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 unconstitutional 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 unconstitutional 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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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary Donahoe and Cherie Donahoe, husband
and wife,

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CONSOLIDATED WITH:

Plaintiffs,

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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

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Plaintiffs,

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v.

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Sheriff Joseph Arpaio and Ava Arpaio,
husband and wife; et al.,

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No. CV-10-02756-PHX-NVW

Defendants.

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TABLE OF CONTENTS

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SUMMARY OF RULINGS ........................................................................................ 1 

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I. 

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II.  LEGAL STANDARD ................................................................................................. 3 

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III.    STAPLEY I ................................................................................................................... 4 

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A.  Legal standard ......................................................................................................... 4 
B.  Probable cause ......................................................................................................... 5 

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1. 
2. 

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The 1994 Board of Supervisors resolution ........................................................... 6 
Statute of limitations........................................................................................... 9 

C.  Malice .................................................................................................................... 10 

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D.  Favorable termination............................................................................................ 11 

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E.  Accrual of action ................................................................................................... 12 

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IV. 

THE SEARCH....................................................................................................... 12 

A.  Legal standard ....................................................................................................... 13 

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B.  Evidence supporting the search warrant ................................................................ 14 

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1. 

Evidence regarding fraud ................................................................................. 15 

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2. 

Evidence regarding bribery .............................................................................. 16 

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3. 

Evidence regarding misuse of public funds ..................................................... 17 

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C.  Misrepresentations and omissions in the supporting affidavit .............................. 19 

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1. 

Misrepresentation and omissions of evidence of bribery ................................. 19 

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i. 

Review of bank records................................................................................. 19 

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ii. 

Partnership documents .................................................................................. 20 

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iii.  Public records of partnership ........................................................................ 20 

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iv.  Disclosure ...................................................................................................... 21 
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v. 

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2. 

Voting record ................................................................................................ 21 
Misrepresentation and omissions of evidence of misused public funds .............. 23 

D.  Materiality of misrepresentations and omissions .................................................. 24 

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E.  Deliberate or reckless disregard for the truth ........................................................ 26 
1. 

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i. 

Involvement................................................................................................... 27 

ii. 

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Aubuchon ......................................................................................................... 27 

Evidence ........................................................................................................ 28 

2. 

Thomas ............................................................................................................. 31 

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3. 

Hendershott....................................................................................................... 32 

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4. 

Arpaio ............................................................................................................... 34 

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F.  Qualified immunity ............................................................................................... 35 
1. 

Legal standard .................................................................................................. 35 

2. 

Application to the search .................................................................................. 36 

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V.  THE ARREST AND STAPLEY II INDICTMENT................................................... 36 

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A.  Legal standard ....................................................................................................... 38 

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B.  Probable cause ....................................................................................................... 39 

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1. 

Fraudulent schemes and artifices (arrest) ......................................................... 40 

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Perjury (arrest and indictment) ......................................................................... 42 

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False swearing (indictment) ............................................................................. 43 

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C.  Defendants’ roles in the arrest ............................................................................... 44 
D.  Malice or improper purpose in prosecuting Stapley II .......................................... 45 

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E.  Favorable termination............................................................................................ 46 
F.  Qualified immunity for the arrest .......................................................................... 47 

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VI. 

THE RACKETEERING ACTION ....................................................................... 48 

A.  Background............................................................................................................ 48 
B.  Legal standard ....................................................................................................... 51 

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C.  Analysis ................................................................................................................. 51 

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1. 

Involvement ...................................................................................................... 51 

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2. 

Probable cause (reasonable belief and advice of counsel) ............................... 52 

3. 

Malice ............................................................................................................... 53 

4. 

Favorable termination ....................................................................................... 54 

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VII. 

RETALIATION AND QUALIFIED IMMUNITY .............................................. 55 

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A.  Constitutional violation ......................................................................................... 56 

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B.  Clearly established right ........................................................................................ 58 

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XIII.  ABSOLUTE IMMUNITY .................................................................................... 60 

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A.  Legal standard ....................................................................................................... 61 
B.  Analysis ................................................................................................................. 61 

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IX. 

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DAMAGES ........................................................................................................................ 63 

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A.  Legal standard ....................................................................................................... 63 

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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE

B.  Analysis ................................................................................................................. 64 

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X.  UNCONSTITUTIONAL POLICIES OR CUSTOMS ............................................. 64 
XI. 

PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT ............................... 64 

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Before the Court are seven motions for summary judgment filed by Plaintiff

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Donald T. Stapley, Jr. and Defendants Joseph Arpaio, Lisa Aubuchon, David

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Hendershott, and Andrew Thomas. For the following reasons, Plaintiff’s motions will be

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denied and Defendants’ motions will be granted in part and denied in part.

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I.

SUMMARY OF RULINGS

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The allegations underlying this dispute are set forth in Donahoe v. Arpaio, 869 F.

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Supp. 2d 1020 (D. Ariz. 2012), aff’d sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th

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Cir. 2013). They describe an extended criminal and civil campaign against the Maricopa

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County Board of Supervisors, of which Stapley was then a member, by the Maricopa

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County Sheriff’s Office (MCSO), the Maricopa County Attorney’s Office (MCAO), and

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their joint anti-corruption task force (MACE). The details are not recounted here except

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as necessary to explain the rulings.

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judgment against Sheriff Joseph Arpaio (Doc. 1060), former Deputy County Attorney

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Lisa Aubuchon (Doc. 1065), and former Chief Deputy David Hendershott (Doc. 1056).

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In turn, Arpaio (Doc. 1062), Aubuchon (Doc. 1066), Hendershott (Doc. 1072), and

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former County Attorney Andrew Thomas (Doc. 1063) have moved for summary

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judgment. Stapley’s motion for partial summary judgment against Thomas (Doc. 1147)

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and Maricopa County’s motion for summary judgment against Stapley (Doc. 1149) were

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previously denied.

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Stapley has now moved for partial summary

Stapley seeks summary judgment that

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(1)

Arpaio ordered a retaliatory arrest in violation of 42 U.S.C. § 1983;

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(2)

Aubuchon engaged in judicial deception and searched his office in

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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.

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All Defendants seek summary judgment that
(1)

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they are not liable for maliciously prosecuting or investigating

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Stapley in the criminal actions commonly referred to as Stapley I and

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Stapley II;
(2)

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they are not liable for retaliating against Stapley for exercising his
constitutional rights;

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(3)

they are not liable for the search of Stapley’s office;

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(4)

they have absolute or qualified immunity as to various claims;

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(5)

they are not liable for intentional infliction of emotional distress; and

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(6)

Stapley may not recover punitive damages.

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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)

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their roles in the federal racketeering action do not give rise to
liability; and

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(2)

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they are not liable for establishing unconstitutional policies or

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customs within MCSO, for failing to train employees, or for

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negligently supervising them.

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The Defendants’ motions for summary judgment will be granted against the
following claims.

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As to Defendant Arpaio, summary judgment will be granted against Stapley’s

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ninth claim for unconstitutional policies, customs, failure to train, and negligent

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supervision.

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As to Defendant Aubuchon, summary judgment will be granted against Stapley’s

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second and fifth claims for malicious prosecution and against his fourth claim for false arrest.

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As to Defendant Hendershott, summary judgment will be granted against

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Stapley’s ninth claim for unconstitutional policies, customs, failure to train, and negligent

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supervision.

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As to Defendant Thomas, summary judgment will be granted against Stapley’s

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second and fifth claims for malicious prosecution and against his tenth claim for unlawful

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search.
The motions will otherwise be denied.

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II.

LEGAL STANDARD

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A motion for summary judgment tests whether the opposing party has sufficient

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evidence to merit a trial. At its core, it questions whether sufficient evidence exists from

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which a reasonable jury could find in favor of the party opposing the motion for summary

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judgment. Summary judgment should be granted if the evidence shows there is no

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genuine dispute about any material fact and the moving party is entitled to judgment as a

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matter of law. Fed. R. Civ. P. 56(a). The moving party has the burden of demonstrating

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that no material issue of fact exists for the jury to decide. See Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986). To meet this burden, the moving party must point out the lack

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of evidence supporting the nonmoving party’s claim but need not produce evidence

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negating that claim. Id. at 325.

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When the moving party has carried its burden under Federal Rule of Civil

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Procedure 56(c), the nonmoving party must show that there are genuine issues of material

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fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact is one

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that might affect the outcome of the suit under the governing law, and a factual issue is

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genuine “if the evidence is such that a reasonable jury could return a verdict for the

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nonmoving party.” Id. at 248. The nonmoving party must produce evidence to support

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its claim or defense by more than simply showing “there is some metaphysical doubt as

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to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586 (1986).

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nonmoving party, must not weigh the evidence or assess its credibility, and must draw all

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justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing

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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

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taken as a whole, could not lead a rational trier of fact to find for the nonmoving party,

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there is no genuine issue of material fact for trial. Matsushita, 475 U.S. at 587.

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On summary judgment, the nonmoving party’s evidence is presumed true, and all

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inferences from the evidence are drawn in the light most favorable to the nonmoving

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party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987);

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Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). But the evidence

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presented by the parties must be admissible or able to be produced in admissible form.

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See Fed. R. Civ. P. 56(c)(2). Conclusory and speculative testimony in affidavits and

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moving papers is insufficient to raise genuine issues of fact and to defeat summary

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judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

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III.

STAPLEY I

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On November 20, 2008, a grand jury returned a 118-count indictment against

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Stapley (Stapley I), charging him largely with violations of disclosure laws related to his

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position as a Maricopa County Supervisor. See Doc. 1112-9 at 26. On December 2, an

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MCSO sergeant served Stapley with the summons. See id. at 29.

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Stapley seeks damages for malicious prosecution based on the investigations that

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led to this indictment—his third claim for relief. Stapley no longer asserts separate

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malicious prosecution claims against Thomas and Aubuchon, which the Court has held

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absolutely immune from suit. Thus, Arpaio and Hendershott are the only remaining

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defendants with respect to the malicious prosecution claims. Each moves for summary

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judgment.

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A.

Legal standard

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For malicious prosecution under Arizona law, Stapley must prove (1) Defendants

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initiated or procured the criminal proceeding, (2) the prosecution terminated in Stapley’s

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favor, (3) the prosecution lacked probable cause, and (4) malice, or a primary purpose

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other than bringing him to justice. See Restatement (Second) of Torts § 653 (1977); see

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also Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274, 277 (1986). “A criminal

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defendant may maintain a malicious prosecution claim not only against prosecutors but

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also against others—including police officers and investigators—who wrongfully caused

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his prosecution.” Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011).

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Notably, “a malicious prosecution claim is treated differently from one for false

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arrest: whereas probable cause to believe that a person has committed any crime will

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preclude a false arrest claim, even if the person was arrested on additional or different

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charges for which there was no probable cause, . . . probable cause as to one charge will

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not bar a malicious prosecution claim based on a second, distinct charge as to which

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probable cause was lacking.” Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682 (7th

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Cir. 2007) (internal citations omitted); accord Jernigan v. Richard, 907 F. Supp. 2d 998,

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1041 (D. Ariz. 2012) (upholding malicious prosecution claim where probable cause

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supported some—but not all—of the criminal counts charged against plaintiff).

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B.

Probable cause

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Both Arpaio and Hendershott assert the existence of probable cause. “In the

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context of malicious prosecution, probable cause is defined as ‘a reasonable ground of

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suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in

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believing the accused is guilty of the offense . . . . The test generally applied is: upon the

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appearances presented to the defendant, would a reasonably prudent man have instituted

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or continued the proceeding?’” Gonzales v. City of Phoenix, 203 Ariz. 152, 155, 52 P.3d

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184, 187 (2002) (quoting McClinton v. Rice, 76 Ariz. 358, 367, 265 P.2d 425, 431

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(1953)). The question of probable cause is generally one for the court. Gonzales, 203

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Ariz. at 155, 52 P.3d at 187. “If, however, the evidence is conflicting, so that on one

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conclusion as to the facts drawn therefrom probable cause exists, while from another it

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does not, it is then for the jury to determine the true state of facts and to apply the law as

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laid down by the court to those facts.” Sarwark Motor Sales, Inc. v. Woolridge, 88 Ariz.

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173, 177, 354 P.2d 34, 36 (1960). Summary judgment is appropriate if a reasonable jury

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could not find an absence of probable cause based on the undisputed facts. See, e.g.,

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Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994).

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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

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As discussed below, Stapley has offered evidence that his public criticism of
Thomas motivated revival of the investigation.
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Aubuchon took over Goldman’s research, learned from him that there were “issues” with

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Stapley’s records, and concluded there were criminal nondisclosures. See Doc. 1112-8 at

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11–15. When Aubuchon received Goldman’s research, she noted that they were time

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stamped from early 2007. See id. at 15. She then met with MACE deputies on May 14,

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2008, see id. at 25–26, presented a draft indictment dated May 29, see id. at 22, and told

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the deputies to use May 14 as the date on which the investigation started. See Doc. 1112-

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On May 8, 2009, Thomas enlisted MCAO Commander Mark Stribling to assist

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the investigation. See Doc. 1112-9 at 5. At Aubuchon’s suggestion, Stribling contacted

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Fran McCarroll, the Clerk of the Board of Supervisors, to “get some documents about

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resolutions that the board had passed related to how disclosures were done because

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apparently throughout the years the way disclosures were handled had changed some.”

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Id. at 17. Because MCAO sought to indict Stapley for violating the 1994 Maricopa

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County rule or resolution applying state disclosure rules to county officers, his criminal

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culpability turned on whether the Board’s 1994 resolution had in fact adopted state law.

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On May 22, 2008, McCarroll informed Stribling that the Board had in fact adopted

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a resolution “consistent with [state law].” Doc. 1069-2 at 3. Stribling informed Luth of

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this the same day, and Luth entered it into an MCSO supplemental report. Id. at 2.

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Indeed, McCarroll “confirmed that elected county officials, including the Board of

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Supervisors, were required to file financial disclosure statements with her office.” Doc.

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1073 at 2. McCarroll also provided copies of past Board minutes. These reflect that the

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Board resolved to adopt the disclosure requirements in 1974 and amended the

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requirements in 1979. They further reflect that in 1994 the Board resolved to rescind the

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1979 resolution “and update the Financial Disclosure form for Elected Officials to bring

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the form and process into compliance with A.R.S. 38-541.” Doc. 1112 ¶ 110 (“Financial

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disclosure forms must be filed by January 31, each year, with the Clerk of the Board.”).

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Stribling appears to have provided these documents to Luth, and it appears that somebody

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created a handwritten timeline on one of these documents indicating that the Board

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rescinded the 1979 resolution. See Doc. 1069-2 at 4 (“1994—Rescind reso re: Exempt

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employees & update Fin. Disc. Form”). Notwithstanding the Board’s apparent intent to

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update its disclosure protocol, the Board’s 1994 resolution did not adopt state law

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requiring disclosures. See State v. Stapley, 227 Ariz. 61, 65–66, 251 P.3d 1048, 1052–53

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(Ct. App. 2011).

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MCSO deputies obtained Stapley’s financial disclosures and discovered evidence

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that Stapley had “omitted information in his required disclosures for thirteen years, from

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1994 through 2007.” Doc. 1072 at 4. Aubuchon presented the case to a grand jury, see

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Doc. 1112-9 at 50, which returned a 118-count indictment against Stapley “in connection

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with false and/or incomplete financial disclosures he filed,” Doc. 1072 at 4, in violation

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of “A.R.S §§ 38-542, 38-542(A)(5), 38-544, 38-541, 38-545, 13-707, 13-802, and

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Maricopa County Rule or Resolution adopted January 20, 1994.” Stapley, 227 Ariz. at 64

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n.4, 251 P.2d at 1051 n.4.

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Here, there is a factual dispute as to what MCSO and MCAO officials believed

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and when they believed it. Aubuchon presented Stapley I to the grand jury in November

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2008, six months after McCarroll disclosed the relevant documents and communicated

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her belief regarding the disclosure requirements to Stribling. At the grand jury hearing, a

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state witness explained that “there’s a resolution by the county that was adopted in ’94

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that requires county officials to comply with the Arizona statute 38-542, which requires

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those disclosures be completed.” Doc. 1112-9 at 50. Aubuchon asked whether the

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resolution “address[ed] candidate disclosure forms” and the witness responded that “[i]t

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wasn’t clearly covered under the resolution.” Id.

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Even if McCarroll actually believed the 1994 resolution adopted the disclosure

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requirements—and it appears she did—MACE had six months to review the language of

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the 1994 resolution and conduct further investigation as to whether the intention reflected

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in the 1994 resolution was ever acted on (it was not). It is clear that someone handwrote

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on the documents McCarroll disclosed to Stribling that the 1994 resolution rescinded the

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1979 resolution, but it is unclear whether the author of those notes appreciated the impact

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of the 1994 resolution—the grand jury testimony quoted above suggests it was either

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misunderstood or deliberately ignored. Further, it is unclear who wrote it or when. If

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everyone believed that the resolution had been adopted at the time Aubuchon presented

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the indictment to the grand jury—because that is what McCarroll told them—then an

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ordinarily prudent person may have continued the investigation. But it is at best a matter

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of debate, and therefore jury trial, whether it was reasonable to seek indictment without

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ever seeing the supposed resolution to confirm its existence and to know exactly what the

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text of the resolution required to be disclosed. Moreover, if Stribling (or Luth, or

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Aubuchon) knew the effect of the resolution prior to the grand jury hearing in November

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2008, and thus had reason to know that McCarroll was incorrect, then an ordinarily

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prudent person would not have believed probable cause existed to charge Stapley with

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disclosure violations. A plain reading of the 1994 resolution shows that it rescinded prior

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resolutions and adopted nothing in their place. The facts preclude summary judgment

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that probable cause existed.

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2.

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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

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suggests lack of probable cause to believe Stapley knowingly failed to disclose the

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relevant information.

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Further, as noted above there is evidence Aubuchon instructed MACE deputies at

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the May 14 meeting to forward date their investigation, using May 14, 2008, rather than

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January 2007, as the date on which their work began. See Doc. 1112-3 at 87–88. This

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supports a finding that Aubuchon knew the statute of limitations on filing misdemeanor

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charges had run. Indeed, Luth testified that he understood that forward dating could have

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been an attempt to circumvent the statute of limitations. See id. at 9–10. This could lead

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a reasonable juror to conclude that even if Luth had probable cause to believe Stapley

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failed to disclose information, he knew or suspected that any resulting misdemeanor

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charges would be barred by the statute of limitations.

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Commissioner Passomonte’s concerns at the Stapley I grand jury hearing, who declined

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to issue an arrest warrant in part because “[s]ome of th[e] charges, on their face,

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appear[ed] to be outside of the statute of limitations time.” Doc. 1112-9 at 58, 64.

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Indeed, Aubuchon’s negligence or knowledge as to the statute of limitations constituted

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partial grounds for her disbarment. See In re Aubuchon, 233 Ariz. 62, 309 P.3d 886,

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892–93 (2013). To the extent Aubuchon, Luth, or other MACE deputies knew the claims

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were time barred, this supports a finding that there was no probable cause by the time

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Aubuchon presented the case to the grand jury.

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judgment for Defendants.

This is consistent with

The evidence precludes summary

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C.

Malice

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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

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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

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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

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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

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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

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