Estate of Naomi Killsnight-Hiwalker et al v. US

FTCA/INDIANS: Material fact issues preclude summary judgment as to discretionary function exception and contributory negligence of drivers of 2 vehicles involved in high-speed pursuit Reservation accidents… Morris.

This case arises from 2 high-speed pursuits on the Northern Cheyenne Reservation which ended in the deaths of 4 people and severe injury of several others. Plaintiffs allege that BIA Officers took actions prohibited by pursuit policies, directly caused the accidents, and violated the fiduciary duty created by the trust relationship between the US and Indian Nations. The US requests summary judgment, arguing that the FTCA discretionary function exception immunizes it from liability for the officers’ actions and that the drivers’ contributory negligence entitles the US to summary judgment. Plaintiffs filed a cross-motion for summary judgment, arguing that the discretionary function exception fails as a matter of law, contributory negligence does not apply to the US’ breach of fiduciary duty, and factual disputes preclude summary judgment as to the remaining negligence claims. The Court conducted a hearing 11/13/24.

The first accident

On 7/23/18 Dispatch received 2 calls about a red pickup driving recklessly on the outskirts of Lame Deer at 4:20 p.m. It learned that the pickup belonged to Naomi Killsnight-Hiwalker. One caller reported that “a bunch of kids” were visible in the back of the pickup. One witness who watched the pursuit from the roadside, identified the passengers as “little boys” 7 to 10 years old. Dispatch radioed officers including Lt. Randy Elliott that children had been seen in the pickup. The US disputes whether officers received this transmission.

Elliott located the pickup stopped on the side of Hwy 212 just outside Lame Deer. He pulled behind it with his lights activated to “conduct a traffic stop on a vehicle reported to be driven by an intoxicated driver.” Officers knew Killsnight-Hiwalker from previous interactions and understood her to be a compliant, nonviolent arrestee. The pickup “took off.”

Elliott and Police Chief Brandon Satepauhoodle-Mikkanen pursued. Elliott radioed Satepauhoodle-Mikkanen that he intended to pass the pickup to “try to slow them down.” Satepauhoodle-Mikkanen later recalled that he replied “copy” to indicate his approval. Neither Dispatch nor Satepauhoodle-Mikkanen recorded his response to Elliott. Satepauhoodle-Mikkanen testified that the log must have failed to record it. Lane Adams, the US’ 30(b)(6) designee, testified that the log should contain a complete transcription of all radio traffic.

Elliott drove into the oncoming lane to pass and pulled alongside the pickup. He estimated that he was traveling 75-80 mph but expert testimony based on the dashcam indicates that it was closer to 96. He made eye contact with Killsnight-Hiwalker. He reported that he pulled back “35 – 50 yards” in front of the pickup. Satepauhoodle-Mikkanen estimated that 20 feet separated Elliott and the pickup when he pulled in front of it. The expert report indicates that Satepauhoodle-Mikkanen’s dashcam footage aligns with his estimate.

The maneuver by Elliott left Killsnight-Hiwalker with the sole means of escape to drive into the left lane of oncoming traffic. She pulled sharply into the left lane, overcorrected into the right lane, and lost control. Frame-by-frame analysis of Satepauhoodle-Mikkanen’s dashcam revealed that Elliott’s brake lights activated as he pulled in front of the pickup immediately before Killsnight-Hiwalker lost control and crashed. He reported that he merely took his foot off the accelerator. Call logs from responding MHP officers indicated that he had “boxed in” the pickup to stop it and described his actions as a “boxing maneuver.” The pickup rolled several times.

Killsnight-Hiwalker and her brother Morningstar Killsnight were ejected and died at the scene. The other adult, Shanda LaFranier, was also ejected but survived with severe injuries. The 3 minors in the backseat — 2 of whom were Killsnight-Hiwalker’s children and one of whom was 6 — survived with serious injuries. Killsnight-Hiwalker’s autopsy showed .485 BAC, THC, and ibuprofen. Expert analysis of the crash indicates that Elliott’s maneuver would not have allowed an unintoxicated driver sufficient time to react. The expert opined that Killsnight-Hiwalker exhibited a comparable reaction time to an unintoxicated driver.

The second accident

On 1/4/19 BIA Officer Stephen Stallings was parked outside Lame Deer on Hwy 212 when a Cadillac sedan drove by at 93 mph in a 65 zone. He activated his lights and sirens but the Cadillac failed to yield. He knew it belonged to Iva Joe Little Head because he had seen it parked at that residence. He pursued and the Cadillac accelerated to 110 mph. Stallings testified that he lost sight of it for up to 10 seconds at a time as it drove over hills and around corners between Lame Deer and Busby. He could not recall whether it turned off its lights at one point or if he lost sight of it due to the distance. He followed it for more than 20 miles.

Stallings reported “really light or no traffic” and “maybe 1 or 2 vehicles” on the highway. In fact, he drove past 15 vehicles during the pursuit. He requested all available assistance and that spike strips be placed as he drove into the Crow Reservation. Crow Agency Lt. James Tomahawk responded that he would set the strips at mile marker 8. Stallings continued to pursue the Cadillac.

Stallings again lost sight of the Cadillac as he ascended a hill between mile markers 10 and 9. When he crested the hill he could not “see anything on the road, like any taillights or anything.” He slowed and noticed 2 vehicle tracks in the snow. He located the Cadillac with the help of another officer. It had rolled and ejected 2 of its 3 occupants.

Stallings testified that he found Miracle Lockwood in the driver’s seat area. She crawled out the driver’s window. She said Nichole Costa was driving and that she (Lockwood) was in the front passenger seat with her seatbelt on. She survived with serious injuries.

Ko.K, one of the children who survived the accident in the red pickup, was ejected from the Cadillac, partially decapitated, and killed. Costa was also ejected with catastrophic injuries and later died. Hospital tests showed that Costa had .072 BAC a few hours after the accident and tested positive for meth.

BIA pursuit policy

The 30(b)(6) designee testified that 3 sources govern BIA pursuit policy: the 2015 edition of the BIA Handbook, DHS’s pursuit training guidelines, and Interior Department’s pursuit policy. The Handbook classifies pursuits as “use of force” and requires officers to evaluate each pursuit upon the same “objective reasonableness standard” applicable to any other use of force and:

OJS officers should make every reasonable effort to stop traffic violators. The protection of life, both civilian and law enforcement, is the foremost concern that governs this policy. Officers must balance the need to stop a suspect against the potential threat to themselves and the public created by a pursuit or apprehension.

The Handbook also notes that “no set of guidelines can address all possible circumstances so officers are expected to evaluate their actions based on whether the potential benefits outweigh the risks that are involved.” “In most instances the officer should discontinue attempting to stop the vehicle, unless pursuit guidelines are applicable.”

The Handbook contains numerous policies requiring officers to take certain actions after initiating a pursuit including “notify dispatch” of key information such as the number and description of vehicle occupants. It casts these directives in mandatory language: officers “will,” “must,” or “may not” take certain actions. One instruction mandates that a supervisor “will immediately terminate the pursuit” when it fails to comply with the Handbook’s “requirements” or when the risks of pursuit prove greater than the risk to the public created by delaying capture. Officers “will maintain proper spacing between the vehicles to allow proper braking and reaction time in the event that the lead vehicle stops, turns, or slows.” The “pursuing officer will terminate the pursuit when he/she loses sight of the fleeing vehicle for any extended period of time.”

The 30(b)(6) designee on law enforcement policy & procedure testified that BIA policy does not authorize a deadly force maneuver against a vehicle carrying children. “If the officer knows there’s 3 children in the vehicle and the supervisor knows also, they should terminate pursuit.” Use of deadly force against a 6-year-old passenger of a fleeing vehicle is prohibited. BIA policy does not permit a “boxing-in” maneuver, a “tactic designed to stop a suspect’s vehicle by surrounding it with law enforcement vehicles and then slowing all vehicles to a stop.”

The DHS training policy states that “officers should not attempt to pass the suspect vehicle or pull alongside.” BIA policy indicates that officers should consider terminating the pursuit if they lose sight of a vehicle for “more than a second or two.” Satepauhoodle-Mikkanen testified that “if the driver is known to us, there’s no need to pursue them. We’ll simply request a warrant.”

The discretionary function exception

The FTCA permits one to sue the US “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 USC 1346(b). It imposes government responsibility for damages caused by the “misfeasance of employees in carrying out the US’ work.” Dalehite (US 1953). It aims to “establish consistency between the liability incurred by individuals and by the government for the commission of tortious acts.” Faber (9th Cir. 1995).

The discretionary function exception restores government immunity for an employee’s acts in “fulfillment of a broad policy-making duty” when the employee exercises or performs a “discretionary function or duty.” Id. This exception applies if “(1) the act or omission on which the claim is based ‘involves an element of judgment or choice’; and (2) ‘that judgment is of the kind that the discretionary function exception was designed to shield.'” Miller (9th Cir. 2021) (quoting Gaubert (US 1991). The discretionary function exception “applies only to conduct that involves the permissible exercise of policy judgment.” Berkovitz (US 1988) (emphasis added).

The US argues that the officers weighed public policy factors and correctly concluded that public safety weighed in favor of continuing the pursuits. Plaintiffs argue that the BIA’s objective standard for use of force during a pursuit, although based on several circumstance-specific factors, does not involve the kind of broad policymaking discretion immunized by the discretionary function exception. At this stage, material fact issues prevent the Court from determining whether the discretionary function exception applies or does not apply as a matter of law.

The parties dispute whether the circumstances of these pursuits mandated a specific, proscribed course of action and whether the officers violated that mandate. For instance, officers “will” maintain proper spacing between vehicles and terminate the pursuit if the officer loses sight of the vehicle for an extended time. Killsnight-Hiwalker maintains that Elliott left only 20 feet between the red pickup and his vehicle but Elliott testified that he believed it was 35-50 yards. Stallings lost sight of the Cadillac for up to 10 seconds at a time, but the parties dispute whether this constitutes an “extended period of time” that would require him to terminate the pursuit. The parties dispute the nature of Elliott’s “boxing-in” maneuver, whether his supervisor approved it, and whether the officers know that the red pickup carried children. Most importantly, they dispute whether these specific directives outweigh the Handbook’s more general grant of discretion for officers to “evaluate their actions based on whether the potential benefits of their actions outweigh the risks that are involved.” Material fact disputes prevent the Court from determining as a matter of law whether the discretionary function exception shields the US from liability and prove more appropriate for resolution at trial.

Contributory negligence – first accident

A plaintiff’s contributory negligence bars recovery only if the plaintiff’s negligence exceeded 50% of the fault. Larchick (Mont. 2009). Killsnight-Hiwalker offered expert testimony that Elliott’s maneuver directly caused the rollover of her vehicle. She admittedly was intoxicated. She presented evidence that she remained in control of the vehicle until Elliott passed into oncoming traffic, pulled sharping in front of her, left her only 20 feet in which to react, and slammed his brakes at speeds close to 100 mph. She alleges that BIA policy prohibits these actions due to the danger they pose to officers, fleeing drivers, and the community. Material fact issues prevent the Court from determining whether Killsnight-Hiwalker acted more negligently than the US as a matter of law.

Contributory negligence – second accident

The US filed a 3rd-party complaint for contribution against Lockwood alleging that she “may have been the driver of the vehicle being pursued,” she “had duties to the passengers in the vehicle she was driving,” she “violated the standard of care and negligently caused” the wreck, and her “negligence was the cause of the injuries to the other passengers.” It served her with a summons 1/16/23. She filed no responsive pleading. The US moved for entry of default against her 2/12/24. The Clerk entered the default 2/14. The US has not yet sought entry of judgment from the Court to determine damages.

The US now argues that “there is no genuine dispute that Costa was the driver in the second pursuit” and that the entry of default against Lockwood represents “nothing more than a possibility, a placeholder in the event the government wishes to pursue contribution against the driver in the second pursuit.” A default represents a binding adjudication of liability, not simply a placeholder. The US did not merely “wish” to pursue a contribution claim against Lockwood sometime in the future; it already has pursued this claim against her.

Moreover, to plead alternative claims for the contributory negligence of both people as potential drivers of the same vehicle would be inappropriate at the summary judgment phase. Unlike NextWave Marine (D.Or. 2020), the US does not plead separate theories of recovery, but rather separate and inherently incompatible factual bases for that recovery. It cannot argue in seeking summary judgment that Costa undisputably drove the Cadillac when it has obtained a default judgment that Lockwood drove it. It likewise cannot claim on summary judgment that no dispute exists that Costa’s alleged negligence as the driver so exceeded that of the officers as to prevail on its contributory negligence claim.

Rule 11(b)(3) requires parties to have evidentiary support, or the reasonable expectation of it, for factual allegations. The Court assumes that the US had evidentiary support to interplead Lockwood and pursue default against her as the driver of the Cadillac, and that this evidence, rather than its desire to establish an “insurance policy” against a potential loss, supports its pleadings.

In any case, whether Lockwood or Costa drove the Cadillac remains disputed, and this disputed fact remains material to establishing contributory negligence. Stearney (D.Ariz. 2019) proves informative. BIA officers responded to reports that a drunk driver in a truck ran a stop sign and caused a hit & run. The driver hit another vehicle during the pursuit, killing himself and 3 others. The district court concluded that the officer should have terminated the pursuit when all factors weighed against continuing it or were neutral. The officer followed the truck “at an average speed of 94 miles per hour for 24.6 miles with his lights and siren activated” even though it was “immediately apparent” that the officer could not overtake the truck while it was moving at more than 100 mph. The officer also “knew the truck’s owner and suspected, correctly, the identity of the driver. The district court allocated 10% of the fault to the US and 90% to the drunk driver who hit the plaintiffs’ vehicle. These factual determinations rely on the detail provided by trial. Unlike in Stearney, the US has not yet proven the identity of the driver of the Cadillac, whether the driver was impaired, or whether the driver’s actions prove more negligent than those of the officers. Material fact issues prevent summary judgment based on the Cadillac driver’s alleged contributory negligence.

The US’ motion for summary judgment is denied. Plaintiffs’ cross-motion for summary judgment is denied.

Estate of Naomi Killsnight-Hiwalker et al v. US, 45 MFR 7, 1/2/25.

John Amsden, Justin Stalpes, Sydney Best (argued) and Sam Johnston (Beck, Amsden, and Stalpes), Bozeman, and Dan Spoon & Bryan Spoon (Spoon Gordon), Missoula, for Plaintiffs; AUSA John Newman (argued), Mark Smith, and Abbie Cziok.