United States District Court, D. Arizona
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 ...