United States District Court, D. Arizona
Leslie A. Merritt, Jr., Plaintiff,
State of Arizona; Bill Montgomery, Maricopa County Attorney; Maricopa County; Heston Silbert; Christopher Kalkowski; Frank Milstead; Ken Hunter; Kelly M. Heape; Jennifer Pinnow; Anthony Falcone; Ed Leiter; and Vanessa Losicco, Defendants.
G, Campbell, Senior United States District Judge.
action arises out of Plaintiff Leslie Merritt's arrest,
detention, and prosecution for the I-10 freeway shootings in
Phoenix, Arizona. Plaintiff asserts multiple claims for
relief under 42 U.S.C. § 1983 and state law. Doc. 8.
Defendants have moved for summary judgment. Doc. 264. The
motion is fully briefed, and the Court heard oral argument on
October 2, 2019. Docs. 270, 273, 277. The Court will grant
the motion in part and deny it in part.
following facts are largely undisputed. Where there is a
dispute, the evidence will be viewed in the light most
favorable to Plaintiff, the nonmoving party, and all
justifiable inferences will be drawn in his favor. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
shootings occurred on the I-10 freeway in the Phoenix
metropolitan area on August 29, 2015, and a fourth occurred
sometime between August 27 and 30, 2015. Docs. 265, 271
¶¶ 1-2. Plaintiff was arrested and indicted for the
shootings in September 2015. Id. ¶¶ 41,
44. He was released from custody and the charges against him
were dismissed in April 2016. Id. ¶¶
timing of the fourth I-10 shooting is at the heart of the
parties' arguments. Plaintiff pawned a firearm around
5:30 p.m. on August 30, 2015, about four hours before
Plaintiff alleges the fourth shooting occurred. Doc. 271
¶¶ 4-5; see Doc. 261 at 2. The fourth
shooting involved Alfred Hackbarth's BMW. Hackbarth
landed at Phoenix Sky Harbor Airport shortly before 9:00 p.m.
on August 30 and returned to his BMW in the Terminal 2
parking garage, where he had parked it three days earlier.
Doc. 265-2 at 4-6, 34. Hackbarth noticed a low-tire pressure
alert on the dashboard when he started the vehicle.
Id. at 4, 35, 43. All four tires were slightly below
normal pressure. Id. at 6, 12, 36.
drove home from the airport, Hackbarth noticed that the front
left tire was losing pressure rapidly. Id. at 9. He
pulled off the freeway and stopped at a gas station to fill
up the tires. Id. He noticed the front left tire was
not filling, heard a hissing sound from the inside edge of
the tire, and felt air coming out. Id. at 5, 9-10,
41. He tried to drive home on surface streets rather than the
freeway, but the air pressure in the tire continued to
decrease and he pulled over again. Id. Hackbarth
learned from roadside assistance that his BMW tires could be
driven while flat, so he drove home and took his car to the
dealership the next day. Id. at 7. The dealership
recovered a bullet from the front left tire. Id.
Arizona Department of Public Safety (“DPS”)
recovered four bullets during its investigation of the four
shootings. Docs. 265-1 at 7. On September 7, 2015, the DPS
crime lab identified all four bullets as coming from a
Hi-Point C9 9mm handgun. Id.; see Doc.
265-3 at 2-11. Investigating officers obtained a range of
possible serial numbers for such guns, and then used a pawn
shop database to find any pawned guns associated with the
serial numbers. Doc. 265-1 at 71.
September 17, 2015, officers located eight Hi-Point C9 9mm
handguns to submit to the DPS crime lab for ballistics
testing. Id. at 71-72. On the morning of September
18, the crime lab identified one of the guns as the source of
the bullets recovered in all four shootings. Id. at
72. A DPS officer reviewed the list for the pawned guns and
identified Plaintiff as the owner of the gun in question.
Id. at 72-73. The DPS officer also identified
Plaintiff's Facebook page as containing several posts
about the I-10 shootings. Id. at 72; see
Doc. 265-1 at 37-47. Defendants arrested Plaintiff without a
warrant on the evening of September 18. Docs. 265-1 at 73-74,
265-3 at 44-45. A grand jury indicted Plaintiff for the I-10
shootings six days later. Doc. 265-5 at 30-46.
early February 2016, while preparing for trial, the Maricopa
County Attorneys' Office asked Lucien Haag to conduct an
independent firearms identification analysis. Doc. 265-6 at
173. In his report dated April 14, 2016, Haag concluded that
the four evidence bullets could not be excluded or identified
as having been fired from Plaintiff's gun. Id.
at 174. Plaintiff was released from jail on April 19, and the
charges against him were dismissed without prejudice six days
later. Docs. 265-2 at 128, 265-6 at 186.
filed suit against Maricopa County, Maricopa County Attorney
William Montgomery, Deputy County Attorneys Ed Leiter and
Vanessa Losicco, the State of Arizona, and the following DPS
officers: Director Heston Silbert, Criminalist Christopher
Kalkowski, Colonel Frank Milstead, Lieutenant Colonel Ken
Hunter, Major Kelly Heape, Captain Jennifer Pinnow, and
Detective Anthony Falcone. Docs. 1, 8. The amended complaint
asserts ten claims: false arrest, false imprisonment, and
malicious prosecution under § 1983 and state law (Counts
1-3 and 5-7); a § 1983 Brady violation (Count
4); and negligence, intentional infliction of emotional
distress, and aiding and abetting tortious conduct under
state law (Counts 8-10). Doc. 8 at 16-24. Plaintiff dismissed
the claims against the County Defendants. Docs. 41, 224.
remaining Defendants - the State of Arizona and the DPS
officers - argue that summary judgment is warranted on all
claims because: (1) probable cause existed for
Plaintiff's arrest, imprisonment, and prosecution; (2)
qualified immunity bars the § 1983 tort-based claims;
(3) independent prosecutorial judgment bars the malicious
prosecution claims; (4) common law immunity bars the
negligence claim; (5) no evidence shows that Defendants knew
they were aiding and abetting a tort; (6) there can be no
Brady violation without a conviction; and (7) no
evidence supports the extreme and outrageous conduct element
for intentional infliction of emotional distress. Doc. 264 at
Summary Judgment Standard.
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Summary judgment is appropriate if
the evidence, viewed in the light most favorable to the
nonmoving party, see Matsushita, 475 U.S. at 587,
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law, see Fed. R. Civ. P. 56(a). Summary judgment is
also appropriate against a party who “fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. Only disputes over facts
that might affect the outcome of the suit will preclude
summary judgment, and the disputed evidence must be
“such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
existence of probable cause to arrest or indict is a defense
to claims arising from the arrest or indictment. See
Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir.
1994) (“Under Arizona law, probable cause is an
absolute defense to a claim of false arrest and
imprisonment.”); Lacy v. Cty. of Maricopa, 631
F.Supp.2d 1183, 1193 (D. Ariz. 2008) (“Probable cause
to arrest or detain is an absolute defense to any claim under
§ 1983 against police officers for wrongful arrest or
false imprisonment[.]”); Lassitter v. City of
Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009)
(“[P]robable cause is an absolute defense to malicious
prosecution.”); Hockett v. City of Tucson, 678
P.2d 502, 505 (Ariz.Ct.App. 1983) (“The law is well
settled that the existence of probable cause is a complete
defense to claims of false imprisonment and malicious
prosecution.”); Hansen v. Garcia, Fletcher, Lund
& McVean, 713 P.2d 1263, 1265 (Ariz.Ct.App. 1985)
(granting summary judgment on negligence claims because
“the officers made [the] arrest with probable
cause”); Tillotson v. City of San Francisco,
739 Fed.Appx. 887, 889 (9th Cir. 2018) (intentional
infliction of emotional distress claim “failed because
the officers' arrest was based on probable cause”).
cause to arrest exists when, “‘under the totality
of the circumstances known to the arresting officers, a
prudent person would have concluded that there was a fair
probability'” the defendant committed a crime.
Gasho, 39 F.3d at 1428 (quoting United States v.
Smith, 790 F.2d 789, 792 (9th Cir. 1986)). Because
probable cause “deals with probabilities and depends on
the totality of the circumstances, ” it is a
“fluid concept . . . not readily, or even usefully,
reduced to a neat set of legal rules.” Maryland v.
Pringle, 540 U.S. 366, 370-71 (2003) (quoting
Illinois v. Gates, 462 U.S. 213, 232 (1983)). It
“requires only a probability or substantial chance of
criminal activity, not an actual showing of such
activity.” Gates, 462 U.S. at 243 n.13;
see District of Columbia v. Wesby, 138 S.Ct. 577,
589 (2018) (same). Although conclusive evidence of guilt is
not necessary to establish probable cause, “mere
suspicion, common rumor, or even strong reason to suspect are
not enough[.]” McKenzie v. Lamb, 738 F.2d
1005, 1008 (9th Cir. 1984); see Gasho, 39 F.3d at
1428 (“Probable cause is more than mere
a given state of facts constitutes probable cause usually is
a question of law for the court. Sarwark Motor Sales,
Inc. v. Woolridge, 354 P.2d 34, 36 (Ariz. 1960). But
where “the evidence is conflicting, so that on one
conclusion as to the facts therefrom probable cause exists,
while from another it does not, it is then for the jury to
determine the true state of facts and to apply the law as
laid down by the court to those facts.” Id.;
see McKenzie, 738 F.2d at 1008 (“[I]n a §
1983 action the factual matters underlying the judgment of
reasonableness generally mean that probable cause is a
question for the jury[.]”).
Probable Cause Issues in This Case.
Arizona, a grand jury must return an indictment “if,
from all the evidence taken together, it is convinced that
there is probable cause to believe the person under
investigation is guilty of [a] public offense.” A.R.S.
§ 21-413. Defendants argue that the grand jury's
probable cause finding in this case defeats all of
Plaintiff's claims, including his false arrest claims.
Doc. 264 at 11. The Court does not agree.
cause to arrest Plaintiff was required six days before the
grand jury indictment - when Defendants arrested Plaintiff
without a warrant. Courts must consider whether “the
facts available to the officers at the moment of the
arrest would ‘warrant a man of reasonable caution
in the belief' that an offense has been committed.”
Beck v. Ohio, 379 U.S. 89, 96 (1964) (citation
omitted; emphasis added); see also Rosenbaum v. Washoe
Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (the probable
cause analysis for a warrantless arrest involves “the
facts known to the officer at the time of the arrest”);
Reams v. City of Tucson, 701 P.2d 598, 601
(Ariz.Ct.App. 1985) (probable cause for an arrest must be
evaluated by “the facts as they existed at the time of
the arrest, and not afterward”).
post-arrest indictment “cuts off the length of
detention, and thus damages, stemming from [a] false arrest,
the indictment does not absolve the officer from liability
for [an] initial arrest made without . . . probable
cause.” Jones v Cannon, 174 F.3d 1271, 1286
n.8 (11th Cir. 1999); see Savino v. City of New
York, 331 F.3d 63, 75 (2d Cir. 2003) (explaining that
“the presumption of probable cause arising from an
indictment ‘applies only in causes of action for
malicious prosecution and is totally misplaced when applied
in false arrest actions'”) (citation omitted);
Reams, 701 P.2d at 601-02 (finding the post-arrest
indictment irrelevant to the plaintiff's false arrest
claim because “[a]fter-the-fact judicial participation
cannot validate an unlawful arrest”).
Court accordingly must decide whether Plaintiff's arrest
was, as a matter of undisputed fact, supported by probable
cause at the time of his arrest. As discussed below, issues
of fact prevent the Court from finding probable cause as a
matter of law, and therefore from granting summary judgment
on Plaintiff's claims arising from his arrest.
Court then will address the effect of the grand jury's
indictment on the existence of probable cause to prosecute
Plaintiff and whether the indictment supports summary
judgment on claims arising from the indictment. As discussed
below, the Court concludes that Plaintiff cannot overcome the
presumption of probable cause created by the indictment and
that his claim for malicious prosecution, and any damages
accruing after the date of indictment, must be dismissed by
Probable Cause to Arrest.
asserts claims for false arrest (Counts 1 and 5) and false
imprisonment (Counts 2 and 6) against the State of Arizona.
Doc. 8 ¶¶ 106-17, 134-44. Defendants identify the
following evidence as creating the requisite probable cause
to arrest and detain Plaintiff: (1) the DPS crime lab
identified Plaintiff's gun as the source of the bullets
recovered from all four shootings, the lab is fully
accredited with an excellent track record, and ballistics
analysis rarely makes false identifications; (2) Plaintiff had
personal possession of his gun between August 22 and 30,
2015; (3) the date of the BMW shooting was not clear from the
evidence, considering that the low-tire pressure alert came
on in the airport garage and the driver did not hear a shot
as he drove home; and (4) Plaintiff's Facebook page had
several links to the I-10 shootings. Docs. 264 at 11-12, 273
at 2-3. Plaintiff counters that Defendants' facts rely on
fabricated ballistics evidence and that reasonable officers
would not have reached the same conclusions. Doc. 270 at
1-12. Because the Court agrees that Plaintiff's
“reasonable officer” argument raises a genuine
issue of fact when the evidence is viewed in his favor, it
need not address his other contentions in addressing the
asserts that a reasonable officer would have resolved the
discrepancy between the ballistics evidence and the timing of
the BMW shooting before arresting him. Doc. 270 at 10. He
argues that the officers knew the crime lab's results
were not credible because Plaintiff's gun was in the pawn
shop when the BMW shooting occurred. Id. He contends
that it was not reasonable to believe the lab over the BMW
driver's report, particularly when there was no evidence
the driver was wrong. Id.
is well-established that a ‘person may not be arrested,
or must be released from arrest, if previously established
probable cause has dissipated.'” Nicholson v.
City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019)
(quoting United States v. Ortiz-Hernandez, 427 F.3d
567, 574 (9th Cir. 2005)). As the Ninth Circuit explained in
If probable cause is established at any early stage of the
investigation, it may be dissipated if the investigating
officer later learns additional information that decreases
the likelihood that the defendant has engaged, or is
engaging, in criminal activity. . . . As a corollary of the
rule that the police may rely on the totality of facts
available to them in establishing probable cause, they also
may not disregard facts tending to dissipate probable cause.
427 F.3d at 574 (citation and alterations omitted); see
United States v. Lopez, 482 F.3d 1067, 1073 (9th Cir.
2007) (explaining that the execution or continuation of an
arrest becomes illegal where “additional information
obtained at the scene may indicate that there is less than a
fair probability that the defendant has committed or is
committing a crime”). Where probable cause has
dissipated during an investigation, police officers have a
duty to conduct further inquiry and reestablish probable
cause before arresting the suspect. “It will not
suffice that, at some earlier point in time - before the
police gleaned certain ‘dissipating' facts - the
police may have had probable cause.” United States
v. Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007); see
Merriman v. Walton, 856 F.2d 1333, 1335 (9th Cir. 1988)
(finding that any probable cause had dissipated when the
alleged victim of the kidnapping had returned and noting that
“[a] reasonable officer would have made further inquiry
before effecting a warrantless arrest”); Fuller v.
M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991)
(citing Merriman and noting that “the police
officers had a duty to conduct an investigation into the
basis of the witness' report”); Ovasapyan v.
City of Glendale, No. CV 08-194-CAS (JWJx), 2009 WL
10699128, at *5 (C.D. Cal. Apr. 27, 2009) (denying judgment
as a matter of law where “evidence showed that, rather
than making further inquiry, defendants arrested plaintiff
and ignored plaintiff's alibi and cellular records
placing him five miles away from the crime site”).
the evidence in Plaintiff's favor, the Court cannot
conclude as a matter of undisputed fact that Defendants
sufficiently resolved the serious question raised by the fact
that Plaintiff's gun was in a pawn shop when the
BMW's tire rapidly lost air on the freeway on August 30,
2015. The timing of events is important. Plaintiff pawned his
gun at 5:31 p.m. that day. Doc. 265-1 at 76. Hackbarth drove
his BMW home from the airport, and the front left tire
rapidly lost air on the freeway, sometime between 9:30 and
10:00 p.m. that night. Docs. 265-1 at 65, 265-2 at 4-7. Thus,
if the BMW's tire was shot at the time when the tire
rapidly lost air, it could not have been shot by
morning of September 18, 2015, Criminalist Christopher
Kalkowski informed Detective Graff that a Hi-Point C9 9mm
handgun with serial number P1893054 had been forensically
linked to the bullets from all four shooting incidents,
including the shooting of the BMW tire. Doc. 265-1 at 72.
Detective Graff then reviewed the list of the pawned guns and
learned that the gun with the serial number in question had
been pawned by Plaintiff on August 30, 2015 at 5:31 p.m.
Id. Plaintiff was arrested later that evening.
Id. at 73-74; see Doc. 265 ¶¶
BMW has a tire pressure monitoring system which sheds some
light on timing. A symbol on the dashboard illuminates when
one or more of the tires is below normal pressure. Doc. 265-2
at 36. The system allows the driver to then identify the
specific PSI for each tire. Id. The display changes
colors - from green to yellow - when a tire falls below a
safe PSI level. Id. at 9; see Docs. 265
¶ 6, 271-3 at 9.
interviewed Hackbarth on September 3, 2015, and have provided
a written transcript of the recorded interview. Doc. 265-2 at
2-14; see also Doc. 265-1 at 64-66 (DPS
investigative report recounting the interview). Hackbarth
explained that when he started his BMW in the airport garage
on the evening of August 30, he noticed that all four tires
were slightly below normal pressure - about 32 or 33 PSI out
of 35. Doc. 265-2 at 5-6. This was not unusual because the
vehicle had been parked at the airport for a few days, and
Hackbarth felt comfortable driving home because the pressure
in each tire was at a “reasonable level.”
Id. at 5, 12. Hackbarth noticed that the front left
tire's pressure began to decrease on the transition from
the I-10 freeway to State Route 51, and “when [he] got
on the 51 it was dropping pretty hard[.]” Id.
at 9; see Id. at 13. This is when Hackbarth pulled
over to put air in the tires and found the leak on the inside
edge of the tire. Id. at 10.
on his flight landing around 8:48 p.m. and a text message he
sent to his wife about the flat tire at 10:12 p.m.,
Hackbarth's “best estimate” is that the tire
lost air rapidly sometime between 9:30 and 10:00 p.m.
Id. at 4, 6. Hackbarth told the officers that he was
“aghast” to learn from the dealership that a
bullet was found in the tire because shootings cannot happen
in a parking garage. Id. at 12. Although he later
stated that the shooting potentially could have occurred in
the garage, this “seemed less likely [because] the tire
would've [been] going down quicker.” Id.
noted above, the ballistics match to Plaintiff's gun was
made on the morning of September 18, 2015, and Plaintiff was
arrested that evening. In their summary judgment briefing,
Defendants fail to provide information about how, before they
arrested Plaintiff, they resolved the serious issue raised by
the timing of the gun's pawn and the tire's rapid
loss of air. See Docs. 264 at 6-8, 273 at 2-3.
Defendants made clear during oral argument that they did
nothing to resolve this timing issue before they arrested
Plaintiff. Tr. 19:18-20:6; see Doc. 276.
crime lab supervisor John Maciulla testified that he
theorized that a bullet fragment could have lodged in the
side wall of the BMW tire and prevented the tire from
deflating for days. Doc. 265-2 at 95; see Doc. 271-1
at 51. This is the theory Detective Baroldy presented at the
grand jury hearing on September 24, 2015. Doc. 271-3 at
20-21. But Defendants do not explain when Maciulla developed
this theory or why they accepted it as reasonably
trustworthy. If the theory was incorrect - if the BMW tire
was in fact shot when Plaintiff's gun was in the pawn
shop - then the ballistics evidence upon which Defendants
relied so heavily was incorrect. The ballistics evidence
found that all four bullets were fired by the same gun; if
that gun could not have shot the BMW tire, then it could not
have shot the other vehicles either.
have failed to provide evidence from which the Court can
conclude as a matter of law that they reasonably addressed
the significant factual discrepancy between the time of the
gun's placement in the pawn shop and the time of the BMW
tire's rapid deflation. Law enforcement officers
“may not disregard facts tending to dissipate probable
cause.” Ortiz-Hernandez, 427 F.3d at 574.
Defendants' arguments to the contrary are unavailing.
note that Hackbarth did not hear a loud bang while driving
home from the airport, which suggests that the BMW's tire
was shot earlier. Doc. 264 at 5, 12. But Hackbarth explained
during the September 3 interview that he had the radio on and
his BMW is “pretty quiet so you don't here much
outside[.]” Doc. 265-2.
also rely on Plaintiff's purported Facebook
“obsession” with the I-10 shootings. Doc. 264 at
7, 11; see Docs. 265 ¶ 39, 265-3 at 22-36. But
the I-10 shootings were a matter of significant public
interest in the Phoenix area and generated much media
attention. Defendants do not explain how the posting of links
to news stories about the shootings on social media supports
a finding of probable cause to arrest Plaintiff for the
cite Yousefian v. City of Glendale, 779 F.3d 1010
(9th Cir. 2015), to argue that the lack of a clear date and
time for the BMW shooting does not negate probable cause.
Doc. 264 at 11-12; see Tr. at 15:3-7. But
Yousefian involved a police officer “who
[found] an elderly and infirm man bleeding profusely from a
head wound admittedly inflicted by a younger man without
significant injuries[.]” 779 F.3d at 1014. Both the
victim and his wife told the officer that the attack had
occurred without provocation. Id. The officer
considered Yousefian's explanation that he had struck the
victim in self-defense, but found the victim and his
wife's version of events to be more credible.
Id. Even though the officer's credibility
determination was later rejected by the trial jury, the court
concluded that no reasonable jury could find that the facts
known to the officer were plainly insufficient to establish
probable cause. Id.
does not change the Court's analysis. Hackbarth had no
reason to be untruthful to the DPS officers regarding the
timing of the rapid tire deflation. Hackbarth, unlike
Yousefian, was not a criminal suspect. And the officers in
this case were dealing not with a mere credibility
determination, but with contradictory evidence - the time of
the gun's placement in the pawn shop and the time of the
tire's rapid deflation.
further argue that they were only required to show that one
bullet matched Plaintiff's gun for the arrest to be
valid. Doc. 264 at 11-12. But as noted above, if
Plaintiff's gun could not have fired the BMW bullet, then
it could not have fired the other three bullets if one
accepts Kalkowski's conclusion - as Defendants did - that
a single gun fired all four bullets. See Doc. 265
¶¶ 27, 34; Doc. 270 at 10-11.
Defendants assert that the Court should apply the collective
knowledge doctrine for determining probable cause. Doc. 264
at 10. That doctrine allows courts to impute the collective
knowledge of all officers involved in an investigation to the
arresting officer. See United States v. Villasenor,
608 F.3d 467, 475 (9th Cir. 2010). But the doctrine does not
help in this case because Defendants do not identify any
officer who had resolved the timing discrepancy before
Plaintiff was arrested and whose resolution of the issue
could be attributed to all of the officers.
considered the totality of the circumstances, the Court
cannot conclude as a matter of law that Defendants relied on
reasonably trustworthy information when they arrested
Plaintiff. The factual issues raised by Plaintiff prevent the
Court from granting summary judgment on the basis of probable
cause to arrest.
Probable Cause Between the Arrest and the
the discrepancy between when the gun was pawned and when the
BMW tire lost air, Defendants decided to re-interview
Hackbarth after Plaintiff's arrest. Doc. 271-2 at 49-51,
117-18. The interview occurred on September 22, 2015 - two
days before the grand jury indicted Plaintiff. It did not
resolve the issue.
to an officer's report of the interview, Hackbarth stated
that he had no problem with the BMW's tires as he drove
to the airport on the morning of August 27, and the
vehicle's low pressure alert was not illuminated that
morning. Doc. 271-3 at 10.Consistent with his description of
events in the initial interview, Hackbarth reported that all
four tires were “slightly low” - ranging from 32
to 33 PSI - when he returned to his car on the evening of
August 30. Id. at 9. Hackbarth stated that he saw
the alert for the front left tire change from green to yellow
as he merged onto State Route 51 from the I-10 freeway.
Id. Hackbarth also told the interviewing officers
that “it was impossible for a bullet to strike his
vehicle . . . in the [airport] garage based on where he had
parked, ” which was “three or four cars in from
the aisle, with cars parked on either side of him when he
parked and when he returned to his vehicle.”
Id. at 10.
Hackbarth provided somewhat different answers in his
deposition in this case (see Doc. 265-2 at 36, 43),
the September 22 interview was the inquiry specifically made
in response to information about when Plaintiff's gun was
pawned. If accurate, the interview made it highly likely that
the BMW tire was not shot while parked at the airport for
three days. Rather, the interview suggested that the tire was
shot after the BMW left the airport garage at about 9:30 p.m.
on August 30, while Plaintiff's gun was in the pawn shop.
reasonably could conclude from the evidence that Defendants
lacked probable cause to detain Plaintiff from the time of
his arrest until he was indicted. The Court will deny summary
judgment on the time between the arrest and indictment.
Probable Cause After the Grand Jury Indictment.
analysis changes significantly for claims arising after the
grand jury indictment on September 24, 2015. Doc. 265-5 at
30-36. Because the indictment raises a presumption of
probable cause, Plaintiff cannot succeed on his
post-indictment claims without showing that the indictment
was procured fraudulently, with bad faith and malice. This is
a significantly higher burden than is required for
Plaintiff's arrest-based claims.
argue that Plaintiff cannot rebut the presumption of probable
cause created by the indictment. Doc. 264 at 11, 273 at 4.
Plaintiff contends that he can overcome the presumption
because Defendants acted with malice, fabricated inculpatory
evidence, and withheld exculpatory evidence from the grand
jury. Doc. 270 at 7-8, 12-14. The Court will first address
the presumption created by an indictment under Arizona law,
and then will consider whether Plaintiff has presented