Gillen v. Arizona

• Decision Date: 24 July 2017
• Docket Number: No. CV–15–00460–PHX–ROS,CV–15–00460–PHX–ROS
• Citation: 279 F.Supp.3d 944
• Parties: Scott GILLEN, et al., Plaintiffs, v. State of ARIZONA, et al., Defendants.
• Court: U.S. District Court — District of Arizona

279 F.Supp.3d 944

Scott GILLEN, et al., Plaintiffs,

v.State of ARIZONA, et al., Defendants.

No. CV–15–00460–PHX–ROS

United States District Court, D. Arizona.

Signed July 24, 2017

Filed July 25, 2017

Donna Marie McDaniel, Martin Andrew Bihn, Bihn & McDaniel PLC, Phoenix, AZ, for Plaintiffs.

G. Michael Tryon, Stephanie Susan Elliott, Office of the Attorney General, Phoenix, AZ, for Defendants.

ORDER

Honorable Roslyn O. Silver, Senior United States District Judge

Plaintiff Scott Gillen was detained outside of his home approximately forty-five minutes before his home was searched pursuant to a warrant. Gillen filed this suit alleging, among other things, his detention and the search of his home violated his constitutional rights. Gillen now seeks summary judgment that the detention violated his rights. The officers involved in Gillen's detention, the different officers involved in the search of Gillen's home, and an official from the Town of Hayden, seek summary judgment on all claims. Gillen's motion will be granted while the other motions will be granted in part and denied in part.

BACKGROUND

The parties agree on relatively few background facts and present different versions of most of the relevant events. The following description of events describes only those material background facts necessary to resolve the cross-motions for summary judgment. This is not a complete recitation of all the facts and, in particular, this account does not describe most of the alleged political intrigue and infighting which Gillen believes contributed to the events but are not relevant to resolution of these motions.¹

In November 2011, Gillen was hired as the Chief of Police for the Town of Hayden Police Department. (Doc. 139 at 2). At that time, Yvette Waddell worked as the police department's office manager. (Doc. 139 at 3). In October 2012, Gillen discovered two pistols in the police department's armory. The pistols did not have any tags or documentation so Gillen took the pistols to Waddell's desk to see if she knew anything about them. (Doc. 139–3 at 78–79). Waddell stated she did not. According to Waddell, during her discussion with Gillen he "remarked he would like one of the guns for himself." (Doc. 139–3 at 205). Waddell claims she saw Gillen then return the pistols to the armory. (Doc. 139–3 at 205). Gillen remembers this interaction slightly differently.

According to Gillen, while he was discussing the pistols with Waddell, Detective Aubrey Keck stopped by Waddell's desk. Gillen claims he discussed the pistols with Keck and Keck commented that one of the pistols "would be a nice weapon to have on duty." (Doc. 139–3 at 80). Gillen denies he made any similar statement in response. After that interaction, Gillen claims he turned the pistols over to Officer Kevin Heaslip to determine why the police department had the pistols.

Regardless of which version of events is accurate, it is undisputed Heaslip ran the pistols' serial numbers through the available databases and determined the pistols had never been reported as stolen. A week or two later, Heaslip claims he overheard Gillen and Keck talking about the weapons. According to Heaslip, Keck said "Ooh, I want that one" to which Gillen responded "No. That one's mine." (Doc. 139–2 at 70). Waddell recounts a substantially similar story regarding this later conversation between Gillen and Keck. (Doc. 139–3 at 205). The record does not establish what happened to the pistols after Gillen and Keck allegedly discussed them but it is undisputed Gillen continued as Chief of Police for approximately ten more months.

On August 5, 2013, Gillen was terminated by the Hayden Town Council. Gillen attributes his termination to long-running disagreements he had with Charles Vega, the Mayor of Hayden at that time. It is undisputed that Gillen's termination had nothing to do with the pistols. Immediately after Gillen was terminated, the Hayden Town Manager went with Gillen to the police station so that Gillen "could get some personal items" out of his office. (Doc. 156–2 at 12). The Town Manager saw the pistols in Gillen's office and saw that Gillen did not take them with him when he gathered his other personal items.

Following Gillen's termination, Officers Brian Marquez and Heaslip became Interim Co–Chiefs of the police department. Shortly after assuming those positions, Marquez and Heaslip directed Waddell "to conduct an inventory of all weapons at the police department." (Doc. 139–3 at 205). In conducting that inventory, Waddell could not locate the two pistols. Marquez and Heaslip then decided to conduct a full investigation regarding the missing pistols. (Doc. 139 at 13). They assigned a recently hired officer named Michael Haddad² to conduct the investigation. When making that assignment, Heaslip told Haddad about the conversation he overheard where Gillen and Keck were discussing the weapons and Gillen had said "No. That one's mine." (Doc. 139–2 at 70). This preliminary information from Heaslip appears to have prompted Haddad to focus his investigation on whether Gillen took the pistols.

In conducting his investigation, Haddad used the pistols' serial numbers to locate their original owner. (Doc. 139–2 at 128). Haddad interviewed that owner and discovered the pistols had been confiscated by the Hayden Police Department years earlier during a traffic stop. The owner had been unsuccessful in his attempts to recover the pistols but stated he would like to recover them if possible. Haddad also conducted a recorded interview of former Hayden Police Officer David Neuss. The recording includes the following statements.

Haddad: So, for the story that's going around ... there was two guns that were seen and then there was two guns that weren't seen.

Neuss: Ok....

Haddad: Do you remember seeing these guns?

Neuss: No. I never saw the guns.

Haddad: Ok.

Neuss: I have nothing to do with their guns. I had nothing to do with their safe [where the guns were stored]. The only time I was in their safe was with [Gillen] once, and with Dumb and Dumber [Marquez and Heaslip] when they're asking the same thing. I said "It's your problem. It's your guns."

* * *

Haddad: Were there accusations with the guns? As in, we think somebody took them?

Neuss: Probably Heaslip thinks [Gillen] had his hands on them 'cause he liked them.

Haddad: 'Cause Heaslip liked them? Or ...

Neuss: No, [Gillen]. I don't know if Heaslip liked them.

* * * *

Neuss: I never saw the guns. Never ever. I had nothing to do with their guns.

* * *

Neuss: I had nothing to do with their guns. Ever. I never touched them.... If they've lost their guns because they're, whatever they are, then you need to go and say "Hey Heaslip, stop asking people to look for a gun that's either in your closet, Marquez's closet, or the other fools that used to work here's closet, or [Gillen's] closet," 'cause I don't even know him it could be in his closet. But it ain't in my closet. That I can tell ya.

(Audio recording, starting at approximately 5:00).

Haddad prepared a written summary of this interview. That summary recounted that Neuss denied ever seeing the guns and that Neuss stated he "had nothing to do with the guns." But the summary also stated "[w]hen asked if there were any accusation about the guns, Neuss replied that [Gillen] had his hands on them because he liked them." (Doc. 139–2 at 135). This statement corresponds with statements by Neuss but it is not completely accurate.

In addition to interviewing Neuss, Haddad also attempted to interview Gillen but Gillen was not available when Haddad went to Gillen's workplace and Gillen did not return Haddad's phone calls. Finally, Haddad located information that Gillen had been accused of improper evidence handling in his previous job with the Pinal County Sheriff's Office.³ Based on these facts, Haddad decided to seek a search warrant for Gillen's residences in Globe and Oracle as well as two of Gillen's vehicles. (Doc. 139–5 at 27–28).

Haddad's affidavit in support of the search warrant began by recounting his substantial law enforcement experience. (Doc. 139–5 at 29). The affidavit then recounted that on October 15, 2012, Gillen asked Heaslip "what the deal with the two guns was." Heaslip told Gillen he had no information regarding the pistols. (Doc. 139–5 at 30). After that conversation, Gillen allegedly retained possession of the pistols. (Doc. 139–5 at 30). The affidavit then recounted that a few days after the conversation between Heaslip and Gillen, Waddell overheard Gillen speaking with Neuss where "comments [were] overheard ... in the general context of ... I like this gun.... It would make a great personal gun.... and no, you can't have it, I want it." (This reference to Neuss was an error. According to a later supplement, Haddad meant to refer to Keck, not Neuss.)

After recounting the alleged conversation between Gillen and Neuss, the affidavit stated Waddell had later observed Gillen take the pistols from the armory but did not see him return them. Next, the affidavit recounted that Haddad had contacted the original owner of the pistols and determined the owner was seeking their return. Haddad then included a paragraph regarding his interview of Neuss. That paragraph stated, in its entirety:

When your Affiant [i.e. , Haddad] spoke with Neuss (former officer), Neuss simply stated that he could not help with the investigation, that either [Gillen] had the guns in his closet, or one of the two Interim Hayden Chiefs had them.

(Doc. 139–5 at 31). Combined with the affidavit's earlier erroneous reference to Neuss, this paragraph meant the affidavit represented that Gillen had told Neuss "I want [one of the pistols]" and Neuss later stated Gillen might have the guns in his closet.

The affidavit ended with Haddad recounting Gillen's refusal to speak with him and that Gillen had been the subject of an investigation regarding mishandled and missing property while he was with the Pinal County Sheriff's Office. Haddad identified "Gillen's...