Norton v. Arpaio
| Decision Date | 28 March 2019 |
| Docket Number | No. CV-15-00087-PHX-SPL,CV-15-00087-PHX-SPL |
| Parties | Lisa Norton, et al., Plaintiffs, v. Joseph M. Arpaio, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Before the Court is Defendants Penzone, Arpaio, Henderson, Jones, Hegstrom, Gandara, Locksa, and Hechavarrias' (together, the "Defendants") Partial Motion for Summary Judgment (Docs. 215, 2131), Plaintiffs' Response (Docs. 218, 2192), and Defendants' Reply (Doc. 220). For the reasons stated below, Defendants' motion is denied in part and granted in part.3
This case involves the investigation and ultimate arrest and prosecution of Bret Frimmel ("Frimmel"), owner of the Uncle Sam's restaurants ("Uncle Sam's"), and his manager, Lisa Norton ("Norton"), by the Maricopa County Sheriff's Office's ("MCSO"). (Doc. 213 ¶ 2.) Detective Joshua Henderson ("Henderson") led the investigation that resulted in the arrests and prosecution of Frimmel and Norton for various felonies, including Trafficking in the Identity of Another, Conspiracy to Commit Taking the Identity of Another, Taking the Identity of Another, and Forgery. (Doc. 213 ¶ 3.) A Grand Jury ultimately indicted Frimmel and Norton. (Doc. 213 ¶ 4.) Both Frimmel and Nortons' criminal cases were dismissed without prejudice in 2015, and Plaintiffs subsequently filed this lawsuit. (Doc. 213 ¶ 5.)
On August 2, 2012, Henderson received a tip from a former Uncle Sam's employee alleging that employees were using other people's identities to gain and continue employment. (Doc. 213 ¶ 6.) Upon investigating Uncle Sam's employment records, Henderson discovered over fifty discrepancies regarding employees' names and social security numbers. (Doc. 213 ¶¶ 7, 16.) Henderson then obtained search warrants for the two Uncle Sam's restaurants, located in Phoenix and Scottsdale, and Frimmel's residence. (Doc. 213 ¶ 8.) As a result of the investigation, MCSO arrested nine Uncle Sam's employees. (Doc. 213 ¶ 9.) A Grand Jury ultimately indicted four employees. (Doc. 213 ¶ 10.) The indicted employees agreed to participate in "free talks" with Henderson. (Doc. 213 ¶ 11.) Deputy County Attorney Jamie Oliver ("Oliver") was present at the free talks. (Doc. 213 ¶ 12).
On January 22, 2014, MCSO arrested Frimmel and Norton.5 (Doc. 213 ¶ 15.) On the same day, MCSO executed search warrants for Norton's cell phone records and the data contained on both Frimmel's and Norton's cell phones. (Doc. 213 ¶ 26.) MCSO also issued a press release covering the investigation and arrests. (Doc. 213 ¶ 31.) On February 4, 2014, MCSO obtained a search warrant for Frimmel's cell phone records. (Doc. 213 ¶ 27.) Deputy Sergeants Daniel Gandara ("Gandara"), Christopher Hechavarria ("Hechavarria"), and Sean Locksa ("Locksa") drafted and signed the probable cause statements for the search warrants of Frimmel and Norton's cell phones and records. (Doc. 213 ¶ 45.) Gandara, Hechavarria, and Locksa did not investigate Frimmel or Norton and relied on the information provided to them by Henderson, the case agent, in drafting their probable cause statements. (Doc. 213 ¶¶ 44, 47.)
On February 7, 2014, a Grand Jury indicted Frimmel for Trafficking in the Identity of Another, Conspiracy to Commit Taking the Identity of Another, Taking the Identity of Another, and Forgery. (Doc. 213 ¶ 28.) Norton was also indicted for Conspiracy to Commit Taking the Identity of Another and Taking the Identity of Another. (Doc. 213 ¶ 29.) Oliver conducted the Grand Jury, where Henderson testified and was the only witness. (Doc. 213 ¶¶ 30, 31.)
On January 15, 2015, the criminal court dismissed the "Taking the Identity of Another" charges without prejudice against both Norton and Frimmel. (Doc. 213 ¶ 33.) There were no other charges pending against Norton. (Doc. 213 ¶ 33.) On March 6, 2015, the criminal court conducted a Franks hearing in Frimmel's case. (Doc. 213 ¶ 34.) On April 15, 2015, the criminal court found that there was no probable cause to support the search warrants as amended. (Doc. 213 ¶ 35.) The court reached this conclusion after determining that information was unreasonably and recklessly included in or excluded from the warrants. (Doc. 213 ¶ 36.) On April 23, 2015, the remaining charges were dropped against Frimmel. (Doc. 213 ¶ 37.)
On January 20, 2015, Frimmel and Norton each filed a Complaint. (Doc. 213 ¶ 39.) On June 12, 2015, the two matters were consolidated, and Plaintiffs filed a joint Second Amended Complaint. (Doc. 213 ¶ 40.) In their Second Amended Complaint, Plaintiffs allege various 42 U.S.C. § 1983 claims and related state law claims. (Doc. 213 ¶ 41.)
A court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those facts "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact arises if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant is able to do so, the burden then shifts to the non-movant who "must do more than simply show that there is some metaphysical doubt as to the material facts," and, instead, must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Defendants moved for summary judgment, based on qualified immunity, as to Plaintiffs' Section 1983 Claim I (malicious prosecution and arrest theories), Claim IV (Fourth Amendment Search and Seizure re cell phones), and Claim V (Fourth Amendment Search and Seizure re Frimmel residence) against various defendants.6 (Doc. 213, Ex. 1; Doc. 215.) Defendants also moved for summary judgment on the following state law claims: (1) malicious prosecution against Arpaio, Henderson, Gandara, Locksa, and Hechavarria (Claim II); (2) abuse of process against Arpaio and Henderson (Claim III); (3) defamation against Arpaio, Henderson, Jones, and Hegstrom (Claim IX); (4) grossly negligent restraint against Henderson (Claim X); (5) intentional infliction of emotional distress ("IIED") against Arpaio and Henderson (Claim XI); and (6) grossly negligent supervision against Arpaio (Claim XII). (Doc. 213, Ex. 1; Doc. 215.) Defendants also move to dismiss Plaintiffs' state law claims, pursuant to A.R.S. Section 12-821.01, for failure to comply with the Notice of Claim statute. (Doc. 215 at 21-22.)
"The court applies a two-prong analysis to determine whether officials are entitled to qualified immunity: (1) whether the facts alleged show that the officer violated a constitutional right; and (2) if so, whether that right was clearly established at the time of the event." Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1075 (9th Cir. 2011) (citing Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)). These two questions may be considered in either order. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). "The linchpin of qualified immunity is the reasonableness of the official's conduct." Id. (citing Anderson v. Creighton, 483 U.S. 635, 638-39 (1987)) ( that "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken"). Here, Defendants seek summary judgment, based on qualified immunity, as to all of Plaintiffs' federal claims: Claims I, IV, and V.
It is well established that "an arrest without probable cause violates the Fourth Amendment and gives rise to a claim for damages under § 1983." Rosenbaum, 663 F.3d at 1076 (quoting Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988)). Qualified immunity for a claim of false arrest requires the Court to look at the facts the officer knew at the time of the arrest to determine if he (1) had probable cause for the arrest and (2) whether it is reasonably arguable that there was probable cause to arrest—that is, whether reasonable officers could disagree as to the legality of the arrest such that the arresting officer is entitled to qualified immunity. Id. (citing Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)); see Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 964-65 (9th Cir. 2001).
An arrest is supported by probable cause if, "under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the suspect] had committed a crime." Luchtel v. Hagemann, 623 F.3d 975, 979 (9th Cir. 2010). The crime need not be the crime ultimately charged nor contemplated at the time of arrest. See Rosenbaum, 663 F.3d at 1076; Davenpeck v. Alford, 543 U.S. 146, 153-55 (2004) (); Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006); Donahoe v. Arpaio, 986 F. Supp. 2d 1091, 1124 (D. Ariz. 2013) (citing Ewing v. City of Stockton, 588 F.3d 1218, 1230 n.19 (9th Cir. 2009)). Moreover, an officer can make an arrest without probable cause, and he will be entitled to qualified immunity so long as he reasonably believed he had probable cause. Rosenbaum, 663 F.3d at 1076.
a. Probable Cause
"An officer has probable cause to make a warrantless arrest when the facts and...
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