Donahoe et al v. Arpaio et al

Filing 1168

ORDER denying Plaintiff Stapley's Motions for Partial Summary Judgment (Docs. 1056 , 1060 , and 1065 ). FURTHER ORDERED granting Defendant Arpaio's Motion for Summary Judgment (Doc. 1062 ) against Stapley's ninth claim for unconsti tutional policies, customs, failure to train, and negligent supervision. The motion is otherwise denied. FURTHER ORDERED granting Defendant Aubuchon's Motion for Summary Judgment (Doc. 1066 ) against Stapley's second and fifth claims for malicious prosecution and against his fourth claim for false arrest. The motion is otherwise denied. FURTHER ORDERED granting Defendant Hendershott's Motion for Summary Judgment (Doc. 1072 ) against Stapley's ninth claim for unconstitutio nal policies, customs, failure to train, and negligent supervision. The motion is otherwise denied. FURTHER ORDERED granting Defendant Thomas's Motion for Partial Summary Judgment (Doc. 1063 ) against Stapley's second and fifth claims for malicious prosecution and against his tenth claim for unlawful search. The motion is otherwise denied. See order for complete details. Signed by Judge Neil V. Wake on 12/5/13. (NKS)

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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 Gary Donahoe and Cherie Donahoe, husband and wife, 10 12 13 14 15 16 17 18 19 20 CONSOLIDATED WITH: Plaintiffs, 11 v. Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; Andrew Thomas and Anne Thomas, husband and wife; Lisa Aubuchon and Peter R. Pestalozzi, wife and husband; Deputy Chief David Hendershott and Anna Hendershott, husband and wife; Peter Spaw and Jane Doe Spaw, husband and wife; Maricopa County, a municipal entity; Jon Does I-X; Jane Does I-X; Black Corporations I-V; and White Partnerships IV, Defendants. Donald T. Stapley, Jr. and Kathleen Stapley, husband and wife, No. CV-11-0902-PHX-NVW ORDER 21 Plaintiffs, 22 v. 23 Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al., 24 25 No. CV-10-02756-PHX-NVW Defendants. 26 27 28 -i- TABLE OF CONTENTS 1 2 SUMMARY OF RULINGS ........................................................................................ 1  3 I.  4 II.  LEGAL STANDARD ................................................................................................. 3  5 III.    STAPLEY I ................................................................................................................... 4  6 7 8 A.  Legal standard ......................................................................................................... 4  B.  Probable cause ......................................................................................................... 5  9 1.  2.  10 11 12 The 1994 Board of Supervisors resolution ........................................................... 6  Statute of limitations........................................................................................... 9  C.  Malice .................................................................................................................... 10  13 D.  Favorable termination............................................................................................ 11  14 E.  Accrual of action ................................................................................................... 12  15 16 IV.  THE SEARCH....................................................................................................... 12  A.  Legal standard ....................................................................................................... 13  17 18 B.  Evidence supporting the search warrant ................................................................ 14  19 1.  Evidence regarding fraud ................................................................................. 15  20 2.  Evidence regarding bribery .............................................................................. 16  21 3.  Evidence regarding misuse of public funds ..................................................... 17  22 C.  Misrepresentations and omissions in the supporting affidavit .............................. 19  23 24 1.  Misrepresentation and omissions of evidence of bribery ................................. 19  25 i.  Review of bank records................................................................................. 19  26 ii.  Partnership documents .................................................................................. 20  27 iii.  Public records of partnership ........................................................................ 20  28 iv.  Disclosure ...................................................................................................... 21  - ii - v.  1 2 3 2.  Voting record ................................................................................................ 21  Misrepresentation and omissions of evidence of misused public funds .............. 23  D.  Materiality of misrepresentations and omissions .................................................. 24  4 5 6 E.  Deliberate or reckless disregard for the truth ........................................................ 26  1.  7 i.  Involvement................................................................................................... 27  ii.  8 9 Aubuchon ......................................................................................................... 27  Evidence ........................................................................................................ 28  2.  Thomas ............................................................................................................. 31  11 3.  Hendershott....................................................................................................... 32  12 4.  Arpaio ............................................................................................................... 34  10 13 14 F.  Qualified immunity ............................................................................................... 35  1.  Legal standard .................................................................................................. 35  2.  Application to the search .................................................................................. 36  15 16 17 V.  THE ARREST AND STAPLEY II INDICTMENT................................................... 36  18 A.  Legal standard ....................................................................................................... 38  19 B.  Probable cause ....................................................................................................... 39  20 1.  Fraudulent schemes and artifices (arrest) ......................................................... 40  2.  Perjury (arrest and indictment) ......................................................................... 42  3.  False swearing (indictment) ............................................................................. 43  21 22 23 24 25 C.  Defendants’ roles in the arrest ............................................................................... 44  D.  Malice or improper purpose in prosecuting Stapley II .......................................... 45  26 27 28 E.  Favorable termination............................................................................................ 46  F.  Qualified immunity for the arrest .......................................................................... 47  - iii - 1 2 3 VI.  THE RACKETEERING ACTION ....................................................................... 48  A.  Background............................................................................................................ 48  B.  Legal standard ....................................................................................................... 51  4 5 C.  Analysis ................................................................................................................. 51  6 1.  Involvement ...................................................................................................... 51  7 2.  Probable cause (reasonable belief and advice of counsel) ............................... 52  3.  Malice ............................................................................................................... 53  4.  Favorable termination ....................................................................................... 54  8 9 10 11 VII.  RETALIATION AND QUALIFIED IMMUNITY .............................................. 55  12 A.  Constitutional violation ......................................................................................... 56  13 B.  Clearly established right ........................................................................................ 58  14 XIII.  ABSOLUTE IMMUNITY .................................................................................... 60  15 16 17 A.  Legal standard ....................................................................................................... 61  B.  Analysis ................................................................................................................. 61  18 IX.  19 DAMAGES ........................................................................................................................ 63  20 A.  Legal standard ....................................................................................................... 63  21 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE B.  Analysis ................................................................................................................. 64  22 23 24 X.  UNCONSTITUTIONAL POLICIES OR CUSTOMS ............................................. 64  XI.  PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT ............................... 64  25 26 27 28 - iv - 1 Before the Court are seven motions for summary judgment filed by Plaintiff 2 Donald T. Stapley, Jr. and Defendants Joseph Arpaio, Lisa Aubuchon, David 3 Hendershott, and Andrew Thomas. For the following reasons, Plaintiff’s motions will be 4 denied and Defendants’ motions will be granted in part and denied in part. 5 6 I. SUMMARY OF RULINGS 7 The allegations underlying this dispute are set forth in Donahoe v. Arpaio, 869 F. 8 Supp. 2d 1020 (D. Ariz. 2012), aff’d sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th 9 Cir. 2013). They describe an extended criminal and civil campaign against the Maricopa 10 County Board of Supervisors, of which Stapley was then a member, by the Maricopa 11 County Sheriff’s Office (MCSO), the Maricopa County Attorney’s Office (MCAO), and 12 their joint anti-corruption task force (MACE). The details are not recounted here except 13 as necessary to explain the rulings. 14 judgment against Sheriff Joseph Arpaio (Doc. 1060), former Deputy County Attorney 15 Lisa Aubuchon (Doc. 1065), and former Chief Deputy David Hendershott (Doc. 1056). 16 In turn, Arpaio (Doc. 1062), Aubuchon (Doc. 1066), Hendershott (Doc. 1072), and 17 former County Attorney Andrew Thomas (Doc. 1063) have moved for summary 18 judgment. Stapley’s motion for partial summary judgment against Thomas (Doc. 1147) 19 and Maricopa County’s motion for summary judgment against Stapley (Doc. 1149) were 20 previously denied. 21 Stapley has now moved for partial summary Stapley seeks summary judgment that 22 (1) Arpaio ordered a retaliatory arrest in violation of 42 U.S.C. § 1983; 23 (2) Aubuchon engaged in judicial deception and searched his office in 24 25 26 violation of 42 U.S.C. § 1983; and (3) Hendershott wrongfully instituted a federal racketeering action against him in violation of state law and 42 U.S.C. § 1983. 27 28 -1- 1 All Defendants seek summary judgment that (1) 2 they are not liable for maliciously prosecuting or investigating 3 Stapley in the criminal actions commonly referred to as Stapley I and 4 Stapley II; (2) 5 they are not liable for retaliating against Stapley for exercising his constitutional rights; 6 7 (3) they are not liable for the search of Stapley’s office; 8 (4) they have absolute or qualified immunity as to various claims; 9 (5) they are not liable for intentional infliction of emotional distress; and 10 (6) Stapley may not recover punitive damages. 11 12 13 Arpaio, Aubuchon, and Hendershott also seek summary judgment that they are not liable for Stapley’s arrest. Arpaio and Hendershott also seek summary judgment that (1) 14 their roles in the federal racketeering action do not give rise to liability; and 15 (2) 16 they are not liable for establishing unconstitutional policies or 17 customs within MCSO, for failing to train employees, or for 18 negligently supervising them. 19 20 The Defendants’ motions for summary judgment will be granted against the following claims. 21 As to Defendant Arpaio, summary judgment will be granted against Stapley’s 22 ninth claim for unconstitutional policies, customs, failure to train, and negligent 23 supervision. 24 As to Defendant Aubuchon, summary judgment will be granted against Stapley’s 25 second and fifth claims for malicious prosecution and against his fourth claim for false arrest. 26 As to Defendant Hendershott, summary judgment will be granted against 27 Stapley’s ninth claim for unconstitutional policies, customs, failure to train, and negligent 28 supervision. -2- 1 As to Defendant Thomas, summary judgment will be granted against Stapley’s 2 second and fifth claims for malicious prosecution and against his tenth claim for unlawful 3 search. The motions will otherwise be denied. 4 5 6 II. LEGAL STANDARD 7 A motion for summary judgment tests whether the opposing party has sufficient 8 evidence to merit a trial. At its core, it questions whether sufficient evidence exists from 9 which a reasonable jury could find in favor of the party opposing the motion for summary 10 judgment. Summary judgment should be granted if the evidence shows there is no 11 genuine dispute about any material fact and the moving party is entitled to judgment as a 12 matter of law. Fed. R. Civ. P. 56(a). The moving party has the burden of demonstrating 13 that no material issue of fact exists for the jury to decide. See Celotex Corp. v. Catrett, 14 477 U.S. 317, 323 (1986). To meet this burden, the moving party must point out the lack 15 of evidence supporting the nonmoving party’s claim but need not produce evidence 16 negating that claim. Id. at 325. 17 When the moving party has carried its burden under Federal Rule of Civil 18 Procedure 56(c), the nonmoving party must show that there are genuine issues of material 19 fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact is one 20 that might affect the outcome of the suit under the governing law, and a factual issue is 21 genuine “if the evidence is such that a reasonable jury could return a verdict for the 22 nonmoving party.” Id. at 248. The nonmoving party must produce evidence to support 23 its claim or defense by more than simply showing “there is some metaphysical doubt as 24 to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 25 586 (1986). 26 nonmoving party, must not weigh the evidence or assess its credibility, and must draw all 27 justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing 28 Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255. Where the record, The Court must view the evidence in the light most favorable to the -3- 1 taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, 2 there is no genuine issue of material fact for trial. Matsushita, 475 U.S. at 587. 3 On summary judgment, the nonmoving party’s evidence is presumed true, and all 4 inferences from the evidence are drawn in the light most favorable to the nonmoving 5 party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987); 6 Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). But the evidence 7 presented by the parties must be admissible or able to be produced in admissible form. 8 See Fed. R. Civ. P. 56(c)(2). Conclusory and speculative testimony in affidavits and 9 moving papers is insufficient to raise genuine issues of fact and to defeat summary 10 judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 11 12 III. STAPLEY I 13 On November 20, 2008, a grand jury returned a 118-count indictment against 14 Stapley (Stapley I), charging him largely with violations of disclosure laws related to his 15 position as a Maricopa County Supervisor. See Doc. 1112-9 at 26. On December 2, an 16 MCSO sergeant served Stapley with the summons. See id. at 29. 17 Stapley seeks damages for malicious prosecution based on the investigations that 18 led to this indictment—his third claim for relief. Stapley no longer asserts separate 19 malicious prosecution claims against Thomas and Aubuchon, which the Court has held 20 absolutely immune from suit. Thus, Arpaio and Hendershott are the only remaining 21 defendants with respect to the malicious prosecution claims. Each moves for summary 22 judgment. 23 24 A. Legal standard 25 For malicious prosecution under Arizona law, Stapley must prove (1) Defendants 26 initiated or procured the criminal proceeding, (2) the prosecution terminated in Stapley’s 27 favor, (3) the prosecution lacked probable cause, and (4) malice, or a primary purpose 28 other than bringing him to justice. See Restatement (Second) of Torts § 653 (1977); see -4- 1 also Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274, 277 (1986). “A criminal 2 defendant may maintain a malicious prosecution claim not only against prosecutors but 3 also against others—including police officers and investigators—who wrongfully caused 4 his prosecution.” Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011). 5 Notably, “a malicious prosecution claim is treated differently from one for false 6 arrest: whereas probable cause to believe that a person has committed any crime will 7 preclude a false arrest claim, even if the person was arrested on additional or different 8 charges for which there was no probable cause, . . . probable cause as to one charge will 9 not bar a malicious prosecution claim based on a second, distinct charge as to which 10 probable cause was lacking.” Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682 (7th 11 Cir. 2007) (internal citations omitted); accord Jernigan v. Richard, 907 F. Supp. 2d 998, 12 1041 (D. Ariz. 2012) (upholding malicious prosecution claim where probable cause 13 supported some—but not all—of the criminal counts charged against plaintiff). 14 15 B. Probable cause 16 Both Arpaio and Hendershott assert the existence of probable cause. “In the 17 context of malicious prosecution, probable cause is defined as ‘a reasonable ground of 18 suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in 19 believing the accused is guilty of the offense . . . . The test generally applied is: upon the 20 appearances presented to the defendant, would a reasonably prudent man have instituted 21 or continued the proceeding?’” Gonzales v. City of Phoenix, 203 Ariz. 152, 155, 52 P.3d 22 184, 187 (2002) (quoting McClinton v. Rice, 76 Ariz. 358, 367, 265 P.2d 425, 431 23 (1953)). The question of probable cause is generally one for the court. Gonzales, 203 24 Ariz. at 155, 52 P.3d at 187. “If, however, the evidence is conflicting, so that on one 25 conclusion as to the facts drawn therefrom probable cause exists, while from another it 26 does not, it is then for the jury to determine the true state of facts and to apply the law as 27 laid down by the court to those facts.” Sarwark Motor Sales, Inc. v. Woolridge, 88 Ariz. 28 173, 177, 354 P.2d 34, 36 (1960). Summary judgment is appropriate if a reasonable jury -5- 1 could not find an absence of probable cause based on the undisputed facts. See, e.g., 2 Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994). 3 1. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The 1994 Board of Supervisors resolution The Stapley I charges were premised on Stapley’s knowing failure to disclose financial transactions as required by state law. As early as January 2007, Special Deputy County Attorney Mark Goldman—a volunteer attorney with MCAO—and MCSO Sergeant Brandon Luth began investigating Stapley. See Doc. 1112-6 at 74–75; Doc. 1112-14 at 132; 1112-3 at 75. Thomas either directed Goldman to search public records regarding Stapley’s relationship with another lawyer, Tom Irvine, or approved Goldman voluntarily undertaking the task. Compare Doc. 1112-6 at 74–75 with id. at 90. Luth was ordered by Hendershott to “start looking into [Stapley’s] business dealings and [other] matters.” Doc. 1112-3 at 75. The parties dispute the origin of the investigation. There is evidence that “[t]here was no traditional complainant for any of the investigations concerning Supervisor Stapley” and instead that the investigations “spawned from Thomas’[s] directive to Goldman to search public records to find evidence of a crime.” Doc. 1112 ¶¶ 122, 132; see also Doc. 1112-9 at 6 (MCAO employee suggesting Thomas decided to investigate Stapley in response to news reports regarding Stapley). But see Doc. 1112-6 at 108–11 (Thomas testifying that Goldman volunteered to research Stapley’s financial relationship with Irvine after Thomas received a tip about potential wrongdoing between Stapley and Irvine); Doc. 1142 ¶ 122 (Arpaio also stating there was a complainant in the earlier investigation regarding Irvine). By May 2007, Goldman informed Thomas of potential issues with Stapley’s records and then informed MACE at Thomas’s direction. See Doc. 1112-6 at 113–14, 117–18. No further action appears to have been taken until March 20081 when 27 28 1 As discussed below, Stapley has offered evidence that his public criticism of Thomas motivated revival of the investigation. -6- 1 Aubuchon took over Goldman’s research, learned from him that there were “issues” with 2 Stapley’s records, and concluded there were criminal nondisclosures. See Doc. 1112-8 at 3 11–15. When Aubuchon received Goldman’s research, she noted that they were time 4 stamped from early 2007. See id. at 15. She then met with MACE deputies on May 14, 5 2008, see id. at 25–26, presented a draft indictment dated May 29, see id. at 22, and told 6 the deputies to use May 14 as the date on which the investigation started. See Doc. 1112- 7 3 at 88. 8 On May 8, 2009, Thomas enlisted MCAO Commander Mark Stribling to assist 9 the investigation. See Doc. 1112-9 at 5. At Aubuchon’s suggestion, Stribling contacted 10 Fran McCarroll, the Clerk of the Board of Supervisors, to “get some documents about 11 resolutions that the board had passed related to how disclosures were done because 12 apparently throughout the years the way disclosures were handled had changed some.” 13 Id. at 17. Because MCAO sought to indict Stapley for violating the 1994 Maricopa 14 County rule or resolution applying state disclosure rules to county officers, his criminal 15 culpability turned on whether the Board’s 1994 resolution had in fact adopted state law. 16 On May 22, 2008, McCarroll informed Stribling that the Board had in fact adopted 17 a resolution “consistent with [state law].” Doc. 1069-2 at 3. Stribling informed Luth of 18 this the same day, and Luth entered it into an MCSO supplemental report. Id. at 2. 19 Indeed, McCarroll “confirmed that elected county officials, including the Board of 20 Supervisors, were required to file financial disclosure statements with her office.” Doc. 21 1073 at 2. McCarroll also provided copies of past Board minutes. These reflect that the 22 Board resolved to adopt the disclosure requirements in 1974 and amended the 23 requirements in 1979. They further reflect that in 1994 the Board resolved to rescind the 24 1979 resolution “and update the Financial Disclosure form for Elected Officials to bring 25 the form and process into compliance with A.R.S. 38-541.” Doc. 1112 ¶ 110 (“Financial 26 disclosure forms must be filed by January 31, each year, with the Clerk of the Board.”). 27 Stribling appears to have provided these documents to Luth, and it appears that somebody 28 created a handwritten timeline on one of these documents indicating that the Board -7- 1 rescinded the 1979 resolution. See Doc. 1069-2 at 4 (“1994—Rescind reso re: Exempt 2 employees & update Fin. Disc. Form”). Notwithstanding the Board’s apparent intent to 3 update its disclosure protocol, the Board’s 1994 resolution did not adopt state law 4 requiring disclosures. See State v. Stapley, 227 Ariz. 61, 65–66, 251 P.3d 1048, 1052–53 5 (Ct. App. 2011). 6 MCSO deputies obtained Stapley’s financial disclosures and discovered evidence 7 that Stapley had “omitted information in his required disclosures for thirteen years, from 8 1994 through 2007.” Doc. 1072 at 4. Aubuchon presented the case to a grand jury, see 9 Doc. 1112-9 at 50, which returned a 118-count indictment against Stapley “in connection 10 with false and/or incomplete financial disclosures he filed,” Doc. 1072 at 4, in violation 11 of “A.R.S §§ 38-542, 38-542(A)(5), 38-544, 38-541, 38-545, 13-707, 13-802, and 12 Maricopa County Rule or Resolution adopted January 20, 1994.” Stapley, 227 Ariz. at 64 13 n.4, 251 P.2d at 1051 n.4. 14 Here, there is a factual dispute as to what MCSO and MCAO officials believed 15 and when they believed it. Aubuchon presented Stapley I to the grand jury in November 16 2008, six months after McCarroll disclosed the relevant documents and communicated 17 her belief regarding the disclosure requirements to Stribling. At the grand jury hearing, a 18 state witness explained that “there’s a resolution by the county that was adopted in ’94 19 that requires county officials to comply with the Arizona statute 38-542, which requires 20 those disclosures be completed.” Doc. 1112-9 at 50. Aubuchon asked whether the 21 resolution “address[ed] candidate disclosure forms” and the witness responded that “[i]t 22 wasn’t clearly covered under the resolution.” Id. 23 Even if McCarroll actually believed the 1994 resolution adopted the disclosure 24 requirements—and it appears she did—MACE had six months to review the language of 25 the 1994 resolution and conduct further investigation as to whether the intention reflected 26 in the 1994 resolution was ever acted on (it was not). It is clear that someone handwrote 27 on the documents McCarroll disclosed to Stribling that the 1994 resolution rescinded the 28 1979 resolution, but it is unclear whether the author of those notes appreciated the impact -8- 1 of the 1994 resolution—the grand jury testimony quoted above suggests it was either 2 misunderstood or deliberately ignored. Further, it is unclear who wrote it or when. If 3 everyone believed that the resolution had been adopted at the time Aubuchon presented 4 the indictment to the grand jury—because that is what McCarroll told them—then an 5 ordinarily prudent person may have continued the investigation. But it is at best a matter 6 of debate, and therefore jury trial, whether it was reasonable to seek indictment without 7 ever seeing the supposed resolution to confirm its existence and to know exactly what the 8 text of the resolution required to be disclosed. Moreover, if Stribling (or Luth, or 9 Aubuchon) knew the effect of the resolution prior to the grand jury hearing in November 10 2008, and thus had reason to know that McCarroll was incorrect, then an ordinarily 11 prudent person would not have believed probable cause existed to charge Stapley with 12 disclosure violations. A plain reading of the 1994 resolution shows that it rescinded prior 13 resolutions and adopted nothing in their place. The facts preclude summary judgment 14 that probable cause existed. 15 2. 16 17 18 19 20 21 22 23 24 25 26 27 Statute of limitations Irrespective of whether Luth or Stribling had probable cause to charge Stapley based on McCarroll’s statement and a misreading of the 1994 resolution, Aubuchon attended the MACE meeting and presented the Stapley I draft indictment before the Stribling–McCarroll interactions. Because McCarroll had not yet stated the 1994 resolution adopted the Arizona statutes regarding financial disclosures, her statement could not supply a factual basis for probable cause at that point—mere inconsistencies among Stapley’s publicly recorded disclosures do not establish what he was required to disclose. Moreover, when questioned by Stribling about whether the inconsistencies might reflect clerical error rather than knowing nondisclosure, Aubuchon stated that “if [the disclosure information is] not there then it’s a crime.” Doc. 1112-9 at 18. This also 28 -9- 1 suggests lack of probable cause to believe Stapley knowingly failed to disclose the 2 relevant information. 3 Further, as noted above there is evidence Aubuchon instructed MACE deputies at 4 the May 14 meeting to forward date their investigation, using May 14, 2008, rather than 5 January 2007, as the date on which their work began. See Doc. 1112-3 at 87–88. This 6 supports a finding that Aubuchon knew the statute of limitations on filing misdemeanor 7 charges had run. Indeed, Luth testified that he understood that forward dating could have 8 been an attempt to circumvent the statute of limitations. See id. at 9–10. This could lead 9 a reasonable juror to conclude that even if Luth had probable cause to believe Stapley 10 failed to disclose information, he knew or suspected that any resulting misdemeanor 11 charges would be barred by the statute of limitations. 12 Commissioner Passomonte’s concerns at the Stapley I grand jury hearing, who declined 13 to issue an arrest warrant in part because “[s]ome of th[e] charges, on their face, 14 appear[ed] to be outside of the statute of limitations time.” Doc. 1112-9 at 58, 64. 15 Indeed, Aubuchon’s negligence or knowledge as to the statute of limitations constituted 16 partial grounds for her disbarment. See In re Aubuchon, 233 Ariz. 62, 309 P.3d 886, 17 892–93 (2013). To the extent Aubuchon, Luth, or other MACE deputies knew the claims 18 were time barred, this supports a finding that there was no probable cause by the time 19 Aubuchon presented the case to the grand jury. 20 judgment for Defendants. This is consistent with The evidence precludes summary 21 22 C. Malice 23 Arpaio and Hendershott have not refuted an inference of malice—that they 24 “initiate[d] or procure[d] the proceedings . . . primarily for a purpose other than that of 25 bringing an offender to justice . . . .” Restatement (Second) of Torts § 653 (1977). A 26 lack of probable cause may serve as evidence of improper purpose. Id. § 669. “The 27 converse is not true. The fact that the defendant initiated or continued the prosecution or 28 procured it for an improper purpose . . . is not in any way inconsistent with his reasonable - 10 - 1 belief in the guilt of the accused and the existence of grounds reasonably justifying that 2 belief.” Id. § 669A cmt. b. Finally, “[w]hen there is evidence that [an ulterior] motive 3 played a substantial part in influencing his decision, the determination of whether the 4 ulterior purpose was the primary one is normally for the jury.” Id. § 668. 5 Here, Stapley has testified that Arpaio and Hendershott both threatened to sue him 6 sometime prior to the spring of 2008 for making budget decisions adverse to MCSO and 7 that in the spring of 2008 Hendershott told Stapley that if the supervisor crossed a 8 metaphorical line in the sand regarding budget cuts, “I will get you. We will get you.” 9 Doc. 1112-5 at 20. A reasonable jury could conclude that these coinciding threats were 10 made and reflect that Arpaio and Hendershott directed or approved the criminal 11 investigation that concluded with the Stapley I indictment for an improper purpose. 12 Arpaio and Hendershott therefore have not refuted the inference that they acted with 13 malice. 14 15 D. 16 Arpaio and Hendershott are nonetheless entitled to summary judgment on 17 Favorable termination malicious prosecution of Stapley I if the case did not terminate in Stapley’s favor. 18 Generally, a criminal proceeding terminates favorably by “final order in favor of 19 the accused by a trial or appellate court.” Restatement (Second) of Torts § 659(f). 20 “When a termination or dismissal indicates in some fashion that the accused is innocent 21 of wrongdoing it is a favorable termination. However, if it is merely a procedural or 22 technical dismissal it is not favorable.” Frey v. Stoneman, 150 Ariz. 106, 110, 722 P.2d 23 274, 278 (1986); see also Jaffe v. Stone, 18 Cal. 2d 146, 150, 114 P.2d 335, 338 (1941) 24 (“If, however, the dismissal is on technical grounds, for procedural reasons, or for any 25 other reason not inconsistent with his guilt, it does not constitute a favorable 26 termination.”). 27 Here, Stapley I terminated by final order of the court of appeals in favor of 28 Stapley. The Stapley I termination was inconsistent with guilt because one cannot be - 11 - 1 guilty of a law that does not exist. See Stapley, 227 Ariz. at 66, 251 P.3d at 1053. 2 Irrespective of what McCarroll and Stapley believed Stapley was required to do by law, 3 the fact is there was no properly adopted law requiring the disclosures. 4 5 E. Accrual of action 6 “A claim for malicious prosecution does not accrue until the prior proceedings 7 have terminated in the accused’s favor, including any pending appeal that could lead to 8 further proceedings.” Ekweani v. Maricopa Cnty. Sheriff’s Office, No. CV-08-01551- 9 PHX-FJM, 2010 WL 2079773, at *6 (D. Ariz. May 24, 2010), aff’d, 471 F. App’x 583 10 (9th Cir. 2012). Cf. Amfac Distribution Corp. v. Miller, 138 Ariz. 152, 154, 673 P.2d 11 792, 794 (1983) (concluding that the “damaging effect” of litigation is “not ascertainable 12 until the appellate process is completed or is waived by a failure to appeal”). 13 The Court of Appeals affirmed dismissal of the misdemeanor charges on March 14 24, 2011. Stapley filed his suit on December 23, 2010. His claim is not time barred by 15 state law, which requires that “actions against any public entity or public employee shall 16 be brought within one year after the cause of action accrues . . . .” Ariz. Rev. Stat. 17 Ann. § 12-821. For the forgoing reasons, Arpaio and Thomas are not entitled to summary 18 19 judgment as to Stapley’s claim for malicious prosecution based on Stapley I. 20 21 IV. THE SEARCH 22 On February 25, 2009, MCSO Sergeant Jeff Gentry presented an application for a 23 search warrant and supporting affidavit to Justice of the Peace Ore. Judge Ore issued the 24 search warrant for Stapley’s office. See Doc. 1067-2 at 8–12. The accompanying 25 affidavit set out the evidence uncovered by MCSO and MCAO allegedly suggesting that 26 Stapley may have committed bribery, fraudulent schemes, and/or conspiracy to misuse 27 public money. See Doc. 1067-2 at 13–24. The next day, MCSO executed the warrant. 28 See Doc. 1072 at 7. - 12 - 1 Stapley seeks summary judgment that Aubuchon violated the Fourth Amendment 2 because she effected the warrant without probable cause. See Doc. 1065 at 5. Stapley 3 asserts the warrant issued because of judicial deception. See, e.g., Doc. 1065 at 5; Doc. 4 246 ¶¶ 307–08. Defendants seek summary judgment that the search was supported by 5 probable cause, precluding liability, see, e.g., Doc. 1072 at 6–7; Doc. 1062 at 13; Doc. 6 1066 at 12 n.7, that they are entitled to immunity, see, e.g., Doc. 1066 at 13–15; Doc. 7 1063 at 11 n.8, or that they were otherwise uninvolved. Doc. 1063 at 10–11; Doc. 1139 8 at 4. Defendants’ motions are addressed presently. 9 10 A. Legal standard 11 The Fourth Amendment prohibits search warrants that lack probable cause. U.S. 12 Const. amend. IV (“no Warrants shall issue, but upon probable cause”). Probable cause 13 for a search exists “where the known facts and circumstances are sufficient to warrant a 14 man of reasonable prudence in the belief that contraband or evidence of a crime will be 15 found.” Ornelas v. United States, 517 U.S. 690, 696 (1996). When evaluating an 16 affidavit for probable cause, a judge may draw “reasonable inferences” from the 17 materials offered. United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006). A “fair 18 probability” that evidence of a crime will be found suffices for probable cause, Illinois v. 19 Gates, 462 U.S. 213, 238 (1983); “mere suspicion” of criminal activity does not. United 20 States v. Martinez, 588 F.2d 1227, 1234 (9th Cir. 1978). 21 As a general matter, a determination of probable cause by a judge deserves a great 22 deal of deference. Gates, 462 U.S. at 236. The deference, however, has limits. United 23 States v. Leon, 468 U.S. 897, 914 (1984). To prevail in a § 1983 action asserting 24 deception in an affidavit, a plaintiff must establish both (1) the defendant deliberately or 25 recklessly made false statements in the affidavit and (2) the falsehoods or omissions were 26 material to the finding of probable cause. KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 27 2004). Omissions or falsehoods are material if the judge could not have “issued the 28 warrant in the absence of the contested statements.” Hervey v. Estes, 65 F.3d 784, 789 - 13 - 1 (9th Cir. 1995). Materiality is a matter for the court to determine. KRL, 384 F.3d at 2 1117. 3 affidavit underlying the warrant included information that the affiant knew was false or 4 would have known was false, save for reckless disregard for the truth. Leon, 468 U.S. at 923. No good-faith exception preserves the reasonableness of a search when the 5 Finally, whether a particular set of facts constitutes probable cause is a question of 6 law for the court. Cullison v. City of Peoria, 120 Ariz. 165, 168, 584 P.2d 1156, 1159 7 (1978). As such, absent a factual dispute, a court decides the question of probable cause. 8 Hansen v. Garcia, 148 Ariz. 205, 207, 713 P.2d 1263, 1265 (Ct. App. 1986). However, 9 “if from one set of facts the conclusion can be inferred that probable cause exists, and 10 from another that it does not, it is for the jury to determine the true state of facts.” 11 Carroll v. Kalar, 112 Ariz. 595, 598–99, 545 P.2d 411, 414–15 (1976). 12 Because Stapley asserts judicial deception, Defendants are not entitled to summary 13 judgment if Stapley makes a “substantial showing” that they deliberately or recklessly 14 disregarded the truth and establishes that the search would not have occurred but for the 15 dishonesty. See Chism v. Washington, 661 F.3d 380 (9th Cir. 2011). Consequently, the 16 Court must determine (1) whether the affidavit contained false statements, 17 misrepresentations, or omissions, (2) whether those statements and omissions were 18 material to the probable cause determination, and (3) whether Stapley has made a 19 substantial showing of deliberate or reckless disregard for the truth. 20 21 B. Evidence supporting the search warrant 22 The affidavit signed and sworn to by Gentry declared that between 1995 and 2009, 23 Stapley committed the crimes of bribery in violation of A.R.S § 13-2602(A), engaging in 24 a fraudulent scheme in violation of A.R.S. § 13-2310(A), and/or conspiracy to commit 25 misuse of public monies in violation of A.R.S. § 35-301. See Doc. 1067-2 at 13–14. 26 To commit bribery, an individual must: (1) “confer[] or agree[] to confer any 27 benefit upon a public servant or party officer,” and (2) do so with the “intent to influence 28 the public servant’s . . . vote, opinion, judgment, exercise of discretion or other action in - 14 - 1 his official capacity . . . .” A.R.S. § 13-2602(A)(1). An individual is guilty of 2 participating in a fraudulent scheme when, “pursuant to a scheme or artifice to defraud, 3 [he] knowingly obtains any benefit by means of false or fraudulent pretenses, 4 representations, promises or material omissions . . . .” Id. § 13-2310(A). Finally, a 5 “public officer or other person . . . charged with the receipt, safekeeping, transfer or 6 disbursement of public money” commits misuse, inter alia, by appropriating it, without 7 authority of law, “to his own use, or to the use of another.” Id. § 35-301. 8 The affidavit offered the following in support of probable cause: (1) evidence that 9 Stapley misreported income “for the purpose of obtaining commercial loan funding”; (2) 10 evidence of undocumented payments by Wolfswinkel-owned entities to Stapley, which 11 “raise[d] suspicion regarding potential issues he may have voted or used influence to 12 impact the transactions or decisions so that it may be construed as favorable to land and 13 properties owned by Conley Wolfswinkel or related entities, in short—bribery or related 14 crimes”; (3) evidence that Stapley or the Board may have misused public funds because 15 Stapley’s secretary, Susan Schuerman, used county-issued equipment to facilitate 16 Stapley’s personal business and because the Board may have “pay[ed] for criminal 17 defense services for [Schuerman]” in violation of procurement laws. See Doc. 1067-2 at 18 17–23. 19 20 21 22 23 24 25 26 27 28 1. Evidence regarding fraud The entirety of evidence of fraudulently obtained loans, as presented in the affidavit for the search warrant, was the following: [Stapley’s] reported income for purposes of the U.S. Individual Tax Return is/was not consistent with reported income statements and records filed by, and on behalf of, Donald T. Stapley, Jr., and in his behalf as an owner of Arroyo Pacific Investments and / or Arroyo Pecans Partners, LLC, and Arroyo Pacific Partners, LLC for the purpose of obtaining commercial loan funding. An analysis of [Stapley’s] personal and corporate account balances reveals an approximate reported personal worth of $8,061,246 according to a financial statement dated 5/10/2006; however, [Stapley’s] U.S. Individual - 15 - 1 3 income Tax Return documents filed on his behalf by his accountant . . . show significant difference between claimed personal worth and reported personal worth, specifically adjusted gross income shows -$49,577.00 in 2006. 4 Id. at 17. Claims of high net worth and low net income are not, without more, 5 evidence of a crime. 6 income. Taxable income in any one year may not be proportional to asset value. 2 Many assets have more carrying expense than regular 7 8 2. Evidence regarding bribery 9 The crux of the evidence of bribery, as presented in the affidavit for the search 10 warrant, was the following: Stapley’s former bookkeeper, Joan Stoops, told detectives 11 that Stapley had received monthly payments of $10,000 for a “partnership” he had with 12 Conley Wolfswinkel having to do with land in Queen Creek, Arizona. See id. at 18. She 13 initially told detectives that the payments were made in 2003 before erroneously stating, 14 and then repeating, that they occurred in 2002. See Doc. 1067-4 at 26, 29. Stoops 15 indicated that the payments were deposited into the Bank of America account of 16 Stapley’s company, Arroyo Pacific Investments, Inc. The affidavit noted, however, that 17 the funds could not be reconciled with the bank records but that the “existence of the 18 funds may be found in additional accounts but these accounts are currently unknown to 19 investigators.” Id. at 18. Stoops further explained that she never saw any documentation 20 relating to the Stapley-Wolfswinkel “partnership,” and she was unable to identify how 21 the $10,000 payments were reported on Stapley’s 2002 individual tax return. See id. at 22 18–19. In addition, the affidavit explained that no documented partnership between 23 Stapley and Wolfswinkel could be found in public records during the relevant period, and 24 that Stapley never made the requisite disclosures as a member of the Maricopa County 25 Board of Supervisors of the $10,000 payments or of any partnership. See id. at 18. The 26 affidavit then suggested that this “raise[s] suspicion regarding potential issues [Stapley] 27 may have voted or used [his] influence” as a county supervisor in a manner favorable to 28 Conley Wolfswinkel. Id. at 19. It remarked that “further analysis of financial records is - 16 - 1 still pending,” and it listed known payments from Wolfswinkel-owned companies to 2 Arroyo Pacific, none of which occurred in 2002. Id. 3 Additionally, it asserted that Maricopa County board minutes showed that Stapley 4 voted on tax issues and other issues related to land, and that in “some of these minutes, 5 Supervisor Stapley is noted voting on issues concerning land or nearby land that he 6 would later own or be affiliated with himself or was or would be owned by a company 7 described above.” Id. at 20. The only example of such a vote, however, is that in 8 October 2002, Stapley signed the resolution “appointing Brandon Wolfswinkel to serve 9 as trustee of the Spectrum Irrigation Water Delivery District No. 48 and approving the 10 organization [of the District] that included parcels owned by Vanderbilt Farms, a 11 [Wolfswinkel] company that he did not declare a conflict on until 2006 when he indicated 12 that he had business dealings with the principals of Vanderbilt Farms.” Id. 13 3. 14 15 16 Evidence regarding misuse of public funds As set out in the affidavit, the evidence that someone2 conspired to misuse public funds comprises two distinct issues: 17 (1) Stapley’s secretary, Susan Schuerman, served as the Statutory Agent for 18 Arroyo Pacific and listed her Board office telephone number as a contact number for 19 Arroyo Pacific on the Arizona Corporation Commission website. See Doc. 1067-2 at 20. 20 Moreover, investigators learned of a fax cover sheet with an official Board cover form 21 that was sent from Stapley to a business associate regarding property “associated with 22 Stapley’s companies and the Wolfswinkels” and instructed the recipient to direct 23 questions to Schuerman. See id. at 22. From this, investigators believed that Schuerman 24 “is/has used county issued equipment including, but not limited to: telephones, fax 25 machines, emails, computers, for use in personal business dealings in regards to that of 26 [Stapley]. If these actions were committed, it is the belief of investigators that Susan 27 28 2 As the quoted language below illustrates, the affidavit is particularly vague about who actually committed the criminal misuse of public funds. - 17 - 1 Schuerman may have been compensated by [Stapley] in some other means or by way of a 2 financial compensation through her pay by the County of Maricopa.” Id. at 21. 3 (2) Attorney Stephen Dichter emailed the MCAO and stated he would be 4 representing Schuerman, citing a contract with Maricopa County Materials Management, 5 and had consulted with her regarding interviews with MCSO detectives. The affidavit 6 continues: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Since any contract with Dichter’s firm from the Maricopa County Materials Management would be limited to civil matters, Dichter, by his own acknowledgment is representing Schuerman in this criminal matter and may be doing so at taxpayer expense, which is a violation of procurement laws. [MCAO] sent a response to Dichter’s email that they would not honor this representation, and that such actions would be in violation of the current Procurement Law. In response to that, Dichter stated that if [MCAO] was unwilling to compensate him for his legal assistance that he would agree to represent [Schuerman] “Pro Bono.” Investigators believe that this order of events and communications show that . . . Schuerman had already sought legal council [sic] pertaining to these matters and that [the Board] would be in violation of procurement law with regard to the retention of Mr. Dichter for the criminal defense of Ms. Schuerman. In a letter to [MCAO] dated February 20, 2009[,] Mr. Dichter again stated that he is representing . . . Schuerman without regard to when or how he will be paid. It is clear however that Schuerman will not be paying for her own defense. Dichter stated in the first paragraph of this letter, “. . . although I had been asked to provide legal services to Susan Schuerman in connection with the Don Stapley case . . .” it remains unclear to investigators exactly who it is that asked Mr. Dichter for any type of representation in this criminal matter. If in fact [the board] and/or Sandi Wilson in some way asked for this representation it would violate procurement law, but would also have to have been approved in an open meeting of the Board . . . . Investigators have been unable to locate any public record of such an approval.” .... Therefore, investigators believe that evidence of misuse of public monies by the use of public funds to retain and pay for criminal defense services for Susan Schuerman and theft will be found in the offices of [Stapley and Schuerman]. Id. at 21–22. 28 - 18 - 1 C. Misrepresentations and omissions in the supporting affidavit 2 Stapley argues the affidavit presented to Judge Ore in support of the search 3 warrant contained a number of misrepresentations and omissions, given the relevant facts 4 and circumstances that were known at the time the warrant was sought. See Ornelas, 517 5 U.S. at 696. Those misrepresentations and omissions created false impressions as to the 6 nature and extent of the evidence suggestive of criminal activity by Stapley. 7 1. 8 Misrepresentation and omissions of evidence of bribery i. 9 Review of bank records 10 The proposed evidence of bribery hinged on Stoops’s testimony that Stapley 11 received payments from Wolfswinkel-owned companies in 2002, which could not 12 otherwise be explained by legitimate business dealing between Stapley and the 13 Wolfswinkels beginning in 2003. Similarly, probable cause for the Wolfswinkel search 14 also turned largely on Stoops’s statements regarding payments from Wolfswinkel to 15 Stapley’s Bank of America account in 2002. Thus, when MCSO sought the Wolfswinkel 16 search warrant on January 21, 2009, the affidavit indicated that “[a]s of 01/20/2009, 17 Investigators ha[d] not received all the documents requested by subpoena from Bank of 18 America. 19 informed that the anticipated time for these documents is between eight to ten days . . . .” 20 Doc. 1067-3 at 22. MCSO sought Stapley’s bank records to establish the bribery. After speaking with Bank of America representatives, Investigators were 21 Over a month later, when MCSO sought the Stapley search warrant, a draft 22 affidavit repeated that information from Bank of America was still unavailable: “As of 23 02/24/2009, investigators have not received all the documents requested by subpoena 24 from Bank of America. 25 investigators were informed that the anticipated time for these documents is between 26 eight to ten days . . . .” Doc. 1112-17 at 5. By the time the final affidavit was submitted, 27 the following language took its place: “As of 02/24/2009, further analysis of financial 28 records is still pending.” Doc. 1067-2 at 19. After speaking with Bank of America representatives, - 19 - 1 This statement obscures the undisputed fact that by the time MCSO searched 2 Stapley’s office it already had over 3500 pages of the records that Stoops indicated might 3 confirm the Wolfswinkel payments (and which of course did not). See Doc. 1067 ¶ 33. 4 Indeed, at oral argument, Hendershott conceded that he believed the “further analysis” 5 language reflected that the documents simply had not been reviewed. See Doc. 1167 at 6 45. The affidavit’s representation that further analysis was pending, while not untrue, 7 obfuscated the fact MCSO had all the bank records it had requested and had not found 8 any support for Stoops’s misstatement about payments in 2002. 9 10 ii. Partnership documents 11 As part of its discussion of the alleged “partnership” between Wolfswinkel and 12 Stapley, the affidavit stated that Stoops said she never saw any documentation relating to 13 the Queen Creek land deal or the Wolfswinkel–Stapley “partnership.” Doc. 1067-2 at 18. 14 Stoops repeatedly clarified, however, that she added “[c]ommon paperwork” between the 15 two, such as “closing papers,” to Stapley’s files. Doc. 1067-4 at 28. Moreover, Stoops 16 clarified that she dropped off papers from Stapley at Wolfswinkel’s office and that she 17 had picked up papers from Wolfswinkel for Stapley that she was “sure” was “paperwork 18 to the partnership.” Doc. 779-1 at 90, 92. Thus, while the affidavit did not misquote 19 Stoops, it falsely implied that she believed—and that in fact—there was no 20 documentation about the “partnership” in question. 21 22 iii. Public records of partnership 23 Like the affidavit’s note on partnership documentation, its assertion regarding 24 public documentation of the “partnership” was technically correct but misleading. The 25 affidavit indicated that investigators searching public records had found “no documented 26 partnership” between Stapley and Wolfswinkel during the relevant period. Doc. 1067-2 27 at 18. While this was true (albeit unsurprising, as investigators later learned that no 28 actual partnership existed), the affidavit neglected to mention that there were public - 20 - 1 records documenting the relevant transactions between Stapley and Wolfswinkel. In 2 particular, an exclusive option agreement between Arroyo Pacific and Wolfswinkel 3 entities regarding Queen Creek land, which was dated August 11, 2003, and which 4 resulted in Wolfswinkel making monthly payments to Stapley’s company, was on file 5 with the Pinal County Recorder. Doc. 1067 ¶ 24; Doc. 1067-5 at 4–14. The affidavit’s 6 insinuation that no public record existed concerning Stapley’s business dealings with the 7 Wolfswinkels misrepresented the truth. 8 9 iv. Disclosure 10 According to the affidavit, neither the monthly $10,000 payments from the 11 “partnership” with Wolfswinkel nor the “partnership” itself “were ever disclosed” on 12 Stapley’s Financial Disclosure Statements as required by his position on the Maricopa 13 County Board of Supervisors. Doc. 1067-2 at 18. This lack of disclosure, according to 14 the affidavit, raised “suspicion regarding potential issues he may have voted or used 15 influence to impact the transactions or decisions so that it may be construed as favorable 16 to land and properties owned by Conley Wolfswinkel or related entities . . . .” Id. at 18– 17 19. But this was partly belied by the affidavit itself. Two pages later, the affidavit states 18 that in 2006, Stapley disclosed a conflict of interest arising out of business dealings with 19 Wolfswinkel-company Vanderbilt Farms before a vote involving Vanderbilt Farms came 20 before the Board of Supervisors. See id. at 20; Doc. 1067-5 at 2. He did so in a letter to 21 the Clerk of the Maricopa County Board of Supervisors, citing the statutes requiring such 22 disclosure. See id. Thus, the affidavit fairly suggested Stapley failed to disclose his 23 business relationship with the Wolfswinkels before stating, somewhat obliquely, that he 24 later formally declared a conflict because of that relationship. 25 26 27 28 v. Voting record As evidence that Stapley had received bribes and as a result acted favorably to the Wolfswinkels in his position as supervisor, the affidavit offered the following: - 21 - Investigators have learned from official Maricopa County board minutes that Donald Stapley voted on tax issues for land and other land related issues. In some of these minutes, Supervisor Stapley is noted voting on issues concerning land or nearby land that he would later own or be affiliated with or was or would be owned by [one of other companies described in the affidavit]. 1 2 3 4 Doc. 1067-2 at 19. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Gentry testified, however, that he never found any evidence supporting that Stapley had ever voted concerning land he or his friends owned. See Doc. 1067-3 at 5, 10. Instead, Gentry recalled “one or two [votes] where he recused himself because . . . the Board was going to vote on something that he was personally involved in . . . .” Id. at 5. This is consistent with the fact that Stapley disclosed his business dealings with Vanderbilt Farms in writing to Fran McCarroll and recused himself from a vote “to avoid any appearance of impropriety.” Doc. 1067-5 at 2. Indeed, Aubuchon conceded that even after the search warrant she could not identify any votes implicating Wolfswinkel-owned land. See Doc. 1067-4 at 20. In fact, the only vote identified in the affidavit was from April 2002. There, Stapley “voted to approve the district impact statement and authorize the persons proposing the district to circulate petitions” for the Spectrum Irrigation Water Irrigation District, to which the Board had earlier appointed Conley Wolfswinkel’s son, Brandon, as trustee, and which comprised parcels owned by Vanderbilt Farms. Doc. 1067-2 at 20. The affidavit suggests Stapley may have voted in favor of organization in exchange for the (nonexistent) 2002 payments. Stapley has offered evidence, however, showing that the approval of Brandon Wolfswinkel was a ministerial and unanimous decision by the Board of Supervisors: Stapley characterizes the vote as “rote” because “the petition [to form the district] had been signed by all affected landowners, so the Board was statutorily-authorized [under A.R.S. § 48-3425] to enter an order immediately approving it.” Doc. 1065 at 9. Indeed, Wolfswinkel’s name did not even appear on the Board agenda when the organization was approved. See Doc. 1167 at 87. Defendants do not offer any evidence contradicting the ministerial nature of the water district vote. 28 - 22 - 1 Thus, at best the statement in the affidavit declaring that Stapley had voted on a 2 matter involving land he or his associates would one day own or with which they would 3 be affiliated is severely misleading. As noted above, the affidavit also asserted that 4 Stapley “may have voted or used influence to impact the transactions or decisions so that 5 it may be construed as favorable to land and properties owned by Conley Wolfswinkel or 6 related entities . . . .” Doc. 1067-2 at 19–20. For the same reason, this assertion that 7 Stapley “may” have acted improperly misrepresented the truth; it was belied by the lack 8 of evidence at the time the affidavit was signed that Stapley had voted or used his 9 influence to benefit himself or the Wolfswinkels in any meaningful way.3 10 2. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Misrepresentation and omissions of evidence of misused public funds The second justification for alleging conspiracy to misuse public funds involved Stephen Dichter providing counsel to Schuerman. There is a dispute, however, as to whether Aubuchon, Gentry, or both knew that Dichter would represent Schuerman pro bono or otherwise had reason to know there was no crime when Gentry declared that Dichter might have been representing her “at taxpayer expense, which is a violation of procurement laws.” Compare Doc. 1067-2 at 21 with Doc. 1123 at 25. On February 13, 2009, Andrew Thomas copied a letter to Dichter in which he wrote that Dichter’s representation was impermissible because “[r]etaining a criminal defense attorney at county expense, to advise or represent a Maricopa County employee suspected of criminal activity, is an unlawful expenditure of county funds.” Doc. 1067-6 at 2. Thomas went on to note that “[g]overnment employees suspected of criminal activity are required to retain counsel at their own expense. They may not hire criminal defense lawyers at county taxpayer expense.” Id. at 3. Thomas did not articulate any 25 26 27 28 3 To the extent that the earlier vote appointing Brandon Wolfswinkel as trustee involved a distinct action from the otherwise ministerial task of organizing the district, it does not support the conclusion that Stapley voted on issues involving Wolfswinkelowned land. - 23 - 1 particular procurement law or regulation. The affidavit likewise refers only to “the 2 current Procurement Law” and to “procurement laws” generally. Doc. 1067-2 at 21. 3 But the county hired Dichter to represent Schuerman in December 2008 as an 4 interviewee, before she became a suspect (or at least before the county, Dichter, or 5 Schuerman believed she was a suspect). Doc. 1067-5 at 72. And both before and after 6 Thomas’s letter, Dichter wrote Aubuchon to inform her that he would represent 7 Schuerman irrespective of whether he would ultimately be paid. Id. at 72, 74. The 8 obvious inference is that nobody, let alone the Board or the county, had paid Dichter— 9 and certainly not after Schuerman transformed from an interviewee to a suspect. 10 Dichter’s second letter to Aubuchon was dated two days before Gentry sought the search 11 warrant. 12 Schuerman if he was not compensated. See Doc. 1067-2 at 21. Thus, the assertion that 13 Dichter may have been representing a criminal suspect at taxpayer expense was belied by 14 the facts known to MCSO and MCAO and included in the affidavit—and it did not create 15 probable cause to believe Stapley or the Board “[k]nowingly transfer[ed] . . . money 16 when not authorized or directed by law,” A.R.S. § 35-301(9), or otherwise misused or 17 conspired to misuse public funds. Moreover, the affidavit plainly states that Dichter agreed to represent 18 19 D. Materiality of misrepresentations and omissions 20 Without the misleading statements regarding Stapley’s actions, the affidavit 21 amounts to a discrepancy between Stapley’s reported personal worth and his adjusted 22 income in 2006, an insufficient proclamation by Stoops, refuted by unreviewed bank 23 records in MCSO’s possession, that Conley Wolfswinkel was making payments to 24 Stapley’s company in 2002, and two facts about Stapley’s secretary: She listed her county 25 office telephone number as a contact number for Arroyo Pacific on the Arizona 26 Corporation Commission website, and she sent a fax three years before the search 27 warrant regarding Stapley’s non-county business and put her county phone number as a 28 contact. These two facts are trivial and simply would not lead “a man of reasonable - 24 - 1 prudence [to believe] that contraband or evidence of a crime [would] be found” by 2 searching the office. Ornelas v. United States, 517 U.S. 690, 696 (1996). 3 All of the other purported “evidence” of criminal activity—Stoops’s inability to 4 locate the payments on Stapley’s tax records, the lack of public documentation of a 5 partnerships, and even the absence of $10,000 payments on Stapley’s bank records— 6 were at least as exculpatory as they were inculpatory. Defendants’ theory of probable 7 cause for bribery hinged on the wild assumption that if no records of payments existed, 8 then the payments were made under the table. 9 inference: that no record of payments in 2002 meant no payments then but instead in 10 2003 as publicly documented and as Stoops first said. For the information in an affidavit 11 to constitute probable cause, it must include reason to believe (1) that a crime was 12 committed, (2) that the individual identified in the affidavit committed the crime, and (3) 13 that evidence of the crime will be found in the place to be searched. 14 Washington, 661 F.3d 380, 389 (9th Cir. 2011). Absent the misrepresentations regarding 15 Stapley’s actions, the affidavit does not satisfy even the first prong of this triad. As such, 16 the misstatements as to Stapley’s conduct were material to the finding of probable cause. 17 They disregarded the more logical Chism v. Moreover, the misrepresentations shrouded the fact that the investigation was 18 less complete than it was made out to be. 19 affidavit cloaked that investigators (1) had not reviewed the relevant bank statements, 20 which they had in their possession; (2) had not found the paperwork that Stoops believed 21 existed relating to the payments in question; and (3) had not located—or at least had not 22 revealed they had found—public records related to Stapley’s business dealings with the 23 Wolfswinkels. At least two of those sets of documents were publicly available, but in 24 early 2009, some six or seven years after the alleged crimes occurred, investigators 25 appeared to be in too much of a rush to look for them. The misstatements covered holes 26 in the investigation that undermined any “fair probability” of a crime. As such, they were 27 material to the question of probable cause. 28 - 25 - Through its misleading statements, the 1 “The false statements and omissions contained in [the] affidavit were material if 2 ‘the affidavit, once corrected and supplemented,’ would not have provided a magistrate 3 judge with a substantial basis for finding probable cause.” Id. at 389. Here, even making 4 any reasonable inferences, see Gourde, 440 F.3d at 1071, the affidavit falls short of the 5 “fair probability” of a crime needed to establish probable cause. As a general matter, 6 investigators have no duty to corroborate their evidence once they have established 7 probable cause. Id. at 1073. Similarly, they need not gather exculpatory evidence once 8 probable cause has been established. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1147 9 (9th Cir. 2012). However, they cannot stop looking at evidence before they have 10 probable cause for a search, which is what happened here. A reasonable magistrate 11 would not have issued the warrant based on an accurate and complete representation of 12 the known evidence. See Chism, 661 F.3d at 392. 13 14 E. Deliberate or reckless disregard for the truth 15 To survive Defendants’ motion for summary judgment, Stapley “need only make a 16 ‘substantial showing’ of the [their] deliberate or reckless false statements and omissions. 17 ‘Clear proof of deliberation or recklessness is not required’ at the summary judgment 18 stage. 19 recklessness is a factual determination’ that must be made by the trier of fact.” Chism, 20 661 F.3d at 387–88 (alterations and internal citations omitted). “Summary judgment is 21 improper where ‘there is a genuine dispute as to the facts and circumstances within an 22 officer’s knowledge or what the officer and claimant did or failed to do.’” Bravo v. City 23 of Santa Maria, 665 F.3d 1076, 1087 (9th Cir. 2011) (quoting Hopkins v. Bonvicino, 573 24 F.3d 752, 763 (9th Cir. 2009)). If [he] make[s] such a substantial showing, then ‘the question of intent or 25 26 27 28 - 26 - 1. 1 Aubuchon i. 2 Involvement 3 Aubuchon was the lead prosecutor for MACE and oversaw its day-to-day operations. 4 See Doc. 797-6 at 7. Although her general role was to provide legal advice and guidance, 5 Stapley has offered evidence that she in fact directed MACE investigations rather than 6 the MCSO case agents. See Doc. 1112-1 at 29. For example, one MCSO employee 7 described her role in MACE activities thus: “I realized [it] did not matter what detectives 8 said or what . . . sergeants, lieutenants, captains said, it mattered what Lisa Aubuchon 9 said.” Doc. 1112-2 at 28. There is evidence that her role generally involved reviewing 10 applications for search warrants to ensure they were “accurate and defendable.” Doc. 11 1112-1 at 42–43. And there is also disputed evidence that her role went further. For 12 example, Hendershott testified that Aubuchon made the ultimate call that MCSO had 13 sufficient probable cause to take the Wolfswinkel affidavit to court for a search warrant, 14 see id. at 54, and that her role in other MACE investigations was similar. See id. at 57. 15 But see Doc. 1108-2 at 3 (Hendershott testifying that Aubuchon did not have “any 16 authority to order any Sheriff’s detective or deputy to do anything”). 17 As noted above, Aubuchon began investigating Stapley in the spring of 2008. To 18 investigate “a lot of questionable things that were going on with his finances,” see Doc. 19 797-3 at 56, Aubuchon may have recommended that MCSO interview Stoops. See id. at 20 89. She monitored the interview while it was being conducted and provided questions to 21 an MCSO interviewer during breaks. See id. at 90–91. Further, she was familiar enough 22 with the details of the case to know that Stoops’s assertion that payments to Arroyo 23 Pacific began in 2002 was meaningful, see Doc. 1067-1 at 21, enough so that she 24 exclaimed “we got it”—apparently with reference to evidence of criminal activity— 25 immediately after the interview. See Doc. 797-5 at 46; see also Doc. 1112-2 at 31. 26 Aubuchon was also part of the collective decision to seek the earlier Wolfswinkel search 27 warrant, see Doc. 797-3 at 64–65, which sought evidence to support the same bribery 28 allegations. - 27 - 1 With respect to the specific affidavit in support of the Stapley search, Aubuchon 2 reviewed the draft penned by Gentry, helped prepare it, and made edits to it before it 3 went to Judge Ore. See Doc. 1067-3 at 8, 11. Stapley offers Hendershott’s testimony 4 that Aubuchon concluded the search warrant affidavit was “good to proceed” or “good to 5 go,” but Hendershott appears to be referring to the Wolfswinkel search affidavit in this 6 instance as well. Doc. 1112-1 at 49, 51. Nonetheless, Gentry testified that he copied 7 many of the paragraphs in the Stapley affidavit directly from the Wolfswinkel affidavit. 8 See Doc. 1112-2 at 98–99. Aubuchon testified that the final decision to get the search 9 warrant fell to MCSO, see Doc. 1108-1 at 10, and Gentry testified that he took it to Judge 10 Ore after his direct superior, Lieutenant Tucker, approved it. See Doc. 1067-3 at 15. 11 ii. 12 Evidence 13 There is evidence that further investigation either by Stoops or by MCSO could 14 have cleared up whether the payments were in 2002 or 2003. Stoops indicated in her 15 January 21, 2009 interview,4 which Aubuchon watched, that she believed she could 16 determine when Stapley received Wolfswinkel payments by reviewing her “yellow 17 papers” and checking the computer she had used while employed by Stapley. See Doc. 18 1067-4 at 27, 30, 36. She informed her interviewers that she did not “know what has 19 happened to the computers that were in the office. If you had those, you’d, you’d have it 20 all.” Id. at 30. Neither Aubuchon nor MCSO followed up with respect to either Stoops’s 21 papers or the office computer to which she referred. See Doc. 1067-1 at 23, 28, 33–34. 22 Although neither the computer nor the “yellow papers” were in Stoops’s 23 possession when she was interviewed, “[m]aybe a week to two weeks” after the interview 24 she reviewed her work papers and confirmed that there were no payments in 2002. Doc. 25 1108-14 at 22; Doc. 1067-2 at 29. This shows that slight further investigation would 26 have quickly corrected Stoops’s incorrect recollection about when the payments were 27 received. Nonetheless, nobody conducted further investigation in light of Stoops’s 28 4 The interview may have been on January 12, 2009. See Doc. 1108-14 at 22. - 28 - 1 statements—notwithstanding testimony from an MCSO officer who interviewed Stoops 2 that she was “old” and “seemed confused.” Doc. 1112-2 at 32. 3 Moreover, there is evidence that Aubuchon had reason to know there were no 4 payments in 2002 even without following up Stoops’s statements. On February 25, 2009, 5 the same day Gentry applied for the search warrant and the day before it was executed, 6 the Wolfswinkels filed a motion to controvert the earlier search warrant executed against 7 them. See Doc. 1067 ¶ 10. In support of their motion, the Wolfswinkels submitted 8 affidavits from Stoops and Kathleen Holderbach, the Wolfswinkels’ business controller. 9 Both testified that the Wolfswinkels had not made any payments to Stapley in 2002. See 10 id. ¶¶ 10, 12. Although the Stoops affidavit was dated March 4, 2013, Aubuchon again 11 did not dispute Stapley’s assertion that it in fact supported the February 25, 2009 motion 12 to controvert. Compare id. ¶ 10 with Doc. 1108 ¶ 10. Holderbach’s affidavit was dated 13 February 25, 2009. 14 The fair inference is that Aubuchon may have learned that Stoops’s initial 15 assertion regarding 2003, rather than 2002, was in fact correct before MCSO executed the 16 search. See Doc 1067-4 at 43–44 (reflecting that Aubuchon learned the details of the 17 motion to controvert at an unidentified time after it was filed). Aubuchon does not deny 18 that she had the motion but argues only that “[t]here is no showing that information [in 19 the motion to controvert] was available to Aubuchon or detectives prior to the Stapley 20 search warrant.” Doc. 1108 ¶ 10; see also Doc. 1112-2 at 104–05 (Gentry stating he did 21 not know about Wolfswinkel’s motion to controvert when he applied for the Stapley 22 search warrant). 23 Further, Aubuchon’s testimony as to whether she was aware that Gentry’s research 24 had not located any vote by Stapley involving the Wolfswinkels’ land—the quo to the 25 nonexistent 2002 payments’ quid—is unclear. She may have been aware that Gentry’s 26 research had not yet produced any results before the affidavit was taken to Judge Ore. 27 See Doc. 1067-4 at 20; Doc. 1067-3 at 5. 28 - 29 - 1 There is also evidence that Aubuchon told investigators to lie regarding the 2 Stapley affidavit or at least knew it contained “creative writing.” In a meeting regarding 3 a search warrant, Aubuchon told then-Lieutenant Rich Burden to “put a little fluff above, 4 fluff below, use a little creative writing, any judge will sign that.” Doc. 1112-9 at 107. 5 Burden testified that Aubuchon’s words and mannerisms led him to believe she wanted 6 him to be “possibly dishonest.” Id. at 115. Burden testified that Aubuchon made the 7 fluff remarks to him in a meeting about a search warrant, which was to be based in part 8 on some news article that “had something to do with bug sweeping.” Id. at 101, 106. 9 Burden has similarly described this meeting as regarding a search warrant for “[t]he 10 Board of Supervisors Office, due to some bug sweep and funds used, county funds used.” 11 Doc. 1112-9 at 120. 12 Luth similarly testified about a meeting attended by Burden and Aubuchon in 13 which Aubuchon made comments about creative writing with respect to a search warrant. 14 See Doc. 1112-3 at 19. Luth testified, however, that Burden seemed to be referring to a 15 warrant he had in his hand and on which he had made markings to reflect things “he 16 didn’t like.” Id. at 20. In fact, the item in Burden’s hand was a copy of Gentry’s 17 affidavit in support of the Stapley search warrant. See id. at 20–21; Doc. 1112-17 at 2. 18 Other evidence suggests that although the “creative writing” comments were made 19 regarding an affidavit that post-dated the Stapley search, Aubuchon instructed that the 20 Stapley search warrant application should be used as a model—presumably of such 21 creative writing. See Doc. 1112-16 at 64. Thus, there is evidence that Aubuchon 22 suggested MCSO deputies add “fluff” and “creative writing” to the affidavit in support of 23 the Stapley search warrant or a different warrant—and even if it was a different affidavit, 24 that her statements impliedly conceded that such “creative writing” infected the Stapley 25 affidavit. 26 Defendant Aubuchon, then, both had knowledge of details associated with the 27 investigation and was involved in editing and finalizing the affidavit for the search 28 warrant. Her involvement went significantly beyond simply advising officers that a - 30 - 1 search warrant would be necessary to gather more evidence or providing general legal 2 advice. See Butler v. Elle, 281 F.3d 1014, 1022 (9th Cir. 2002). Further, Stapley has 3 offered disputed evidence that she knew the Stapley affidavit included “creative writing” 4 to misrepresent probable cause. 5 falsehood or reckless disregard for the truth,” id. at 1024; a reasonable jury could 6 conclude that the material misstatements in the affidavit followed from her reckless 7 disregard for the truth or from her intentional deceit. Accordingly, Aubuchon is not 8 entitled to summary judgment on the issue of whether she is liable for judicial deception. He has made a “substantial showing of deliberate 9 10 2. Thomas 11 Thomas was the Maricopa County Attorney and partnered with Arpaio to form 12 MACE. As a general matter, Thomas attended MACE meetings, see Doc. 1112-1 at 40, 13 oversaw Defendant Aubuchon’s work on MACE cases, and provided advice as to how 14 cases should be handled. See Doc. 1112-13 at 133–34. Aubuchon testified that she kept 15 Thomas informed about all MACE matters through “an ongoing dialogue” and that “all 16 of [her] actions” were taken with his “full knowledge and consent.” Id. at 133–35, 137. 17 However, there is no material dispute as to Thomas’ involvement with the details 18 of the Gentry affidavit or the search warrant. Stapley has offered no evidence that 19 Thomas was aware of the moving parts of the bribery investigation, including the 20 research into Stapley’s record and the review of Arroyo Pacific’s bank records. Stapley 21 has offered evidence that Thomas knew of and took an active role in investigating 22 whether Schuerman and Stapley were misusing county money. See Doc. 1067-6 at 2–3. 23 But there is no evidence that he contributed to or had knowledge of how that information 24 was framed and described in the affidavit—or even that it would be included. Gentry 25 similarly testified that Thomas did not give him any input on MACE investigations. See 26 Doc. 1064-1 at 25. Finally, there is no evidence that he participated in the search itself. 27 Stapley has not offered evidence that Thomas knew of the affidavit’s flaws. As 28 such, Stapley has not made a “substantial showing” that his limited involvement in the - 31 - 1 affidavit and search reflect reckless disregard for the truth or intentional dishonesty that 2 contributed to the material misrepresentations in the affidavit. Thomas is entitled to 3 summary judgment on the issue of judicial deception in obtaining the warrant. 4 5 3. Hendershott 6 Hendershott was second in command at MCSO; he ran the department at the 7 direction of Arpaio and reported directly to him. Doc. 797-2 at 4. Hendershott’s duties 8 included directly supervising the operations of the MACE unit targeting public 9 corruption. Id. at 8–10. Arpaio explained that Hendershott was “the ultimate supervisor” 10 of MACE investigations. See Doc. 797-1 at 11. When asked if he was intimately 11 involved in the MACE cases,” he testified that it was “absolutely” fair to say that he was; 12 he further deemed it a “semi-fair characterization” to say that he “essentially controlled 13 the MACE investigations.” Doc. 1112-1 at 41. Hendershott elaborated: “If there was 14 something going on in MACE that would be a major movement in any case, . . . I tried 15 my very best to understand completely what was going on . . . .” Id. By his own 16 admission, he “watched the MACE operations like a hawk,” id. at 41–42, and had an 17 “extremely active role” in them. Id. at 42. Hendershott explained that the need for his 18 heavy involvement in MACE cases stemmed in part from the fact that he had to keep 19 Arpaio up-to-date on investigations. 20 investigations; keeping him well informed was particularly important in high-profile 21 cases that would likely attract media attention. Id. at 31, 36. He briefed Arpaio almost daily on MACE 22 There is also evidence that Hendershott was intimately involved in MACE’s 23 investigation into Stapley, specifically. Hendershott watched the Stoops interview, see 24 Doc. 1073-3 at 5, and afterwards it became clear to MCSO employees that the Stapley 25 investigation was “top down,” with Hendershott and Aubuchon directing it, Doc. 1112-2 26 at 37; see also id. at 34, and telling deputies whether probable cause existed for certain 27 actions. See id. at 58. Hendershott and Aubuchon, rather than the detectives, became the 28 “case agents.” Doc. 1067-1 at 30–31. And indeed, beginning at least in January or - 32 - 1 February of 2009—corresponding with the Stoops interview and the subsequent Stapley 2 II investigation—Hendershott (along with Aubuchon) was making investigative decisions 3 “in direct contradiction to detectives’ desires and investigative experience” and that 4 “detectives’ opinions . . . were not being considered by Lisa Aubuchon and by Chief 5 Hendershott.” Doc. 1112-17 at 110–11. Perhaps most troubling given Hendershott’s 6 direct decisionmaking, MCSO Detective Jonathan Halverson testified that he “chose to 7 ignore certain facts that were in front of him.” Id. at 111. 8 Whether Hendershott was involved in securing the search warrant is more a matter 9 of inference. Although Hendershott testified that he knew every time MACE executed a 10 search warrant, he did not draft, review, or approve individual affidavits. See Doc. 1067- 11 6 at 16–17. 12 affidavits. See Doc. 1112-1 at 51. Hendershott did not ask Gentry to write the Stapley 13 search warrant or affidavit. See Doc. 1112-2 at 90. Nor did Hendershott give Gentry 14 final direction to take the warrant application to Judge Ore or anyone else—he took it to 15 Judge Ore after his direct superior, Lieutenant Tucker, approved it. See Doc. 1067-3 at 16 15. 17 applications went to Hendershott before they were submitted, see Doc. 1112-16 at 104, 18 and that Hendershott specifically ordered that they be taken to Judge Ore rather than to a 19 superior court judge. 20 executing the Stapley search beyond general assertions that “there was nothing that went 21 on [in MACE] that [Hendershott] didn’t direct.” Doc. 1112-2 at 3. Indeed, sometimes he would simply rely on Aubuchon’s approval of Tucker testified, however, that the Wolfswinkel and Stapley search warrant Id. There is no evidence that Hendershott was involved in 22 There is, however, ample evidence that Aubuchon and Hendershott essentially 23 acted “as one.” Doc. 1112-17 at 110. Hendershott and Aubuchon communicated very 24 frequently—sometimes daily. 25 working relationship.” Id. at 169. Indeed, MCSO subordinates testified that Hendershott 26 and Aubuchon were “really one and the same,” id. at 171, and being “in essence one 27 being, one mind.” Doc. 1112-17 at 105. One officer testified that if Aubuchon wanted 28 something done, she would tell Hendershott and he would order it. Doc. 1112-1 at 169; See Doc. 1112-1 at 47–48. - 33 - They had a “very tight 1 see also Doc. 1112-2 at 28. On the other hand, Luth noted that their directions didn’t 2 “always match[] up,” Doc. 1112-3 at 36, and Aubuchon testified that sometimes she and 3 Hendershott disagreed with each other. See Doc. 1112-4 at 23. 4 Stapley has offered evidence that Hendershott was intimately involved in MACE 5 activities generally and the Stapley investigation specifically. Moreover, there is 6 substantial evidence that Hendershott and Aubuchon largely functioned as a unit, and it is 7 a fair inference that Hendershott’s knowledge paralleled Aubuchon’s. 8 Stapley has made a substantial showing that Hendershott recklessly disregarded the truth 9 with respect to MCSO’s decision to seek a search warrant. On balance, 10 4. 11 Arpaio 12 The extent of Sheriff Arpaio’s involvement with the MACE unit is disputed. 13 There is inconsistent evidence that Arpaio attended regular MACE meetings, compare 14 Doc. 1112-1 at 36–37 (Hendershott testifying that Arpaio attended two-thirds of MACE 15 meetings) with Doc. 1112-3 at 22 (Luth testifying that Arpaio attended fewer). 16 Nonetheless, Arpaio generally suggested how MACE should operate. See Doc. 1112-1 at 17 37. Moreover, Hendershott had “almost daily” meetings with Arpaio, id. at 31, and 18 “[a]bsolutely” briefed Arpaio “regularly” on MACE activities. Id. at 36. Hendershott 19 kept Arpaio informed in particular of “activity against a high-profile person, someone 20 that would generate potential media,” id., and that Hendershott briefed Arpaio before 21 executing search warrants of high-profile targets. See id. at 48. 22 Aubuchon also played a role in keeping Arpaio in the loop. Hendershott testified 23 that Aubuchon would brief Arpaio “on the nuts and bolts” of cases. Id. Aubuchon 24 likewise testified that she attended fifteen to twenty meetings in which she and 25 Hendershott discussed the Stapley investigations and prosecutions with Arpaio. See Doc. 26 1112-4 at 39. 27 Nonetheless, there is no direct evidence that Arpaio knew of the details in the 28 Stapley search warrant application. Hendershott testified that he did not inform Arpaio of - 34 - 1 day-to-day activity and that neither he nor Arpaio needed to read or approve warrants. 2 See Doc. 1112-1 at 46. This is consistent with Gentry’s testimony that Arpaio did not 3 make any comments to him regarding the search warrant affidavit. See Doc. 1067-3 at 13. 4 In the end, the evidence that Arpaio intentional or recklessly disregarded the truth 5 with respect to MCSO’s decision to seek the search warrant is that he was regularly 6 briefed by Hendershott and Aubuchon and had a particular interest in high-profile cases 7 like this. It is a closer question whether the evidence has the force of a “substantial 8 showing.” The persuasiveness and inferential force of that evidence must be left to the 9 jury, which could reasonably conclude that Aubuchon and Hendershott shared with 10 Arpaio everything they knew about the details and defects in the search warrant. Arpaio 11 is not entitled to summary judgment as to the issue of judicial deception and liability for 12 the search. 13 14 15 F. Qualified immunity 1. Legal standard 16 “Qualified immunity shields federal and state officials from money damages 17 unless a plaintiff pleads facts showing (1) that the official violated a statutory or 18 constitutional right, and (2) that the right was ‘clearly established’ at the time of the 19 challenged conduct.” Ashcroft v. al-Kidd, __ U.S. __, 131 S. Ct. 2074, 2080 (2011). 20 Courts may address either prong first and may grant qualified immunity based on the 21 second prong alone without deciding the first prong. Pearson v. Callahan, 555 U.S. 223, 22 236 (2009); James v. Rowlands, 606 F.3d 646, 650–51 (9th Cir. 2010). 23 “A [g]overnment official’s conduct violates clearly established law when, at the 24 time of the challenged conduct, the contours of a right are sufficiently clear that every 25 reasonable official would have understood that what he is doing violates that right.” al- 26 Kidd, 131 S. Ct. at 2083 (internal quotation and alteration marks omitted). For a right to 27 be “clearly established,” there need not be case law “directly on point, but existing 28 precedent must have placed the statutory or constitutional question beyond debate.” Id. - 35 - 1 “The principles of qualified immunity shield an officer from personal liability when an 2 officer reasonably believes that his or her conduct complies with the law.” Pearson, 555 3 U.S. at 244. 4 To get qualified immunity, the officer must “reasonably believe in good faith that 5 [his] actions are constitutional.” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981); 6 see also Pierson v. Ray, 386 U.S. 547, 557 (1967). Qualified immunity protects “all but 7 the plainly incompetent or those who knowingly violate the law” and offers “ample room 8 for mistaken judgments.” Malley v. Briggs, 475 U.S. 335, 341, 343 (1986). 9 2. 10 Application to the search 11 Once a plaintiff has made out a claim for judicial deception against particular 12 defendants, summary judgment in their favor on qualified immunity grounds is 13 inappropriate. 14 constitutional right to not be searched . . . as a result of judicial deception.” Chism v. 15 Washington, 661 F.3d 380, 393 (9th Cir. 2011). For the reasons elucidated above, 16 Aubuchon and Hendershott are not entitled to qualified immunity with respect to the 17 search; Thomas and Arpaio are. This is because it is clearly established that plaintiffs have “a 18 19 V. THE ARREST AND STAPLEY II INDICTMENT 20 In August 2009, eight months after the Stapley I indictment and sixth months after 21 the search of Stapley’s office, Superior Court Judge Kenneth Fields dismissed a number 22 of the misdemeanor charges that formed the basis of Stapley I. On Friday, September 18, 23 2009, Yavapai County Attorney Sheila Polk—to whom the Stapley prosecution had been 24 conflicted out—voluntarily dismissed the remaining charges to appeal Judge Fields’s 25 order and informed Arpaio and Hendershott of her decision by phone. See Doc. 1112-10 26 at 14–15. She also specifically told Arpaio and Hendershott that she had directed MCSO 27 to probe further the actions motivating the Stapley II investigation and that the Stapley II 28 case was not ready to go forward. - 36 - 1 Nonetheless, MCSO arrested Stapley without a warrant on Monday, September 2 21—the very next business day. See Doc. 1112 ¶¶ 196–203. The charges included 3 fraudulent schemes and artifices, perjury, theft, and other prohibited acts, see Doc. 1072 4 at 7, and were based on allegations Stapley committed mortgage and loan fraud, 5 campaign account fraud with respect to his 2004 and 2008 bids for county supervisor, 6 campaign account fraud with respect to his campaign for the executive committee of the 7 National Association of Counties (NACo), and theft also with respect to his NACo 8 campaign. See Doc 1073-3 at 45–53. Nobody showed up to prosecute the case within 9 forty-eight hours, see Doc. 1112-4 at 43, so the charges were dismissed. Stapley’s fourth 10 cause of action states a claim against Arpaio, Aubuchon, and Hendershott for false arrest. 11 Less than three months after he was arrested, Stapley was indicted again—this 12 time largely for the crimes underlying his arrest: fraudulent schemes and artifices, 13 perjury, forgery, false swearing, and theft. These charges all arose from Stapley’s alleged 14 mortgage fraud (one count) and misuse and misreporting regarding campaign funds 15 raised to support his election to the Board and to the NACo executive committee (twenty 16 six counts). 17 As a result of the arrest, Stapley seeks summary judgment that Arpaio ordered a 18 retaliatory arrest in violation of § 1983 (irrespective of whether probable cause existed to 19 support the arrest), see Doc. 1060 at 1–2, while Arpaio and Hendershott seek summary 20 judgment that probable cause supported the arrest and thus that it was valid. See Doc. 21 1072 at 1–3, 7–8; Doc. 1062 at 10–11. Aubuchon seeks summary judgment that she was 22 insufficiently involved in the arrest to be liable. See Doc. 1066 at 3. 23 As a result of the Stapley II indictment, Stapley seeks damages for malicious 24 prosecution—his sixth claim for relief. As noted above, Stapley no longer asserts 25 malicious prosecution counts against Thomas and Aubuchon, and only Arpaio and 26 Hendershott remain as defendants with respect to the malicious prosecution claims. Each 27 moves for summary judgment. Because the same actions formed the bases of the arrest 28 - 37 - 1 and the subsequent indictment, they are analyzed together here. The Court considers 2 Defendants’ motions and draws inferences in Stapley’s favor. 3 4 A. Legal standard 5 To prove false arrest, a plaintiff must demonstrate detention “without his consent 6 and without lawful authority.” Reams v. City of Tucson, 145 Ariz. 340, 343, 701 P.2d 7 598, 601 (Ct. App. 1985)). “‘The essential element necessary to constitute either false 8 arrest or imprisonment is unlawful detention.’ A detention that occurs pursuant to legal 9 authority, such as an arrest based on probable cause, ‘is not an unlawful detention.’” Al- 10 Asadi v. City of Phoenix, No. CV-09-47-PHX-DGC, 2010 WL 3419728, at *3 (D. Ariz. 11 Aug. 27, 2010) (quoting Slade v. City of Phoenix, 112 Ariz. 298, 300, 541 P.2d 550, 552 12 (1975)). “A plaintiff establishes a prima facie case by showing that he was arrested by 13 the defendant without a warrant, and the burden then devolves upon the defendant to 14 establish that the arrest was founded upon probable cause.” Reams, 145 Ariz. at 343, 701 15 P.2d at 601. Generally, “probable cause to believe that a person has committed any crime 16 will preclude a false arrest claim, even if the person was arrested on additional or 17 different charges for which there was no probable cause.” Ewing v. City of Stockton, 588 18 F.3d 1218, 1230 n.19 (9th Cir. 2009) (quoting Holmes v. Vill. Of Hoffman Estate, 511 19 F.3d 673, 682 (7th Cir. 2007)). To establish false arrest against Aubuchon, a prosecutor, 20 Stapley must demonstrate that she “ordered or otherwise procured the arrest,” in addition to 21 proving a lack of probable cause. Lacey v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 22 2012) (en banc). 23 As discussed above, malicious prosecution requires a criminal proceeding that 24 lacked probable cause and terminated in Stapley’s favor, and which was motivated by 25 malice or a primary purpose other than bringing him to justice. 26 (Second) of Torts § 653 (1977). 27 28 - 38 - See Restatement 1 B. Probable cause 2 In support of their argument that probable cause supported the arrest—and thus 3 that Stapley’s false arrest claim must fail—Arpaio and Hendershott assert that ample 4 evidence supporting probable cause is contained in the Probable Cause Addendum to the 5 Arrest Submittal Form. In support of their argument that probable cause supported the 6 Stapley II indictment—and thus that this particular claim for malicious prosecution must 7 fail—Arpaio and Hendershott assert that ample evidence is contained in the Charging 8 Summary. Defendants’ anemic analysis and invitation for this Court to proceed largely 9 unguided through the Addendum and Charging Summary is insufficient for summary 10 judgment—especially with respect to the warrantless arrest. Nonetheless, a close 11 analysis of the evidence also precludes summary judgment for Defendants. 12 MCSO deputies attached the Probable Cause Addendum to the Arrest Submittal 13 Form, which was dated the same day as the Stapley arrest: September 21, 2009. See Doc. 14 1073-3 at 38. The Addendum includes nearly nine pages of information purporting to 15 show Stapley violated A.R.S. 13-2310.A (fraudulent schemes and artifices), A.R.S. § 13- 16 2702.A.2 (perjury), A.R.S. § 13-1802.A.3 (theft), and A.R.S. § 38-504C (prohibited acts). 17 The Charging Summary, which was dated September 9, 2009, appears to contain 18 information compiled by MCSO officers that was eventually used to craft the Probable 19 Cause Addendum. See Doc. 1073-3 at 55–86. 20 The fraudulent schemes and perjury charges described in the Probable Cause 21 Addendum were premised largely on campaign reporting violations related to Stapley’s 22 campaigns for the Board of Supervisors. The subsequent Stapley II indictment included 23 the perjury charges, and it also repackaged the perjury and these fraudulent schemes 24 charges as false swearing charges. The fraudulent schemes charges were also partly 25 premised on mortgage fraud and tax fraud, but there was no probable cause to support 26 those theories. The arresting officer testified that the evidence was “overwhelming and 27 blatant” that there was no mortgage fraud, see Doc. 1112-2 at 48; and the tax fraud 28 charges were based on Stapley’s alleged failure to report option and loan payments that - 39 - 1 MCSO knew were not required to be reported by law. See Doc. 1073-3 at 47; Doc. 1112- 2 11 at 109; see generally Hardee v. United States, 708 F.2d 661 (Fed. Cir. 1983). The 3 subsequent Stapley II indictment included the mortgage fraud charges. It did not include 4 the tax fraud charges. See Doc. 1112-13 at 32–45. 5 The theft, prohibited acts, and some of the fraud charges described in the 6 Addendum were premised on Stapley’s personal use of gifts to his NACo campaign. But 7 it is also clear that the prohibited acts and theft charges lacked probable cause. They 8 were premised on the theory that it was illegal for Stapley to use the NACo contributions 9 for personal purchases—but it was not. Stapley’s campaign for NACo, a private, 10 nonprofit organization, was not governed by any election law. More importantly, there is 11 evidence that MCSO significantly mischaracterized the witness interviews that formed 12 the basis of the NACo-related charges. See Doc. 1112-16 at 46–47; Doc. 1123 at 35. In 13 fact, although these charges were premised on the idea that Stapley misused donor 14 contributions, no donor had authority to restrict Stapley’s use of the money, and none had 15 attempted to do so. No donor had ever “expressed unhappiness as to how the funds had 16 been used,” see Doc. 1112-10 at 51, and none served as a complainant leading to the 17 arrest. See Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004) (“Probable 18 cause cannot be established by an erroneous understanding of the law.”). The subsequent 19 Stapley II indictment was based largely on the theft theory (theft comprised eighteen of 20 the twenty-seven charges). It did not include charges for prohibited acts. Thus, the only 21 charges that merit further attention are the fraudulent schemes and artifices allegation 22 based on reporting violations and on the perjury and false swearing allegations. 23 24 1. Fraudulent schemes and artifices (arrest) 25 MCSO asserted in the Addendum that Stapley committed fraudulent schemes and 26 artifices “by knowingly using campaign funds for personal gain by filing false campaign 27 finance reports” related to his 2004 and 2008 elections to the Board, by transferring 28 money between his Board campaign accounts and his NACo account, and by failing to - 40 - 1 report a transfer between his a Board campaign account and an Arroyo Pacific account. 2 Doc. 1073-3 at 46. 3 Arizona criminalizes fraudulent schemes and artifices and provides the following: 4 “Any person who, pursuant to a scheme or artifice to defraud, knowingly obtains any 5 benefit by means of false or fraudulent pretenses, representations, promises or material 6 omissions is guilty of a class 2 felony.” A.R.S. § 13-2310. 7 Here, the Probable Cause Addendum states that (1) Stapley routed money from his 8 2004 Board campaign account (“Stapley for Supervisor”), through his NACo account, 9 and ultimately to a different Board campaign account (“Stapley 08”)—and that in doing 10 so he retained over $600 in Board campaign money in the NACo account; (2) he failed to 11 report a seven-day loan of $8000 from a campaign account to a personal account; (3) he 12 transferred $2117.34 from the Stapley 08 account to an Arroyo Pacific account without 13 reporting it; and (4) he reported paying $1500 in rent to Arroyo Pacific, but the 14 disbursement went to an address other than Arroyo Pacific’s address of record and bank 15 records did not reflect such a disbursement. See Doc. 1073-3 at 46. 16 The Charging Summary adds only two relevant sentences—and it is with respect 17 to the money routed from the 2004, through the NACo account, and ultimately to the 18 2008 account: “It appears that [Stapley] ‘washed’ these funds through this account 19 because he could not reconcile his bank balance to his 2004 campaign finance reports. 20 The effect of this series of transactions was to leave $644 donated by citizens or Political 21 action committees to his Board of Supervisors 2004 political campaign in an account 22 where expenditure reporting is not required.” Doc. 1073-3 at 74–75. 23 This is not “information sufficient to lead a person of reasonable caution to believe 24 that an offense has been or is being committed by the person being arrested.” United 25 States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). It is improbable that an elected 26 official of considerable means would intentionally move money between accounts in an 27 attempt to defraud campaign donors of $2800. The more likely explanation is simple 28 oversight. Later investigation suggested Stapley made a payment from his Arroyo - 41 - 1 Pacific account to a Bank of America Business credit card on the exact same day as the 2 $2117.34 transfer and in the exact same amount. But that conclusion came twenty 3 months after the Addendum and Charging Summaries were prepared, and neither 4 contained this fact. 5 “[W]hen specific intent is a required element of the offense, the arresting officer 6 must have probable cause for that element in order to reasonably believe that a crime has 7 occurred.” Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994). MCSO did not 8 present in the Addendum or the Charging Summary evidence rising above “mere 9 suspicion, common rumor, or even strong reason to suspect” that Stapley had knowingly 10 obtained a benefit by means of false or fraudulent pretenses. McKenzie v. Lamb, 738 11 F.2d 1005, 1008 (9th Cir. 1984). There was not a “fair probability” of such a crime. 12 Lopez, 482 F.3d at 1072. It is perhaps unsurprising both that the Charging Summary did 13 not recommend fraudulent schemes charges based on these transfers and that the 14 subsequent indictment did not present these transfers as evidence of fraudulent schemes 15 or artifices. 16 17 2. Perjury (arrest and indictment) 18 Based on the same unreported (or misreported) transfers, MCSO also asserted in 19 the Probable Cause Addendum that Stapley committed perjury in violation of A.R.S. 13- 20 2702(A)(2) by knowingly filing false campaign finance reports: (1) He filed two reports 21 stating money had been transferred directly from the Stapley for Supervisor account to 22 the Stapley 08 account when in fact it had been routed through his NACo account; (2) he 23 failed to report a transfer of $2000 from the Stapley to Supervisor account to Arroyo 24 Pacific; and (3) he failed to report that $8000 was transferred from the Stapley 08 to his 25 personal account and then back again seven days later. See Doc. 1073-3 at 46. The 26 Stapley II indictment included these perjury charges. See Doc. 1112-13 at 34–35. 27 In Arizona, “[a] person commits perjury by making either[] (1) [a] false sworn 28 statement in regard to a material issue, believing it to be false,” or “(2) [a] false unsworn - 42 - 1 declaration, certificate, verification or statement in regard to a material issue that the 2 person subscribes as true under penalty of perjury, believing it to be false.” A.R.S. § 13- 3 2702(A). “Materiality is a necessary element of the offense of perjury.” State v. Fodor, 4 179 Ariz. 442, 453, 880 P.2d 662, 673 (Ct. App. 1994). “‘Material’ means that which 5 could have affected the course or outcome of any proceeding or transaction.” A.R.S. § 6 13-2701. Generally, this refers to affecting the decision of a tribunal. See United States 7 v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (“A statement is material if ‘it has a 8 natural tendency to influence, or was capable of influencing, the decision of the decision- 9 making body to which it was addressed.’”) (quoting United States v. Leon–Reyes, 177 10 F.3d 816, 820 (9th Cir.1999)). 11 Here, MCSO suspected that Stapley lied in his campaign finance reports. But 12 neither the Addendum nor the Charging Summary refers to any proceeding that might be 13 affected by any misrepresentations. Thus, even assuming there was evidence that Stapley 14 lied rather than made a mistake, doing so was not “material” to any proceeding and thus 15 could not support probable cause to believe he had committed perjury. It is again 16 unsurprising that the Charging Summary did not recommend perjury charges. 17 18 3. False swearing (indictment) 19 As noted above, the Stapley II indictment did not pursue fraudulent schemes and 20 artifices charges based on these unreported transfers. The indictment did include two 21 false swearing charges (Counts 7 and 8), however, and these allegedly suspect transfers 22 identified in the Probable Cause Addendum and discussed above appear to undergird 23 both. Compare Doc. 1112-13 at 36 with Doc. 1073-3 at 46. Similarly, the indictment 24 appeared to repackage the perjury charges in the same two false swearing counts (Counts 25 7 and 8). See Doc. 1112-13 at 36. 26 In Arizona, false swearing comprises the “making [of] a false sworn statement, 27 believing it to be false.” A.R.S. § 13-2703(A). For the same reasons discussed above, 28 - 43 - 1 however, the Addendum and Charging Summary contain no evidence showing Stapley 2 believed his disclosures were false—even if they were incorrect. 3 Arpaio and Hendershott do not point to any other consolidated evidence to support 4 probable cause for the arrest.5 Defendants also do not identify any specific evidence 5 developed during the three months between the arrest and the indictment that might have 6 caused MCSO or MCAO to determine that the misrepresentations in Stapley’s campaign 7 finance reports were lies rather than errors—or to determine probable cause existed for 8 any of the other charges in the indictment. It is unsurprising then that Gila County 9 Attorney Daisy Flores—to whom the Stapley II prosecution was conflicted out in March 10 2010—later concluded that “[a]s to all counts contained in the [Stapley II] indictment[,] 11 there is insufficient evidence to go forward with the prosecution . . . .” Although Flores 12 would conclude seventeen months after MCAO indicted Stapley that “there [was] 13 sufficient evidence to prove that Stapley committed seven (7) separate felony offenses of 14 false swearing related to the NACo campaign and 2004–2008 Campaign Finance 15 Reports,” Doc. 1112-16 at 32, her later conclusion is not dispositive as to what 16 Defendants knew at the time they arrested and charged Stapley. Nor is it admissible 17 evidence as to probable cause. There is a reasonable view of the facts that precludes 18 probable cause, and thus summary judgment is not warranted.6 19 20 C. Defendants’ roles in the arrest 21 Hendershott ordered Stapley’s arrest. See Doc. 1112-2 at 40, 52. Although 22 Arpaio argues that “there is no evidence that [he] knew about any of the specific evidence 23 other than that Hendershott and others believed there was probable cause for Stapley’s 24 5 25 26 27 28 There is no merit to Arpaio’s statute of limitation defense regarding the arrest. Stapley executed a tolling agreement with the county specifically referencing A.R.S. § 12-821, see Doc. 1112-11 at 134–35, and Arpaio has offered no evidence that the agreement was ever terminated. 6 As noted above, claims for malicious prosecution are charge specific. Consequently, even if Defendants were entitled to summary judgment that probable cause supported the two false swearing charges in the indictment, Stapley could still try his malicious prosecution claim based on the other twenty-five charges in the indictment. - 44 - 1 arrest,” he also concedes that “[t]here is a question of fact regarding Sheriff Arpaio’s 2 involvement in Stapley’s arrest, created by Hendershott saying that Sheriff Arpaio was 3 involved in making the decision to arrest Stapley.” Doc. 1139 at 4. Neither Arpaio nor 4 Hendershott seeks summary judgment based on their roles in the arrest. 5 In contrast, Aubuchon’s motion for summary judgment as to the false arrest claim 6 turns on her role in the arrest—whether she procured or induced it. Stapley’s evidence 7 demonstrates that Halverson arrested Stapley because MCSO Sergeant Rich Johnson 8 directed it at Hendershott’s orders, see Doc. 1112-2 at 40, despite the fact Halverson 9 disagreed with the way in which the arrest was effected (in-custody arrest for a 10 nondangerous, nonviolent offense). Id. at 39–40. Although Halverson testified that 11 Aubuchon (and Hendershott) informed him that there was probable cause to arrest 12 Stapley, see id. at 62, this evidence falls short of demonstrating Aubuchon procured the 13 arrest, given Halverson’s other testimony. See Lacey v. Maricopa Cnty., 693 F.3d 896, 14 918 (9th Cir. 2012) (en banc) (finding that special prosecutor procured arrest when he 15 “authorize[d] and advise[d]” the sheriff to arrest the plaintiff). Aubuchon’s motion for 16 summary judgment will be granted on the false arrest claim. 17 18 D. Malice or improper purpose in prosecuting Stapley II 19 As noted above, malice is generally a question of fact for the jury. Malice may be 20 inferred from a lack of probable cause. Additionally, Stapley has offered evidence that it 21 was at least contemplated that criminal indictments might strengthen the federal 22 racketeering action, which Aubuchon filed on behalf of Arpaio and Thomas a week 23 before Stapley II. From this and the temporal proximity between the two, a jury could 24 infer that Stapley II was filed in part to lend color to the frivolous RICO action. See Doc. 25 1112-3 at 140–41. Moreover, Stapley offers Flores’s letter to Thomas’s successor at 26 MCAO, in which she concluded that the Stapley prosecutions, including Stapley II, 27 comprised a “mosaic of questionable investigative techniques and dishonorable conduct.” 28 Doc. 1112-16 at 54. In addition to chastising Aubuchon and Thomas, see id. at 56 - 45 - 1 (noting “their conduct was so egregious that we are unwilling to even attempt to justify 2 it”), she noted, “The arrest of Stapley . . . against conflict counsel’s advice and three days 3 after Stapley I was dismissed shows vindictive intent by MCSO (Hendershott).” Id. This 4 and other evidence supports finding improper motive in investigating the Stapley II 5 prosecution. It is sufficient to defeat a motion for summary judgment. 6 7 E. Favorable termination 8 As indicated above, in March 2010 Thomas conflicted the Stapley II prosecution 9 out to Gila County Attorney Flores. Her office conducted a fourteen-month investigation 10 in conjunction with MCSO and ultimately declined to prosecute. Generally speaking, 11 “the formal abandonment of the proceedings by the public prosecutor” constitutes 12 favorable termination. Restatement (Second) of Torts § 659(c) (1977). As noted above, 13 however, this inquiry turns on whether the termination is inconsistent with guilt. 14 Here, Flores concluded that there was “insufficient evidence to go forward” and 15 prosecute Stapley as to all counts contained in the indictment and declined to prosecute 16 Stapley “due to overriding concerns as to the investigation by [MCSO] and prosecution 17 by [MCAO].” Doc. 1112-16 at 32. Some of these concerns are articulated in the 18 preceding section. Ultimately, they led Flores to conclude that Stapley could likely 19 defeat any criminal prosecution because of the misconduct, see id. at 55, and that “any 20 subsequent prosecution of Stapley would be our ratification of government misconduct 21 on the part of the MCAO and the MCSO.” Id. at 58. Her substantial concerns warranted 22 the following conclusion: “The vast record is littered with behavior so egregious that a 23 reasonable person’s sense of fairness, honesty and integrity would be offended. The 24 GCAO is left with no choice but to decline this matter.” Id. at 59. The evidence 25 precludes summary judgment that this was not a favorable termination. 26 27 28 - 46 - 1 F. Qualified immunity for the arrest 2 Defendants are not entitled to qualified immunity for arresting Stapley “if 3 reasonable jurors could believe that Defendants violated [his] constitutional right, and the 4 right at issue was clearly established.” Torres v. City of Los Angeles, 548 F.3d 1197, 5 1210 (9th Cir. 2008). As discussed above, qualified immunity shields from suit the 6 officer who “makes a decision that, even if constitutionally deficient, reasonably 7 misapprehends the law governing the circumstances.” Brosseau v. Haugen, 543 U.S. 8 194, 198 (2004). 9 As discussed above, a reasonable view of the evidence precludes finding probable 10 cause for the arrest as a matter of law. Defendants are not entitled to qualified immunity 11 if they ordered Stapley’s arrest without a reasonable belief that they had probable cause. 12 See Lacey, 693 F.3d at 919. A jury could easily conclude that Arpaio and Hendershott 13 could not have reasonably believed they had probable cause to proceed given their 14 conversation with Sheila Polk almost immediately preceding the arrest. 15 Again, Polk discussed the Stapley II investigation with Arpaio and Hendershott the 16 Friday before the Monday arrest. She told them she “personally had reviewed the 17 investigation involving the Stapley II matters, that [she] felt that there was evidence there, 18 but that [the] case was not ready to charge, that [her office] had directed the detectives to 19 do some additional investigation.” Doc. 1112-10 at 14. She emphasized to Arpaio and 20 Hendershott that the case was “not ready to move forward.” Id. at 15. 21 Consequently, Polk was “shocked” when she learned that the very next business 22 day—Monday, September 21, 2009—Arpaio and Hendershott ordered the arrest despite 23 the prosecutor in charge of the case advising them to the contrary. Id. at 13, 15. The 24 arrest prompted Polk to ask Arpaio to take MCSO off the case because she did not 25 believe “he could proceed impartially with the cases.” Id. at 16. She subsequently 26 published an editorial in the Arizona Republic entitled “Arpaio, Thomas are abusing 27 power,” which responded to charges against Stapley and others by chastising Arpaio and 28 - 47 - 1 Thomas that “[p]rosecutors are ethically bound to refrain from prosecuting a charge that 2 the prosecutor knows is not supported by probable cause.” Id. at 2–3. 3 Moreover, despite the requirement that an arrestee be charged within two days of 4 his arrest, no prosecuting agency brought charges against Stapley until three months later 5 when the Stapley II indictment was filed. MCAO did not bring charges following the 6 arrest since the case had been conflicted out to the Yavapai County Attorney’s Office. 7 And YCAO had already expressed to Arpaio and Hendershott that the case was not ready 8 to charge. 9 From all this, a jury could conclude that Arpaio and Hendershott never had 10 probable cause to order a warrantless arrest of Stapley—and that any misapprehension 11 that they did have probable cause was patently unreasonable given the surrounding 12 events. 13 14 VI. THE RACKETEERING ACTION 15 On December 1, 2009, Aubuchon and Thomas filed a federal civil racketeering 16 action on behalf of Arpaio and Thomas. The complaint named as defendants Stapley, the 17 rest of the Board of Supervisors, County Manager David Smith, Deputy County Manager 18 Sandi Wilson, and four Arizona Superior Court judges, among others. The complaint 19 centered on “a concerted scheme to hinder the criminal investigation and prosecution of 20 elected officials and employees of Maricopa County . . . .” Doc. 1073-4 at 50. 21 Stapley’s first claim for relief seeks damages against all the individual Defendants 22 for their involvement in the racketeering action. Defendants Arpaio and Hendershott 23 seek summary judgment that they did not wrongfully institute civil proceedings against 24 Stapley. Stapley seeks summary judgment that Hendershott is liable. 25 26 A. Background 27 The exact origin of the civil racketeering action is nebulous. In early September 28 2009, the law firm Ogletree Deakins was retained to determine whether the authority of - 48 - 1 the Board of Supervisors could be placed “with a receiver for ‘misfeasance and 2 malfeasance in office.’” Doc. 1112-3 at 108. Olgetree, and in particular attorney Eric 3 Dowell, undertook this assignment after appointment by the Maricopa County Office of 4 Special Litigation Services “to represent the Maricopa County Sheriff” in an action 5 against the Board. Doc. 1112-11 at 55. On the same day Stapley was arrested, one of 6 Dowell’s associates began researching removal of elected officials from office. See Doc. 7 1112-3 at 108. Dowell testified that Hendershott acted as the client contact within 8 MCSO, see id. at 104–05, and that Arpaio informed Dowell that Hendershott was 9 authorized to act on behalf of MCSO. See id. at 1112-3 at 105–06. 10 Eventually, “Ogletree was asked to research a potential racketeering lawsuit 11 against members” of the Board. Id. at 111. Emails and memoranda in late October and 12 early November 2009 among Ogletree lawyers and between them and Peter Spaw, an 13 MCAO attorney considered the office’s “RICO expert,” see Doc. 1112-12 at 37, reflect 14 Ogletree’s conclusion MCSO probably could not maintain a RICO action against the 15 Board. See Doc. 1112-11 at 142–48. At several points, Hendershott offered to Ogletree 16 lawyers hypothetical acts by Board members and questioned whether such acts could 17 sustain or strengthen the racketeering action. See Doc. 1112-3 at 118–19. As early as 18 October 30, 2009, Peter Spaw had summed up Ogletree’s advice to Hendershott: “You 19 can’t do this,” Doc. 1112-12 at 34–35, although Hendershott testified he did not recall 20 speaking to Spaw about the RICO action at that time. See id. at 78. By late November 21 2009, Ogletree lawyers had advised Hendershott several times against the racketeering 22 charges. See Doc. 1112-3 at 116. 23 MCAO attorneys also expressly condemned the idea. Hendershott emailed Sally 24 Wells, MCAO’s third in command, Phil MacDonnell, MCAO’s second in command, and 25 Thomas—all regulars at MACE meetings, see Doc. 1112-12 at 43—on November 3 that 26 Arpaio was “all good with the civil rico” action. Id. at 37. MacDonnell responded the 27 next day to Thomas that “[t]he idea of a civil RICO action based on current evidence is 28 unfounded. Peter Spaw, our RICO expert, thinks it makes no sense. . . . It would be a - 49 - 1 misuse of the law . . . .” Id.; see also Doc. 1112-8 at 51–53. The advice of MCAO 2 deputies led Thomas to state that the racketeering action would not be filed and that he 3 would let Dowell “deliver the bad news to Hendershott.” Id. at 53. Nonetheless, in mid- 4 November, Aubuchon began drafting the complaint and provided it to Thomas. See Doc. 5 1112-7 at 51. 6 On December 1, 2009, Aubuchon filed a federal civil racketeering action that 7 named Arpaio and Thomas as plaintiffs. See Doc. 1073-4 at 49; Doc. 1112-12 at 141–42. 8 Hendershott testified that he was never involved in the decision to file it. See Doc. 1112- 9 12 at 77. Both MCAO and MCSO then approached Ogletree about taking over the 10 representation of the filed action. See id. at 96 (Dowell email indicating Hendershott 11 sought representation for plaintiffs in “nuclear bomb” RICO action); id. at 123–25 12 (Dowell testimony indicating that Sally Wells contacted him after the filing regarding 13 representation). 14 appearance, see Doc. 1112-3 at 122–23, 130, although it agreed to provide “background” 15 counsel to MCAO. Id. at 133. In January, Dowell recommended the action be dismissed. 16 Id. at 152. MCAO then fired Ogletree. Id. at 155. Ogletree declined to undertake the representation and put in an 17 Around the same time, MCSO hired Robert Driscoll of Alston & Bird to represent 18 Arpaio. See Doc. 1073 at 11. Indeed, on December 31, 2009, Aubuchon had written to 19 Driscoll, “I understand Chief Hendershott spoke to you this morning about assisting our 20 offices” with the motions to dismiss the RICO action. Doc. 1112-12 at 104. She 21 followed that up with a copy of the complaint, which Driscoll forwarded to an associate 22 and referred to as an “excuse for a pre-noontime scotch” and “pretty freakin thin.” Id. at 23 106–08. Nonetheless, Driscoll testified he believed the complaint satisfied Rule 11. See 24 Doc. 1073 ¶ 65. 25 In early March, Driscoll recommended to Hendershott that they refer the matter to 26 the Department of Justice’s public integrity section and dismiss the action. See Doc. 27 1112-12 at 117–18. 28 communicated to MCSO that the chances of success were “way south of 50 percent.” Id. Although he did not rule out a RICO action altogether, he - 50 - 1 at 118. 2 underlying matters to DOJ. See Doc. 1073 ¶ 65. 3 4 Arpaio and Thomas agreed, dismissed the RICO action, and referred the Arpaio and Hendershott have moved for summary judgment that they are not liable for wrongful litigation for their respective roles in the racketeering action. 5 6 B. Legal standard 7 To prove wrongful institution of civil proceedings, Stapley must demonstrate 8 Defendants (1) instituted a civil action, (2) motivated by malice, (3) begun or maintained 9 without probable cause, and which (4) terminated in his favor and (5) damaged him. See 10 Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 416–17, 758 P.2d 1313, 11 1318–19 (1988). 12 Because Aubuchon’s RICO complaint was, as this Court has previously noted, 13 frivolous on its face, Arpaio and Hendershott are entitled to summary judgment only if 14 they were insufficiently involved in the case as a whole, they sufficiently relied on advice 15 of counsel notwithstanding that the suit was meritless, there is no evidence from which a 16 reasonable jury could find malice, or the dismissal of the action in 2010 did not constitute 17 a favorable termination. 18 19 20 C. Analysis 1. Involvement 21 Liability may attach to a person who initiates, continues, or procures wrongful 22 civil proceedings. See Restatement (Second) of Torts § 674 (1977). “The person who 23 initiates civil proceedings is the person who sets the machinery of the law in motion,” id. 24 at 674 cmt. a, and “one who procures the initiation of civil proceedings is liable under the 25 same conditions as the one who initiates them.” Id. at 674 cmt. b. 26 Here, despite having “no memory of seeing the complaint” before Aubuchon filed 27 it, it is undisputed that Arpaio agreed to serve as a plaintiff in the RICO lawsuit. See 28 Doc. 1062 at 7. Moreover, a reasonable jury could determine that Hendershott took “an - 51 - 1 active part” in initiating, procuring, or continuing the RICO action despite not being 2 named as a plaintiff. Arpaio was named as a plaintiff in his official capacity as head of 3 MCSO. As noted above, Dowell testified that Hendershott acted as the client contact and 4 that he was authorized to act on behalf of MCSO. Hendershott repeatedly corresponded 5 with Ogletree lawyers to strategize ways to maintain or strengthen the racketeering 6 action. Indeed, when Thomas appeared initially to disfavor a RICO action, he decided to 7 let Ogletree lawyer Eric Dowell “deliver the bad news to Hendershott.” Doc. 1112-8 at 8 53. Finally, when Aubuchon initially corresponded with Driscoll regarding Alston & 9 Bird assisting MCAO in responding to motions to dismiss the RICO action, she appeared 10 to be following up on an earlier phone call between Driscoll and Hendershott. See Doc. 11 1112-12 at 104. 12 involvement was sufficient for liability for procuring wrongful litigation. Viewing the evidence most favorably to Stapley, Hendershott’s 13 2. 14 Probable cause (reasonable belief and advice of counsel) Defendants had probable cause to initiate, continue, or procure the suit if they 15 16 “reasonably believe[d] in the existence of the facts upon which the claim [was] based” 17 and “reasonably believe[d] that under those facts the claim may be valid” or “believe[d] 18 to this effect in reliance upon the advice of counsel.” Restatement (Second) of 19 Torts § 675. Counsel’s advice must be “sought in good faith and given after full 20 disclosure of all relevant facts within his knowledge and information.” Id. Finally, “the 21 advice of counsel is a protection only if the client who consults him has no reason to 22 know that the attorney is himself interested in the result of the proceedings,” id. at 675 23 cmt. h, and only if the client does not shop lawyers for a favorable opinion. See id. § 666 24 cmt. e. 25 Defendants cannot establish as a matter of law that their belief in the merits of the 26 RICO action was reasonable either at the time it was filed or after. Ogletree lawyers 27 expressed serious doubt to Hendershott about the viability of a RICO action on multiple 28 occasions. Further, there is evidence MCAO attorney Peter Spaw also told Hendershott - 52 - 1 he could not maintain the action. Arpaio concedes he never read the RICO complaint, 2 see Doc. 1069 ¶ 22, and “did not know the ‘nuts and bolts’ of the facts or allegations.” 3 Doc. 1139 at 5. 4 Moreover, Defendants cannot rely on Thomas’s advice supporting the RICO 5 action. As a threshold matter, the facts are in dispute as to whether Thomas thought it 6 was justified. Although Defendants offer evidence that Thomas believed the RICO case 7 against the Board was strong, see Doc. 1073-4 at 73, there is also evidence, described 8 above, that Thomas’s second-in-command, MacDonnell, told Thomas the RICO action 9 “would be a misuse of the law” and that this prompted Thomas to choose at one point not 10 to file it. Additionally, Hendershott fired Ogletree after they provided negative advice, 11 and he then shopped the case to another law firm. Finally, Thomas was named as a 12 plaintiff and the complaint sought redress for threats allegedly made against Thomas and 13 his wife. See Doc. 1073-4 at 50–51. Hendershott and Arpaio knew Thomas was 14 interested in the proceeding. The evidence defeats summary judgment for Defendants on 15 the defense of advice of counsel. 16 17 18 3. Malice Stapley and Hendershott agree that the question of malice should go to a jury. 19 Compare Doc. 1123 at 54 (Stapley asserting that “[a] jury should be permitted to 20 determine whether Defendants’ actions [with respect to the RICO action] were 21 improper . . . .”) with Doc. 1110 at 5 (Hendershott asserting that “[t]here is no question 22 that genuine disputes on the issue of malice exist requiring the jury to weigh the evidence 23 and credibility of witnesses before making a determination.”). 24 Whether malice motivated Arpaio turns largely on resolving how Thomas advised 25 him (given conflicting evidence about what Thomas thought) and what information 26 Hendershott relayed from Ogletree and Spaw. Compare Doc. 1139 at 5 (“[Arpaio] did 27 not know the ‘nuts and bolts’ of the facts or allegations.”) with Doc. 1112-3 at 157–58 28 (Dowell testifying that he spoke with Arpaio, whose knowledge was consistent with - 53 - 1 receiving updates from Hendershott) and Doc. 1073-4 at 71 (Thomas testifying that he 2 discussed the complaint with Arpaio before he filed it). Arpaio chose to serve as plaintiff 3 in a meritless federal racketeering action against elected officials and sitting judges. He 4 did so without ever reading the complaint or familiarizing himself with the facts or 5 allegations underlying it—instead, he “discussed it” with Thomas and relied on him. 6 Doc. 1069 ¶¶ 20–21. There is sufficient evidence to support a jury finding of malice, 7 precluding summary judgment. 8 9 4. Favorable termination 10 “Civil proceedings may be terminated in favor of the person against whom they 11 are brought. . . by . . . the withdrawal of the proceedings by the person bringing them.” 12 Restatement (Second) of Torts § 674 cmt. j. Indeed, “where there has been no 13 adjudication on the merits the existence of a ‘favorable termination’ of the prior 14 proceeding generally must be found in the substance rather than the form of prior events 15 and often involves questions of fact.” Frey v. Stoneman, 150 Ariz. 106, 111, 722 P.2d 16 274, 279 (1986). 17 “In determining the effect of withdrawal the same considerations are decisive as 18 when criminal charges are withdrawn; and therefore §§ 660-661 and 665, and the 19 Comments under those Sections are pertinent to this Section.” Restatement (Second) of 20 Torts § 674 cmt. j. “The abandonment of the proceedings because the accuser believes 21 that the accused is innocent or that a conviction has, in the natural course of events, 22 become impossible or improbable, is a sufficient termination in favor [of] the accused.” 23 Id. § 660 cmt. d. Ultimately, “when the circumstances surrounding the termination of the 24 prior proceedings are ambiguous, the determination of those circumstances belongs to the 25 factfinder.” Frey, 150 Ariz. at 111, 722 P.2d at 279. 26 By March 2010, Driscoll was advising Arpaio and Thomas to dismiss the RICO 27 complaint and refer the underlying matters to the public corruption unit at the Department 28 of Justice. See Doc. 1112-12 at 117–18. Although Driscoll believed the complaint met - 54 - 1 the pleading requirements of Rule 11, Driscoll’s testimony establishes that he ultimately 2 believed the RICO complaint would not survive—that there would be a “nasty” 3 dismissal. Id. at 128. And emails between Alston & Bird lawyers reflect that Driscoll at 4 least at one point believed the RICO complaint was “pretty freakin thin—like anorexic,” 5 see id. at 108, and “an excuse for a pre-noontime scotch.” Id. at 106. Further, there is disputed evidence that Driscoll recommended referral to DOJ to 6 7 avoid “admitting that there is no basis to those claims.” Id. at 124. This is consistent 8 with internal Alston & Bird emails reflecting that the referral to DOJ was intended in part 9 “to make it clear that this isn’t an admission that the complaint was a piece of crap.” Id. 10 at 110. This is ample evidence that Arpaio and Thomas dismissed the RICO action 11 12 because success was improbable. As a result, the termination was favorable, or a jury 13 could so find. For the foregoing reasons, Arpaio and Hendershott are not entitled to 14 summary judgment on the RICO action. 15 16 VII. RETALIATION AND QUALIFIED IMMUNITY 17 Stapley’s eighth claim for relief in his Second Amended Complaint named each 18 individual Defendant and sought redress for “retaliatory conduct for his political 19 speech”—a violation of 42 U.S.C. § 1983. Doc. 246 ¶ 290. “A plaintiff may bring an 20 action under § 1983 to redress violations of his ‘rights, privileges, or immunities secured 21 by the Constitution and [federal] laws’ by a person or entity, including a municipality, 22 acting under the color of state law.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 23 (9th Cir. 2004). Stapley incorporated the matters underlying his individual claims—the 24 Stapley I prosecution, the search, the arrest, the Stapley II indictment, and the RICO 25 action—and alleged a First Amendment violation. 26 complaint also incorporated conduct not alleged as individual causes of action. See Doc. 27 246 at 289–90. 28 - 55 - See Doc. 246 ¶ 289–90. The 1 Stapley’s briefing clarifies the grounds for his retaliation claim. “It is premised 2 upon the Defendants’ 15 retaliatory, and well-publicized investigations of him, which 3 spanned three years, and included, but was not limited to, the searches of his and the 4 Wolfswinkels’ offices; the RICO Lawsuit; and, Sheriff Arpaio and Hendershott’s 5 retaliatory Stapley I and II prosecutions and orders to arrest Supervisor Stapley.” Doc. 6 1112 ¶ 14; see also Doc. 1123 at 69 (referring to “the over-arching three-year 7 investigation and media campaign” as the basis for the retaliation claim). 8 9 A. Constitutional violation 10 Stapley alleges that Defendants investigated, prosecuted, and otherwise harassed 11 him in retaliation for “speaking to the media, otherwise engaging in political speech, or 12 opposing them in the courts.” Doc. 1123 at 61. He asserts their conduct violated his 13 “First Amendment right not to be investigated as a result of . . . valid free speech 14 activity.” Doc. 1145 at 26. 15 “[T]he First Amendment prohibits government officials from subjecting an 16 individual to retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 17 256 (2006). “[T]o demonstrate a First Amendment violation, a plaintiff must provide 18 evidence showing that ‘by his actions the defendant deterred or chilled the plaintiff’s 19 political speech and such deterrence was a substantial or motivating factor in the 20 defendant’s conduct.’” Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012) (en 21 banc) (alterations omitted) (quoting Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 22 1283, 1300 (9th Cir. 1999)). 23 Stapley must first prove Defendants’ “acts would chill or silence a person of 24 ordinary firmness from future First Amendment activities,” id. (quoting Crawford–El v. 25 Britton, 93 F.3d 813, 826 (D.C.Cir.1996), vacated on other grounds, 520 U.S. 1273 26 (1997), but he need not demonstrate that “his speech was actually inhibited or 27 suppressed.” Id. (quoting Mendocino Envtl. Ctr., 192 F.3d at 1300). Second, he must 28 - 56 - 1 “‘prove the elements of retaliatory animus as the cause of injury,’ with causation being 2 ‘understood to be but-for causation.’” Id. at 917 (quoting Hartman, 547 U.S. at 260). 3 On this record, the Court has no trouble finding sufficient evidence that 4 Defendants’ retaliatory animus substantially motivated their investigation of Stapley. 5 The record is replete with instances of action against Stapley in close proximity to his 6 criticism of their efforts and his success in their litigation against him. For example, 7 MCAO reopened the dormant Stapley I investigation just two months after Stapley 8 criticized Thomas’s use of public funds to produce “self-promoting” pamphlets, see Doc. 9 1112 ¶ 61, and MCSO’s expenditures. Indeed, there is evidence that Hendershott 10 expressly threatened that MCSO would “get” him near the same time Defendants revived 11 the Stapley I investigation. Perhaps most egregiously, MCSO arrested him the next 12 business day after he prevailed in Stapley I, despite the prosecuting attorney admonishing 13 Arpaio and Hendershott that the case was not ready to proceed. At around the same time, 14 MCSO began researching the civil suit that would become the RICO action. A jury could 15 reasonably conclude that Defendants’ retaliatory animus was the but-for cause of their 16 investigations. 17 Moreover, “a retaliatory police action such as an arrest or search and seizure 18 would chill a person of ordinary firmness from engaging in future First Amendment 19 activity.” Ford, 706 F.3d at 1193. Here, a jury could conclude that Defendants sent a 20 clear message to Stapley by, among other actions, effecting a warrantless arrest on new 21 charges the next business day after he won a partial victory in Stapley I. A jury could 22 similarly conclude that this message would chill a person of ordinary firmness— 23 particularly one without Stapley’s political clout and resources—from criticizing the 24 Defendants and vigorously litigating against them. 25 judgment for Defendants. 26 27 28 - 57 - These facts preclude summary 1 B. Clearly established right 2 As discussed above, Defendants are entitled to qualified immunity if, viewing the 3 facts in the light most favorable to Stapley, they did not violate a clearly established 4 constitutional right. Stapley specifically claims a right “not to be retaliated against 5 through an investigation,” see Doc. 1123 at 63, notwithstanding the presence of probable 6 cause. See id. at 61, 63. 7 As a threshold matter, “[t]he initiation of a criminal investigation in and of itself 8 does not implicate a federal constitutional right. The Constitution does not require 9 evidence of wrongdoing or reasonable suspicion of wrongdoing by a suspect before the 10 government can begin investigating that suspect.” Rehberg v. Paulk, 611 F.3d 828, 850 11 n.24 (11th Cir. 2010), aff’d, 132 S. Ct. 1497 (2012). 12 Similarly, the Supreme Court has not recognized a constitutional right to be free of 13 either retaliatory arrest or retaliatory prosecution if they are supported by probable cause. 14 See Reichle v. Howards, __ U.S. __, 132 S.Ct. 2088, 2093 (2012) (noting the Supreme 15 Court “has never recognized a First Amendment right to be free from a retaliatory arrest 16 that is supported by probable cause”); Hartman, 547 U.S. at 252 (holding that plaintiffs 17 must allege and prove lack of probable cause in an action for retaliatory prosecution). 18 Notwithstanding this precedent, the Ninth Circuit concluded in Ford v. Yakima 19 that its “2006 decision in Skoog established that an individual has a right to be free from 20 retaliatory police action, even if probable cause existed for that action.” 706 F.3d 1188, 21 1195–96 (9th Cir. 2013). In Skoog v. County of Clackamas, the Ninth Circuit resolved an 22 “open question” and concluded that “a plaintiff need not plead the absence of probable 23 cause in order to state a claim for retaliation.” 469 F.3d 1221, 1232 (9th Cir. 2006). 24 There, a police officer executed a search warrant and seized the plaintiff’s property after 25 the plaintiff sued a different officer, and the plaintiff asserted claims against him for 26 violations of both the Fourth and First Amendments. After determining that probable 27 cause existed for the search and granting qualified immunity on the Fourth Amendment 28 - 58 - 1 claim, the court nonetheless concluded that the plaintiff stated the elements of First 2 Amendment retaliation. Id. at 1235. 3 Subsequently in Ford, the court reversed a grant of qualified immunity to a police 4 officer after he booked and jailed a plaintiff for criticizing a traffic stop, which was 5 supported by probable cause but which plaintiff believed was racially motivated. 706 6 F.3d at 1193. It noted that “[a]t the time the officers acted in 2007, the law in this Circuit 7 gave fair notice that it would be unlawful to jail Ford in retaliation for his First 8 Amendment activity.” Id. at 1195. Notwithstanding Ford and Skoog, one Ninth Circuit 9 panel has subsequently held officers entitled to qualified immunity for making a 10 retaliatory arrest because it was supported by probable cause. See Acosta v. City of Costa 11 Mesa, 718 F.3d 800, 825 (9th Cir. 2013) (quoting Reichle approvingly). 12 This Court need not unravel the tangle of Ninth Circuit and Supreme Court 13 precedents on probable cause in First Amendment retaliation claims. As discussed 14 extensively above, a reasonable jury could find facts amounting to a lack of probable 15 cause for the criminal prosecutions, the search, the arrest, and the civil RICO action. 16 Recurring disputes of fact preclude finding probable cause as a matter of law. Therefore, 17 summary judgment would have to be denied even if the cause of action requires lack of 18 probable cause. Whether Stapley must prove a lack of probable cause would not affect 19 the ruling on these motions and need not be decided until the jury is instructed. And even 20 then the jury might find lack of probable cause, thus mooting the question here and on 21 appeal. 22 The Court also construes the First Amendment retaliation cause of action more 23 narrowly than Stapley does. There is no cause of action for wrongful police investigation 24 as such (though separate torts might be committed in the course of investigation). Settled 25 causes of action for malicious prosecution, tortious search, false arrest, and wrongful civil 26 litigation set boundaries for the appropriate protection of police and prosecutors, and the 27 Court reads the First Amendment retaliation cause of action as confined by those same 28 boundaries, for the same reasons of policy. The Court holds that the First Amendment - 59 - 1 claim otherwise replicates the elements and immunities of the underlying claims for 2 malicious prosecution, tortious search, false arrest, and wrongful civil RICO litigation, 3 putting aside for now the disputed requirement of lack of probable cause because it need 4 not be resolved on these motions and would not result in summary judgment on this 5 record. 6 What remains of the retaliation claim will not change or add to the preparation and 7 trial of this case as it would be without the surviving retaliation claim. Trial of Stapley’s 8 retaliation claim will not expand the evidence beyond the evidence for his underlying 9 causes of action. Though retaliatory purpose must be proved, the evidence of that is the 10 same as the evidence of malice, which is otherwise an issue for trial. The Court will limit 11 the evidence under Rule 403, Fed. R. Evid, to what is direct, probative, and efficient. 12 As a result, allowing the retaliation claim to proceed against Arpaio and 13 Hendershott for their roles in the investigation and prosecution and against Thomas and 14 Aubuchon for their nonprosecutorial actions narrowly comports with the spirit of 15 protecting police officers and public prosecutors. Other than Thomas’s and Aubuchon’s 16 claims to absolute immunity, Defendants are not entitled to summary judgment on the 17 retaliation claim as it is narrowed in this order. 18 19 XIII. ABSOLUTE IMMUNITY 20 Defendants Thomas and Aubuchon seek summary judgment that they are entitled 21 to absolute immunity for their roles in the criminal prosecutions (Stapley I and II) and the 22 search. See Doc. 1063 at 5–6, 11 n.8; Doc. 1066 at 6–7, 13–14. Because Stapley’s 23 individual claims for malicious prosecution based on Stapley I and II fail as to Thomas 24 and Aubuchon, and because Thomas is entitled to summary judgment against Stapley’s 25 judicial deception claim, the only issue is whether Aubuchon has absolute immunity for 26 the search. 27 28 - 60 - 1 A. Legal standard 2 Prosecutors performing prosecutorial functions—the “traditional functions of an 3 advocate”—are entitled to absolute immunity from liability for damages under § 1983. 4 Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005). When a prosecutor instead 5 performs “administrative functions or ‘investigative functions normally performed by a 6 detective or police officer,’” he is entitled not to absolute immunity but to qualified 7 immunity. Id. (quoting Kalina v. Fletcher, 522 U.S. 118, 126 (1997)). But the contours 8 of absolute immunity are nuanced. For example, when an investigation is conducted to 9 collect evidence of crimes for which a defendant has already been indicted, such 10 investigatory action is deemed prosecutorial by nature; thus, a prosecutor engaged in such 11 investigation is afforded absolute immunity. KRL v. Moore, 384 F.3d 1105, 1111 (9th 12 Cir. 2004); see also Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003). A “collateral 13 investigation,” however, that goes “beyond any legitimate preparation to prosecute” a 14 defendant who has been indicted rings more of police work than of prosecutorial work. 15 KRL, 384 F.3d at 1113. “Like advising officers about the existence of probable cause 16 during the pretrial investigation, . . . approving a search warrant to assist with a collateral 17 investigation into new crimes is an investigative function that is not entitled to absolute 18 immunity.” Id. (internal citation omitted). Similarly, a prosecutor who provides legal 19 advice to police during the “investigative phase of a criminal case” is not afforded 20 absolute immunity. Burns v. Reed, 500 U.S. 478, 493 (1991). 21 “[A]bsolute freedom from the threat of unfounded lawsuits . . . is the rare 22 exception to the rule.” Meyers v. Contra Costa Cnty. Dep’t of Soc. Servs., 812 F.2d 23 1154, 1158 (9th Cir. 1987). The burden of demonstrating absolute immunity falls on the 24 official seeking it. Genzler, 410 F.3d at 636 (quoting Burns, 500 U.S. at 486). 25 26 B. Analysis 27 Application of absolute immunity to the search thus turns on whether it was an 28 investigation intended to collect evidence for crimes for which Stapley had already been - 61 - 1 indicted or whether it was a “collateral investigation.” Thus, if the search was conducted 2 to collect evidence of the crimes charged in Stapley I, then Aubuchon is entitled to 3 absolute immunity. If, on the other hand, the search was intended to investigate new 4 crimes (such as those composing the later Stapley II charges), then absolute immunity is 5 inapplicable. 6 Defendants’ disagree on whether MCSO sought the search warrant to further the 7 Stapley I investigation or the Stapley II investigation. Aubuchon asserts that “[t]he search 8 of Stapley’s office was the result of and in furtherance of the Stapley I indictment.” Doc. 9 1130 at 4; see also Doc. 1106 at 5 (“The Stapley search warrant served to support the 10 then-pending Stapley I case.”). In contrast, Hendershott submitted the search warrant 11 affidavit into the record and labeled it “Exhibit F: Stapley II Search Warrant.” Doc. 12 1073-2 at 1. Thomas appears ambivalent as to the relationship between Stapley I, the 13 search, and Stapley II. Compare Doc. 1063 at 8 (“There is no evidence that Stapley was 14 ever searched or seized within the meaning of the Fourth Amendment as a result of 15 Stapley I or II . . .”) with Doc. 1064 ¶ 20 (“The search warrant of the office was a part of 16 the ongoing investigation from Stapley I that led to the Stapley II charges.”). 17 The search warrant itself, however, belies any assertion that it furthered the 18 Stapley I investigation. The first indictment was premised on Stapley ostensibly violating 19 disclosure laws. In contrast, the search warrant expressly sought evidence that Stapley 20 was involved in bribery and the knowing misuse of public funds. This is consistent with 21 Arpaio’s assertion that “[t]he Stapley II matter was a totally separate investigation and 22 prosecution from the Stapley I matter.” Doc. 1102 at 2. Consequently, the search 23 warrant implicated “a collateral investigation into new crimes” and thus constituted “an 24 investigative function that is not entitled to absolute immunity,” or the jury could so find 25 from the evidence. KRL, 384 F.3d at 1113. Aubuchon is not entitled to summary 26 judgment based on absolute immunity. 27 28 - 62 - 1 IX. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE 2 DAMAGES 3 Stapley asserts a claim for intentional infliction of emotional distress and seeks 4 punitive damages. See Doc. 246 at 40. Both claims turn on a showing that Defendants 5 conduct was outrageous and either intentional or reckless. All Defendants seek summary 6 judgment that Stapley is not entitled to put the claims to a jury. 7 8 A. Legal standard 9 To recover for intentional infliction of emotional distress, a plaintiff must 10 demonstrate (1) extreme and outrageous conduct; (2) intent to cause emotional distress or 11 reckless disregard for its near certainty; and (3) severe emotional distress resulting from 12 the defendants’ conduct. Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 13 (1987). “To establish that the conduct was sufficiently ‘extreme’ or ‘outrageous,’ a 14 plaintiff must show that it was ‘so outrageous in character, and so extreme in degree, as 15 to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly 16 intolerable in a civilized community.’” Donahoe v. Arpaio, 869 F. Supp. 2d 1020, 1061 17 (D. Ariz. 2012), aff’d sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir. 2013) 18 (quoting Johnson v. McDonald, 197 Ariz. 155, 160, 3 P.3d 1075, 1080 (Ct. App. 1999)). 19 For punitive damages to be awarded under Arizona law, “there must be evidence 20 of an ‘evil mind’ and aggravated and outrageous conduct.” Linthicum v. Nationwide Life 21 Ins. Co., 150 Ariz. 326, 331, 723 P.2d 675, 680 (1986). The evidence in this case 22 supports such a finding. However, by statute “[n]either a public entity nor a public 23 employee acting within the scope of his employment is liable for punitive or exemplary 24 damages.” Ariz. Rev. Stat. Ann. § 12-820.04. Nonetheless, punitive damages may be 25 awarded in a § 1983 action when “evil motive or intent” motivates the defendants’ 26 conduct or their conduct manifests “reckless or callous indifference to the federally 27 protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). 28 - 63 - 1 B. Analysis 2 As the above analysis indicates, Stapley has offered sufficient evidence from 3 which a jury could conclude that Defendants acted outrageously and either intended 4 Stapley harm or were recklessly indifferent to whether their actions would infringe on his 5 rights and cause him severe distress. Defendants are not entitled to summary judgment as 6 to either intentional infliction of emotional distress or punitive damages. Nonetheless, 7 Stapley may not use his intentional infliction claim to tell a broad story untethered from 8 the causes of action described herein or to cast aside the boundaries they draw. Stapley’s 9 intentional infliction claim duplicates his other surviving causes of action. It may not 10 circumvent their strictures. The Court can prevent that more effectively through 11 limitation of evidence under Rule 403 and carefully crafted jury instructions than through 12 summary judgment. 13 14 X. UNCONSTITUTIONAL POLICIES OR CUSTOMS 15 Stapley concedes that all § 1983 claims for unconstitutional policies and 16 procedures are against Defendant Maricopa County. See Doc. 1112 ¶ 13. Nor does he 17 contest Arpaio’s and Hendershott’s motions for summary judgment with respect to 18 claims for failure to train and negligent supervision. 19 Consequently, summary judgment will be granted against the claims in the ninth cause of 20 action (unconstitutional policies and customs, failure to train, and negligent supervision) as 21 against the individual Defendants. See generally Doc. 1123. 22 23 XI. PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT 24 Stapley has moved for summary judgment that Arpaio arrested him for retaliatory 25 purposes in violation of § 1983, that Hendershott initiated the RICO action in violation of 26 § 1983 and state law, and that Aubuchon caused a search warrant to be executed without 27 probable cause in violation of § 1983. 28 - 64 - 1 Stapley has provided ample evidence to support the conclusion that Defendants’ 2 actions lacked probable cause. Nonetheless, the existence of factual questions and 3 considerations of economy militate against summary judgment. Granting any of his 4 motions would not shorten the trial. 5 6 7 IT IS THEREFORE ORDERED denying Plaintiff Stapley’s Motions for Partial Summary Judgment (Docs. 1056, 1060, and 1065). 8 IT IS FURTHER ORDERED granting Defendant Arpaio’s Motion for Summary 9 Judgment (Doc. 1062) against Stapley’s ninth claim for unconstitutional policies, 10 customs, failure to train, and negligent supervision. The motion is otherwise denied. 11 IT IS FURTHER ORDERED granting Defendant Aubuchon’s Motion for 12 Summary Judgment (Doc. 1066) against Stapley’s second and fifth claims for malicious 13 prosecution and against his fourth claim for false arrest. The motion is otherwise denied. 14 IT IS FURTHER ORDERED granting Defendant Hendershott’s Motion for 15 Summary Judgment (Doc. 1072) against Stapley’s ninth claim for unconstitutional 16 policies, customs, failure to train, and negligent supervision. The motion is otherwise 17 denied. 18 IT IS FURTHER ORDERED granting Defendant Thomas’s Motion for Partial 19 Summary Judgment (Doc. 1063) against Stapley’s second and fifth claims for malicious 20 prosecution and against his tenth claim for unlawful search. The motion is otherwise 21 denied. 22 Dated this 5th day of December, 2013. 23 24 25 26 27 28 - 65 -

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