Date: 08-28-2017

Case Style:

Case Number: 16-5166

Judge: Harris L. Hartz

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Northern District of Oklahoma

Plaintiff's Attorney: Mark Lyons and John Mensching

Defendant's Attorney: Lawrence E. Eiser and Kyle T. West

Description: Brandon McFadden was a disgrace to law enforcement. He joined other corrupt
officers in fabricating evidence, stealing drugs and money from suspects, and selling
drugs. Plaintiff Larita Barnes is one of his victims. Perjured testimony by McFadden
and others convicted her of selling drugs. She was imprisoned until the officers’
corruption was revealed. Because McFadden was a special agent of the federal Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), Ms. Barnes sued the United States
under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671‒2680, for
various negligent and intentional torts. The district court granted the government’s
* This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 28, 2017
Elisabeth A. Shumaker
Clerk of Court
2
motion for summary judgment and she now appeals. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm in part and reverse in part.
We affirm the dismissal of Ms. Barnes’s claims of negligent training and
supervision of McFadden because she did not raise them in the administrative claim
required by the FTCA. But we reverse the dismissal of her claims of intentional
misconduct by McFadden. As we understand Oklahoma respondeat superior law,
McFadden’s torts against Ms. Barnes may have been within the scope of his employment.
A factfinder could reasonably decide that his perjury and other misconduct constituted an
abuse of power lawfully vested in him rather than an “unlawful usurpation of power the
officer did not rightfully possess,” DeCorte v. Robinson, 969 P.2d 358, 362 (Okla. 1998),
and that his motives included serving a government purpose.
I. BACKGROUND
Brandon McFadden was an ATF special agent assigned to the Tulsa, Oklahoma
field office. He worked as a liaison with the local-gang unit within the Special
Investigations Division of the Tulsa Police Department (TPD). His role was to help
conduct investigations, prepare cases for prosecution, and coordinate with local lawenforcement
agencies. His work included assisting TPD officers to establish probable
cause for search warrants through confidential informants, surveillance, and controlled
drug buys. And he conferred with prosecutors in preparation of trial testimony.
McFadden often worked out of the TPD gang unit’s office. In 2006 he joined a
criminal conspiracy with several gang-unit officers. In 2007 and 2008 the officers stole
drugs and cash they found during searches of suspected drug dealers and their homes.
3
They profited from the stolen drugs by selling them to local dealers. On at least one
occasion, the officers planted evidence in a man’s home, executed a search warrant on the
home, and then pressured the man to participate in their drug trafficking.
Of particular importance to this case are the officers’ dealings with Ryan Logsdon.
In January 2007 McFadden, TPD officer Jeff Henderson, and another TPD officer
executed a search warrant on the home of Logsdon, a suspected drug dealer. The officers
handcuffed and questioned Logsdon in his living room in the presence of his girlfriend
and three-year-old son. Henderson threatened to send Logsdon to jail and to place his
son in custody if he refused to cooperate. In response, Logsdon led the officers to
$13,000 cash and about two pounds of methamphetamine. Henderson and McFadden
each pocketed $1,500 and retained a half pound of the methamphetamine, which they
later sold back to Logsdon for $7,000. The remainder of the cash and drugs was turned
over to the police department, and Logsdon’s car was processed for forfeiture. From then
on, Logsdon continued to deal methamphetamine while serving as a confidential
informant for the officers. He occasionally met with McFadden and Henderson, paying
them a total of $250,000 to $300,000 for methamphetamine over the course of the
conspiracy.
In May 2007, Logsdon informed McFadden that he had bought methamphetamine
from Ms. Barnes on two occasions. McFadden and Henderson began making
preparations for a controlled buy between Logsdon and Ms. Barnes. McFadden followed
ATF procedures to obtain $3,000 from Bureau funds and gave the money to Henderson
for the purchase. But the buy never occurred. A few days later, Logsdon told the officers
4
that Ms. Barnes had “advised him not to come around anymore and that she did not want
to deal with him.” Id. at 143. According to Logsdon, Ms. Barnes had learned that
Logsdon’s car had been forfeited by the police and became suspicious that he was a
police informant. Henderson never returned the $3,000.
Shortly thereafter, McFadden discovered that Henderson had written a report
stating that the controlled buy with Ms. Barnes had occurred; and when charges were
filed against Ms. Barnes, he learned that he was included in the report. Henderson urged
McFadden to “[s]tick to what’s on the report” because “[e]verybody hates the Barneses
anyway” and “[n]o one’s going to ask any questions.” Id. at 145. Although McFadden
knew the report was false, he agreed to cooperate, “believ[ing] what people had said
about the Barneses all this time.” Id.
On August 10, 2007, Ms. Barnes and her father were indicted. As was common
practice, McFadden, Henderson, and Logsdon met several times to prepare for the jury
trial by getting the details of their stories straight. A few days before trial, they also met
with the prosecutor at the U.S. Attorney’s office. McFadden served as the case agent for
the trial, during which he, Henderson, and Logsdon falsely testified that Ms. Barnes and
her father had sold Logsdon 87 grams of methamphetamine. On April 23, 2008, Ms.
Barnes and her father were each found guilty on two charges. She was sentenced to 120
months’ imprisonment; he to 66 months.
The conspiracy soon began to unravel. In 2009 federal authorities opened an
investigation of TPD corruption and learned that Ms. Barnes’s conviction was based on
perjured testimony. Upon the government’s motion, Ms. Barnes’s felony convictions
5
were overturned and she was released on July 2, 2009. McFadden was indicted on
several charges and pleaded guilty to conspiracy to distribute methamphetamine. At his
plea colloquy he confessed:
I used the position as a special agent with ATF to further the drug
conspiracy and abused my position as a special agent. During this time,
myself and Henderson seized drugs and money which were kept for our
own personal benefit, falsified investigative reports, and failed to document
events, and obstruct justice through falsely [sic] testimony under oath and
persuading other individuals to do the same.
Aplt. App. at 73. And he later asserted in an affidavit:
10. The reason I did this was to help the United States of America, as an
acting agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives,
Jeff Henderson and the City of Tulsa to successfully prosecute the Barnes
so they would subsequently be convicted of a criminal offense and
therefore be imprisoned.
11. I did not do these acts for personal gain and I did not receive any
personal gain or benefit from these acts. . . .
Id. at 178.
Ms. Barnes filed this suit in the United States District Court for the Northern
District of Oklahoma. The district court granted the government’s motion for summary
judgment and Ms. Barnes appeals.
II. DISCUSSION
The FTCA provides a limited waiver of the federal government’s sovereign
immunity, allowing civil claims against the United States for “the negligent or wrongful
act or omission” of a federal employee “acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA the United States is liable on
tort claims “under circumstances where the United States, if a private person, would be
6
liable to the claimant in accordance with the law of the place where the act or omission
occurred.” Id.; cf. id. § 2674 (“The United States shall be liable . . . in the same manner
and to the same extent as a private individual under like circumstances”).
Ms. Barnes asserts claims under the FTCA for negligent supervision and training,
false arrest, wrongful imprisonment, abuse of process, malicious prosecution, and
intentional infliction of emotional distress. She alleges that McFadden falsely testified at
her trial and instructed another person to do the same, resulting in her illegal arrest,
prosecution, and imprisonment. She also alleges that the ATF negligently “failed to
properly train, supervise, and oversee McFadden.” Compl. at 5 ¶ 23, Barnes v. United
States, No. 4:12-cv-00282 (N.D. Okla. May 15, 2012). The district court granted the
government’s summary-judgment motion, ruling (1) that Ms. Barnes failed to exhaust
administrative remedies with respect to her claims of negligent supervision and training
and (2) that McFadden was not acting within the scope of his employment.
We review de novo the grant of a motion for summary judgment. See Obermeyer
Hydro Accessories v. CSI Calendering, 852 F.3d 1008, 1014 (10th Cir. 2017). Summary
judgment is appropriate if “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). “We view the
evidence, and draw all reasonable inferences therefrom, in the light most favorable to the
nonmoving party.” Obermeyer, 852 F.3d at 1014.
A. Failure to Exhaust Administrative Remedies
A claimant under the FTCA must “first present[] the claim to the appropriate
Federal agency.” 28 U.S.C. § 2675(a); see McNeil v. United States, 508 U.S. 106, 113
7
(1993) (“The FTCA bars claimants from bringing suit in federal court until they have
exhausted their administrative remedies.”). A claim is properly presented to an agency
only if the language of the claim “serves due notice that the agency should investigate the
possibility of particular (potentially tortious) conduct.” Staggs v. United States, 425 F.3d
881, 884 (10th Cir. 2005) (internal quotation marks omitted). Because Ms. Barnes’s
administrative claim “included no mention of any possibility that her injuries were caused
by negligent training and supervision,” the district court held that her negligence claims
were unexhausted. Barnes v. United States, 104 F.Supp.3d 1285, 1297 (N.D.Okla. 2015).
Ms. Barnes does not dispute the district court’s characterization of her
administrative claim. She argues only that “the FTCA notice requirements . . . should not
be interpreted inflexibly” and that “a tort claim is sufficient if it provides notice of the
facts and circumstances underlying a claim rather than the exact grounds upon which the
plaintiff seeks to hold the government liable.” Aplt. Br. at 29‒30 (internal quotation
marks omitted). But she fails to explain why her administrative claim lacks even a
cursory mention of ATF training or supervision. The claim provides no notice of any
wrongdoing by any federal officer other than McFadden. The district court did not err in
dismissing Ms. Barnes’s negligence claims.
B. Scope of Employment
To determine whether the United States would be liable for the acts of a federal
employee, we look to the respondeat superior law of the state where the wrongful act
occurred. See Fowler v. United States, 647 F.3d 1232, 1237 (10th Cir. 2011) (examining
8
Colorado respondeat superior law to determine whether federal employee was acting
within his scope of employment).
Under Oklahoma law an employer may be liable for an employee’s intentional
torts if the employee was “acting within the scope of the employment in furtherance of
assigned duties.” Bosh v. Cherokee Cty. Bldg. Auth., 305 P.3d 994, 998 (Okla. 2013).
“[O]ne acts within the scope of employment if [1] engaged in work assigned, or [2] if
doing what is proper, necessary and usual to accomplish the work assigned, or [3] doing
that which is customary within the particular trade or business.” Id.; accord Tuffy’s, Inc.
v. City of Oklahoma City, 212 P.3d 1158, 1163 (Okla. 2009) (officers allegedly attacked
nightclub patrons). “[A]n employer can be held liable even if the employee acts beyond
the given authority” so long as the act was “incident to some service being performed for
the employer.” Rodebush v. Okla. Nursing Homes, Ltd., 867 P.2d 1241, 1245 (Okla.
1993).
To apply the scope-of-employment analysis in the context of law enforcement, the
Oklahoma Supreme Court has embraced a test formulated by the Florida Supreme Court.
See DeCorte, 969 P.2d at 361 (claim of false arrest and assault of prisoner by officer).
Under the test, “‘liability exists for acts of officers that can be described as abuses of
lawful power,’” but not for “‘an unlawful usurpation of power the officer did not
rightfully possess.’” Id. at 361‒62 (quoting McGhee v. Volusia Cty., 679 So.2d 729, 733
(Fla. 1996)). The line between abuse and usurpation is not the line between legal and
illegal acts. An “‘officer’s misconduct, though illegal,’” may be “‘accomplished through
9
a[n] abuse of power lawfully vested in the officer.’” Id. at 362 (quoting McGhee, 679
So.2d at 732).
Because the Oklahoma Supreme Court adopted the Florida Supreme Court’s
abuse/usurpation test, we can look to Florida cases for guidance in applying it. In the
opinion quoted by DeCorte, the plaintiff was handcuffed and being booked when he told
the deputy sheriffs that they were no longer welcome in his father’s saw shop. See
McGhee, 679 So.2d at 730. One of the deputies lunged at the plaintiff, grabbed him by
the throat, and began kicking him with force. See id. In ruling for the plaintiff the court
wrote, “The fact that [the deputy] may have intentionally abused his office does not in
itself shield the sheriff from liability.” Id. at 733. It pointed out that the deputy “clearly
had the lawful authority to restrain arrestees, detain them, or even respond with force in
appropriate situations,” and it held that “he therefore cannot be described as a usurper.”
Id. Although the court said that the issues of bad faith and malicious purpose still had to
be determined on remand, see id., those issues were not relevant to scope of authority but
to additional statutory requirements, see id. at 731 (quoting statute providing that state is
not liable for torts committed “while acting outside the course and scope of [employee’s]
employment or committed in bad faith or with malicious purpose.”).
McGhee provided further guidance in discussing two earlier decisions. In
Hennagan v. Dep’t of Highway Safety & Motor Vehicles, 467 So.2d 748, 749 (Fla. Dist.
Ct. App. 1985)), an officer “allegedly had ‘arrested’ a minor child pretexually so that he
later could sexually molest her.” McGhee, 679 So.2d at 731. McGhee agreed with
Hennagan that “‘[c]onduct is within the scope of employment if it occurs substantially
10
within authorized time and space limits, and it is activated at least in part by a purpose to
serve the master.’” McGhee, 679 So.2d at 732 (quoting Hennagan, 467 So.2d at 751);
see also Hennagan, 467 So.2d at 750 (“[C]onduct may be within the scope of
employment, even if it is unauthorized, if it is of the same general nature as that
authorized or is incidental to the conduct authorized.”). As McGhee explained in support
of the result in Hennagan, “The officer’s misconduct, though illegal, clearly was
accomplished through an abuse of power lawfully vested in the officer, not an unlawful
usurpation of power the officer did not rightfully possess.” 679 So.2d at 732.
McGhee also endorsed a decision involving a police officer who used excessive
force in committing a false arrest. See 679 So.2d at 732 (citing Richardson v. City of
Pompano Beach, 511 So.2d 1121 (Fla. Dist. Ct. App. 1987), review denied, 519 So.2d
986 (Fla. 1988)). As McGhee explained, “[T]he Richardson court concluded that acts did
not fall beyond the scope of the officer’s employment merely because they were
intentional.” 679 So.2d at 732. Thus, “[o]nce again this showed a case of lawful power
abused, not of an unlawful usurpation of authority.” Id.
With the understanding of the abuse/usurpation dichotomy provided by McGhee,
we conclude that summary judgment was improper. The heinous acts of McFadden that
harmed Ms. Barnes were performed in the normal course of his duties—preparing for
trial and testifying. The government’s arguments to the contrary are not persuasive.
The government first argues that McFadden was acting outside the scope of his
authority because “a federal law enforcement officer is never authorized to frame a
person known to be innocent.” Aplee. Br. at 28. But an officer is also not authorized to
11
use excessive force or commit sexual assault. Although McFadden, like the officers in
the above cases, employed his power “contrary to the law of its use” and “use[d] it
improperly and to excess,” McGhee, 679 So.2d at 731, he did not assume a function that
had not been assigned to him. Cf. Baker v. Saint Francis Hosp., 126 P.3d 602, 605
(Okla. 2005) (employer may be liable where employee has authority “to do the particular
thing rightfully that was subsequently done in a wrongful manner”); Shrier v. Morrison,
357 P.2d 196, 202 (Okla. 1960) (“[C]are must be exercised to distinguish between
authority to commit a fraudulent act and authority to transact business in the course of
which the fraudulent act is committed.” (internal quotation marks and emphases
omitted)). McFadden could not have performed his authorized duties more despicably,
but he was acting within the customary scope of his duties.
The government also argues that it is not liable under general respondeat superior
law because McFadden was acting for his own purposes (pursuing the conspiracy that
had greatly enriched him), not the interests of the United States. The underlying
proposition finds support in Oklahoma law. In Baker, 126 P.3d at 603‒04, a hospital was
sued under the theory of respondeat superior because its employee, a caregiver,
intentionally struck the head of a two-month-old girl against the corner of a shelf. The
court explained the relevance of the employee’s motives:
“The liability of a master for the use of force by a servant is not prevented
by the fact that the servant acts in part because of a personal motive, such
as revenge. The master, however, is relieved from liability . . . if the
servant has no intent to act on his master’s behalf[.]”
12
Id. at 607 (quoting Restatement (Second) of Agency § 245 cmt. f (1958)); see also
Restatement (Third) of Agency § 7.07(2) (“An employee’s act is not within the scope of
employment when it occurs within an independent course of conduct not intended by the
employee to serve any purpose of the employer.”). The court thus remanded for a factfinder
to determine the motive behind the caretaker’s acts. It said, “[A] jury . . . must
decide if [the employee’s] acts were so far removed from any work-related endeavor and
geared, instead, toward a personal course of conduct unrelated to her work so that it
would no longer be appropriate to hold her employer responsible for her act(s).” Baker,
126 P.3d at 607.
In the law-enforcement context, however, the courts have generously construed
the breadth of an officer’s purpose, perhaps because public-policy concerns generally
make it “appropriate to hold [the law-enforcement agency] responsible for [an officer’s]
acts.” Id. With great power comes great responsibility, and the powers of lawenforcement
officers are unique in our society. Police agencies are expected to strictly
control misbehavior by their own officers. Thus, the courts of Oklahoma and Florida
have said that an officer may have in mind a governmental purpose when he abuses a
prisoner, see McGhee, 679 So.2d 729; uses excessive force in a false arrest, see DeCorte,
969 P.2d 358; Richardson, 511 So.2d 1121; assaults nightclub patrons, see Tuffy’s, 212
P.3d 1158; or even arrests a child for the purpose of sexually abusing her, see Hennagan,
467 So.2d 748. McFadden declared in an affidavit that he “did not do these acts for
personal gain,” that he “did not receive any personal gain or benefit from these acts,” and
that “[t]he reason [he] did this was to help the United States of America . . . successfully
13
prosecute the Barnes.” Aplt. App. at 178 ¶ 10‒11. Contrary to the government’s brief,
this was sufficient evidence of an intent to serve the government.
The government contends that Ms. Barnes forfeited the argument that McFadden
intended to aid the United States because she did not raise this theory below. We
disagree. In her response to the government’s motion to dismiss, she argued that
“[v]arious law enforcement entities and/or officers were upset at not being able to get
evidence to prosecute the Barnes so someone devised a plan to fabricate witnesses and
evidence of a drug crime to indict her and prosecute her in federal court.” Resp. to Mot.
to Dismiss at 1, Barnes v. United States, No. 4:12-cv-00282. She further stated that:
SA McFadden, and others, thought Larita Barnes and other members of her
family were deeply involved in drug activity. When SA McFadden went
after Ms. Barnes, he did so only to further the interests of the federal
government in investigating, ferreting out and helping to prosecute criminal
activity.
Id. at 11. And in her Rule 59(e) motion to reconsider, Ms. Barnes argued:
It is undisputed that McFadden submitted an affidavit that none of his
actions as to Ms. Barnes were for personal gain. His acts were intended to
benefit his employer, the United States of America, to successfully
prosecute the Barneses.
Mot. to Recons. at 17, Barnes v. United States, No. 4:12-cv-00282 (citations omitted).
In our view, the record does not support summary judgment in favor of the
government on the respondeat superior issue.

Outcome: We AFFIRM the district court’s dismissal of Mr. Barnes’s negligence claims.
We REVERSE the dismissal of the remainder of Mr. Barnes’s claims and REMAND for
further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: