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Lovejoy v. Arpaio

February 10, 2010

THOMAS LOVEJOY AND CAROLYNN LOVEJOY, PLAINTIFFS,
v.
SHERIFF JOSEPH ARPAIO, ET AL., DEFENDANTS.



ORDER

Before the Court is Defendants' Motion to Dismiss (doc. #10), which the Court grants in part and denies in part.

I. The Allegations of the Complaint

Plaintiffs make the following allegations in their complaint. It bears emphasis that the recitation that follows is only what Plaintiffs allege; the Court is not now called upon to determine the extent to which those allegations are true. Thomas Lovejoy was a well-respected sergeant in the Chandler Police Department for fifteen years before the events alleged herein took place. In January 2003, Sgt. Lovejoy was promoted to the K9 unit and partnered with his first dog, Bandit. Over the next four years, Sgt. Lovejoy and Bandit worked together. During that time, Sgt. Lovejoy developed an impeccable record with the K9 division, rescuing dogs and raising funds to purchase additional dogs, in addition to performing his regular duties.

Sgt. Lovejoy took good care of Bandit. Bandit shared a large backyard with Sgt. Lovejoy's other dogs, but also had special accommodations. Bandit had a 20' x 10' kennel that was shaded with plants and swamp air cooled. He also had three drinking stations and his own stock tank where he could immerse himself fully in water to cool off during hot summer days.

Sgt. Lovejoy and Bandit typically maintained a regular work routine. They worked the night shift from 7 p.m. to 4 a.m. Upon their return from duty, Bandit would immediately retire to his kennel, where he would eat and then sleep for several hours without being disturbed. The daytime was Bandit's opportunity for rest and sleep. Sgt. Lovejoy frequently worked overtime duties where needed, but Bandit did not usually accompany Sgt. Lovejoy in his overtime jobs, although he would occasionally come along when needed.

In the days leading up to the incident, Sgt. Lovejoy worked several shifts in a row because the Chandler Police Department was on sustained alert for a serial rapist that had been targeting local residents. On the morning of August 11, 2007, he had an overtime assignment. Knowing that he might be called at any moment to help with the serial rapist investigation, he drove his SUV and brought Bandit with him to his assignment. When his shift ended, he placed Bandit in his kennel in the back of the SUV, and Bandit immediately fell asleep. At this point, Sgt. Lovejoy had slept only six and one-half hours in the previous fifty-one hours.

On his way home, Sgt. Lovejoy learned that his oldest son had been involved in a minor car accident and needed his immediate help. Shortly afterward, Sgt. Lovejoy's wife, Carolynn, called him in tears and told him that she was having a personal crisis at work. At home, both of Sgt. Lovejoy's daughters needed his attention, one to be driven to a friend's house and the other to look for a new pet at a local shelter. After attending to the scene of his son's accident, running his daughters on their errands, and stopping into his wife's work to check on her, Sgt. Lovejoy went home and took a brief nap. When his wife arrived, the two went out for dinner. Upon returning from dinner with his wife, Sgt. Lovejoy went to his SUV to grab his gear. As soon as he opened the door, he noticed a strange smell in the vehicle. He went to the back of the vehicle and realized that Bandit had never come out of the SUV. Bandit had remained in the SUV all day and had died from heat exhaustion. Sgt. Lovejoy was distraught. He immediately called a fellow Chandler Police Officer, Ron Emary, to help him report the incident. Officer Emary noted that Sgt. Lovejoy was so disturbed that he was babbling on the phone. When Officer Emary arrived at Sgt. Lovejoy's home, he found the entire family outside weeping.

Sgt. Lovejoy and Officer Emary then contacted their supervisor, Commander Gaylord, who immediately drove to Sgt. Lovejoy's residence. Commander Gaylord photographed Bandit and began cleaning up the scene. Commander Gaylord performed a thorough initial investigation. The following Monday morning, the Chandler Police Department issued a statement to the public, explaining that there would only be an internal investigation to determine whether any department policies had been violated and not a criminal investigation.

Because Sgt. Lovejoy's residence sat on an unincorporated island, Sheriff Joseph Arpaio and the Maricopa County Sheriff's Office ("MCSO") had jurisdiction. Within days, Sheriff Arpaio held a press conference to announce that he would be launching a criminal investigation into Sgt. Lovejoy's actions. Although there was no evidence or reason to believe that Sgt. Lovejoy intended to harm Bandit, did not care for Bandit, or sought to hurt or abuse Bandit, Sheriff Arpaio launched a high profile investigation of Sgt. Lovejoy.

For nearly a month, the MCSO interviewed witnesses and collected evidence. In September 2007, unbeknownst to Sgt. Lovejoy, Sheriff Arpaio scheduled a press conference to publicly announce Sgt. Lovejoy's arrest before the arrest took place. To get Sgt. Lovejoy to come to the station in time for the press conference, an MCSO detective asked Sgt. Lovejoy to meet with him. Sgt. Lovejoy offered to meet the detective after his shift, but the detective demanded they meet sooner. When Sgt. Lovejoy questioned the urgency, the detective admitted that it was because the MCSO was going to arrest him under the animal abuse statute. Sgt. Lovejoy eventually agreed to meet the detective voluntarily, but encountered a delay. The detective's supervisor, Sgt. Summers, then called Sgt. Lovejoy directly and demanded to know why he had been delayed. He also told Sgt. Lovejoy that he had spoken with Sgt. Lovejoy's lawyer and that the lawyer said that "it was ok" for Sgt. Lovejoy to speak with MCSO detectives. Sgt. Lovejoy's lawyer, however, never spoke with MCSO officers and never gave them permission to speak with Sgt. Lovejoy. Sgt. Summers then told Sgt. Lovejoy not to notify his "command staff" and to simply come alone to the police station to meet Sgt. Summers.

Sheriff Arpaio and the MCSO would later tell the public that Sgt. Lovejoy was "behind bars" and that he could be charged with a felony. Neither were true. At the press conference, Sheriff Arpaio touted himself as tough on crime and announced that the MCSO's investigation had found that Sgt. Lovejoy had broken the law by recklessly leaving his dog in a police vehicle for thirteen hours.

Sgt. Lovejoy was eventually taken to an East Mesa jail, where he was processed, booked, and taken for an initial appearance before a judge on animal cruelty charges. The judge denied the MCSO's request for bail and released Sgt. Lovejoy. Several members of the law enforcement community spoke out against the arrest, calling it ridiculous.

In order to validate the high profile and highly controversial investigation and arrest of Sgt. Lovejoy, Sheriff Arpaio pressured the Maricopa County Attorney's Office ("MCAO") to prosecute the case. With pressure mounting from Sheriff Arpaio, the MCAO filed a criminal complaint. The MCAO attorney that was working on the case, Anthony Church, believed that there was no basis for prosecuting Sgt. Lovejoy due to a complete lack of evidence that Sgt. Lovejoy intended to harm Bandit. Church conveyed this formally, in writing, to his MCAO superiors, questioning whether or not the MCAO had an ethical basis to proceed with a prosecution that lacked probable cause. However, because he believed that Sheriff Arpaio would never allow the MCAO to drop the case, he worked behind the scenes with Sgt. Lovejoy's criminal attorney, Robert Kavanagh, to obtain dismissal of the case. In April 2008, Church and Kavanagh jointly drafted a motion to dismiss and a stipulated statement of facts, which effectively admitted that there was no evidence of the intent required by the animal abuse statute. Church agreed to not oppose the motion strongly.

When Sheriff Arpaio learned of Church's involvement he ordered the MCAO to change course. Church was removed from the case and replaced with Lisa Aubuchon, who aggressively fought the motion and urged the court to deny it, promising to produce evidence showing that Sgt. Lovejoy acted with the requisite intent, even though she knew that there was no such evidence because she was on the panel that reviewed Church's written concerns. On August 15, 2009, the case was tried in the San Tan Justice Court. The presiding justice of the peace promptly acquitted Sgt. Lovejoy and noted that the prosecution had not produced a shred of evidence to show that Sgt. Lovejoy's conduct was reckless.

Sheriff Arpaio had never before arrested a law enforcement officer in connection with the death of a police dog, even though at least three other dogs had died under unusual circumstances while in the care of Sheriff Arpaio's deputies. The first dog died trying to escape from a chain-linked kennel in his handler's home. The second dog was found dead in his kennel in the back yard of his handler's residence on a hot August evening. The veterinarian concluded that the dog had died from heat exhaustion. The third dog died from complications of Valley Fever, apparently due to not having received needed medication for nine months. None of Sheriff Arpaio's own deputies were ever criminally investigated, arrested, or prosecuted, even though the MCSO detective in charge of investigating animal deaths admitted that all of the deaths were suspicious.

II. Rule 12(b)(6) Standard

In considering a motion to dismiss, the factual allegations of the complaint are accepted as true, and all reasonable inferences are drawn in favor of the plaintiff. Rhodes v. Robinson, 408 F.3d 559, 563 n.1 (9th Cir. 2005). A complaint must state a claim for relief that is plausible and that allows the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

III. Collateral Estoppel

Defendants argue that Sgt. Lovejoy cannot contest whether there was probable cause to arrest him because that issue was already litigated and decided in a prior state proceeding. Federal courts employ the rules of the state that rendered the prior judgment to determine its preclusive effect. Jones v. Bates, 127 F.3d 839, 848 (9th Cir. 1997). In Arizona, issue preclusion applies if: (1) the issue was actually litigated in a previous proceeding; (2) the parties had a full and fair opportunity and the motivation to litigate the issue; (3) there was a valid and final decision on the merits; (4) resolution of the issue was essential to the decision; and (5) there was a common identity of the parties. Campbell v. Szl Props., 204 Ariz. 221, 223, 62 P.3d 966, 968 (2003). The party asserting estoppel bears the burden of pleading and proving that the issue cannot be relitigated. Hernandez v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir. 1980). Sgt. Lovejoy was charged by means of a Uniform Traffic Ticket and Complaint in the San Tan Justice Court for violating Arizona's animal cruelty statute. A person commits cruelty to animals if he "intentionally, knowingly, or recklessly leaves an animal unattended and confined in a motor vehicle and physical injury to or death of the animal is likely to result." A.R.S. § 13-2910A(7). A violation of A.R.S. 13-2910A(7) is a class 1 misdemeanor. A.R.S. § 13-2910G. In state court, Sgt. Lovejoy moved to dismiss pursuant to Ariz. R. Crim. P. 16.6(b), which allows a defendant to test the sufficiency of an indictment, information, or complaint. A court considering a Rule 16.6(b) motion only has authority to decide whether the indictment "informs the defendant of the essential elements of the charges; is sufficiently definite so that the defendant can prepare to meet the charges; and protects the defendant from subsequent prosecution for the same offense." Arizona v. Rickard-Hughes, 182 Ariz. 273, 275, 895 P.2d 1036, 1038 (Ct. App. 1995). The determination of legal sufficiency does not "categorically exclude challenges that involve application of law to facts." Chronis v. Steinle, 220 Ariz. 559, 561, 208 P.3d 210, 212 (2009). However, in a Rule 16.6(b) challenge, the court cannot weigh the evidence against the defendant. See Rickard-Hughes, 182 Ariz. at 275, 895 P.2d at 1038 ("Weighing the evidence before trial is not appropriate."); Mejak v. Granville, 212 Ariz. 555, 556, 136 P.3d 874, 875 (Ct. App. 2006) ("If a defendant can admit to all the allegations charged in the indictment and still not have committed a crime, then the indictment is insufficient as a matter of law.").

Sgt. Lovejoy's motion was titled "Motion to Dismiss Complaint Based on Lack of Probable Cause," and it argued that the evidence failed to establish that he had acted with the state of mind required for a conviction under the animal cruelty statute. The parties argued the motion, but no witnesses were called and no evidence was presented. The justice of the peace who heard the motion denied it in a minute entry that summarily stated: "On April 8, 2008, Counsel for Defendant, Thomas Lovejoy, filed [a] motion to dismiss. Motion to dismiss is denied." The matter then proceeded to a bench trial in which Sgt. Lovejoy was acquitted.

Although the parties presented probable cause as the issue to be decided in Sgt. Lovejoy's Rule 16.6(b) motion, the Arizona Rules of Criminal Procedure do not authorize the court to make that determination in a misdemeanor case. Arizona authorizes a pre-trial testing of the sufficiency of the state's evidence only in felony cases. Ariz. Const. Art. 2 § 30; Ariz. R. Crim. P. 5.3(a). Chronis is not to the contrary. See Chronis, 220 Ariz. 559, 208 P.3d 210. There, the Arizona Supreme Court construed a particular rule adopted in 2002 for the explicit purpose of giving a right to a probable cause hearing on aggravating factors alleged in a capital prosecution. Id. at 561-63, 208 P.3d at 212-14. However, the rule was badly drafted and did not say what the rulemaking petition stated it was supposed to accomplish. Id. The Supreme Court interpreted the rule to give effect to the plain purpose of ...


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