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Merritt v. State

United States District Court, D. Arizona

November 15, 2019

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.


          David G, Campbell, Senior United States District Judge.

         This 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.

         I. Background.

         The 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).

         Three 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. ¶¶ 53-54.

         The 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.

         As he 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.

         The 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.

         On 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.

         In 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.

         Plaintiff 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.

         The 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 9-18.

         II. Summary Judgment Standard.

         A party 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).

         III. Probable Cause.

         The 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”).

         Probable 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 suspicion.”)

         Whether 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[.]”).

         A. Probable Cause Issues in This Case.

         In 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.

         Probable 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”).

         While a 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”).[1]

         The 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.

         The 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 summary judgment.

         B. Probable Cause to Arrest.

         Plaintiff 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] (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 arrest-related claims.[3]

         Plaintiff 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.

         “It 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 Ortiz-Hernandez:

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”).

         Construing 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 Plaintiff's gun.

         On the 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 ¶¶ 34-39.[4]

         Hackbarth's 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.

         Defendants 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.

         Based 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. at 13.

         As 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.

         DPS 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.

         Defendants 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.

         Defendants 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.

         Defendants 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 shootings.

         Defendants 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.

         Yousefian 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.

         Defendants 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.

         Finally, 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.

         Having 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.

         C. Probable Cause Between the Arrest and the Indictment.

         Recognizing 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.

         According 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.[5]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.

         Although 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.

         A jury 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.

         D. Probable Cause After the Grand Jury Indictment.

         The 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.

         Defendants 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 ...

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