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10th Circuit Not a 'Second-Shot Forum'

By Betty Wang, JD on June 04, 2013 | Last updated on March 21, 2019

The Tenth Circuit was not amused when Jerry McCormick attempted to appeal a summary judgment order, arguing that it was improper -- but with no new evidence to prove that. The court stated their general rule of thumb that parties maintain the responsibility of "craft[ing] their own legal theories for relief in the district court," Richison v. Ernest Group, Inc.

Also, as an appellate court, they stated that while important, their role was limited to correcting any errors made by the district court. Most importantly, they followed that up by retorting that they are not conveniently there to serve as a "second-shot forum where secondary, back-up theories may be mounted for the first time."

Apparently, McCormick attempted exactly that. Or, some version of that.

The original suit arose from a family feud between McCormick's family and their neighbors. Escalated tensions and an incident involving a dog running loose into another's neighborhood resulted in harassment on both ends. McCormick was eventually arrested on charges of felony intimidation of a witness and misdemeanor false reporting of a crime.

The district attorney dismissed those charges, however, but McCormick forged on and filed a suit claiming that the city had violated his constitutional rights when the police officers performed a false arrest of citizens and failed to properly investigate citizen complaints.

The district court then granted a summary motion in favor of the city. A persistent McCormick then filed a post-judgment motion. It was, predictably, denied as well. Then, finally, McCormick appealed the summary judgment, reasserting his First Amendment claim, dressed up as the same arguments he asserted in district court.

In a nail-biter, the summary judgment is finally affirmed, once and for all (let's hope), as the Tenth Circuit evaluated McCormick's claim and failed to find any new grounds for cause. The court lists a whole host of reasons, some of which include lack of sufficient factual matter and no evidence for probable cause.

Bottom line: don't waste the Tenth Circuit's time.

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