Merritt v. Arizona, CV-17-04540-PHX-DGC

• Decision Date: 15 November 2019
• Docket Number: No. CV-17-04540-PHX-DGC,CV-17-04540-PHX-DGC
• Citation: 425 F.Supp.3d 1201
• Parties: Leslie A. MERRITT, Jr., Plaintiff, v. State of ARIZONA; Bill Montgomery, Maricopa County Attorney; Maricopa County; Heston Silbert; Christopher Kalkowski; Frank Milstead; Ken Hunter; Kelly M. Heape; Jennifer Pinnow; Anthony Falcone ; Ed Leiter; and Vanessa Losicco, Defendants.
• Court: U.S. District Court — District of Arizona

425 F.Supp.3d 1201

Leslie A. MERRITT, Jr., Plaintiff,

v.State of ARIZONA; Bill Montgomery, Maricopa County Attorney; Maricopa County; Heston Silbert; Christopher Kalkowski; Frank Milstead; Ken Hunter; Kelly M. Heape; Jennifer Pinnow; Anthony Falcone ; Ed Leiter; and Vanessa Losicco, Defendants.

No. CV-17-04540-PHX-DGC

United States District Court, D. Arizona.

Signed November 15, 2019

David J. Don, Law Offices of David J. Don PLLC, Jason D. Lamm, Law Office of Jason D. Lamm, Ulises A. Ferragut, Jr., Ferragut Law Firm PC, Phoenix, AZ, for Plaintiff.

Edward F. Novak, Jonathan Grant Brinson, Melissa S. Ho, Andrew T. Fox, Polsinelli PC, Phoenix, AZ, for Defendants.

ORDER

David G. Campbell, Senior United States District Judge

This action arises out of Plaintiff Leslie Merritt's arrest, detention, and prosecution for the I-10 freeway shootings in Phoenix, Arizona. Plaintiff asserts multiple claims for relief under 42 U.S.C. § 1983 and state law. Doc. 8. Defendants have moved for summary judgment. Doc. 264. The motion is fully briefed, and the Court heard oral argument on October 2, 2019. Docs. 270, 273, 277. The Court will grant the motion in part and deny it in part.

I. Background.

The following facts are largely undisputed. Where there is a dispute, the evidence will be viewed in the light most favorable to Plaintiff, the nonmoving party, and all justifiable inferences will be drawn in his favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Three shootings occurred on the I-10 freeway in the Phoenix metropolitan area on August 29, 2015, and a fourth occurred sometime between August 27 and 30, 2015. Docs. 265, 271 ¶¶ 1-2. Plaintiff was arrested and indicted for the shootings in September 2015. Id. ¶¶ 41, 44. He was released from custody and the charges against him were dismissed in April 2016. Id. ¶¶ 53-54.

The timing of the fourth I-10 shooting is at the heart of the parties' arguments. Plaintiff pawned a firearm around 5:30 p.m. on August 30, 2015, about four hours before Plaintiff alleges the fourth shooting occurred. Doc. 271 ¶¶ 4-5; see Doc. 261 at 2. The fourth shooting involved Alfred Hackbarth's BMW. Hackbarth landed at Phoenix Sky Harbor Airport shortly before 9:00 p.m. on August 30 and returned to his BMW in the Terminal 2 parking garage, where he had parked it three days earlier. Doc. 265-2 at 4-6, 34. Hackbarth noticed a low-tire pressure alert on the dashboard when he started the vehicle. Id. at 4, 35, 43. All four tires were slightly below normal pressure. Id. at 6, 12, 36.

As he drove home from the airport, Hackbarth noticed that the front left tire was losing pressure rapidly. Id. at 9. He pulled off the freeway and stopped at a gas station to fill up the tires. Id. He noticed the front left tire was not filling, heard a hissing sound from the inside edge of the tire, and felt air coming out. Id. at 5, 9-10, 41. He tried to drive home on surface streets rather than the freeway, but the air pressure in the tire continued to decrease and he pulled over again. Id. Hackbarth learned from roadside assistance that his BMW tires could be driven while flat, so he drove home and took his car to the dealership the next day. Id. at 7. The dealership recovered a bullet from the front left tire. Id.

The Arizona Department of Public Safety ("DPS") recovered four bullets during its investigation of the four shootings. Docs. 265-1 at 7. On September 7, 2015, the DPS crime lab identified all four bullets as coming from a Hi-Point C9 9mm handgun. Id. ; see Doc. 265-3 at 2-11. Investigating officers obtained a range of possible serial numbers for such guns, and then used a pawn shop database to find any pawned guns associated with the serial numbers. Doc. 265-1 at 71.

On September 17, 2015, officers located eight Hi-Point C9 9mm handguns to submit to the DPS crime lab for ballistics testing. Id. at 71-72. On the morning of September 18, the crime lab identified one of the guns as the source of the bullets recovered in all four shootings. Id. at 72. A DPS officer reviewed the list for the pawned guns and identified Plaintiff as the owner of the gun in question. Id. at 72-73. The DPS officer also identified Plaintiff's Facebook page as containing several posts about the I-10 shootings. Id. at 72; see Doc. 265-1 at 37-47. Defendants arrested Plaintiff without a warrant on the evening of September 18. Docs. 265-1 at 73-74, 265-3 at 44-45. A grand jury indicted Plaintiff for the I-10 shootings six days later. Doc. 265-5 at 30-46.

In early February 2016, while preparing for trial, the Maricopa County Attorneys' Office asked Lucien Haag to conduct an independent firearms identification analysis. Doc. 265-6 at 173. In his report dated April 14, 2016, Haag concluded that the four evidence bullets could not be excluded or identified as having been fired from Plaintiff's gun. Id. at 174. Plaintiff was released from jail on April 19, and the charges against him were dismissed without prejudice six days later. Docs. 265-2 at 128, 265-6 at 186.

Plaintiff filed suit against Maricopa County, Maricopa County Attorney William Montgomery, Deputy County Attorneys Ed Leiter and Vanessa Losicco, the State of Arizona, and the following DPS officers: Director Heston Silbert, Criminalist Christopher Kalkowski, Colonel Frank Milstead, Lieutenant Colonel Ken Hunter, Major Kelly Heape, Captain Jennifer Pinnow, and Detective Anthony Falcone. Docs. 1, 8. The amended complaint asserts ten claims: false arrest, false imprisonment, and malicious prosecution under § 1983 and state law (Counts 1-3 and 5-7); a § 1983 Brady violation (Count 4); and negligence, intentional infliction of emotional distress, and aiding and abetting tortious conduct under state law (Counts 8-10). Doc. 8 at 16-24. Plaintiff dismissed the claims against the County Defendants. Docs. 41, 224.

The remaining Defendants – the State of Arizona and the DPS officers – argue that summary judgment is warranted on all claims because: (1) probable cause existed for Plaintiff's arrest, imprisonment, and prosecution; (2) qualified immunity bars the § 1983 tort-based claims; (3) independent prosecutorial judgment bars the malicious prosecution claims; (4) common law immunity bars the negligence claim; (5) no evidence shows that Defendants knew they were aiding and abetting a tort; (6) there can be no Brady violation without a conviction; and (7) no evidence supports the extreme and outrageous conduct element for intentional infliction of emotional distress. Doc. 264 at 9-18.

II. Summary Judgment Standard.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, see Matsushita , 475 U.S. at 587, 106 S.Ct. 1348, shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, see Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322, 106 S.Ct. 2548. Only disputes over facts that might affect the outcome of the suit will preclude summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Probable Cause.

The existence of probable cause to arrest or indict is a defense to claims arising from the arrest or indictment. See Gasho v. United States , 39 F.3d 1420, 1427 (9th Cir. 1994) ("Under Arizona law, probable cause is an absolute defense to a claim of false arrest and imprisonment."); Lacy v. Cty. of Maricopa , 631 F. Supp. 2d 1183, 1193 (D. Ariz. 2008) ("Probable cause to arrest or detain is an absolute defense to any claim under § 1983 against police officers for wrongful arrest or false imprisonment[.]"); Lassiter v. City of Bremerton , 556 F.3d 1049, 1054-55 (9th Cir. 2009) ("[P]robable cause is an absolute defense to malicious prosecution."); Hockett v. City of Tucson , 139 Ariz. 317, 678 P.2d 502, 505 (Ariz. Ct. App. 1983) ("The law is well settled that the existence of probable cause is a complete defense to claims of false imprisonment and malicious prosecution."); Hansen v. Garcia, Fletcher, Lund & McVean , 148 Ariz. 205, 713 P.2d 1263, 1265 (Ariz. Ct. App. 1985) (granting summary judgment on negligence claims because "the officers made [the] arrest with probable cause"); Tillotson v. City of San Francisco , 739 F. App'x 887, 889 (9th Cir. 2018) (intentional infliction of emotional distress claim "failed because the officers' arrest was based on probable cause").

Probable cause to arrest exists when, " ‘under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability’ " the defendant committed a crime. Gasho , 39 F.3d at 1428 (quoting United States v. Smith , 790 F.2d 789, 792 (9th Cir. 1986) ). Because probable cause "deals with probabilities and depends on the totality of the circumstances," it is a "fluid concept ... not readily, or even usefully, reduced to a neat set of legal rules." Maryland v. Pringle , 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (quoting Illinois v. Gates , 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). It "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Gates , 462 U.S. at 243 n.13, 103 S.Ct. 2317 ; see ...