Norton v. Arpaio

          ORDER

          HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants Penzone, Arpaio, Henderson, Jones, Hegstrom, Gandara, Locksa, and Hechavarrias' (together, the “Defendants”) Partial Motion for Summary Judgment (Docs. 215, 213^[1]), Plaintiffs' Response (Docs. 218, 219^[2]), and Defendants' Reply (Doc. 220). For the reasons stated below, Defendants' motion is denied in part and granted in part.^[3]

         I. Background ^[4]

         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.)

         A. The Investigation

         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.)

         B. Criminal Cases

         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.)

         C. Current Case

         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.)

         II. Standard of Review

         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).

         III. Discussion

         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.)

         A. Qualified Immunity

         “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)) (stating 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.

         1. False Arrest (Claim I) ^[7]

         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) (rejecting the “closely related offense” rule); 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 circumstances within his knowledge are sufficient for a reasonably prudent person to believe that the suspect has committed a crime.” Rosenbaum, 663 F.3d at 1076 (citing Crowe v. Cty. of San Diego, 608 F.3d 406, 432 (9th Cir. 2010), cert. denied, 131 S.Ct. 905, 907 (2011)). Here, Defendants argue that Henderson had probable cause, at the time of arrest, to believe Norton and Frimmel committed Conspiracy to Commit Taking the Identity of Another, a violation of A.R.S. Sections 13-2008 and 1003, and, as against Frimmel, for Obstructing a Criminal Investigation by Misrepresentation, a violation of A.R.S. Section 13-2409.^[8] (Doc. 215 at 7.) Because the Court finds that Henderson had probable cause to arrest Norton and Frimmel for taking the identities of others, the Court need not address whether there was also probable cause for conspiracy to take identities or obstruction of justice.

         At the time of the arrests, the taking of identity statute prohibited a person from knowingly taking, purchasing, manufacturing, recording, possessing or using another's identity without their consent for any unlawful purpose or with the intent to obtain or continue employment. A.R.S. § 13-2008(A) (2008). A review of the free talks' transcripts, as referenced by Defendants and discussed below, satisfies the Court that Henderson, at the time of arrest on January 22, 2014, had probable cause to arrest Plaintiffs for taking the identities of another person. Here, Henderson could conclude that there was a “fair probability” that Frimmel and Norton, the owner and manager of Uncle Sam's, respectively, were hiring employees, knew employees were undocumented, sought out undocumented workers to work at Uncle Sam's, and used that information to hire and employ undocumented workers. See A.R.S. § 13-2008 (2008).

         Specifically, one of the indicted employees who participated in the free talks, Victor Vargas, stated that “everyone” at the restaurant knew about the lack of papers (Doc. 213, Ex. 5 at MELC629421-23), that Norton would make fun of employees' illegal statuses (Doc. 213, Ex. 5 at MELC629424-2; MELC629435-37), and that Frimmel and Norton would treat the “illegals” badly because “they knew that [the illegals] were going to put up with all that because [they] wouldn't be able to find a job anywhere else” (Doc. 213, Ex. 5 at MELC629435; MELC629444-47). Vargas stated that a friend told him “there was no problem” with him getting a job at Uncle Sam's even though he did not have “work papers” because “[Frimmel] knew how to do it so [he] could get a job there.” (Doc. 213, Ex. 5 at MELC629430-31.) Vargas explained that, upon meeting Frimmel, Vargas told him he did not have “papers, ” and Frimmel said he could bring them within three days, which he did, and Frimmel accepted them. (Doc. 213, Ex. 5 at MELC629431-32.) Vargas also said that Frimmel and Norton were looking to hire five employees, and that Norton told the cooks to “tell [their] friends [that, ] even though [Frimmel and Norton] knew they didn't have papers, they could work there.” (Doc. 213, Ex. 5 at MELC629432.)

         Similarly, another indicted employee in the free talks, Fernando Abundez Gonzalez, stated that he also did not present identification at the time of hire, but was told three days into the job that he needed to provide identification “however [he] could.” (Doc. 213, Ex. 5 at MELC629456-57, 73.) Though he said “Lalo” was the employee who gave him an application and told him about needing to get a social security card, Gonzalez said that Frimmel was close by at the time of hire. (Doc. 213, Ex. 5 at MELC629456-57.) He said that “Lalo” went to Frimmel and told him that Gonzalez wanted to work at Uncle Sam's, and Frimmel said, “Okay. Um, tell him tomorrow.” (Doc. 213, Ex. 5 at MELC629456-57.) He also stated that, once a new food handler's permit law went into effect requiring holders to get a license, Gonzalez asked Norton would what happen to [the undocumented workers] (because they did not have licenses), and she said, “Whatever. There's no problem.” (Doc. 213, Ex. 5 at MELC629459-60, 63.) Gonzalez stated that Frimmel and Norton mentioned his immigration status “many times, ” and he believed Frimmel actually knew about the undocumented statuses because Frimmel “began treat[ing them] very badly.” (Doc. 213, Ex. 5 at MELC629464.) He stated Frimmel would call them illegals. (Doc. 213, Ex. 5 at MELC629465.) He also stated that when Frimmel got married, “it seemed like he left … Norton in charge” and that Norton was “[Frimmel's] right hand.” (Doc. 213, Ex. 5 at MELC629465-66, 76.) Specifically, he said that Norton flipped him off and laughed when sheriffs would come into the restaurant, and he would ask her why she did not tell the sheriffs that the workers were illegals. (Doc. 213, Ex. 5 at MELC629466-67, 75-76.) He also stated that, for approximately fifty potential applicants, he told Norton that those applicants did not have papers, and she would say “whatever, ” and they would be hired. (Doc. 213, Ex. 5 at MELC629469-71.) He stated that Frimmel was also present for some of those encounters. (Doc. 213, Ex. 5 at MELC629471.) He stated that both Frimmel and Norton would specifically ask him to recruit undocumented workers. (Doc. 213, Ex. 5 at MELC629483-86.)

         Likewise, a third indicted employee in the free talks, Valentin Villanueva Fernandez, told Henderson that Norton called the undocumented workers “stinky, smelly, illegals” and would otherwise make fun of their undocumented status. (Doc. 213, Ex. 7 at 7, 15.) He also said Frimmel and Norton would tell employees to bring friends to come work at Uncle Sam's, knowing they were undocumented, because “they're the people who work the most and - and [Uncle Sam's can] pay them less.” (Doc. 213, Ex. 7 at 9-10, 16.) He also stated that Frimmel and Norton knew he could not get a food handler's card because he was undocumented and could not provide a license to receive one. (Doc. 213, Ex. 7 at 12-13, 19-21.) Finally, Emigdio Gonzalez, the fourth indicted employee in the free talks, stated that he was “pretty sure [Frimmel and Norton] did” know he was undocumented, and “[y]ou know, if they didn't ask me, I wouldn't say nothin.'” (Doc. 213, Ex. 8 at Transcript 36-37.) He stated that he did not want to speak with Frimmel about his legal status (or anyone else's) for fear of being fired. (Doc. 213, Ex. 8 at Transcript 44.)

         Based on these free talk interviews, Henderson could reasonably conclude that Plaintiffs were in violation of A.R.S. Section 13-2008 (2008). All four employees told Henderson outright that they believed both Frimmel and Norton knew employees were undocumented and three of the employees stated that Frimmel and Norton would tell employees to bring undocumented individuals to come work at Uncle Sam's. It is reasonable to conclude on the facts here that Frimmel, Uncle Sam's owner, and Norton, its manager, had authority to hire employees, were involved in hiring applicants, knew employees were undocumented, were recruiting undocumented workers, and allowing such workers to continue working knowing they possessed false documentation. Though there is evidence that Frimmel and Norton were not physically present at the time each indicted worker was hired, there is evidence that they both were approving and involved in the hiring process, if not physically present. Further, though Frimmel and Norton were not said to have affirmatively told the indicted workers themselves to bring fraudulent papers as identification, it can be inferred that other workers who were ultimately hired did possess fraudulent identification because Frimmel and Norton sought to hire undocumented workers. This is even more so where the “culture” appears rampant with knowledge that both Frimmel and Norton were aware of their current workers' undocumented statutes. Moreover, though employee Emigdio Gonzalez said he did not want to speak with Frimmel about his legal status (or anyone else's), that hesitation does not negate that he also told Henderson he was “pretty sure” Frimmel and Norton knew he has undocumented. This is further supported by the other employees' statements about their belief of the knowledge Frimmel and Norton possessed regarding the employees' statuses.

         Thus, Henderson had probable cause to arrest Frimmel and Norton for a violation of A.R.S. Section 13-2008 (2008). Plaintiffs do not raise a genuine issue of material fact here nor do they analyze probable cause at all for that matter. Their analysis focuses on the materiality and alleged deficiencies in Henderson's charging summary and other related materials. (Doc. 218 at 4.) However, it is not germane to this probable cause determination that Henderson may have affirmatively or materially mischaracterized key evidence in that summary, which was drafted after he made the arrests, or in whatever other materials Plaintiffs might be referring to in their motion. Again, the analysis is simply whether the information Henderson knew at the time of the arrests could lead a prudent person to believe the suspects had committed a crime. Plaintiffs simply do not refute ...