v. Arpaio et al

Filing 115

ORDER that "Defendants' Motion for Summary Judgment" Doc. 92 is GRANTED with respect to Plaintiffs' equal protection claim and DENIED in all other respects. Signed by Judge Neil V Wake on 12/23/2011.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Thomas Lovejoy and Carolyn Lovejoy, husband and wife, 10 Plaintiffs, 11 vs. 12 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife, 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. CV09-1912-PHX-NVW ORDER 1 I.  Facts .............................................................................................................................. 3  2 A.  Bandit’s Death ....................................................................................................... 3  3 B.  The Investigation ................................................................................................... 5  4 C.  Lovejoy’s Arrest .................................................................................................... 8  5 D.  Simonson’s Interview with Lovejoy’s Defense Attorney ................................... 11  6 E.  The Decision to Take the Case to Trial ............................................................... 15  7 F.  The Trial............................................................................................................... 19  8 G.  The Lovejoys’ Alleged Injuries ........................................................................... 20  9 II.  Summary Judgment Standard.................................................................................. 20  10 III.  Admissibility of Certain Evidence .......................................................................... 21  11 IV.  Summary of Arguments .......................................................................................... 22  12 V.  Probable Cause & Qualified Immunity ................................................................... 23  13 A.  Probable Cause Generally .................................................................................... 23  14 B.  Effect of Ariz. R. Crim. P. 20 Motion ................................................................. 24  15 C.  Proper Focus of Probable Cause & Qualified Immunity Inquiries...................... 25  16 D.  Lack of Probable Cause & Qualified Immunity .................................................. 27  17 VI.  Arpaio’s Alleged Personal Involvement ................................................................. 33  18 A.  The Decision to Arrest and Charge...................................................................... 33  19 B.  The Decision to Continue Prosecuting ................................................................ 36  20 VII.  Municipal Liability .................................................................................................. 40  21 VIII.  Equal Protection ................................................................................................... 41  22 23 24 25 26 27 28 -2  1 In this action, Chandler Police Sergeant Thomas Lovejoy seeks damages from 2 Maricopa County Sheriff Joseph Arpaio (in his individual and official capacities) for 3 Lovejoy’s allegedly unconstitutional arrest and prosecution arising out of the death of 4 Lovejoy’s police dog. Sheriff Arpaio has moved for summary judgment, arguing that 5 Lovejoy lacks evidence to connect Arpaio to the arrest and prosecution, and that various 6 legal doctrines shield him from liability in any event. (Doc. 92 as corrected by Doc. 7 94-1.) 8 On the record before the Court, the arrest and prosecution were obviously 9 unconstitutional, and Lovejoy has enough evidence from which a jury could infer that 10 Arpaio acted to ensure Lovejoy was arrested and prosecuted anyway. Summary 11 judgment will therefore be denied as to the false arrest and malicious prosecution claims. 12 Summary judgment will be granted, however, on Lovejoy’s equal protection claim 13 because he has not shown that he was similarly situated to other police officers whose 14 dogs died under their care. 15 I. FACTS1 16 A. Bandit’s Death 17 Plaintiff Thomas Lovejoy is a police sergeant employed by the City of Chandler. 18 During the time period relevant to this lawsuit, Lovejoy was the supervising sergeant for 19 the Chandler Police Department’s K-9 unit. 20 Malinois named Bandit. Bandit would ride in a special kennel at the back of Lovejoy’s 21 police SUV. Lovejoy’s K-9 partner was a Belgian 22 Lovejoy’s and Bandit’s regular duty shift was from 6:00 p.m. to 4:00 a.m., 23 Monday through Thursday. From Monday, August 6 through Thursday, August 9, 2007, 24 Lovejoy and Bandit worked their regular duty shifts. On Friday, August 10, Lovejoy 25 26 27 1 These facts are undisputed unless attributed to a party. If a factual assertion was objected to for no other reason than immateriality, the Court has deemed that fact undisputed. 28 -3  1 worked an extra-duty shift from 8:30 a.m. until about noon. That night, he had trouble 2 sleeping because he did not feel well. 3 Around 2:00 a.m. on Saturday, August 11, Lovejoy’s lieutenant at the Chandler 4 Police Department awoke Lovejoy with a phone call. The lieutenant reported a possible 5 sighting of a serial rapist that had recently been terrorizing the Chandler community. 6 Lovejoy’s lieutenant asked Lovejoy to report for duty. Lovejoy agreed, but instead of 7 getting out of bed, he fell back asleep because he was extremely tired. 8 About an hour later, Lovejoy’s lieutenant called again. Lovejoy then got out of 9 bed, put on his uniform, put Bandit into his police SUV, and began driving toward the 10 scene. As he drove, he spoke with his lieutenant again by cell phone. In frustration, the 11 lieutenant told Lovejoy to return home. 12 backyard kennel, but Lovejoy did not go back to sleep because he was upset with himself 13 for falling asleep after his lieutenant’s first phone call that morning. By this time, 14 Lovejoy had slept only about six-and-a-half hours over the previous two days. Lovejoy did so and placed Bandit in his 15 Lovejoy volunteered for an extra-duty traffic control shift that morning beginning 16 at 6:00 a.m. He was not required to bring Bandit with him but he brought Bandit anyway 17 because, he says, he wanted to be prepared if the serial rapist was again spotted. 18 Although the record is somewhat hazy, it appears that Lovejoy and Bandit both remained 19 in the SUV for the entire shift, which ended at 9:00 a.m. Lovejoy believes that Bandit 20 had fallen asleep in his kennel by this point because daytime was Bandit’s usual sleep 21 time. 22 While driving home, Lovejoy received various cell phone calls and was still 23 talking on his phone when he pulled into his driveway, exited his vehicle, and walked 24 into his house. Lovejoy did not take Bandit out of the SUV. For the rest of the day, 25 Lovejoy attended to various family obligations, including helping his stepson with a 26 minor car accident, shopping with one of his daughters, and going out to dinner with his 27 wife. He used his personal vehicle for all of these tasks. At about 10:30 that night, he 28 -4  1 returned to his police SUV to get it ready for another extra-duty shift, smelled an unusual 2 smell, and discovered Bandit dead in his kennel. 3 Lovejoy was distraught. He soon called fellow Chandler Police Officer Ron 4 Emary to help him report the incident, but he could barely do more than babble over the 5 phone. Emary arrived on the scene soon after, as did Chandler Police Department 6 Commander Joseph Gaylord, who photographed the scene, cleaned up Bandit’s kennel, 7 and took Bandit’s body to an animal hospital for cremation. 8 B. 9 On Tuesday, August 14, the Maricopa County Sheriff’s Office issued a “news 10 brief” regarding Bandit’s death. The news brief stated, in relevant part: 11 Yesterday, through the many phone calls and inquiries of citizens, it came to the attention of Maricopa County Sheriff Joe Arpaio about the death of a City of Chandler police dog. Citizens flooded the Sheriff’s Animal Abuse Hotline . . . with calls and comments about the death of the police dog. Upon receiving the information, Sheriff Arpaio ordered his Animal Abuse Investigators to look into the incident. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Investigation (Doc. 101-1 at 9.) It is not clear who authored this news brief or the basis for the author’s assertion about a “flood[]” of calls to the animal abuse hotline. However, the news brief correctly reported that Arpaio had ordered an investigation into Bandit’s death. In Arizona, it is a misdemeanor to “[i]ntentionally, knowingly or recklessly leave[] an animal unattended and confined in a motor vehicle [if] physical injury to or death of the animal is likely to result.” A.R.S. § 13-2910(A)(7). The Sheriff’s Office had jurisdiction over the potential crime because Lovejoy’s home is located in an unincorporated County island. Sheriff’s Office Detective Robert Simonson of the Animal Cruelty Unit performed the investigation, supervised by Sergeant Matthew Summers, chief of the same unit. In affidavits supporting Arpaio’s summary judgment motion, both Simonson and Summers insist that Arpaio exerted no pressure on them to ensure the investigation reached a particular conclusion. From time to time, they provided brief updates on the -5  1 investigation’s progress to Summers’s supervisor, Deputy Chief Dave Trombi. Summers 2 believed that these updates were intended to provide Arpaio with information regarding 3 the investigation because the media would sometimes question Arpaio about it. 4 Simonson recalls Arpaio himself sitting in on one of these meetings, but offering no 5 input. 6 Detective Simonson documented his investigation in a 16-page report which states 7 that the investigation began on August 13 and fact-gathering concluded on August 30. 8 Among other things, Simonson interviewed Lovejoy, Emary, and Gaylord; he reviewed 9 Lovejoy’s cell phone records; and he inspected the SUV in which Bandit died. 10 Simonson’s efforts uncovered no evidence that Lovejoy recognized he was leaving 11 Bandit in the SUV, or that Lovejoy was angry at Bandit or would otherwise have any 12 desire to harm Bandit. 13 On Friday, August 31, 2007, Deputy Chief Trombi sent an e-mail titled “Chandler 14 K-9 meeting” to Summers, Simonson, Lisa Allen (Sheriff’s Office director of media 15 relations), and a few other Sheriff’s Office employees. In relevant part, the body of the 16 e-mail states: 17 18 19 20 21 22 I have reserved 90 minutes with the Sheriff for this Tuesday coming [i.e., September 4] regarding the details of the Chandler K-9 investigation. Please be up in the Sheriff’s office at 3 pm with everything you would need to answer any questions that might arise. . . . There may be questions regarding the procedures of our personnel in relation to this matter. (Doc. 101-1 at 25.) 23 The record contains no evidence directly confirming or denying that the 24 September 4 meeting really happened, and if it did happen, how long it lasted and what 25 was discussed. Arpaio, when specifically asked at his deposition if he attended the 26 meeting, replied, “I don’t remember. Possibility is yes.” (Doc. 101-1 at 12.) Later in his 27 deposition he was asked, “[Y]ou don’t think it’s unusual that you would devote 90 28 -6  1 minutes of what has to be pretty precious time to talk about a minor misdemeanor 2 investigation?” To this, Arpaio responded: 3 Well, you know, I take animal cruelty very serious. . . . And so since I take that serious, along with many other things, I — because of the — much publicity surrounding this case. 4 5 We are also talking about a law enforcement officer. Regardless of what the charges, whether it’s DUI or any other violation that a law enforcement officer may be involved in, I took it — I gave a little time to it. 6 7 8 9 10 11 (Id. at 13.) The day after the possible 90-minute meeting, Simonson added the final paragraph to his investigation report, explaining the decision to charge Lovejoy with a crime: 20 09/05/2007 Upon reviewing all of the evidence and interviews pertaining to this case, the Maricopa County Sheriff’s Office Animal Crimes Division believes there is sufficient cause to show that Sgt. Thomas Lovejoy of the Chandler Police Department should be charged with Arizona Revised Statute 13-2910.A.7 Animal Cruelty: Recklessly leaving an animal unattended and confined in a motor vehicle and death of the animal occurred. Based on his extensive canine training and 4.5 years of experience as a canine handler along with his statements that he placed the canine into his vehicle prior to the start of his extra duty job on the morning of August 11th, 2007 and did not discover the animal until approximately 13.5 hours later, Sgt. Thomas Lovejoy will be charged with one count of ARS 13-2910.A.7 a Class 1 Misdemeanor. 21 (Doc. 93-2 at 23.) The report is not specific about who in the “Animal Crimes Division” 22 or elsewhere made the ultimate decision to charge Lovejoy, or how it was determined 23 that Lovejoy had behaved “recklessly.” In a summary judgment affidavit, Summers 24 (Simonson’s supervisor) similarly obscures the decisionmaker: “Based on Det. 25 Simonson’s investigation, it was determined that there was probable cause to charge Sgt. 26 Lovejoy with animal cruelty in violation of A.R.S. § 13-2910 and that we would charge 27 Sgt. Lovejoy accordingly.” (Doc. 93-2 at 26.) 12 13 14 15 16 17 18 19 28 -7  1 2 The mental state under which Lovejoy would be charged — “recklessly” — has a specific definition in Arizona’s penal code: 3 “Recklessly” means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk. 4 5 6 7 8 9 10 11 A.R.S. § 13-105(10)(c). believed that probable cause existed to charge Lovejoy under the “recklessly” standard: In determining that probable cause existed, the totality of the circumstances included the fact that Sgt. Lovejoy was mentally and physically exhausted such that he was unable to report to a call-out by a supervisor yet, a few hours later, chose to report to an extra-duty traffic control assignment rather than call in sick. 12 13 14 15 I also considered that Sgt. Lovejoy chose to take Bandit with him on the extra-duty assignment and placed him in his assigned patrol car despite it not being Sgt. Lovejoy’s typical practice to take Bandit to such extra assignments. 16 17 18 I also considered that Chandler Police Department rules and regulations did not require Sgt. Lovejoy to take his assigned canine to an extra-duty traffic control assignment. 19 20 21 Simonson’s summary judgment affidavit explains why he (Id. at 5–6.) 22 C. Lovejoy’s Arrest 23 On September 5, 2007 — the same day Simonson concluded his investigation 24 report — Simonson called Lovejoy and asked Lovejoy to meet him at “the station” in 25 downtown Phoenix immediately. Lovejoy claims that he asked if they could delay their 26 meeting until later in the day, but Simonson insisted on meeting right away. Lovejoy 27 acquiesced. 28 -8  1 While Lovejoy was driving in, Arpaio held a press conference announcing that 2 Lovejoy had been arrested.2 Lovejoy claims he learned of his supposed arrest when a 3 reporter reached him on his cell phone while still driving to the station. 4 When Lovejoy arrived at the station, Summers and Simonson arrested him 5 (without handcuffs) and moved him through the processing, booking, and initial 6 appearance process. An unspecified Sheriff’s Office employee asked the commissioner 7 presiding at the initial appearance to set bail, but the commissioner refused and released 8 Lovejoy. 9 That same day, the Sheriff’s Office issued a “news release” regarding the arrest. 10 Arpaio testified at his deposition that he “reviewed it and approved” the news release 11 “[t]o be disseminated to the media.” (Doc. 93-2 at 88–89.) The news release quotes 12 Arpaio as saying that the decision to book Lovejoy into jail was “‘difficult’” but 13 “‘Lovejoy must be treated like anyone else in similar circumstances. I have a strict 14 policy on animal abuse and neglect whereby offenders are booked into jail.’” (Doc. 101- 15 1 at 6.) At his deposition, Arpaio confirmed that he made this statement. 16 The news release further quotes Arpaio as saying, “‘Our investigation determined 17 that Bandit’s death was not an intentional act on Lovejoy’s part, but it was reckless and 18 for that, Lovejoy must be charged.’” (Id. at 7.) When asked about this statement at his 19 deposition, Arpaio replied, “That’s what the investigate — investigators said, I presume.” 20 He was then asked, “You knew when you stepped in front of the cameras [at the press 21 conference] to announce that [Lovejoy] was being charged and put into jail, booked into 22 jail, that [he] had not done anything intentional to hurt that poor dog, didn’t you?” 23 Arpaio responded, “Well, I’m not going to get into the law, whether it’s intentional or 24 not.” (Id. at 16.) 25 26 27 2 At oral argument, counsel for Arpaio stated that there was no evidence this press conference took place. In briefing, however, Arpaio admitted that the press conference happened. (Compare Doc. 101 at 20 ¶ 21 with Doc. 109 at 4 ¶ 21.) 28 -9  1 On September 12, 2007 — one week after Lovejoy’s arrest — the Sheriff’s Office 2 issued an additional “news brief” related to the Lovejoy case, which states in relevant 3 part: 4 5 6 7 8 9 10 11 12 The August 11, 2007 death of Chandler police dog, Bandit, and the subsequent arrest of his partner and caretaker, Chandler Sgt. Thomas Lovejoy, has sparked such controversy that today, the Arizona Association of Chiefs of Police, at the urging of some police unions, issued a “resolution” decrying Sheriff Arpaio’s decision to book the officer into jail. The Sheriff’s Office believes that the “resolution” is an attempt to shift the public’s focus away from the Chandler officer by blaming Sheriff Arpaio for overreacting to the situation. Arpaio, however, remains steadfast about his policy to arrest and book into jail anyone found abusing or neglecting animals. 13 Some misunderstandings about the facts of the case are apparent in news articles and public comment. 14 They include the following: 15 16 17 18 *** * Though Arpaio made the decision to arrest and book Lovejoy into jail, it was conducted in such a way to protect the officer. . . . 19 *** 20 Sheriff Arpaio is in Massachusetts today . . . but he is aware of the Arizona Police Chiefs Association’s actions. He is outraged by their “resolution” and their attempt to make him the bad guy. 21 22 23 24 25 26 27 (Id. at 27–28.) The record contains nothing about who wrote this “news brief” or the basis of that person’s knowledge. Arpaio, at his deposition, asserted that “whoever wrote this” misspoke when he or she said, “Arpaio made the decision to arrest and book Lovejoy into jail.” (Doc. 109-1 at 5.) Arpaio emphasized that Lovejoy was booked into jail based on 28 - 10   1 Arpaio’s policy to book all animal cruelty arrestees into jail, but he says did not make the 2 decision to arrest Lovejoy. 3 D. 4 Lovejoy hired attorney Robert Kavanagh to defend him against the animal cruelty 5 charge. In February 2008, Kavanagh interviewed Simonson about his investigation. An 6 audio recording was made and later transcribed. Simonson confirmed in that interview 7 that he learned nothing from either Officer Emary or Commander Gaylord that suggested 8 anything other than that Lovejoy forgot about Bandit. Kavanagh then asked about what 9 Simonson learned directly from Lovejoy:3 10 Simonson’s Interview with Lovejoy’s Defense Attorney Q. Okay. All right did you find any evidence from what Tom Lovejoy told you that Tom intentionally caused the death of his dog? A. Intentionally? Q. Yes. A. No. Q. Okay did you find any evidence from what Tom told you that Tom knew that leaving his dog in the car would cause the dog death that morning, August the 11th? A. Any evidence that if- he knew if he left his dog in the car would- would suffer injury or death? Q. Right that he knew it was a car and he knew the dog was back there- 22 A. Okay, no. 23 Q. -okay. What did he tell you that made you think Tomthat- that Tom- that he, himself, acted recklessly? A. His statement that he placed the dog into the vehicle. 11 12 13 14 15 16 17 18 19 20 21 24 25 26 27 3 The transcript does not use “Q.” and “A.,” but rather “MR. KAVANAGH” and “DET. SIMONSON.” As reprinted here, “Q.” refers to Kavanagh and “A.” refers to Simonson. 28 - 11   1 Q. Kay. 2 A. And- and then his subsequent actions [sic] of not taking the dog out of the vehicle. 4 Q. Okay. So the fact that he put the dog in the vehicle- 5 A. Yeah. 6 Q. -and forgot about it? 7 A. Knowingly put the dog in the vehicle, yes. 3 8 9 *** Q. Did you find any evidence that, from your conversation with Tom, that Tom when he left the vehicle that morning at about 9 or 9:15, August 11th, that he was aware that the dog was still back there but disregarded the risk that the dog might die? A. No evidence that he disregarded anything. There was his statement that he forgot the dog was back there. 10 11 12 13 14 *** 15 16 17 Q. Okay just simply he just didn’t remember the dog being there at all? A. Correct. Q. Okay. So you found no evidence from what Tom told you that he consciously disregarded the risk that the dog might die from being in the car? A. No. 18 19 20 21 22 (Doc. 114-1 at 14–16.) Kavanagh later asked Simonson, “Okay, all right did you find 23 any evidence that Tom Lovejoy was somehow [generally] neglectful of his dog, his 24 police dog?”, to which Simonson responded, “No.” (Id. at 19.) 25 26 27 28 Kavanagh also asked Simonson about the final entry on his investigation report: Q. Okay. On page 16, the last page of your report, you kind of sum it up. You say the Animal Crimes Unit, in essence, believe [sic] there was sufficient cause to charge Sergeant Lovejoy with animal cruelty. Was - 12   that the whole unit that made that decision or who made that decision? 1 2 A. Well my sergeant reviews the case and then Captain Trombi reviews the case. I don’t where [sic] else it went beyond that. I’m going to assume that it probably went all the way to the sheriff. And then once there’s (Indiscernible)- they’re- they’re satisfied that the case is put together properly and all the components are here and all the questions have been asked and answered then it gets submitted to the County Attorney’s Office. Q. Okay, all right and that’s why you said the Animal Crimes Unit because it was- it was a chain-ofcommand issue? 11 A. Yes. 12 Q. It wasn’t your decision it was somebody above you? 13 A. All of our cases are the same way. 3 4 5 6 7 8 9 10 14 (Id. at 24–25.) Kavanagh then inquired further about the choice to charge Lovejoy with 15 “recklessly” violating the animal cruelty statute: 16 Q. Okay. All right. As the investigator do you feel this case was a matter of negligence or recklessness? A. I feel that based on his statement that the- he placed the dog in the vehicle, that he has training- more training than- than an average person, in terms of handling his animal, that I believe that he recklessly left the dog in the vehicle. Q. Okay so basically the fact that he put the dog in there and he has training? A. It- it’s his partner. I’m- I- it’s my belief that more so than- than an average citizen and- and we- and we’ve charged average citizens with this crime. So I’m feeling that he should have some expectation knowing where his- his partner’s at. 17 18 19 20 21 22 23 24 25 26 27 *** 28 - 13   1 Q. Okay what type of cases do you charge the average citizen that leave their dogs in the car? A. We have- we have one just previous this- I guess it would be probably a year ago now, where a female left a dog- her dog in the car to go inside and go shopping in a mall. 2 3 4 5 *** 6 7 8 Q. Okay I understand [the shopping mall case], all right but that’s different than this case? A. Yes. Q. Where the guy leaves the dog in the car and not even remembering him there and goes in with no intent to go back because he had- would have no reason to go back [’]cause he doesn’t think the dog’s there? A. Correct. 9 10 11 12 13 *** 14 Q. Okay, all right so I’m just trying to- I’m (Indiscernible)- I don’t want to beat a dead horse but the fact that Tom’s had canine training and the dog was his partner are the two main reasons why you felt there was sufficient cause to charge him? A. Yes. Q. Anything else? A. Not off the top of my head, it’s just the- Q. Okay. 23 A. -(Indiscernible)- based on the way I read the law- 24 Q. Okay. 25 A. -and the situation (Indiscernible)- 26 Q. Okay. Did- did you sit down with your sergeant and Trombi and anybody else and discuss this case? A. -yes. 15 16 17 18 19 20 21 22 27 28 - 14   1 Q. And did you look at the statute? 2 A. Yes we did. 3 Q. All right and you probably looked at it- at that statute pretty long and hard I would think? 5 A. [Giggle] Yeah, mmm-hmm (phonetic). 6 Q. Okay what- what evidence do you have that Tom consciously disregarded the risk to his dog? A. The fact that he told us he placed the dog into the vehicle prior to his shift. Q. Okay (Indiscernible-talk over)- A. (Indiscernible-talk over)- and his statement that he did not remove the dog at the end of his shift. 4 7 8 9 10 11 12 (Id. at 25–28.) 13 E. 14 Andrew Thomas, then the Maricopa County Attorney, assigned Leonard Ruiz, 15 third in command at the County Attorney’s Office and chief of the trial division, to 16 supervise Lovejoy’s case. Ruiz was never told why he received the assignment. He 17 could not recall another instance of a person with his seniority at the County Attorney’s 18 Office being asked to assist in prosecuting a misdemeanor animal cruelty offense. The Decision to Take the Case to Trial 19 Deputy County Attorney Anthony Church, who specializes in animal cruelty 20 cases, received the assignment to handle day-to-day tasks associated with the Lovejoy 21 prosecution. Soon after he received the assignment, Church formed the opinion that the 22 case against Lovejoy was weak: 23 24 25 26 27 28 [F]rom all the information I had gathered from the police report, [Lovejoy] cared very much about the animal, and I had a hard time believing that he would consciously recognize that the dog was in the back of the car and leave the dog there intentionally or — or, you know, understanding that he would be coming back but knowing the dog was back there. (Doc. 101-1 at 39–40.) - 15   1 On March 7, 2008, Church and Ruiz jointly requested an “incident review.” An 2 incident review involves submitting the case to a board of senior attorneys who evaluate 3 whether the case should go forward. Church and Ruiz’s written request summarized 4 Simonson’s findings and added, 5 6 7 8 9 10 11 12 13 A defense interview with Detective Rob Simonson took place in early February. According to Detective Simonson there is no evidence, which he can point toward, to show that Lovejoy did not simply forget that the dog was in the car. Detective Simonson told the defense attorney the only evidence that exists to prove the reckless mindset is that Lovejoy put the dog into the car and Lovejoy failed to take the dog out of the car, causing the dog’s death. (Doc. 101-2 at 4.) Church and Ruiz then quoted the animal cruelty statute under which Lovejoy was charged (see p. 5, above) and the definition of “recklessly” (see p. 8, above) and concluded: 14 15 16 17 18 19 Recklessness requires that the person actually be “aware” of the risk being created by his conduct. In re William G., 192 Ariz. 208, 963 P. 2d 287 (App. 1997). This case needs to be set for incident review to determine whether we have probable cause to prosecute this case and whether we can ethically prosecute this case. (Id. at 5 (emphasis in original).) 20 On March 11, 2008, another Deputy County Attorney, Jeff Trudgian, submitted a 21 memo to Chief Deputy Philip J. MacDonell regarding the Lovejoy case. The memo 22 begins, “Mr. Thomas requested research on the issue of whether ‘awareness’ of the risk, 23 as needed for a finding of recklessness, can entail forgetfulness — specifically, as applied 24 to a K-9 police officer with specialized training regarding animal handling.” (Id. at 8.) 25 Trudgian analyzed various cases and the relevant statutes and concluded, 26 27 28 The problem is the element of “conscious disregard” that the results would occur or the circumstance exists. It cannot be argued that a person who truly forgot an animal in a vehicle - 16   1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 consciously disregarded a known risk. . . . [¶] . . . [T]he facts appear legally insufficient for conviction. (Id. at 10 (emphasis in original).) On March 28, 2008, yet another Deputy County Attorney, Linda Van Brakel, submitted a memo titled “Lovejoy analysis” to Jim Beene, whose position is unidentified. The memo quotes Church and Ruiz’s statement of facts (contained in their incident review request) and then analyzes the relevant law as applied to those facts. Similar to Trudgian’s memo, Van Brakel’s states, Lovejoy knew the dog was in the car because he placed him there, but the evidence shows he completely forgot about him. In other words, although Lovejoy was no doubt aware of the risk of leaving a dog in a hot car that long, he did not consciously disregard that risk. He simply forgot. That may be negligent, but it is probably not criminally reckless. (Id. at 27 (emphasis in original).) Van Brakel considered but rejected a recklessness argument based on sleep deprivation: Lovejoy should have realized that he was sleep-deprived and might forget about the dog. However, police officers working graveyard shifts, swing shi[f]ts, off-duty jobs, and getting called out at all hours, are commonly sleep deprived and this might be considered normal for a police officer. In other words, loading the dog in the car under the circumstances probably did not create a substantial risk of harm constituting a gross “flagrant and extreme” deviation from the conduct of a police officer or K9 officer. Leaving him in the car, of course, would create a substantial risk of harm constituting a gross deviation from the conduct of a K9 officer, but we lack the “conscious disregard” of such a risk. (Id.) Van Brakel ultimately concluded, “I do not believe there is a reasonable likelihood that it can be proven beyond a reasonable doubt that Lovejoy acted with criminal recklessness, causing Bandit’s death.” (Id. at 31.) The record before the Court does not reveal whether County Attorney Thomas reviewed any of this material. However, he turned down Church and Ruiz’s incident 27 28 - 17   1 review request. Ruiz did not ask for an explanation, but he and Church then refused to 2 continue prosecuting Lovejoy. 3 Thomas reassigned the case to Deputy County Attorney Lisa Aubuchon, who 4 pressed forward. 5 investigation report and may have talked to Simonson. She also claims she wrote a 6 memorandum analyzing the case and concluding that there was a reasonable likelihood of 7 conviction under the recklessness standard. That memorandum is not in the record. 8 When asked at her deposition how she intended to satisfy the recklessness requirement at 9 trial, Aubuchon responded, 10 11 12 13 14 15 16 17 Aubuchon testified at her deposition that she read Simonson’s Well, generally I was looking at it as Mr. Lovejoy had made decisions, had made — taken — he had made choices throughout to focus on overtime, to work other types of jobs instead of getting sleep, for example, so that he would be fresh and ready to go on — on his job. And I knew that one of his main jobs was to take care of Bandit and to make sure that Bandit, you know, was — was safe, had water, had food, was not being placed in a car to bake to death. He had responsibilities to Bandit, and he chose to go out and do other off-duty jobs instead of getting rest and getting sleep. He chose to go shopping. He chose to go out to dinner. He chose to go out to lunch instead of choosing to take care of Bandit. 18 19 20 21 22 23 24 25 26 27 And that was kind of my theory throughout . . . . (Doc. 93-2 at 56.) As for Arpaio’s potential participation in the decision to continue prosecuting Lovejoy, the record contains little direct evidence other than denials by the principal persons involved. Thomas testified at his deposition that Arpaio put no pressure on him. Aubuchon similarly testified that she felt no pressure from anyone to continue pursuing Lovejoy. Arpaio himself testified, “I can make all the arrests I want, but it’s up to the prosecutor to prosecute. * * * And so I may have had a comment [to Thomas], because he also was very active in prosecuting animal cruelty cases.” (Doc. 101-1 at 17.) 28 - 18   1 F. 2 Lovejoy’s case went to a bench trial in front of a Justice of the Peace on August 3 15, 2008. After Aubuchon presented the State’s case, Lovejoy’s defense attorney moved 4 for a directed verdict: 5 6 7 8 9 10 11 12 13 14 The Trial Judge, the statute as we’ve been talking about all morning requires the culpable mental state of recklessly. And for the State to prove that, they have to show that Sergeant Lovejoy was aware of a substantial and unjustifiable risk, i.e., the dog was in the car, and that if he left him in there, he would die or become injured. . . . They have shown that he left the car — the dog in the car. No one is disputing that. They haven’t shown . . . that he knew the dog was back there, but disregarded the risk that he might die. (Doc. 93-1 at 56.) In response, Aubuchon argued, 15 We don’t have to show that he knowingly left the dog in the car. . . . 16 *** 17 We are not arguing that he knew he left the dog in the car, because we would have charged it that way. We’re arguing that he’s reckless. And it is his very conduct and the choices he made that shows he substantially disregarded that risk. Everybody knows that in August in Arizona it is hot in a car. And a trained K-9 officer should be on heightened awareness about what will happen if he forgets the dog in the car. 18 19 20 21 22 23 24 25 26 27 28 (Doc. 93-1 at 57–58.) At the close of argument, the Court announced without elaboration, “At this time I’m going to deny the directed verdict.” (Doc. 93-1 at 62.) Lovejoy then put on his defense, after which the Court stated: “All of these so-called distractions [presented by the State as evidence of recklessness] . . . don’t equal — it doesn’t equal to me to be recklessness. State did not meet their — their burden here and I find [Lovejoy] not guilty.” (Doc. 93-1 at 71–72.) - 19   1 G. 2 Lovejoy claims he suffered a loss of income and earnings as a result of the events 3 surrounding his arrest and prosecution. He also claims to have developed continuing 4 medical problems from the stress of those events. He and his wife allege that they have 5 suffered emotional trauma and that his wife’s business has been adversely affected by the 6 negative publicity. Finally, the Lovejoys assert that defending against the prosecution 7 cost them approximately $25,000 in legal fees. 8 II. The Lovejoys’ Alleged Injuries SUMMARY JUDGMENT STANDARD 9 A motion for summary judgment tests whether the opposing party has sufficient 10 evidence to merit a trial. At bottom, the question to be answered is whether sufficient 11 evidence exists from which a reasonable jury could find in favor of the party opposing 12 the summary judgment motion. In this case, then, Arpaio’s summary judgment motion 13 puts into question whether Lovejoy has enough evidence from which a reasonable jury 14 could find Arpaio liable in his individual or official capacity for the alleged misconduct. 15 Arpaio bears the initial burden of identifying those portions of the pleadings, 16 depositions, answers to interrogatories, and admissions on file, together with the 17 affidavits, if any, which he believes demonstrate the absence of any genuine issue for the 18 jury to decide. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Because Lovejoy 19 would bear the burden of persuasion at trial, Arpaio may carry his initial burden of 20 production by submitting admissible “evidence negating an essential element of 21 [Lovejoy’s] case,” or by showing, “after suitable discovery,” that Lovejoy “does not have 22 enough evidence of an essential element of [his] claim or defense to carry [his] ultimate 23 burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 24 210 F.3d 1099, 1105–06 (9th Cir. 2000). 25 Lovejoy must then respond with specific facts, supported by admissible evidence, 26 showing a genuine factual dispute such that a jury trial is necessary to resolve it. See 27 Fed. R. Civ. P. 56(c). But allegedly disputed facts must be material — the existence of 28 only “some alleged factual dispute between the parties will not defeat an otherwise - 20   1 properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 2 U.S. 242, 247–48 (1986) (emphasis in original). 3 In evaluating this record, the Court will “draw all reasonable inferences in favor of 4 [Lovejoy], and it may not make credibility determinations or weigh the evidence.” 5 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The Court may 6 only determine whether a jury could reasonably evaluate the evidence in a manner 7 favorable to Lovejoy. 8 When the parties’ evidence contradicts, this is usually sufficient to create a jury 9 issue. But “a jury may [also] properly refuse to credit even uncontradicted testimony,” 10 Guy v. City of San Diego, 608 F.3d 582, 588 (9th Cir. 2010), “so long as it does so with 11 good reason,” Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 514 n.8 12 (9th Cir. 1985). Examples of such good reasons include inherent unbelievability, id., 13 uncertainty “cloud[ing]” the testimony, id., and a witness’s interest in the outcome of the 14 case, Reeves, 530 U.S. at 151. Nonetheless, if the record taken as a whole could not lead 15 a rational jury to find for Lovejoy, there is no need for a trial and summary judgment 16 should be entered in Arpaio’s favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 17 475 U.S. 574, 586 (1986). 18 III. 19 20 ADMISSIBILITY OF CERTAIN EVIDENCE As noted, evidence submitted at the summary judgment phase must be admissible at trial. Arpaio claims that the Sheriff’s Office press releases are inadmissible hearsay. 21 There is substantial evidence from which a reasonable jury could conclude that the 22 August 14 and September 5 press releases entirely comprise statements made “by a 23 person authorized . . . to make a statement concerning the subject,” and are therefore 24 nonhearsay admissions as against Arpaio in his supervisory capacity. Fed. R. Evid. 25 801(d)(2)(c). Arpaio testified that he “reviewed . . . and approved” the September 5 press 26 release “[t]o be disseminated to the media,” and a jury could reasonably conclude that he 27 did the same for the August 14 press release, considering that he acknowledges its 28 accuracy when it says, “Sheriff Arpaio ordered his Animal Abuse Investigators to look - 21   1 into the incident.” (Doc. 101-1 at 9.) Even if these statements could not come in for their 2 truth, they evince Arpaio’s state of mind, to the extent he had any input in deciding 3 whether to arrest and prosecute Lovejoy. Fed. R. Evid. 803(3). 4 The September 12 press release is less clear. Lovejoy wants it admitted for the 5 truth of the statement, “Arpaio made the decision to arrest and book Lovejoy into jail.” 6 (Doc. 101-1 at 27 (emphasis added).) 7 statement was not authorized by him. The press release itself says that Arpaio was in 8 Massachusetts that day. Accordingly, on this record, there is not substantial evidence 9 from which a jury could conclude that Arpaio authorized the statements in the September However, Arpaio plausibly asserts that this 10 12 press release. It cannot come in for its truth on this motion. 11 IV. SUMMARY OF ARGUMENTS 12 Lovejoy asserts that his arrest and prosecution violated his constitutional rights. 13 Assuming that to be the case, Lovejoy could conceivably have brought this lawsuit 14 against all of the police officers involved in the arrest and prosecution. But the only 15 individual Lovejoy seeks to hold liable is Arpaio. He also seeks to hold Maricopa 16 County liable, but on the theory that Arpaio’s actions as Sheriff effectively constitute 17 County “policy.” In other words, Lovejoy’s case turns on showing that Arpaio was 18 ultimately responsible for both the arrest and prosecution, despite others’ participation. 19 Lovejoy believes that Arpaio acted out of a desire for “tough on animal abuse” publicity 20 and general political gain. 21 Arpaio’s motion for summary judgment seeks to establish that no trial is necessary 22 in this case and that he is entitled to judgment as a matter of law. His arguments are 23 many-layered, as is often the case when a plaintiff seeks to hold a police officer liable for 24 his or her official conduct. 25 protection to police officers facing such suits. American law intentionally provides many layers of 26 Arpaio first argues that Lovejoy lacks evidence connecting him to the decision to 27 arrest and prosecute Lovejoy. In other words, even if Lovejoy was wrongfully arrested 28 and prosecuted, Arpaio says that Lovejoy does not have enough evidence from which a - 22   1 jury could conclude that Arpaio participated in those actions. Second, Arpaio claims that 2 the arrest and prosecution were constitutional — regardless of whether he participated — 3 because probable cause existed. Third, he asserts that probable cause arguably existed 4 (even if it did not actually exist) and he is therefore entitled to qualified immunity in his 5 individual capacity. Fourth, he claims that the County Attorney’s decision to prosecute 6 Lovejoy insulates him from liability for any injuries inflicted after that decision. Fifth, he 7 argues that Maricopa County is not liable. Finally, he attacks Lovejoy’s claim that, even 8 if probable cause existed, Arpaio had no rational basis to treat Lovejoy differently from 9 other similarly situated police officers — a claim which, if proved, potentially states a 10 violation of the Constitution’s equal protection clause. 11 The Court will begin untangling these arguments by first addressing probable 12 cause. As discussed below, the record currently before the Court shows that probable 13 cause to arrest and prosecute did not exist, and no reasonable person could think it did. 14 This itself provides evidentiary inferences relevant to the question subsequently 15 discussed: whether evidence exists from which a jury could conclude that Arpaio shares 16 personal responsibility for the arrest and the prosecution. Because such evidence exists, 17 the Court will also address whether Maricopa County can be liable for Arpaio’s alleged 18 wrongful acts. Finally, the Court will address Lovejoy’s equal protection claim, which 19 does not depend on probable cause. 20 V. PROBABLE CAUSE & QUALIFIED IMMUNITY 21 A. Probable Cause Generally 22 The Fourth Amendment requires the government to have “probable cause” to 23 arrest and charge a person with a crime. “Probable cause” means that “at that moment 24 [of the arrest] the facts and circumstances within [the police’s] knowledge and of which 25 they had reasonably trustworthy information were sufficient to warrant a prudent man in 26 believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 27 379 U.S. 89, 91 (1964). An arrest without probable cause is unconstitutional. Torres v. 28 City of Los Angeles, 548 F.3d 1197, 1207 (9th Cir. 2008). - 23   1 A prosecution is likewise unconstitutional unless probable cause exists at the time 2 of the prosecution. Webb v. Sloan, 330 F.3d 1158, 1163 (9th Cir. 2003). Theoretically, 3 an arrest without probable cause could still result in a prosecution with probable cause (if, 4 e.g., a post-arrest investigation turned up better evidence); and an arrest with probable 5 cause can lead to a prosecution without probable cause (if, e.g., a post-arrest investigation 6 exonerates the suspect). In Lovejoy’s case, however, the arrest and prosecution were 7 both justified on a theory that Lovejoy’s sleep deprivation led him to recklessly endanger 8 Bandit. There was no post-arrest investigation that modified that theory. Accordingly, 9 the arrest and prosecution stand or fall together — either they were both constitutional, or 10 both unconstitutional. 11 B. 12 Arpaio insists that this Court cannot adjudicate the constitutionality of the arrest 13 and prosecution because the state criminal court supposedly already did so. Arpaio’s 14 argument is incorrect. 15 16 At the close of the State’s evidence in Lovejoy’s criminal trial, Lovejoy’s attorney moved for a judgment of acquittal under Arizona’s Criminal Rule 20: 17 On motion of a defendant or on its own initiative, the court shall enter a judgment of acquittal of one or more offenses charged in an indictment, information or complaint after the evidence on either side is closed, if there is no substantial evidence to warrant a conviction. . . . The court’s decision on a defendant’s motion shall not be reserved, but shall be made with all possible speed. 18 19 20 21 22 23 24 25 26 27 28 Effect of Ariz. R. Crim. P. 20 Motion Ariz. R. Crim. P. 20(a). In response to Lovejoy’s motion., the Justice of the Peace ruled, “At this time I’m going to deny the directed verdict.” (Doc. 93-1 at 62.) Arpaio argues that this ruling establishes “substantial evidence to warrant a conviction,” which is more than necessary for probable cause, and Lovejoy is collaterally estopped from arguing otherwise. However, the transcript does not make clear that the Justice of the Peace made a final ruling after the close of Rule 20 arguments. He stated, “At this time I’m going to - 24   1 deny the directed verdict” (emphasis added). “At this time” could be interpreted as 2 throat-clearing, but also as expressing an intent to defer the ruling. Although the Rule 3 states that “[t]he court’s decision on a defendant’s motion shall not be reserved,” judges 4 nonetheless commonly defer such rulings simply to hear the entire case, perhaps out of an 5 abundance of caution. And when the Justice of the Peace acquitted Lovejoy, he framed 6 his explanation in terms of a failure of the State’s evidence to satisfy the recklessness 7 standard. (See id. at 71–72 (“All of these so-called distractions . . . don’t equal — it 8 doesn’t equal to me to be recklessness. State did not meet their — their burden here 9 . . . .”).) If anything, it appears that the Justice of the Peace ultimately granted Lovejoy’s 10 motion. 11 Second, Lovejoy points out that (1) Arizona has never resolved the question of 12 whether a Rule 20 motion establishes probable cause but (2) other jurisdictions have held 13 that their analogues to Rule 20 do not preclude subsequent litigation of the issue. See 14 Jankowiak v. McAllister, 503 N.Y.S.2d 951, 954 (N.Y. Cnty. Ct. 1986); Pinkerton v. 15 Edwards, 425 So. 2d 147, 150 (Fla. Dist. Ct. App. 1983). Arpaio has not attempted to 16 distinguish this authority and it otherwise appears persuasive. 17 predicts that Arizona state courts would hold that denial of a Rule 20 motion has no effect 18 on subsequent civil litigation over whether probable cause existed. Accordingly, the 19 Court will resolve whether probable cause existed to arrest and prosecute Lovejoy. The Court therefore 20 C. Proper Focus of Probable Cause & Qualified Immunity Inquiries 21 Lovejoy argues that probable cause did not exist either when he was arrested or 22 prosecuted. He seeks to hold Arpaio liable, but the inquiry must begin with Simonson 23 because the decisions to arrest and to prosecute were founded on the findings of 24 Simonson’s investigation. There is no evidence or argument that anyone involved knew 25 more than Simonson. Accordingly, if the facts and circumstances known to Simonson 26 justified Lovejoy’s arrest and prosecution, it would likewise justify Arpaio under any 27 theory of supervisory liability. 28 - 25   1 In addition, even if Simonson was not justified and Lovejoy can prove that Arpaio 2 was culpably involved (discussed further at Part VI, below), Lovejoy still cannot hold 3 Arpaio personally liable unless Arpaio’s conduct “violate[d] clearly established statutory 4 or constitutional rights of which a reasonable officer would have known.” Harlow v. 5 Fitzgerald, 457 U.S. 800, 818 (1982). This doctrine, known as “qualified immunity,” 6 acknowledges the reality that “permitting damages suits against government officials can 7 entail substantial social costs, including the risk that fear of personal monetary liability 8 and harassing litigation will unduly inhibit officials in the discharge of their duties.” 9 Anderson v. Creighton, 483 U.S. 635, 638 (1987). Thus, a government official is 10 immune from suit unless (1) he or she violated a constitutional right, and (2) the 11 constitutional right was clearly established at the time of the violation. See Ashcroft v. al- 12 Kidd, ___ U.S. ___, ___, 131 S. Ct. 2074, 2080 (2011). 13 With respect to Lovejoy’s claim that he was unlawfully arrested, 14 17 the two prongs of the qualified immunity analysis can be summarized as: (1) whether there was probable cause for the arrest; and (2) whether it is reasonably arguable that there was probable cause for arrest — that is, whether reasonable officers could disagree as to the legality of the arrest such that the arresting officer is entitled to qualified immunity. 18 Rosenbaum v. Washoe Cnty., 654 F.3d 1001, 1006 (9th Cir. 2011) (emphasis in original). 19 In this case, these same two questions govern probable cause to prosecute because 20 Aubuchon concluded that probable cause to prosecute existed for the same reasons as 21 probable cause to arrest. 15 16 22 It bears noting that the present inquiry is about a mistake of law rather than a 23 mistake of fact — i.e., a mistake over whether the law prohibits what Lovejoy did, not a 24 mistake over what Lovejoy did. Qualified immunity protects mistakes of law as much as 25 mistakes of fact. Pearson v. Callahan, 555 U.S. 223, 231 (2009). But if the mistake of 26 law is “unreasonable,” then “the officer will appropriately be liable.” Rosenbaum, 654 27 F.3d at 1010. 28 - 26   1 D. 2 The question, then, is whether probable cause existed, and if not, whether it was at 3 least reasonably arguable. “[P]robable cause supports an arrest so long as the arresting 4 officers had probable cause to arrest the suspect for any criminal offense, regardless of 5 their stated reason for the arrest, [but] an arrest is still unlawful unless probable cause 6 existed under a specific criminal statute.” Torres, 548 F.3d at 1207 (citations omitted). 7 Here, the only specific statute Lovejoy was ever accused of violating is Arizona’s animal 8 cruelty statute: “A person commits cruelty to animals if the person * * * [i]ntentionally, 9 knowingly or recklessly leaves an animal unattended and confined in a motor vehicle and 10 Lack of Probable Cause & Qualified Immunity physical injury to or death of the animal is likely to result.” A.R.S. § 13-2910(A)(7). 11 Lovejoy was charged and prosecuted for “recklessly” violating this statute. As 12 noted above, “‘Recklessly’ means, with respect to a result or to a circumstance described 13 by a statute defining an offense, that a person is aware of and consciously disregards a 14 substantial and unjustifiable risk that the result will occur or that the circumstance exists.” 15 Id. § 13-105(10)(c). 16 awareness of the risk. Id. “Voluntary intoxication” is “intoxication caused by the 17 knowing use of drugs, toxic vapors or intoxicating liquors.” Id. § 13-105(43). Only a voluntarily intoxicated person can be reckless without 18 Considering these principles and definitions, the probable cause inquiry could be 19 framed as follows: If a prudent person learned what Simonson learned in his 20 investigation, could that person believe that Lovejoy was “aware of and consciously 21 disregard[ed] a substantial and unjustifiable risk that” he left Bandit “unattended and 22 confined in a motor vehicle and physical injury to or death of [Bandit] [was] likely to 23 result”? 24 Therefore, whether probable cause existed reduces to this question: What evidence did 25 Simonson have that that Lovejoy was aware of but consciously disregarded the fact that 26 he was leaving Bandit in the SUV? However, the danger of leaving a dog in a hot vehicle is not contested. 27 28 - 27   1 Simonson had no direct evidence of awareness and conscious disregard — i.e., 2 Lovejoy did not confess that he consciously chose to leave Bandit in the vehicle. 3 Simonson therefore relied on circumstantial evidence, as is usually the case when 4 evaluating state of mind. State v. Dusch, 17 Ariz. App. 286, 287, 497 P.2d 402, 403 5 (1972). 6 Circumstantial evidence relevant to this inquiry could have taken several forms. A 7 neighbor’s eyewitness report that Lovejoy got out of his vehicle, looked into Bandit’s 8 kennel, paused, and then walked into the house would provide strong circumstantial 9 evidence that Lovejoy consciously disregarded the risk to Bandit. Testimony from the 10 person to whom Lovejoy was talking on his cell phone when Lovejoy pulled into his 11 driveway might likewise circumstantially evince a conscious disregard of the risk to 12 Bandit. If Lovejoy told that person, “I just pulled in, I’m going to run inside for a few 13 minutes and grab something to eat and be right back out,” one might reasonably infer that 14 the urgency of going “right back out” arose from Lovejoy’s knowledge of Bandit’s 15 situation. 16 Another source of circumstantial evidence would be testimony that Lovejoy 17 frequently left his animals in the car unattended. Compare Illinois v. Kozlow, 301 Ill. 18 App. 3d 1, 703 N.E.2d 424 (Ct. App. 1998) (baby died from being left in a hot car; 19 mother’s recklessness inferred from, among other things, a habit of leaving the baby in 20 the car while she visited friends and ran errands). Testimony that Lovejoy had been 21 angry at Bandit that day could also supply a reasonable inference of conscious disregard. 22 Compare Arteaga v. Texas, No. 01-00-00482-CR, 2002 WL 1935268, 2002 Tex. App. 23 LEXIS 6096 (Ct. App. Aug. 22, 2002) (baby died from being left in a hot car; mother’s 24 recklessness inferred from, among other things, evidence that the mother did not want the 25 baby). Evidence that Lovejoy had ignored a specific directive to take precautions in a 26 high risk situation could likewise support an inference of conscious disregard. Compare 27 Tennessee v. Every, No. W2005-00547-CCA-R3-CD, 2007 WL 1860789, 2007 Tenn. 28 Crim. App. LEXIS 512 (Crim. App. June 28, 2007) (child died from being left on a - 28   1 daycare bus; daycare worker ignored specific instruction to walk the length of the bus to 2 ensure that all children had exited). Finally, evidence of voluntary intoxication can 3 supply the requisite mental intent. A.R.S. § 13-105(10)(c) (“A person who creates such a 4 risk but who is unaware of such risk solely by reason of voluntary intoxication also acts 5 recklessly with respect to such risk.”). 6 The foregoing examples are not exhaustive, but it is telling that Arpaio has not 7 pointed to any evidence of this kind.4 Simonson, in his interview with Kavanagh, instead 8 stated that recklessness was somehow evident from the fact that Lovejoy “placed the dog 9 into the vehicle” and “his subsequent actions [sic] of not taking the dog out of the 10 vehicle” (Doc. 114-1 at 15) combined with Lovejoy’s “training . . . in terms of handling 11 his animal” (id. at 25). Simonson’s summary judgment affidavit further explains that his 12 probable cause determination relied heavily on Lovejoy’s “mental[] and physical[] 13 exhaust[ion],” Lovejoy’s choice not to call in sick for the extra-duty assignment, 14 Lovejoy’s choice to take Bandit with him on the extra-duty assignment “despite it not 15 being Sgt. Lovejoy’s typical practice to take Bandit to such extra assignments,” and 16 “Chandler Police Department rules and regulations [which] did not require Sgt. Lovejoy 17 to take his assigned K-9 to an extra-duty traffic control assignment.” (Doc. 93-2 at 5–6; 18 see also Doc. 114-1 at 14–16, 25–28.) Aubuchon persisted in this vein, arguing that 19 Lovejoy “had responsibilities to Bandit, and he chose to go out and do other off-duty jobs 20 instead of getting rest and getting sleep.” (Doc. 93-2 at 56.) Arpaio’s summary judgment 21 synthesizes these arguments, claiming that 22 Lovejoy’s decision to ignore his fatigue and illness and take Bandit to an extra-duty shift plainly created a substantial risk of harm to Lovejoy, Bandit, and potentially anyone else 23 24 25 26 27 4 Arpaio attempts to create a voluntary intoxication issue through expert testimony about the equivalence between sleep deprivation and chemical intoxication. (Doc. 94-1 at 11.) As noted above, however, Arizona’s definition of “voluntary intoxication” specifically requires “knowing use of drugs, toxic vapors or intoxicating liquors.” A.R.S. § 13-105(43). The record contains no evidence of such intoxication. 28 - 29   3 Lovejoy encountered that morning. . . . Lovejoy was reckless when he failed to call in sick to his extra-duty shift and placed Bandit in harm’s way knowing that he was responsible for Bandit’s welfare. 4 (Doc. 94-1 at 11–12.) At oral argument on this motion, counsel for Arpaio offered an 5 extension of this theory, arguing that the entire course of events from Lovejoy’s inability 6 to sleep through the point that he discovered Bandit’s body evince recklessness. 1 2 7 These interpretations have no arguable connection to the relevant statutes. Indeed, 8 one must ignore the statutes’ plain language to offer these interpretations. For example, 9 the notion that Lovejoy was reckless for his sleep-deprived choice to put Bandit in the 10 vehicle for the extra-duty shift (somehow against his training) ignores the animal cruelty 11 statute’s explicit requirement that the offender must “leav[e] an animal unattended and 12 confined in a motor vehicle.” A.R.S. § § 13-2910(A)(7) (emphasis added). These are not 13 technical terms of art. 14 Lovejoy put Bandit into the SUV and then put himself behind the wheel, Lovejoy was in 15 no sense leaving Bandit “unattended and confined in a motor vehicle.” These are ordinary words used by ordinary people. When 16 Moreover, if the sleep-deprivation theory is correct, it would lead to an absurd 17 result. The statute is plain that death or injury is not a required element of the offense. 18 Death or serious injury need only be “likely to result.” Id. Thus, if Lovejoy’s sleep- 19 deprived choice to put Bandit in the vehicle created the situation where death or injury 20 was likely to result — e.g., because Lovejoy should have known that he might forget 21 Bandit — then probable cause to arrest and prosecute Lovejoy existed from the moment 22 Lovejoy left with Bandit for his extra-duty shift. Indeed, probable cause would have 23 existed even if he took Bandit out of the vehicle immediately after arriving home. 24 No reasonable person could think that this is how the animal cruelty statute 25 actually works — it makes no sense. However tired you may be, however much training 26 you may have regarding animals, the statute does not criminalize the choice to bring your 27 animal with you. 28 confined in a motor vehicle,” A.R.S. § 13-2910(A)(7), and nothing more. It criminalizes the choice to “leave[] an animal unattended and - 30   1 The definition of “recklessly” likewise undermines Arpaio’s (and Simonson’s and 2 Aubuchon’s) theory. That definition plainly states that the reckless mental state must be 3 “with respect to . . . a circumstance described by a statute” and the offender must be 4 “aware of and consciously disregard[] a substantial and unjustifiable risk that . . . the 5 circumstance exists.” 6 “circumstance described by a statute” was the act of “leav[ing] an animal unattended and 7 confined in a motor vehicle.” A.R.S. § 13-2910(A)(7). Thus, probable cause existed 8 only if Lovejoy was “aware of and consciously disregarded” the existing circumstance of 9 “leav[ing] [Bandit] unattended and confined in [the SUV].” A.R.S. § 13-105(10)(c) (emphasis added). Here, again, the 10 On this record, no evidence supports this proposition. On the contrary, everything 11 Simonson learned in his investigation pointed to tragic distraction rather than 12 “aware[ness] . . . and conscious[] disregard[].” 13 distraction. See, e.g., Rosenbaum, 654 F.3d at 1007 (probable cause lacking because no 14 criminal statute prohibited suspect’s conduct). No criminal statute prohibits such 15 Arpaio nonetheless claims that probable cause, if lacking, was still reasonably 16 arguable because according to testimony from Lovejoy’s police practices expert, “police 17 officers do not generally apply probable cause to the [state of mind] element of a 18 particular crime, as that is a ‘prosecutorial distinction.’” (Doc. 94-1 at 14.) But if 19 Lovejoy’s expert’s opinion is relevant at all, it only highlights the fact that Lovejoy’s was 20 not the “general[]” case. Simonson’s investigation report and the September 5, 2007 21 news release both address the state of mind element of the offense for which Lovejoy was 22 charged. Indeed, the news release discusses two potential states of mind: reckless and 23 intentional. Someone at the Sheriff’s Office was paying attention to the state of mind 24 element. Arpaio’s argument in this regard therefore fails. 25 Arpaio further argues that “the difference between recklessness and negligence . . . 26 is subtle and not easily distinguishable for lawyers, let alone police officers.” (Id.) For 27 two reasons, this argument is unavailing. First, one need not understand anything about 28 any state of mind to know that putting your animal and yourself into a vehicle is different - 31   1 from “leav[ing] an animal unattended and confined in a motor vehicle.” A.R.S. § 13- 2 2910(A)(7). Second, the difference between “recklessness” and “negligence” in this case 3 was not left to anyone’s opinion. Arizona’s penal code defines recklessness, and the 4 definition is not ambiguous. 5 consciously disregards a substantial and unjustifiable risk that the circumstance described 6 by the statute defining the offense exists. Id. § 13-105(10)(c). These are not technical 7 words. And there is only one relevant circumstance in the statute defining the offense for 8 which Lovejoy was charged: “leav[ing] an animal unattended and confined in a motor 9 vehicle.” Id. § 13-2910(A)(7). “Recklessly” means that a person is aware of and Thus, there was only one interpretation available: 10 Lovejoy violated the statute only if he was aware of and consciously disregarded a 11 substantial and unjustifiable risk that he was leaving Bandit unattended and confined in a 12 motor vehicle. 13 Any other interpretation is unreasonable — and therefore unworthy of qualified 14 immunity — for an official in Simonson’s position, whose familiarity with the animal 15 cruelty statute must be presumed, given his assignment to the Animal Cruelty Unit. 16 Indeed, Simonson confirmed in his interview with Kavanagh that he, Summers, and 17 Trombi “looked at . . . that statute pretty long and hard.” (Doc. 114-1 at 28.) Whether a 18 reasonable official in Arpaio’s supervisory position could make the same mistake 19 depends on what Arpaio knew, a question which cannot be resolved through summary 20 judgment (as discussed in Part VI, below). 21 Thus, summary judgment on probable cause and qualified immunity are 22 inappropriate — either in favor of Arpaio or Lovejoy. Although the relevant facts appear 23 undisputed and Arpaio’s arguments fail to establish probable cause and qualified 24 immunity as a matter of law, Lovejoy did not cross-move to affirmatively establish lack 25 of probable cause or qualified immunity. The Court therefore cannot rule in favor of 26 Lovejoy on those issues at this time. However, to the extent that Arpaio persists at trial 27 with the theories and evidence advanced thus far, a directed verdict for Lovejoy on 28 probable cause and qualified immunity awaits. - 32   1 VI. ARPAIO’S ALLEGED PERSONAL INVOLVEMENT 2 A. 3 On this record, it was unconstitutional to arrest Lovejoy for animal cruelty. But as 4 noted previously, Lovejoy has not sued the officers who actually performed the arrest 5 (Simonson and Summers). Lovejoy hangs his entire case on proving that Arpaio was 6 responsible. The Decision to Arrest and Charge 7 A supervisor may be liable for subordinates’ unconstitutional acts if the supervisor 8 engaged in “culpable action or inaction in the training, supervision, or control of his 9 subordinates.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Thus, a 10 supervisor may be liable if he or she: 11  sets in motion a series of acts by others, or knowingly refuses to terminate a 12 series of acts by others, which he knows or reasonably should know, would 13 cause others to inflict the constitutional injury;  acquiesces in the constitutional deprivations of which the complaint is 14 made; or 15  otherwise engages in conduct that shows a reckless or callous indifference 16 to the rights of others. 17 18 See id. Summary judgment in favor of Arpaio is appropriate unless Lovejoy has 19 sufficient evidence from which a jury could conclude that one of these supervisory 20 liability standards it met. 21 Sufficient evidence exists from which a reasonable jury could conclude that 22 Arpaio, in his supervisory role, acted to ensure that Lovejoy would be charged, or 23 culpably failed to act to prevent others from bringing such charges. Arpaio has denied 24 such involvement but a jury may disbelieve that testimony because other circumstances 25 place it into doubt, including that Arpaio is a party to this action and therefore interested 26 in the outcome. Arpaio nonetheless points to Simonson and Summers, both of whom 27 stated in their summary judgment affidavits that Arpaio applied no pressure to ensure 28 they reached a particular result. Arpaio characterizes this as uncontradicted evidence that - 33   1 he has no personal responsibility for Lovejoy’s injuries. But Simonson’s and Summers’s 2 affidavits do not go this far. Simonson and Summers state only that they felt no pressure 3 during the investigation. The relevant issue, at least as it relates to Arpaio’s potential 4 supervisory liability, is not the investigation, but the decision to arrest and charge. 5 Summers’s affidavit is worded such that it is impossible to tell who made that decision. 6 Simonson’s affidavit says nothing about who decided to charge Lovejoy. 7 investigation report says that the “Animal Crimes Division believe[d] there [was] 8 sufficient cause” to charge (Doc. 93-2 at 23), but it does not say that the “Animal Crimes 9 Division” made the decision to charge. In his interview with Kavanagh, Simonson stated 10 that officers higher in the chain of command made that decision — at least as high as 11 Deputy Chief Trombi, and he “assume[d] that it probably went all the way to the sheriff.” 12 (Doc. 114-1 at 24.) Without additional foundation, this statement is not admissible to 13 prove that Arpaio made the decision, but it at least shows that Simonson cannot say that 14 Arpaio did not make that decision. His 15 The foregoing establishes that a jury need not accept the evidence supposedly 16 exculpating Arpaio, but on its own, it raises no inculpatory inference either. On that 17 score, Arpaio’s wildly off-base interpretation of the statutes defining animal cruelty and 18 recklessness creates an inference in Lovejoy’s favor. Simonson, Aubuchon, and Arpaio 19 have consistently defended an interpretation of those statutes that disregards almost all of 20 their the language. 21 unattended and confined in a motor vehicle,” A.R.S. § 13-2910(A)(7), Arpaio insists on 22 changing “leave” to “put,” erasing “unattended and confined,” and perhaps inserting a 23 clause that places extra requirements on those with special animal training — thus 24 making Lovejoy and officers like him liable for animal cruelty at the moment they drive 25 away with their dogs while sleep-deprived, even if they immediately let their dogs out 26 upon arriving at their destination. As discussed above, such an interpretation is not 27 reasonable. Indeed, it is so far from reasonable that a rational jury could infer that 28 someone in the Sheriff’s Office was intent on charging Lovejoy no matter what. Whereas the statute explicitly outlaws “leav[ing] an animal - 34   1 This does not necessarily point to Arpaio, but Lovejoy may reasonably bridge that 2 inferential gap through Arpaio’s admissions that he “take[s] animal cruelty very serious” 3 and he “gave a little time to” the Lovejoy investigation (Doc. 101-1 at 13); and through 4 the 90-minute meeting that supposedly took place on September 4, 2007 between Arpaio, 5 Trombi, Simonson, Summers, the Sheriff’s Office media director, and certain other 6 Sheriff’s Office employees. The only stated purpose of that meeting was to discuss the 7 Lovejoy investigation. No witness has directly confirmed that the meeting took place but 8 neither has any witness claimed to the contrary. Arpaio nonetheless says he does not 9 remember if he attended the meeting. Apparently Simonson and Summers were never 10 asked — although Simonson’s “assum[ption] that [the decision to charge Lovejoy] 11 probably went all the way to the sheriff” is inconsistent at least with Simonson’s own 12 attendance at that meeting, if it happened.5 Nonetheless, a 90-minute meeting was 13 announced with the sole purpose of discussing the Lovejoy investigation, and one day 14 after the meeting was scheduled to take place: (1) Simonson concluded his investigation 15 report by stating that Lovejoy would be charged with “recklessly” causing Bandit’s 16 death; (2) Simonson and Summers arrested Lovejoy; (3) Arpaio held a press conference 17 announcing the arrest (while Lovejoy was en route to the Sheriff’s Office without having 18 been told he was going to be arrested); and (4) the Sheriff’s Office issued a press release 19 — which Arpaio reviewed and approved — attributing to Arpaio the statement that 20 “[o]ur investigation determined that Bandit’s death was not an intentional act on 21 Lovejoy’s part, but it was reckless and for that, Lovejoy must be charged” (Doc. 101-1 22 at 7). 23 Rational jurors could interpret all of this as evidence that the meeting took place, 24 which Arpaio attended, and the meeting resolved the question of how to interpret the 25 statute such that it could apply to Lovejoy — including the specific choice to charge him 26 27 5 Kavanagh apparently did not know about the alleged meeting at the time he interviewed Simonson, and Lovejoy did not depose Simonson or Summers. Their summary judgment affidavits say nothing about the meeting. 28 - 35   1 under the “recklessly” prong. Considering the unreasonableness of such an 2 interpretation, sufficient evidence exists from which a reasonable jury could conclude 3 that Arpaio made the executive decision to arrest Lovejoy, or acquiesced in others’ 4 decision to do so, having been fully informed of the relevant facts and law and 5 understanding that probable cause did not exist, or behaving with callous indifference to 6 whether probable cause existed. 7 B. The Decision to Continue Prosecuting 8 Although both the arrest and prosecution were unconstitutional on this record, the 9 prosecution caused the bulk of Lovejoy’s claimed injuries — including attorneys fees 10 paid to his criminal defense attorney. The question is who can be held responsible for 11 those injuries. Arguably the prosecutor, not the police, caused those injuries because the 12 prosecutor carried out the prosecution. But the law does not permit Lovejoy to sue the 13 prosecutor: “[I]n initiating a prosecution and in presenting the State’s case, the prosecutor 14 is [absolutely] immune from a civil suit for damages.” Imbler v. Pachtman, 424 U.S. 15 409, 431 (1976); see also Restatement (Second) of Torts § 656 (1977) (“A public 16 prosecutor acting in his official capacity is absolutely privileged to initiate, institute, or 17 continue criminal proceedings.”). 18 Although Lovejoy cannot pursue the prosecutor, the law does leave him without a 19 remedy. Two legal theories permit plaintiffs in Lovejoy’s situation to attempt to hold the 20 police responsible for prosecution-related injuries. Under the first theory, the plaintiff 21 asserts that the prosecution was a foreseeable consequence of the arrest, and therefore the 22 injuries caused by the prosecution are natural extensions of the injuries caused by the 23 unconstitutional arrest. See, e.g., Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 24 1991); Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988). 25 Under the second theory, the plaintiff attempts to show that a police officer 26 engaged in some sort of behavior intended to ensure a prosecution regardless of probable 27 cause. Smiddy v. Varney, 665 F.2d 261, 266–67 (9th Cir. 1981). This theory recognizes 28 that procuring an unconstitutional prosecution is unlawful regardless of whether the arrest - 36   1 was unlawful — indeed, whether or not the procuring officer had anything to do with the 2 arrest. 3 Lovejoy attempts to hold Arpaio liable under one or both of these theories. But 4 even so, he must still “get around the prosecutor,” so to speak, because the prosecutor is 5 presumed to have “exercised independent judgment in determining that probable cause 6 . . . exists.” Id. at 266. Thus, “where police officers do not act maliciously or with 7 reckless disregard for the rights of an arrested person,” the prosecutor’s independent 8 judgment insulates the police officer from liability for injuries that resulted after the 9 prosecutor files a criminal complaint. Id. at 267; Barlow, 943 F.2d at 1136; Borunda, 10 885 F.2d at 1389. 11 Nonetheless, as shown by the language just quoted, the effect of the independent 12 judgment presumption may be avoided altogether by showing that the police acted 13 “maliciously or with reckless disregard for the rights of the arrested person.” In addition, 14 the independent judgment presumption may be rebutted. Examples of such rebuttal 15 include a showing that:  the prosecutor was pressured or caused by the investigating officers to act 16 contrary to his or her independent judgment, Smiddy, 665 F.2d at 267; 17  the police officers knowingly presented false information to the prosecutor, 18 id.; 19  the “prosecutor was nothing but a rubber stamp for his investigative staff or 20 the police,” Hartman v. Moore, 547 U.S. 250, 264 (2006);6 and 21 22 23 24 25 26 27 6 Hartman held that, in a First Amendment retaliation context, the presumption of independent judgment could be rebutted by showing (1) a retaliatory animus on the part of police and (2) lack of probable cause. The plaintiff need not show, e.g., that the police pressured the prosecutor, that the prosecutor was a “rubber stamp,” and so forth. Hartman chose this standard because it is difficult to obtain evidence of the prosecutor’s state of mind. Accordingly, Hartman set a lower standard for rebutting the independent judgment presumption in First Amendment cases: animus plus lack of probable cause. Nonetheless, it endorsed the “rubber stamp” and personal/political gain examples as probative of whether independent judgment was exercised. 28 - 37   1 2  the prosecutor persisted with the case because of expected personal or political gain, id. 3 “These examples are not intended to be exclusive. Perhaps the presumption may be 4 rebutted in other ways.” Smiddy, 665 F.2d at 267. 5 Arpaio argues that Lovejoy does not have any evidence to rebut the presumption 6 of independent prosecutorial judgment. To the contrary, Lovejoy has presented sufficient 7 evidence from which a jury could find rebuttal of the independent judgment presumption 8 in at least three ways. 9 First, a jury could conclude that Arpaio acted “with reckless disregard for the 10 rights of” Lovejoy, thus avoiding the independent judgment question altogether. The 11 press releases, the press conference on the day of Lovejoy’s arrest, and the fact that no 12 reasonable official could conclude that the animal cruelty statute applied to Lovejoy 13 could all be reasonably interpreted by the jury as “reckless disregard” of Lovejoy’s rights 14 in pursuit of other goals, such as publicity and political gain. 15 Second, rational jurors could infer that Thomas and Aubuchon were pressured or 16 caused by the investigating officers to act contrary to their independent judgment. On the 17 one hand, Thomas and Aubuchon both testified that they received no pressure. On the 18 other hand, the jury could reasonably disbelieve that testimony considering the potential 19 professional consequences of admitting to prosecuting under pressure despite their 20 independent judgment. Further, Arpaio admits that he “take[s] animal cruelty very 21 22 23 24 25 26 27 In light of Hartman, the Ninth Circuit has since questioned whether a Fourth Amendment (as opposed to First Amendment) plaintiff needs to show anything other than lack of probable cause to rebut the presumption of independent judgment. Beck v. City of Upland, 527 F.3d 853, 864–65 (9th Cir. 2008). Beck left the question unresolved, awaiting “a case in which the answer matters.” Id. at 865. Because the Court concludes that Lovejoy has enough evidence to satisfy the pre-Hartman rebuttal standard, Lovejoy’s case is, like Beck, not one in which the answer matters — at least not yet. Depending on the course of trial, the independent judgment presumption may be submitted to the jury, most likely through an interrogatory or special form of verdict, thus isolating whether Hartman’s effect on Fourth Amendment cases must be resolved. 28 - 38   1 serious” and he “may have had a comment [to Thomas]” about Lovejoy’s prosecution. It 2 is also undisputed that Thomas assigned Leonard Ruiz, chief of the trial division, to 3 supervise the prosecution — an assignment which Ruiz believed to be out of the ordinary 4 for a misdemeanor animal cruelty charge. When Ruiz and his subordinate, Church, 5 raised questions about the propriety of the prosecution (grounded in the actual language 6 of the relevant statutes), Thomas refused to let the case go to incident review. Trudgian’s 7 and Van Brakel’s memos also appear to have been disregarded, even though these memos 8 likewise analyzed the statutes’ actual language. When Church and Ruiz declined to 9 continue prosecuting, Thomas reassigned the case to Aubuchon, who persevered with the 10 Sheriff’s Office’s baseless misreading of the animal cruelty and recklessness statutes. 11 Taken together, a rational inference arises that someone wanted to make sure that 12 Lovejoy was prosecuted no matter what. If the jury concludes that Arpaio wanted to 13 ensure Lovejoy’s arrest regardless of Lovejoy’s rights, the jury could similarly conclude 14 that Arpaio wanted to ensure Lovejoy’s prosecution as well, and therefore conclude that 15 Thomas and Aubuchon were pressured by Arpaio. 16 Third, a rational jury could conclude that, even in the absence of external pressure, 17 Thomas and Aubuchon “rubber stamped” Arpaio’s alleged decision — on in other words, 18 that Thomas and Aubuchon simply did not exercise independent judgment. Evidence 19 rationally supporting such a conclusion includes Arpaio’s potential “comment” to 20 Thomas, Thomas’s choice to deny Church and Ruiz’s incident review request, and 21 Aubuchon’s complete acceptance of the Sheriff’s Office’s indefensible statutory 22 interpretation. 23 Accordingly, summary judgment on the prosecutorial independence issue is not 24 appropriate. However, if a jury concludes that Thomas and Aubuchon exercised 25 independent judgment, then Arpaio could only be liable for damages incurred between 26 the arrest and the criminal complaint. Smiddy, 665 F.2d at 267 (police “not liable for 27 damages suffered by the arrested person after a [prosecutor] files charges unless the 28 presumption of independent judgment by the district attorney is rebutted” (emphasis - 39   1 added)). Whether Arpaio could be liable for post-complaint damages that would have 2 been incurred regardless of the complaint is not before the Court and need not be decided 3 at this time. 4 VII. MUNICIPAL LIABILITY 5 Lovejoy sued Arpaio in both his individual and official capacities. A suit against a 6 municipal officer in his official capacity is equivalent to a suit against the municipality. 7 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Under Monell, municipal 8 liability may be based on (1) an expressly adopted official policy, (2) a longstanding 9 practice or custom, or (3) the decision of a person with final policymaking authority. 10 Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). Lovejoy argues that he has raised a 11 triable issue of fact under the third scenario; Arpaio seeks summary judgment to the 12 contrary. 13 A municipality — here, Maricopa County — may be held liable for constitutional 14 violations when the person who committed the violation was a municipal official with 15 final policymaking authority or when such an official ratified a subordinate’s 16 unconstitutional decision or action and the basis for it. Clouthier v. County of Contra 17 Costa, 591 F.3d 1232, 1250 (9th Cir. 2009); Larez, 946 F.2d at 646. “It does not matter 18 that the final policymaker may have subjected only one person to only one constitutional 19 violation.” Lytle, 382 F.3d at 983. “[A] municipality can be liable for an isolated 20 constitutional violation when the person causing the violation has final policymaking 21 authority.” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (internal quotation 22 marks and citation omitted); see also Larez, 946 F.2d at 646 (“To the extent that the 23 terms ‘policy’ and ‘custom’ imply something beyond a single decision, official liability 24 may also be imposed where a first-time decision to adopt a particular course of action is 25 directed by a governmentally authorized decisionmaker.”). 26 As the Court concluded in a prior order, Arpaio is a final policymaker for 27 Maricopa County in the context of criminal law enforcement. (See Doc. 23 at 21–22.) 28 His acts therefore represent official Maricopa County “policy.” Lovejoy has raised a - 40   1 triable issue of fact here. Indeed, Lovejoy’s Monell case is substantially the same as his 2 case against Arpaio personally. 3 acquiesced in Lovejoy’s arrest, and that Arpaio ensured Lovejoy would be prosecuted or 4 otherwise remains responsible for the prosecution as the continuing injury caused by the 5 arrest. As discussed above, Lovejoy has sufficient evidence to put those accusations 6 before a jury. Both depend on proving that Arpaio caused or 7 The only difference between Lovejoy’s claim against Arpaio personally and 8 Lovejoy’s claim against the County is that the County has no qualified immunity defense. 9 Owen v. City of Independence, 445 U.S. 622, 657 (1980). Thus, even if Arpaio was 10 entitled to qualified immunity in his individual capacity (which he is not, see Part V.D, 11 above), trial would still be necessary on Lovejoy’s claim of County liability. Summary 12 judgment on County liability will therefore be denied.7 13 VIII. EQUAL PROTECTION 14 Arpaio seeks summary judgment on Lovejoy’s allegation that Arpaio violated his 15 equal protection rights by selectively arresting and prosecuting him. The Supreme Court 16 has “recognized successful equal protection claims brought by a ‘class of one,’ where the 17 plaintiff alleges that she has been intentionally treated differently from others similarly 18 situated and that there is no rational basis for the difference in treatment.” Village of 19 Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). To evaluate this claim, it 20 is first necessary to identify the “others similarly situated.” 21 Lovejoy claims that he was singled out from other police officers whose service 22 dogs died under their care. Lovejoy alleges that at least four other police dogs died under 23 24 25 26 27 7 At oral argument, counsel for Arpaio asserted that Lovejoy had waived his claim against the County because his response to the motion for summary judgment contains nothing about it. This is incorrect. Lovejoy’s response briefly but adequately addresses the Monell basis for County liability, considering that his claim against the County does not materially differ from his claim against Arpaio personally and that the Court previously ruled Arpaio is a final policymaker for the County. (See Doc. 100 at 11 & n.6.) 28 - 41   1 suspicious circumstances, but that their handlers were never investigated, disciplined, or 2 prosecuted. This Court concluded in a previous order that three of those incidents did not 3 relate to dogs killed by heat exhaustion in a vehicle, and Lovejoy therefore was not 4 similarly situated to the officers involved in those three incidents. (See Doc. 23 at 18.) 5 The Court has not previously addressed the fourth dog death incident — which, 6 like Lovejoy’s case, involved a dog trapped in a hot vehicle. In March 2007, a Phoenix 7 Police Department officer left his assigned dog, Top, in his truck for about three hours 8 while he attended to administrative tasks at the Department. The officer left the truck’s 9 engine running but forgot to turn on the air conditioning. Top did not die in the truck, but 10 suffered from heat stroke and needed to be euthanized. A Phoenix Police internal 11 investigation determined that the incident was a mistake. A Phoenix Police Commander 12 spoke with Arpaio about the results of the investigation and Arpaio agreed that the 13 Phoenix Police Department could handle it internally. The Sheriff’s Office did not 14 investigate. 15 The Top incident is somewhat more like Lovejoy’s situation, but still not 16 sufficiently similar. First, the relevant distinction here is the choice to investigate: Arpaio 17 investigated Lovejoy but not Top’s handler. Assuming without deciding that the choice 18 to investigate can create an equal protection claim if there is no rational reason to 19 investigate one person but not another, Lovejoy’s reliance on the Top incident fails. 20 Arpaio had learned from a Phoenix Police Commander that Top’s handler had left the 21 engine running for three hours, which would only be rational in that situation if the 22 handler thought he had also left the air conditioning running. Thus, such a person could 23 not be consciously disregarding the risk to the dog. To the contrary, the handler thought 24 he had taken steps to protect the dog, although he was mistaken. This shows negligence, 25 not recklessness. By contrast, when Arpaio learned of Lovejoy’s case (a day or two after 26 Bandit’s death), he knew very few details. Accordingly, Arpaio’s choice to investigate 27 Lovejoy does not evince an equal protection violation, and summary judgment on this 28 claim is appropriate. - 42   1 IT IS THEREFORE ORDERED that “Defendants’ Motion for Summary 2 Judgment” (Doc. 92) is GRANTED with respect to Plaintiffs’ equal protection claim and 3 DENIED in all other respects. 4 Dated this 23rd day of December, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 43  

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