official re-
port. He apparently did just that: the official report confirmed
the presence of accelerants in the two locales identified by the
Indiana investigators. It also said that the heavy petroleum
distillates were consistent with the presence of a broad array
of chemicals, many of which were highly suspicious. The In-
diana investigators submitted only the final, official, version
of Kinard’s report to the state prosecutors, and Kinard’s trial
testimony stuck to that version. No one revealed the existence
of the draft report to Bunch, nor did anyone alert her to the
dramatic shift in Kinard’s conclusions.
4 No. 16-3775
In 1996 an Indiana jury convicted Bunch of felony murder,
and the court sentenced her to 60 years’ imprisonment. As the
Indiana Court of Appeals later noted, “no witness testified to
seeing Bunch set the fire or hearing her talk about doing so;
there was no evidence Bunch had purchased a liquid acceler-
ant and no evidence of flammable liquid on the clothes she
was wearing; and there was no testimony regarding a motive
for her setting the fire.” Bunch v. State, 964 N.E.2d 274, 280
(Ind. Ct. App. 2012). Thus, “[t]he State’s case relied largely on
expert testimony describing two points of origin for the fire
from visual inspection and testing of floor samples showing
evidence of a liquid accelerant.” Id. In other words, Bunch as-
serts, the state relied on the testimony of Frank and Kinard,
bolstered by Kinard’s falsified report.
Bunch filed a petition for post-conviction relief in 2006. In
the course of those proceedings, Kinard’s draft report came to
light. The Indiana Court of Appeals reversed Bunch’s convic-
tion, holding that the state’s failure to produce the draft report
had violated Brady v. Maryland, 373 U.S. 83 (1963). Bunch,
964 N.E.2d at 304. In addition, the court held that significant
advances in the science of fire-victim toxicology inde-
pendently justified granting post-conviction relief. Id. After
the Supreme Court of Indiana denied the state’s petition to
transfer, Indiana declined to retry Bunch.
At that point Bunch sued the United States under the
FTCA because Kinard was acting within the scope of his fed-
eral employment when he prepared the reports. She raised
claims of both malicious prosecution and intentional inflic-
tion of emotional distress arising out of the malicious prose-
cution. As we noted, the district court later consolidated this
suit with her separate section 1983 action against Frank and
No. 16-3775 5
Skaggs. The court ultimately resolved her FTCA suit with its
decision that the United States is entitled to sovereign immun-
ity. Its entry of summary judgment for the United States and
order under Rule 54(b) permit this immediate appeal.
II
We review the district court’s grant of summary judgment
for the United States de novo. Alston v. City of Madison, 853 F.3d
901, 906 (7th Cir. 2017). Summary judgment is proper when
the moving party—here the United States—“shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
The party that bears the burden of proof for an issue at trial
must “cite the facts which it believes [would] satisf[y]” that
burden and “demonstrate why the record is so one-sided as
to rule out the prospect of a finding in favor of the non-mo-
vant … .” See Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund,
778 F.3d 593, 601 (7th Cir. 2015).
Through the FTCA, the United States has assumed liabil-
ity for its employees’ torts as if it were a private employer.
28 U.S.C. §§ 1346(b)(1); 2674. This broad waiver of immunity,
however, is subject to several qualifications, some of which
appear in section 2680. Bunch’s case depends on the FTCA’s
regime for intentional torts—specifically those arising out of
malicious prosecution—for which the United States has re-
served sovereign immunity unless they stem from the conduct
of “investigative or law enforcement officers.” Id. § 2680(h).
The statute defines the term “investigative or law enforce-
ment officer” as “any officer of the United States who is em-
powered by law to execute searches, to seize evidence, or to
make arrests for violations of Federal law.” Id. Although such
an officer must act within the scope of his or her employment,
6 No. 16-3775
the tort need not arise while the officer is performing one of
the three enumerated activities. Millbrook v. United States,
569 U.S. 50, 55 (2013). Rather, the waiver of sovereign immun-
ity holds so long as the tortfeasor is empowered to search,
seize evidence, or arrest. Id.
Bunch has raised a claim of intentional infliction of emo-
tional distress arising out of malicious prosecution and a
stand-alone claim of malicious prosecution. If the intentional-
tort exception bars one, it bars the other as well, and so we
analyze them together. See United States v. Shearer, 473 U.S. 52,
54–56 (1985). It is undisputed that Kinard acted within the
scope of his employment when he tested the forensic samples
and drafted the reports stating his conclusions. This leaves
only the question whether Kinard was “empowered by law”
to search, seize evidence, or arrest.
Bunch has fulfilled her duty to put forth evidence suffi-
cient to support jurisdiction under 28 U.S.C. § 1346(b)(1). The
burden has thus shifted to the government to support its af-
firmative defense that the exception to the FTCA for inten-
tional torts applies and is not vitiated by the investigative or
law-enforcement proviso. E.g., Keller v. United States, 771 F.3d
1021, 1023 (7th Cir. 2014); Parrott v. United States, 536 F.3d 629,
634–35 (7th Cir. 2008); Stewart v. United States, 199 F.2d 517,
519 (7th Cir. 1952). Some, though not all, of our sister circuits
share our view on this allocation of the burden of proof.
See St. Tammany Par. ex rel. Davis v. FEMA, 556 F.3d 307, 315
n.3 (5th Cir. 2009) (reviewing circuit split with focus on the
burden of proving the discretionary function exception). Most
of our own cases assigning this burden to the government
have responded to the United States’s invocation of the dis-
cretionary-function exception found in section 2680(a), e.g.,
No. 16-3775 7
Keller, 771 F.3d 1021, but we repeatedly have said that the
same rule applies to the 13 provisions of that subsection that
follow, including the intentional-tort exception, e.g., Parrott,
536 F.3d at 634–35.
Our reason for treating the FTCA exceptions as affirmative
defenses is straightforward. Assigning the burden to the
plaintiff would not simply shift the outcome in favor of the
United States in a close case. It would also foist on the plaintiff
the need to include allegations in her complaint designed to
prove a raft of negatives—i.e., that each exception does not
apply—and then to prove each of these negatives as part of
her case-in-chief. Stewart, 199 F.2d at 519. Such a system, we
said, would “border on the preposterous,” id., forcing plain-
tiffs to prove countless negatives without any indication that
the exceptions were even in play. The Third Circuit shares this
view: “just as a plaintiff cannot be expected to disprove every
affirmative defense that a defendant could potentially raise,
so too should a plaintiff not be expected to disprove every ex-
ception to the FTCA.” S.R.P. ex rel. Abunabba v. United States,
676 F.3d 329 (3d Cir. 2012). The Third Circuit also noted that
the government, not the plaintiff, will generally have superior
access to the information that might trigger an exception.
Id. at 333 n.2. That is certainly true for the discretionary-func-
tion and intentional-tort exceptions: the government presum-
ably possesses its own regulations defining the mandatory
duties and delegated powers of its own employees. Often
these may be internal agency documents that are difficult for
the public to find.
Our decision in Keller v. United States, 771 F.3d 1021
(7th Cir. 2014), illustrates this process well. There we held that
the district court erroneously granted summary judgment for
8 No. 16-3775
the United States under the discretionary-function exception,
28 U.S.C. § 2680(a), when it put the burden on the plaintiff to
show that the exception did not apply. Keller, 771 F.3d at 1026.
The case involved prison violence: after his fellow prisoners
had attacked and severely injured him, Keller brought an
FTCA suit. Id. at 1022. He alleged that the guards had failed
to monitor the location of the attack and that an intake psy-
chologist had neglected to evaluate his full medical history
before placing him in the general prison population. Id. The
government asserted immunity under the discretionary-func-
tion exception, id. at 1024, but it failed to produce the prison
regulations that would have established a grant of discretion
to its employees. On that record, we said, the plaintiff was en-
titled to go forward:
We cannot conclude, based on the evidence in the
record, that the exception necessarily shields the gov-
ernment from liability … . The scant record available
to both the district court and this panel makes it diffi-
cult to determine what procedures and regulations ap-
plied to the intake psychologist and prison guards … .
[E]xtensive redactions [of the regulations the gov-
ernment provided] make it impossible for this court to
ascertain exactly what regulations and procedures
governed the conduct of the intake psychologist and
the prison guards. The information we do have, how-
ever, suggests that both the intake psychologist and the
prison guards were subject to specific regulations and
orders governing their conduct. For example, … Pro-
gram Statement 5324.07 requires psychology services
to “develop local procedures to clear inmates with a
PSY ALERT assignment,” which suggests that the
No. 16-3775 9
[prison] had mandatory local procedures that needed
to be followed when clearing inmates. [The intake psy-
chologist’s] affidavit similarly refers to procedures
used to clear inmates like Keller who had a “PSY
ALERT.” Those procedures are not in the record, and
in their absence, we cannot conclude as a matter of law
that they did not constrain [the psychologist’s] discre-
tion to place Keller in the general population.
Id. at 1025.
Although the affidavits of prison psychologists stated that
“no mandatory procedures were violated in Keller’s screen-
ing,” they did not “discuss[] what those procedures were or
whether they constrained [the intake psychologist’s] discre-
tion.” Id. at 1025 n.2. Because we had some hints that addi-
tional psychological screening regulations might exist, we de-
clined to assume either that they did not apply or that they
imposed no mandatory duties. Finally, we refused to accept
“the declaration of a prison administrator that guards as-
signed to different areas of the compound [were] interchange-
able and [did] not need to be in any particular area at any
given time.” Id. at 1025. What little we had of the prison reg-
ulations suggested that the contrary was true and that guards
were assigned to monitor specific areas. Id. Without the bene-
fit of the relevant internal prison regulations, we could not
discount the latter possibility.
We have the same problem here. Faced with a record lack-
ing a complete set of relevant ATF regulations and directives,
we similarly cannot conclude that the intentional-tort excep-
tion applies to Kinard. The materials presented to the district
court at the summary-judgment stage do not foreclose the
possibility that the law empowered Kinard (and his fellow
10 No. 16-3775
chemists) to execute searches or to seize evidence. Without
coming to a final decision on the point, we sketch out why we
find the current record indeterminate.
The Secretary of the Treasury, or his delegate, the director
of ATF, had at the relevant time statutory authority “to inspect
the site of any accident, or fire, in which there is reason to be-
lieve that explosive materials were involved.” 18 U.S.C. § 846
(1994); see also id. § 841(k); Bureau of Alcohol, Tobacco, and
Firearms: Establishment, Organization, and Functions (Treas-
ury Department Order 221), 37 Fed. Reg. 11696, 11697
(June 10, 1972). They could “enter into or upon any property
where explosive materials have been used, are suspected of
having been used, or have been found in an otherwise unau-
thorized location.” 18 U.S.C. § 846; see also Bureau of Alcohol,
Tobacco, and Firearms, 37 Fed. Reg. at 11697. The Secretary
had authority to promulgate regulations to carry out these
powers, 18 U.S.C. § 847 (1994), and he did so in 27 C.F.R.
Part 55. See Recodification and Amendments to Explosive
Materials Regulations, 46 Fed. Reg. 40382 (Aug. 7, 1981). The
regulations authorized “[a]ny ATF officer” to “inspect the site
of any accident or fire in which there is reason to believe that
explosive materials were involved” or to “enter into or upon
any property where explosive materials have been used, are
suspected of having been used, or have been found in an oth-
erwise unauthorized location.” 27 C.F.R. § 55.31 (1995). “ATF
officer” in turn was defined as “[a]n officer or employee of the
Bureau of Alcohol, Tobacco and Firearms (ATF) authorized to
perform any function related to the administration or enforce-
ment of this part.” Id. § 55.11.
Just as in Keller we found that the program statement’s
directive to “develop local procedures to clear inmates”
No. 16-3775 11
indicated the potential existence of mandatory screening
procedures, 771 F.3d at 1025, here the reference in section
55.11 to ATF officers or employees “authorized to perform any
function related to the administration or enforcement of this
part” could support a finding that ATF officers or employees
in Kinard’s position have the necessary powers to qualify for
the investigative or law-enforcement category. The
government has not yet entered enough evidence into the
record to foreclose this interpretation and to carry its burden
of proof. It has not, for instance, produced delegation orders
or other internal directives showing to whom, other than
forensic chemists, it delegated its powers. Nor has it argued
the implausible proposition that only the Secretary and ATF
Director were authorized to exercise the powers granted by
18 U.S.C. § 846 and 27 C.F.R. § 55.31.
Instead, the United States has directed our attention to the
Internal Revenue Code, 26 U.S.C. § 7608(a), as well as to its
post-9/11 cousin, 18 U.S.C. § 3051. We do not see how those
laws foreclose the possibility that Kinard held authority pur-
suant to 27 C.F.R. § 55.11. Section 7608 provided as follows:
(a) Enforcement of subtitle E and other laws per-
taining to liquor, tobacco, and firearms.—Any investi-
gator, agent, or other internal revenue officer by what-
ever term designated, whom the Secretary charges
with the duty of enforcing any of the criminal, seizure,
or forfeiture provisions of subtitle E [concerning mat-
ters including taxation of alcohol, tobacco, firearms,
and destructive devices] or of any other law of the
United States pertaining to the commodities subject to
tax under such subtitle for the enforcement of which
the Secretary is responsible, may—
12 No. 16-3775
(1) carry firearms;
(2) execute and serve search warrants and arrest
warrants, and serve subpoenas and summonses issued
under authority of the United States;
(3) in respect to the performance of such duty, make
arrests without warrant for any offense against the
United States committed in his presence, or for any fel-
ony cognizable under the laws of the United States if
he has reasonable grounds to believe that the person to
be arrested has committed, or is committing, such fel-
ony; and
(4) in respect to the performance of such duty, make
seizures of property subject to forfeiture to the United
States.
26 U.S.C. § 7608(a) (1994). ATF Special Agents, the govern-
ment represents, were among those charged by the Secretary
“with the duty of enforcing” the specified tax laws and thus
were invested with the powers listed in section 7608(a). We
have no reason to doubt this, nor do we have any need at this
stage to quarrel with its assertion that Kinard was not an ATF
Special Agent. But that is not the end of the story. Kinard’s
authority, to the extent it existed, could still have flowed from
27 C.F.R. § 55.11. That regulation implemented the Secretary’s
distinct powers conferred in 18 U.S.C. Part 40. We can put to
one side the question whether Kinard might also have had
some authority under section 7608(a) because Bunch has not
pressed that argument, but we do not consider that point
abandoned on remand, either.
Finally, we consider the contours of the power to “execute
searches” under section 2680(h) and why ATF might have
No. 16-3775 13
vested that power in a person holding Kinard’s position. The
government appears to argue that only law-enforcement of-
ficers can execute search warrants and thus Kinard falls within
the intentional-tort exception. But section 2680(h) refers to
both investigative and law-enforcement officers, and it defines
both types of officer as a person with legal authority to “exe-
cute searches, to seize evidence, or to make arrests.” 28 U.S.C.
§ 2680(h). Any one of those three powers will do.
As we construe this language, we must bear in mind the
Supreme Court’s insistence that we not construe the waiver
of sovereign immunity in the FTCA too strictly. Dolan v. U.S.
Postal Serv., 546 U.S. 481, 491–92 (2006); Smith v. United States,
507 U.S. 197, 203 (1993); Kosak v. United States, 465 U.S. 848,
853 n.9 (1984) (warning against overextending the exceptions
in section 2680); United States v. Yellow Cab Co., 340 U.S. 543,
554 (1951). We are also influenced by the broad reading of the
law-enforcement proviso that the Court adopted in Millbrook.
569 U.S. at 55–57. In that spirit, we note that section 2680(h)
does not require Kinard to have had authority to seek and ex-
ecute search warrants; it speaks only of executing searches,
and many searches do not require warrants. See, e.g., Arizona
v. Grant, 556 U.S. 332, 338–39 (2009) (search incident to arrest);
United States v. Ross, 456 U.S. 798, 809 (1982) (automobile ex-
ception); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)
(consent); United States v. Contreras, 820 F.3d 255, 267–68
(7th Cir. 2016) (protective sweep). Furthermore, searches are
normally “executed” by more than just the officer who ob-
tained the search warrant, if there is one. An agent may take
part in executing a search even if he personally does not initi-
ate it or rifle through the space being searched and instead
merely provides guidance to others about what evidence may
14 No. 16-3775
prove significant. Lustig v. United States, 338 U.S. 74, 78–79
(1949).
In Lustig, state officers illegally searched a hotel room after
obtaining, but before executing, an arrest warrant for the hotel
guest. Id. at 79–80. The Supreme Court took as a given that a
Secret Service agent had not requested the search, initiated
the search, or physically emptied containers; that the agent
was not present when the search began; and that local police
had not undertaken the search to enforce federal laws. Id. at
77–78. Nonetheless, the Court concluded that the agent had
“searched” the apartment because he helped to identify sig-
nificant evidence for investigation and potential seizure:
[S]earch is a functional, not merely a physical, pro-
cess. Search is not completed until effective appropria-
tion, as part of an uninterrupted transaction, is made
of illicitly obtained objects for subsequent proof of an
offense. [Secret Service Agent] Greene’s selection of the
evidence deemed important for use in a federal prose-
cution for counterfeiting … was part of the search car-
ried on in that room. … [B]efore the search was con-
cluded Greene was called in, and although he himself
did not help to empty the physical containers of the
seized articles he did share in the critical examination
of the uncovered articles as the physical search pro-
ceeded. … Had Greene accompanied the city police to
the hotel, his participation could not be open to ques-
tion even though the door of [the hotel room] had not
been opened by him. To differentiate between partici-
pation from the beginning of an illegal search and join-
ing it before it had run its course, would be to draw too
fine a line … .
No. 16-3775 15
[A] search is a search by a federal official if he had
a hand in it … . So long as he was in it before the object
of the search was completely accomplished, he must be
deemed to have participated in it.
Id. at 78–79.
Bunch put forward evidence that Kinard’s job, like
Greene’s, included the identification of relevant evidence for
colleagues during crime-scene investigations. Undoubtedly
there are many employees of ATF for whom the same cannot
be said. But forensic chemists, according to the summary-
judgment record before us, do play at least this active a role.
Perhaps this account can be controverted at trial. For now,
however, Bunch did enough to defeat summary judgment in
favor of the United States, given that the burden of proof
rested with the government.
III
We conclude that there are too many disputed issues
about the scope of the duties that an ATF forensic chemist
such as Kinard (let alone a gunshot-residue specialist-analyst)
performs. It was therefore error for the district court to grant
summary judgment in the government’s favor. We REVERSE
and REMAND for further proceedings consistent with this
opinion.