A federal judge on Tuesday challenged claims raised in a wrongful death lawsuit filed by the widow of a Blanding physician who committed suicide the day after being arrested in 2009 for Indian artifact theft, but also asked hard questions about when a show of police force is too much and violates constitutional rights.
U.S. District Court Judge Robert J. Shelby did not issue a ruling but went through each of the five claims raised by Jeanne Redd on behalf of her late husband's estate, telling attorney Shandor S. Badaruddin an amended complaint filed in the case did not adequately specify the unconstitutional acts of two federal agents or present enough information to evaluate the claims. There was no detail in the complaint, for example, about similarity of other defendants' cases or how they were treated differently, Shelby said.
"Don't we need to know that?" he asked.
Shelby also pressed Laura K. Smith, representing two BLM agents who are defendants, about why it was necessary to send as many as 140 agents to the home of the well-respected community member who was in custody, was not posing any threat, was not attempting to flee and given the severity of the alleged crime.
The judge noted that there is likely a different calculus for what show of force is reasonable in such a situation, as compared to a raid on a home occupied by suspected drug cartel members.
"How much force would be excessive, based on clearly established case law?" he asked. "What about 2,000 officers?"
Smith told the judge that agents had reasonable concerns about their safety and many were needed to catalog the 800 or so artifacts taken from the Redds' home. She also said that because what constitutes excessive force is an unsettled legal question, the agents can't be penalized for their actions.
Shelby took over the case in October from U.S. District Court Judge Ted Stewart, who dismissed the first complaint in June after finding it failed to be specific about who did what to whom and when. Stewart also ruled in June in a separate tort action, which lists the government as a defendant, against most allegations while leaving the door open for Jeanne Redd and the couple's five children to pursue an excessive force claim. In that decision, Stewart said the "overwhelming show of force alleged was a serious intrusion" into James Redd's privacy.
Jeanne and James Redd were among 24 people arrested in June 2009 following a two-year investigation into the theft and sale of Indian artifacts in southeastern Utah, led by the U.S. Bureau of Land Management and FBI agents working with a confidential informant. A federal indictment said the couple had taken a bird pendant worth $1,000 from tribal land; Jeanne Redd also was charged with theft and sale of other artifacts.
The complaint alleges BLM agent Daniel Love doubled the value of the pendant in the indictment so the charge would be a felony, rather than a misdemeanor; James Redd was targeted because of his status in the Blanding community and to "retaliate" for dismissal of similar charges more than a decade earlier.
About 80 federal agents descended on Blanding on June 10, 2009, to arrest the Redds and 14 other individuals. Agents in flak jackets and carrying assault rifles arrived at the Redd home about 6:55 a.m. and "manhandled and handcuffed" James Redd as he returned home from an early visit to his health clinic.
James Redd, 60, was taken to his garage and "interrogated" for four hours by BLM agent Dan Barnes. During that time, the complaint alleges Barnes called James Redd a liar, told him he would lose his medical license, and accused him of using garden tools to dig up bodies. When James Redd asked to use the restroom, two unidentified agents accompanied him and stood nearby, refusing to remove his handcuffs so he could properly clean himself, the brief says.
BLM agent Daniel Love allegedly urged other agents to mass at the Redd home throughout the day and at one point told James Redd's daughter that "140 agents had trampled through the Redd home at some point during the day."
James Redd was "shaken to the core" by the incident, the complaint says, and spoke to his family the next day about their decade-long fights with the state and BLM over artifacts; at some point that day, he recorded a statement for his wife and five children and then drove to a secluded spot on their property, hooked a hose to the exhaust pipe of his Jeep and asphyxiated himself.
Other deaths followed in the aftermath of the "roughshod, inhumane and unjust acts" of the investigators, the complaint says. Steven Shrader of Santa Fe, N.M., one of those arrested, committed suicide 10 days later. Ted Gardiner, the confidential informant who supplied information during the investigation, committed suicide on March 1, 2010. A fourth unidentified person also committed suicide last year, the filing states.
Jeanne Redd later pleaded guilty to seven charges related to theft and sale of artifacts and was sentenced to three-years probation, which she completed in April 2011. A month later, Jeanne Redd filed the wrongful death lawsuit. It initially named 16 federal agents, but all but Love and Barnes have been dismissed as defendants.
Badaruddin asked Shelby to allow him to file a second amended complaint if he dismisses the claims, while Smith said there had already been ample opportunity for Redd to focus the complaint and that "we're long past the second chance in this case."