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Flake v. Arpaio

United States District Court, D. Arizona

May 31, 2018

Austin Flake and Logan Flake, husband and wife, Plaintiffs,
Joseph Michael Arpaio, in his official capacity as Sheriff of the Maricopa County Sheriff's Office, and in his personal capacity along with his wife Ava J. Arpaio; Maricopa County, a political subdivision of the State or Arizona; Marie Trombi, in her personal capacity, Defendants.


          Neil V.Wake Senior United States District Judge

         Before the Court is Plaintiffs' Motion for a New Trial (Doc. 247) and Memorandum in Support (Doc. 254), the Response, and the Reply. The Motion will be denied.

         I. BACKGROUND

         A. The Action Through Summary Judgment

         Jesse and MaLeisa Hughes (the “Hugheses”) ran a dog kennel business. In June 2014, Austin Flake and Logan Brown (collectively, the “Flakes”) were helping the Hugheses, Logan's parents, by watching the dogs when the Hugheses went out of town. (Doc. 134 at 1-2.) “The first five days passed without incident.” (Id. at 2.) But at 5:30 a.m. on June 20, 2014, Austin went to check on the dogs and found twenty-one of them were either dead or seriously ill. (Id.)

         Deputies from the Maricopa County Sheriff's Office (the “Sheriff's Office”), then headed by Sheriff Joseph Arpaio (“Arpaio”), came the next day to investigate. (Id.) Defendant Marie Trombi (“Trombi”), a deputy sheriff, was the appointed investigator. (Id. at 4.) Although initially referring to the incident as a “tragic accident, ” on June 23, 2014, the Sheriff's Office issued a press release promising a full investigation into the deaths of the dogs. (Id. at 2-3.) As part of the resulting investigation, electrical engineer George Hogge provided the Sheriff's Office with a report. (Id. at 3-4.) “Hogge concluded that the air conditioning system in the kennel was ‘inadequate and improperly configured' for the room, but he also said the air conditioner operated all night.” (Id. at 4.)

         Months later, on September 9, 2014, Arpaio held a twenty-two minute press conference. (Id.) He announced that he was recommending to the Maricopa County Attorney's Office (the “County Attorney's Office”) that the Flakes and Hugheses be charged with twenty-one felony counts and six misdemeanor counts of animal cruelty. (Id.) He was “very confident” the Sheriff's Office had the proper evidence, adding, “I always said it doesn't meet the smell test when you put 28 dogs in a 9-by-12 room.” (Id.)

         On October 10, 2014, the County Attorney's Office went to a grand jury to obtain an indictment of the Flakes and Hugheses. (Id.) Trombi testified to the grand jury that the electric records showed the air conditioning was on and working all night. (Id. at 5.) Hogge's report, to which Trombi had access, concluded the kennel's air conditioning unit was “inadequate and improperly configured” for the room, but it also concluded there was “no evidence of any electrical or mechanical failure of the [ ] system.” (Id.) When specifically asked by the grand jurors if the air conditioner was on, Trombi said the electrical records indicated it was on all night. (Id.) The grand jury indicted the Flakes on all counts. Later, during her deposition in this case, Trombi said she believed the Flakes “did not purposefully or intentionally harm any of the dogs and that they were not responsible for the kennel's poor ventilation.” (Id. at 6.)

         The Flakes filed a motion on December 2, 2014, to return the case to the grand jury in light of Trombi's “material misrepresentations and omissions.” (Id. at 5.) Three weeks later, the County Attorney's Office voluntarily dismissed the case. (Id.) The County Attorney told the press that “the theory of the case as initially presented to the Grand Jury did not take into account the possibility that there were issues with an air conditioning unit.” (Id.) Dismissing the case, the County Attorney said, was the result of their “ethical and professional duty as prosecutors to review information presented” and to evaluate its impact on the case. (Id.)

         Arpaio then issued another press release and posted an online video statement. (Id.) He stated that he believed charges would be re-filed because of facts uncovered in the Sheriff's Office's investigation. (Id. at 5-6.) No. such charges were filed. (Id. at 6.)

         The Flakes sued in this Court on June 19, 2015, naming Arpaio, Trombi, and Maricopa County (the “County”) as Defendants. (Id.) They claimed malicious prosecution, defamation, false light invasion of privacy, and First Amendment retaliation. (Id.) For various reasons not relevant here, the Court entered summary judgment in favor of Defendants on the defamation, false light, and First Amendment retaliation claims. (Id. at 21.)

         The Flakes brought both state and federal malicious prosecution claims against Arpaio. (Id. at 13.) The Court concluded as a matter of law that there was no probable cause to believe the Flakes “knowingly or intentionally subjected the dogs to cruel neglect or abandonment, ” as Arizona law required. (Id. at 11-12 (internal quotation marks omitted).) But the Flakes also needed to prove malice. In the federal context, that meant intent to deprive the Flakes “of a specific constitutional right.” (Id. at 13.) The Flakes failed to carry that burden. But Arizona law does not have the constitutional right requirement, and it was “readily inferable that Arpaio reached out to prosecute the Flakes for the primary improper purpose of garnering publicity.” (Id.) Finally, the Court also noted that it was a triable question whether Arpaio was entitled to qualified immunity. (Id. at 20-21.) Under Arizona law, the inquiry was whether “Arpaio knew or should have known that he was acting in violation of established law or acted in reckless disregard of whether his activities would deprive another person of their rights.” (Id. (quoting Chamberlain v. Mathis, 151 Ariz. 551, 558, 729 P.2d 905, 912 (1986) (internal quotation marks omitted).) The inquiry is therefore subjective. Because a reasonable factfinder could find Arpaio acted primarily to garner publicity, the Court could not conclude he was entitled to qualified immunity. (Id. at 21.)

         By contrast, the Flakes brought only a federal law malicious prosecution claim against Trombi. The Court at first found that “a finder of fact could not reasonably conclude that Trombi knew she was conveying false information to the grand jury and to prosecutors.” (Id. at 12.) The record showed, at most, that she misunderstood animal cruelty law but not that she offered a knowing falsehood. (Id. at 9.) Further, there was “no evidence that she acted for the specific purpose of denying the Flakes a federal right.” (Id. at 12.) Finally, federal law carries an “independent judgment presumption”-that the prosecutor exercised independent judgment in determining there was probable cause, “absolving from liability any law enforcement officers who may have aided pre-indictment.” (Id. at 7.) To overcome the presumption, the officer must have exerted undue pressure, knowingly provided misinformation, or concealed exculpatory evidence. (Id. at 8.) The Court found no evidence suggesting Trombi “exhibited an improper motive that interfered with the prosecutors' decision. As a matter of law, on the record here only Arpaio could have exerted improper influence over the County Attorney's Office.” (Id. at 9.) Having already concluded summary judgment in Trombi's favor was appropriate, the Court did not reach the question of her possible qualified immunity.

         Thus, only the state law malicious prosecution claim against Arpaio (and the County), with its attendant qualified ...

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