Opinion
No. CV–15–00460–PHX–ROS
07-24-2017
Scott GILLEN, et al., Plaintiffs, v. State of ARIZONA, et al., Defendants.
Donna Marie McDaniel, Martin Andrew Bihn, Bihn & McDaniel PLC, Phoenix, AZ, for Plaintiffs. G. Michael Tryon, Stephanie Susan Elliott, Office of the Attorney General, Phoenix, AZ, for Defendants.
Donna Marie McDaniel, Martin Andrew Bihn, Bihn & McDaniel PLC, Phoenix, AZ, for Plaintiffs.
G. Michael Tryon, Stephanie Susan Elliott, Office of the Attorney General, Phoenix, AZ, for Defendants.
ORDER
Honorable Roslyn O. Silver, Senior United States District Judge
Plaintiff Scott Gillen was detained outside of his home approximately forty-five minutes before his home was searched pursuant to a warrant. Gillen filed this suit alleging, among other things, his detention and the search of his home violated his constitutional rights. Gillen now seeks summary judgment that the detention violated his rights. The officers involved in Gillen's detention, the different officers involved in the search of Gillen's home, and an official from the Town of Hayden, seek summary judgment on all claims. Gillen's motion will be granted while the other motions will be granted in part and denied in part.
BACKGROUND
The parties agree on relatively few background facts and present different versions of most of the relevant events. The following description of events describes only those material background facts necessary to resolve the cross-motions for summary judgment. This is not a complete recitation of all the facts and, in particular, this account does not describe most of the alleged political intrigue and infighting which Gillen believes contributed to the events but are not relevant to resolution of these motions.
Bad motives often are irrelevant when considering whether a constitutional violation occurred. See, e.g. , Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (U.S. 1989) (reasonableness of force is assessed "without regard to [the officers'] underlying intent or motivation").
In November 2011, Gillen was hired as the Chief of Police for the Town of Hayden Police Department. (Doc. 139 at 2). At that time, Yvette Waddell worked as the police department's office manager. (Doc. 139 at 3). In October 2012, Gillen discovered two pistols in the police department's armory. The pistols did not have any tags or documentation so Gillen took the pistols to Waddell's desk to see if she knew anything about them. (Doc. 139–3 at 78–79). Waddell stated she did not. According to Waddell, during her discussion with Gillen he "remarked he would like one of the guns for himself." (Doc. 139–3 at 205). Waddell claims she saw Gillen then return the pistols to the armory. (Doc. 139–3 at 205). Gillen remembers this interaction slightly differently.
According to Gillen, while he was discussing the pistols with Waddell, Detective Aubrey Keck stopped by Waddell's desk. Gillen claims he discussed the pistols with Keck and Keck commented that one of the pistols "would be a nice weapon to have on duty." (Doc. 139–3 at 80). Gillen denies he made any similar statement in response. After that interaction, Gillen claims he turned the pistols over to Officer Kevin Heaslip to determine why the police department had the pistols.
Regardless of which version of events is accurate, it is undisputed Heaslip ran the pistols' serial numbers through the available databases and determined the pistols had never been reported as stolen. A week or two later, Heaslip claims he overheard Gillen and Keck talking about the weapons. According to Heaslip, Keck said "Ooh, I want that one" to which Gillen responded "No. That one's mine." (Doc. 139–2 at 70). Waddell recounts a substantially similar story regarding this later conversation between Gillen and Keck. (Doc. 139–3 at 205). The record does not establish what happened to the pistols after Gillen and Keck allegedly discussed them but it is undisputed Gillen continued as Chief of Police for approximately ten more months.
On August 5, 2013, Gillen was terminated by the Hayden Town Council. Gillen attributes his termination to long-running disagreements he had with Charles Vega, the Mayor of Hayden at that time. It is undisputed that Gillen's termination had nothing to do with the pistols. Immediately after Gillen was terminated, the Hayden Town Manager went with Gillen to the police station so that Gillen "could get some personal items" out of his office. (Doc. 156–2 at 12). The Town Manager saw the pistols in Gillen's office and saw that Gillen did not take them with him when he gathered his other personal items.
Following Gillen's termination, Officers Brian Marquez and Heaslip became Interim Co–Chiefs of the police department. Shortly after assuming those positions, Marquez and Heaslip directed Waddell "to conduct an inventory of all weapons at the police department." (Doc. 139–3 at 205). In conducting that inventory, Waddell could not locate the two pistols. Marquez and Heaslip then decided to conduct a full investigation regarding the missing pistols. (Doc. 139 at 13). They assigned a recently hired officer named Michael Haddad to conduct the investigation. When making that assignment, Heaslip told Haddad about the conversation he overheard where Gillen and Keck were discussing the weapons and Gillen had said "No. That one's mine." (Doc. 139–2 at 70). This preliminary information from Heaslip appears to have prompted Haddad to focus his investigation on whether Gillen took the pistols.
Haddad died while this case was pending. In November 2016, the Court granted a request to substitute Haddad's estate as the named defendant. (Doc. 145). For simplicity, the Court will refer to Haddad as the defendant instead of his estate.
In conducting his investigation, Haddad used the pistols' serial numbers to locate their original owner. (Doc. 139–2 at 128). Haddad interviewed that owner and discovered the pistols had been confiscated by the Hayden Police Department years earlier during a traffic stop. The owner had been unsuccessful in his attempts to recover the pistols but stated he would like to recover them if possible. Haddad also conducted a recorded interview of former Hayden Police Officer David Neuss. The recording includes the following statements.
Haddad: So, for the story that's going around ... there was two guns that were seen and then there was two guns that weren't seen.
Neuss: Ok....
Haddad: Do you remember seeing these guns?
Neuss: No. I never saw the guns.
Haddad: Ok.
Neuss: I have nothing to do with their guns. I had nothing to do with their safe [where the guns were stored]. The only time I was in their safe was with [Gillen] once, and with Dumb and Dumber [Marquez and Heaslip] when they're asking the same thing. I said "It's your problem. It's your guns."
* * *
Haddad: Were there accusations with the guns? As in, we think somebody took them?
Neuss: Probably Heaslip thinks [Gillen] had his hands on them 'cause he liked them.
Haddad: 'Cause Heaslip liked them? Or ...
Neuss: No, [Gillen]. I don't know if Heaslip liked them.
* * * *
Neuss: I never saw the guns. Never ever. I had nothing to do with their guns.
* * *
Neuss: I had nothing to do with their guns. Ever. I never touched them.... If they've lost their guns because they're, whatever they are, then you need to go and say "Hey Heaslip, stop asking people to look for a gun that's either in your closet, Marquez's closet, or the other fools that used to work here's closet, or [Gillen's] closet," 'cause I don't even know him it could be in his closet. But it ain't in my closet. That I can tell ya.
(Audio recording, starting at approximately 5:00).
Haddad prepared a written summary of this interview. That summary recounted that Neuss denied ever seeing the guns and that Neuss stated he "had nothing to do with the guns." But the summary also stated "[w]hen asked if there were any accusation about the guns, Neuss replied that [Gillen] had his hands on them because he liked them." (Doc. 139–2 at 135). This statement corresponds with statements by Neuss but it is not completely accurate.
In addition to interviewing Neuss, Haddad also attempted to interview Gillen but Gillen was not available when Haddad went to Gillen's workplace and Gillen did not return Haddad's phone calls. Finally, Haddad located information that Gillen had been accused of improper evidence handling in his previous job with the Pinal County Sheriff's Office. Based on these facts, Haddad decided to seek a search warrant for Gillen's residences in Globe and Oracle as well as two of Gillen's vehicles. (Doc. 139–5 at 27–28).
An investigation by an independent research company determined Gillen had mismanaged and mishandled evidence while he was with the Pinal County Sheriff's Office ("PCSO"). (Doc. 139–2 at 150). That determination was based on Gillen improperly storing evidence at a police substation resulting in some of the evidence being lost. (Doc. 139–5 at 2). On August 11, 2010, Gillen was terminated as a result of the investigation, (Doc. 139–6 at 194), but on June 28, 2012, the Pinal County Employee Merit Commission overturned that termination and reinstated Gillen. (Doc. 139–6 at 211). In the order reinstating him, the Merit Commission concluded Gillen's handling of evidence "was consistent with the accepted practices" of the PCSO. That is, the PCSO had a general "culture of indifference and mediocrity toward establishing and maintaining professional evidence handling policies." (Doc. 139–6 at 204). Thus, it appears the Merit Commission concluded termination was too harsh a punishment. The Merit Commission appealed the reinstatement decision to the Superior Court. The record does not indicate the outcome of that appeal.
Haddad's affidavit in support of the search warrant began by recounting his substantial law enforcement experience. (Doc. 139–5 at 29). The affidavit then recounted that on October 15, 2012, Gillen asked Heaslip "what the deal with the two guns was." Heaslip told Gillen he had no information regarding the pistols. (Doc. 139–5 at 30). After that conversation, Gillen allegedly retained possession of the pistols. (Doc. 139–5 at 30). The affidavit then recounted that a few days after the conversation between Heaslip and Gillen, Waddell overheard Gillen speaking with Neuss where "comments [were] overheard ... in the general context of ... I like this gun.... It would make a great personal gun.... and no, you can't have it, I want it." (This reference to Neuss was an error. According to a later supplement, Haddad meant to refer to Keck, not Neuss.)
After recounting the alleged conversation between Gillen and Neuss, the affidavit stated Waddell had later observed Gillen take the pistols from the armory but did not see him return them. Next, the affidavit recounted that Haddad had contacted the original owner of the pistols and determined the owner was seeking their return. Haddad then included a paragraph regarding his interview of Neuss. That paragraph stated, in its entirety:
When your Affiant [i.e. , Haddad] spoke with Neuss (former officer), Neuss simply stated that he could not help with the investigation, that either [Gillen] had the guns in his closet, or one of the two Interim Hayden Chiefs had them.
(Doc. 139–5 at 31). Combined with the affidavit's earlier erroneous reference to Neuss, this paragraph meant the affidavit represented that Gillen had told Neuss "I want [one of the pistols]" and Neuss later stated Gillen might have the guns in his closet.
The affidavit ended with Haddad recounting Gillen's refusal to speak with him and that Gillen had been the subject of an investigation regarding mishandled and missing property while he was with the Pinal County Sheriff's Office. Haddad identified "Gillen's personal residences, vehicles, and work location" as the locations where the pistols, allegedly evidence of 3rd Degree Burglary and Theft, might be located. (Doc. 139–5 at 32). A Maricopa County Superior Court Commissioner signed the warrant on March 19, 2014.
When planning execution of the search warrant on Gillen's home in Globe, Haddad requested assistance from the Department of Public Safety ("DPS") SWAT team. In justifying that request, Haddad completed a "Special Weapons and Tactics (SWAT) Mission Request Profile." (Doc. 137–2 at 29). That form identified Gillen as the suspect and stated "multiple weapons of various calibers expected to be present." It also stated it was "unknown" whether the home was booby trapped. The record provides no clear explanation why Haddad stated Gillen's home might have been booby trapped. Finally, the form stated Gillen "is current law enforcement and former SWAT." DPS officials approved the request for SWAT assistance and DPS officials then "created an operational plan." (Doc. 137–2 at 21). In general, the operational plan contemplated waiting for Gillen to leave his home for work in the morning and then executing the warrant while he was away. Haddad and DPS planned to execute the search on March 20, 2014.
The search warrant targeted two of Gillen's homes. The relevant events center on the search of Gillen's home in Globe.
Early in the morning of March 20, DPS Officer M. Bowling was waiting outside of Gillen's home to determine when he left. While Bowling was watching Gillen's home, the members of the SWAT team gathered at the DPS station in Globe. Haddad first briefed the SWAT team supervisors. (Doc. 142–5 at 8). During that briefing, Haddad lead DPS Officer Weston White, one of the SWAT team supervisors, to believe there was an arrest warrant for Gillen. (Doc. 142–5 at 9). This was based on Haddad describing the plan as involving officers following Gillen to his workplace and arresting him there. White saw the supporting paperwork, including the warrant, but did not read it. (Doc. 142–5 at 10). Other participants in the briefing did not interpret Haddad's comments as indicating he planned to arrest Gillen or that an arrest warrant existed. (Doc. 142–3 at 6–7).
After briefing the SWAT team supervisors, Haddad provided a second briefing to all the officers who planned to participate in executing the search warrant. DPS Officer Engwis was present for this second briefing. (Doc. 142–8 at 3); (Doc. 142–3 at 4–5). Engwis does not recall "anything about an arrest warrant" being discussed during the briefing. In addition, the 30(b)(6) witness for DPS denied that Haddad stated anything during the second briefing that "a DPS officer could have understood that there was an arrest warrant." (Doc. 142–3 at 7).
After the second briefing, White and Engwis left the DPS station "to keep an eye on [Gillen's] residence until" the officers who would conduct the search "could get onto the scene." (Doc. 142–5 at 12). Before White and Engwis arrived at Gillen's home, Bowling reported that Gillen had driven away from his home. After seeing White and Engwis arrive, Bowling drove away. White then noticed Gillen was driving back to his home. White used his radio to ask what he should do. The record is unclear but it appears Haddad or an officer named Daniel Lugo directed White and Engwis to conduct a traffic stop. (Doc. 142–6 at 3). Gillen parked his vehicle in front of his home and was getting out of it when White and Engwis pulled behind and activated their vehicle's police lights. It is undisputed no warrant existed for Gillen's arrest. It is also undisputed White and Engwis had neither probable cause nor reasonable suspicion that Gillen had committed a crime. The time was 11:30 a.m.
When asked who made the decision to detain Gillen, Lugo responded "[t]he case detective," i.e. , Haddad. But Lugo went on to indicate DPS officials might have made the decision to stop Gillen on Haddad's behalf. In other words, the plan was for Haddad to detain Gillen that morning. Lugo's testimony can be read as Lugo either being instructed by Haddad to make the stop or Lugo deciding to make the stop because he knew Haddad planned to arrest Gillen later anyway. (Doc. 139–5 at 148).
While a search warrant and an arrest warrant must both be supported by probable cause, no arrest warrant was ever issued. See Goodman v. Los Angeles Police Dep't , No. LACV1305959JAKMANX, 2015 WL 12748647, at *5 (C.D. Cal. Apr. 16, 2015) ("The tests for probable cause for a search and an arrest warrant are the same.").
Believing this was a "high risk" traffic stop, White and Engwis immediately took up standing positions behind their doors, pointing their weapons towards Gillen. According to Gillen, he put his hands up and starting walking towards White and Engwis. White saw what he "believed to be a weapon" on Gillen's ankle. (Doc. 142–5 at 15). White then told Gillen in a "loud voice ... that there was an arrest warrant that was going to be served at his house and that [he and Engwis] needed to take him into custody." (Doc. 142–5 at 16). Engwis did not know why White was claiming an arrest warrant existed but he did not question White. (Doc. 142–8 at 11). Gillen was then ordered to place his hands behind his back and White placed him in handcuffs. Engwis searched Gillen and discovered a revolver in an ankle holster and a folding knife in a pocket.
Once handcuffed, Gillen was told to sit on the curb. Bowling then returned to the scene and White asked Bowling to take Gillen to the DPS office in Claypool. Bowling drove Gillen to the DPS office. Once at the DPS office, it is undisputed Gillen was not free to leave. (Doc. 142 at 11).
While Gillen was held at the DPS office, the SWAT team arrived at Gillen's home and executed the warrant. The undisputed evidence is that the search began at 12:15 p.m., approximately 45 minutes after Gillen had been detained and transported to the DPS office. (Doc. 142–7 at 8). The search took approximately three hours. The pistols were not found. The search ended and Gillen was allowed to leave the DPS office at approximately 3:30 p.m. (Doc. 142 at 11).
Approximately five days after the search warrant was executed, Haddad met with detectives for the Gila County Attorney's Office. (Doc. 156–15 at 33). The Gila County Attorney's Office was concerned about the search warrant aimed at Gillen because Gillen was a planned witness "in a high profile murder case." (Doc. 156–15 at 33). During the meeting, Haddad stated he had not anticipated he would find the pistols during the search of Gillen's home. (Doc. 156–15 at 33). Haddad's statement "shocked" both detectives as they could not understand why Haddad had obtained the warrant if he did not even expect to find the pistols during the searches. (Doc. 156–14 at 33).
About one year after the detention and searches, Gillen filed the present suit alleging federal and state-law claims. At present, Gillen is pursuing the following claims under 42 U.S.C. § 1983 : false arrest, false imprisonment, excessive force, and illegal search. Gillen is also pursuing state-law claims for false arrest, false imprisonment, assault/battery, and intentional infliction of emotional distress. These claims are brought against various combinations of Bowling, Engwis, White, Vega, Haddad, and the Town of Hayden (collectively, "Defendants"). Gillen seeks summary judgment on his false arrest and false imprisonment claims while Defendants seek summary judgment on all claims except for the intentional infliction of emotional distress claim which they do not address in their briefing.
Gillen initially asserted claims against Heaslip and Marquez but subsequently agreed to dismiss them. (Doc. 28). Gillen has abandoned his § 1983 claims against the Town of Hayden. (Doc. 44; Doc. 155 at 1).
ANALYSIS
I. Standard for Summary Judgment
A party is entitled to summary judgment upon establishing "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). In evaluating a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. When, as here, there are cross-motions for summary judgment, the Court must consider each motion on its own merits, construing the evidence in the light most favorable to the non-moving party. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two , 249 F.3d 1132, 1136 (9th Cir. 2001).
II. False Arrest and False Imprisonment
Both parties seek summary judgment on Gillen's false arrest and false imprisonment claims. This means the Court must construe the facts in the light most favorable to each side when assessing the other side's motion. The most crucial facts underlying these claims, however, are undisputed. Thus, the present disputes on these claims are questions of law, not of fact. Under existing law, Gillen is entitled to summary judgment against some, but not all, Defendants.
Gillen's false arrest and false imprisonment claims are brought under § 1983 and state-law. The parties do not differentiate between the federal and state-law claims. Accordingly, the Court will follow the parties' briefing and address all of these claims and theories under the rubric of a single claim pursuant to § 1983 for violating Gillen's right to be free from seizure and detention.
The one exception is that Gillen is no longer pursuing any § 1983 claims against the Town of Hayden. As set out below, however, the duplicative state-law claims may still be viable against the Town of Hayden.
These claims are based on Gillen's detention at 11:30 a.m. outside of his home and his subsequent transfer to, and detention at, the police station. The parties spend a substantial portion of their briefing addressing whether Gillen's stop, detention, and transport to the police station qualified as an arrest. It is undisputed that White and Engwis did not have probable cause or reasonable suspicion to support an arrest or detention of Gillen when they stopped him outside his home, nor did any other officer. Thus, whether the interaction with Gillen was an arrest or detention does not, at present, appear relevant. This is especially true because the only basis proffered for detaining Gillen is that other officers planned on executing a search warrant at Gillen's home in the near future. This means the dispositive issue is not which label should attach to the officers' actions but whether the officers' actions were reasonable and, therefore, legal. For the sake of simplicity, the Court will not determine if Gillen was "detained" or "arrested" and simply describe the relevant encounter as a "detention."
Defendants' sole justification for detaining Gillen is the Supreme Court authority authorizing the detention of individuals found on the premises where a search warrant is executed. The Supreme Court has repeatedly recognized that officers executing a search warrant are entitled "to detain the occupants of the premises while a proper search is conducted." Bailey v. United States , 568 U.S. 186, 133 S.Ct. 1031, 1037, 185 L.Ed.2d 19 (2013) (quotation marks and citation omitted). This is a "categorical" rule allowing for the detention of all occupants, even if the officers lack "particular suspicion" that the occupants were "involved in criminal activity or pose[ ] a specific danger to the officers." Id. at 1037–38. Thus, if Gillen had been in the immediate vicinity of his home when the SWAT team arrived to execute the search warrant, there is no question he could have been reasonably detained for the duration of the search. But the Supreme Court's recent guidance established the categorical rule has strict proximity and temporal limitations such that a detention long before a search warrant is executed is not permitted.
A. Detentions Only Allowed When and Where Search Warrant is Executed
In 2013—the year before Gillen was detained—the Supreme Court issued Bailey v. United States . That case addressed a situation where officers were about to execute a search warrant at a residence when two individuals were seen leaving the residence and driving away. Id. Officers tailed the individuals for about five minutes and then conducted a traffic stop. There was neither probable cause nor reasonable suspicion to justify a traffic stop. The individuals were handcuffed and driven back to the residence where they were detained while the search occurred. At issue was the legality of those actions.
The Supreme Court began its analysis by describing its own earlier authority as allowing for the detention of those "occupants ... within or immediately outside a residence at the moment the police officers execute[ ] the search warrant." Id. at 1038. This bright-line rule had been, and remained, based on three "law enforcement interests that, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant." Id. The Supreme Court believed those law enforcement interests established the precise contours of the appropriate rule.
The first interest justifying the rule was law enforcement safety. To ensure their safety, officers are entitled to "secure the premises, which may include detaining current occupants." Id. Safety considerations, however, must be carefully circumscribed to avoid officers invoking safety to detain "anyone in the neighborhood." Id. at 1040. Thus, the Supreme Court noted the interest in officer safety justifies detaining only "those who are present when and where the search is being conducted." Id. (emphasis added).
The second law enforcement interest was "the orderly completion of the search." Id. at 1040. Detaining individuals found on the premises when a warrant is executed prevents individuals from hiding or destroying evidence, distracting the officers, or "simply get[ting] in the way." Id. In addition, such individuals may "assist the officers" in the search by opening "locked doors or locked containers." Id. But individuals must be present to hinder or assist a search. Thus, the Supreme Court noted this interest is not served by allowing "detention beyond the vicinity of the premises to be searched." Id.
The third law enforcement interest was "preventing flight in the event that incriminating evidence is found." Id. This interest "serves to preserve the integrity of the search by controlling those persons who are on the scene." Id. Like the safety interest, the Supreme Court noted this interest must be carefully limited to those individuals on scene at the time of the search or else officers would be permitted to detain any "regular occupant" of the premises, "regardless of his or her location at the time of the search." Id. at 1041. Allowing for the detention of any regular occupants wherever they may be located at the time the location was searched, would "undermin[e] the usual rules for arrest based on probable cause or a brief stop for questioning under standards derived from Terry ." Id.
In light of these three law enforcement interests, the Supreme Court concluded the officers in Bailey were not entitled to detain the two individuals merely because they were seen leaving the residence shortly before the search warrant was executed. Id. The Supreme Court stressed this conclusion was consistent with the need to grant officers very little discretion when they invoked the categorical rule allowing for detentions during searches. Id.
In squarely holding the categorical rule only allows for the detention of individuals located where a search occurs, the Supreme Court made abundantly clear the rule also applies only to those individuals on the premises when a search warrant is executed. There are numerous statements in Bailey making precisely this point. Thus, the categorical rule allows for detentions "at the moment" the warrant is executed, applies to any individual "who is on the premises during the execution of a search warrant," and officers may detain only those individuals "present when and where" a warrant is executed. Id. at 1038, 1040. See also Muehler v. Mena , 544 U.S. 93, 98, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (detention of individual did not violate the Fourth Amendment because individual "was an occupant [of the location] at the time of the search ") (emphasis added). A brief examination of the three law enforcement interests supporting the categorical rule establishes why this temporal limitation is required.Taking each interest in turn, the interest in officer safety cannot justify detaining individuals long before a search begins. There is no cognizable interest in officer safety when officers will not arrive at the location to be searched for a substantial period of time. To hold otherwise would allow for officers to invoke safety to detain individuals in far too wide a variety of circumstances. For example, officers could invoke safety to detain, long before a search begins, "anyone in the neighborhood" of an expected search. Bailey , 133 S.Ct. at 1040. This type of broad-ranging safety justification was directly rejected by the Supreme Court.
Next, the interest in "the orderly completion of the search" cannot justify detaining individuals long before a search begins because, before a search begins, it is not known who will be on site at the relevant time. Similar to individuals who recently left a location, individuals who may no longer be at the location when it is searched cannot possibly interfere with the search nor can they assist with the search.
Finally, the interest in preventing flight cannot be applied before a search begins without dramatically "undermining the usual rules for arrest based on probable cause or a brief stop for questioning under standard derived from Terry ." Id. If an interest in avoiding flight could justify detention in advance of a search, officers would be free to arrest regular occupants no matter how far in advance of an expected search the detention occurred. A search warrant would, in effect, become an arrest warrant for any regular occupant of the home. Again, such a result would be directly contrary to the requirement in Bailey that the usual rules for arrests and investigatory stops be maintained.
In sum, the language of Bailey and the relevant law enforcement interests authorize the detention of individuals found "when and where" a search warrant is executed. The interests do not justify a detention merely because a search warrant will be executed at some point in the future. Accordingly, absent special circumstances, officers cannot detain individuals in advance of a search warrant being executed.
Detentions immediately prior to a warrant being executed likely would be allowed. For example, an occupant probably could be detained outside his home a few minutes before execution of a warrant. In addition, a detention in advance of a search might be permissible if there were a significant likelihood the individual was about to destroy the evidence being sought. See Illinois v. McArthur , 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (warrantless seizure in advance of search warrant being executed was justified based on "specially pressing or urgent law enforcement need," especially the fear that individual would destroy evidence being sought). Here, the detention was forty-five minutes before the search and there was no reasonable possibility Gillen was about to destroy or hide the pistols if he was allowed in the house where the search was authorized.
Applying the properly limited categorical rule to the present circumstances establishes Gillen could not be lawfully detained forty-five minutes before the search of his home began. At the time Gillen was detained, the officers planning to execute the search warrant were not even on their way to his home. Instead of an immediately impending search, the actual search operation had not begun. Based on this, Gillen has established the detention violated his rights. B. Qualified Immunity Does Not Apply
Given that Gillen was transported away from the scene and held at the police station for hours, his detention was well beyond the type of detention authorized by Bailey .
In opposing summary judgment, Defendants argue execution of the search warrant began when Gillen was detained. (Doc. 152 at 9). That argument is contradicted by the evidence. The 30(b)(6) witness for DPS testified the execution of the search warrant started when the SWAT team "land[ed] on property and ... start[ed] giving announcements." (Doc. 142–7 at 5). Given this testimony, there is no genuine dispute that Gillen was detained at 11:30 a.m. but the search did not begin until 12:15 p.m.
Having established Gillen's detention violated his rights, the next issue is whether Defendants are entitled to qualified immunity. According to Defendants, they are entitled to qualified immunity because their actions did not violate any "clearly established" right. Taylor v. Barkes , ––– U.S. ––––, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015). Defendants are incorrect.
"The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Mullenix v. Luna , ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (internal quotation marks omitted). This does not "require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id. (internal quotation marks omitted). When assessing whether particular conduct violated clearly established law, a court must not "define clearly established law at a high level of generality. The dispositive question is whether the violative conduct of particular conduct is clearly established." Id. (internal quotation marks and citations omitted).
The principles regarding permissible arrests and detentions have been in place for decades. Those principles state an arrest must be supported by probable cause and an investigatory detention must be supported by reasonable suspicion. Absent the circumstances of an impending search of his home, Gillen's detention undoubtedly would have violated clearly established law. But Defendants argue the impending search introduced uncertainty because the contours of the categorical rule allowing for detentions during execution of a search warrant were not clearly established as of March 2014. That is, Defendants argue no controlling authority prohibited the detention of an individual forty-five minutes before a search warrant will be executed.
See Rosenbaum v. Washoe Cty. , 663 F.3d 1071, 1076 (9th Cir. 2011) (quoting Borunda v. Richmond , 885 F.2d 1384, 1391 (9th Cir. 1988) ) ("It is well established that ‘an arrest without probable cause violates the Fourth Amendment and gives rise to a claim for damages under § 1983.’ "); Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (investigatory stop requires reasonable suspicion). See also Cabrera v. City of Huntington Park , 159 F.3d 374, 380 (9th Cir. 1998) ("To prevail on his § 1983 claim for false arrest and imprisonment, [plaintiff] would have to demonstrate that there was no probable cause to arrest him."); Ramirez v. City of Buena Park , 560 F.3d 1012, 1020 (9th Cir. 2009) (recognizing § 1983 claim may be based on "reasonable suspicion" stop). See also Dubner v. City & Cty. of San Francisco , 266 F.3d 959, 965 (9th Cir. 2001) (once plaintiff makes "showing that the arrest was conducted without a valid warrant ... the burden shifts to the defendant to provide some evidence that the arresting officers had probable cause for a warrantless arrest").
As set forth above, the Supreme Court's Bailey decision clearly established the categorical rule authorizing detentions at the scene of a search has strict proximity and temporal limitations. While the precise holding of Bailey only involved proximity limitations, the language and rationale of Bailey made clear the categorical rule was very limited. Thus, even though Bailey is not "directly on point," it put the "constitutional question beyond debate." Mullenix , 136 S.Ct. at 308. No reasonable officer could have concluded he was entitled to detain Gillen in the absence of an arrest warrant, probable cause, or reasonable suspicion. Accordingly, qualified immunity is not appropriate. Cf. Brosseau v. Haugen , 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) ("[I]n an obvious case, [the Fourth Amendment] standards can ‘clearly establish’ the answer, even without a body of relevant case law."). Gillen is entitled to summary judgment against some individuals on his false arrest and false imprisonment claims.
It is Gillen's burden to prove the law was clearly established. See Maraziti v. First Interstate Bank of California , 953 F.2d 520, 523 (9th Cir. 1992). However, given the well-established requirements for detaining individuals, it is instructive that Defendants offer no authority recognizing a vast power to detain individuals long before a search warrant is executed in circumstances such as the present.
Under Arizona law, "[q]ualified immunity is unavailable if the official knew or should have known that he was acting in violation of established law or acted in reckless disregard of whether his activities would deprive another person of their rights." Pinal Cty. v. Cooper ex rel. Cty. of Maricopa , 238 Ariz. 346, 360 P.3d 142, 145–46 (Ariz. Ct. App. 2015). In these circumstances, the officers knew or should have known they were not entitled to detain Gillen in these circumstances.
C. Dispute of Fact Exists Regarding Which Individuals May Be Liable
The remaining issue on the false arrest and false imprisonment claims is which of the defendants can be held liable. White and Engwis, the two officers who initially stopped and detained Gillen, are liable for their actions. See, e.g. , Blankenhorn v. City of Orange , 485 F.3d 463, 481 (9th Cir. 2007) (an officer helping to handcuff a suspect constituted "meaningful participation in the arrest" such that he could be held liable). Gillen argues Haddad, Bowling, and Vega should also be held liable under the "integral participant" theory. That theory applies to reach Bowling but not necessarily Haddad. And there are no facts showing Vega had any meaningful participation, so he is entitled to summary judgment.
Again, because the parties do not differentiate between the federal and state law claims the Court will assume the same principles apply to both types of claims regarding which individuals can be held liable.
White and Engwis did not argue they were merely following orders when detaining Gillen. But, in any event, individuals may be held liable for following orders where the ordered actions were "patently violative of fundamental constitutional principles." Grossman v. City of Portland , 33 F.3d 1200, 1209 (9th Cir. 1994). See also Dirks v. Grasso , 449 Fed.Appx. 589, 592 (9th Cir. 2011) (acting pursuant to superior's orders did not entitle officers to qualified immunity); Estate of Brown v. Thomas , 771 F.3d 1001, 1005 (7th Cir. 2014) (following orders can be defense except when ordered "to do something that is obviously illegal"). Detaining someone without an arrest warrant, probable cause, or reasonable suspicion, and long before a search warrant will be executed, violated basic constitutional principles regarding police behavior.
"An officer's liability under section 1983 is predicated on his integral participation in the alleged violation." Id. at 481 n.12. This "require[s] some fundamental involvement in the conduct that allegedly caused the violation." Id. It is not enough for an officer to be "a mere bystander" or part of a "team effort" that resulted in a violation. Chuman v. Wright , 76 F.3d 292, 294 (9th Cir. 1996). See also Jones v. Williams , 297 F.3d 930, 936 (9th Cir. 2002) (officers cannot be liable "merely for being present at the scene of an alleged unlawful act"). An order from one officer to another officer to commit the relevant violation can be sufficient to deem the officer who gave the order an integral participant in the violation. Blankenhorn , 485 F.3d at 481 n.12.
Applying the integral participant theory to the present facts, Bowling participated in Gillen's detention by transporting Gillen to the station where Gillen remained detained for approximately three hours. Bowling was, obviously, "aware of the decision" to detain Gillen, "did not object to it, and participated" in the detention. Boyd v. Benton Cty. , 374 F.3d 773, 780 (9th Cir. 2004). That is enough to deem Bowling an integral participant and find him liable for the wrongful detention.
As for Haddad, there is a genuine dispute of material fact whether he gave the order to detain Gillen. The undisputed evidence is that White and Engwis asked the officers leading the search operation what they should do when they saw Gillen returning to his home. The record does not disclose who gave the order to detain Gillen. Based on deposition testimony, either Haddad or another DPS officer gave that order. If Haddad gave the order, he can be held liable. If he did not give the order, there is, on this record, no clear path to deeming him an integral participant in the detention. Haddad's liability, therefore, must await trial.
The Town of Hayden was named as a defendant on these claims. While Gillen has withdrawn his § 1983 claims against the town, he has not withdrawn his state-law claims. Assuming he is still pursuing his state-law claims, it appears the only viable path would be a respondeat superior theory based on Haddad's actions. Because Haddad's liability must proceed to trial, so must the Town of Hayden's liability.
Finally, there is insufficient evidence that Vega was integrally involved in Gillen's detention. The only evidence regarding Vega's involvement is that Heaslip provided text message updates to Vega during the course of the search. But that search began after Gillen's detention. Viewing the evidence in the light most favorable to Gillen, Vega was aware the search warrant was being executed that morning and he received updates during the search but Vega was not at the scene and there is no evidence Vega participated in the decision to detain Gillen. Because Gillen offers no evidence of Vega's integral involvement, Vega cannot be held liable.
At his deposition, Vega initially claimed he had no idea what the texts were about. (Doc. 156–4 at 26). After a short break, Vega backtracked and admitted he knew a search warrant was being executed but still claimed he knew no details, such as where the warrant was "going to be done." (Doc. 156–4 at 26).
D. Summary
Engwis, White, and Bowling are liable on the § 1983 and state-law claims for false arrest and false imprisonment and they are not entitled to qualified immunity. Vega is not liable for these claims. The federal and state-law liability of Haddad and the state-law liability of the Town of Hayden must proceed to trial.
III. Excessive Force
Gillen's next claims are a federal claim for "excessive force" and state-law claims for assault and battery. Because the parties again focus on the federal claim, the Court will do the same. The excessive force claim is based solely on the fact that White and Engwis pointed their weapons at Gillen prior to handcuffing him. The Ninth Circuit has recognized that pointing a gun at someone may constitute excessive force. Robinson v. Solano Cty. , 278 F.3d 1007, 1014 (9th Cir. 2002). But, as with every excessive force case, whether that amount of force was reasonable is a fact-specific inquiry. Id. at 1013–14. Here, the amount of force was objectively reasonable such that Gillen's claim fails as a matter of law.
"Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Velazquez v. City of Long Beach , 793 F.3d 1010, 1024 (9th Cir. 2015) (quotation marks omitted). The first task in conducting this balancing is to "analyz[e] the quantum of force—the type and amount of force" at issue. Bryan v. MacPherson , 630 F.3d 805, 824 (9th Cir. 2010). After doing so, the amount of force must be evaluated and weighed against various "governmental interests." Id. at 823. Those interests include the "severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight." Id. "These factors, however, are not exclusive" and the Court must "examine the totality of the circumstances." Bryan v. MacPherson , 630 F.3d 805, 826 (9th Cir. 2010). In particular, the absence of a legal basis for detaining Gillen should be considered when determining if the force was legitimate. See Thomas v. Dillard , 818 F.3d 864, 890 (9th Cir. 2016) (deeming absence of basis for stop "highly relevant" to excessive force inquiry).
The fact that detention was unlawful, however, does not automatically establish liability for any force used in Gillen's detention. Velazquez , 793 F.3d at 1024 ("Just proving lack of probable cause for the arrest, for instance, does not establish that the police used excessive force, or, indeed, any force.").
Pointing a weapon at a suspect is a non-lethal amount of force but it does present a risk of physical injury, making it potentially more than de minimis. Cf. Bryan v. MacPherson , 630 F.3d 805, 825 (9th Cir. 2010) (taser presents "intermediate" amount of force because, among other things, it has a "foreseeable risk of physical injury"). Pointing a weapon, however, represents a substantially less amount of force than other non-lethal types of force, such as pepper spray and taser shots. See id. (noting intermediate levels of force of taser shot and pepper spray inflict "intense pain"). Thus, pointing a weapon at a suspect appears to lie somewhere between a de minimis amount of force and the most common types of intermediate amounts of force. But see Tekle v. United States , 511 F.3d 839, 846 (9th Cir. 2007) (pointing weapons at eleven-year-old boy was "very substantial invasion of [his] personal security"). This relatively minor amount of force must be weighed against the governmental interests purportedly justifying the actions of White and Engwis.
The first governmental interest is the severity of the crime at issue. Gillen was suspected in the theft of pistols. The alleged crimes were minor, but did not qualify as felonies. The felony classification supported the use of some force. Cf. Robinson v. Solano Cty. , 278 F.3d 1007, 1015 (9th Cir. 2002) (pointing weapon at misdemeanor subject stated claim for excessive force). The next governmental interest involves whether Gillen was fleeing or resisting. It is undisputed Gillen did not attempt to flee or resist arrest. Accordingly, there was no need for force in response to this interest. Next, White and Engwis did not have a legal basis for detaining Gillen. This further undercuts any need for force. Finally, "[t]he most important" interest is officer safety. Thomas v. Dillard , 818 F.3d 864, 889 (9th Cir. 2016). This interest has special weight here given the undisputed facts.
At the time they were conducting the stop, White and Engwis knew there was a substantial likelihood Gillen would be armed. Here, Gillen was expected to be armed and upon encountering him, White immediately saw what he "believed to be a weapon" on Gillen's ankle. (Doc. 142–5 at 15). The concern that Gillen would be armed and the actual observation that he appeared to be armed strongly supported White and Engwis pointing their weapons at Gillen. In fact, given the relatively minor amount of force at issue, the concern for officer safety easily justified the amount of force employed.
Gillen does not cite any authority supporting his position that it can be excessive force for officers to point their weapons at an individual who is expected to be armed and is, in fact, armed. Instead, Gillen merely attempts to contradict the record by stating Gillen "did not appear to be armed." (Doc. 154 at 6). That is incorrect. The uncontradicted testimony is that White reasonably believed, based on what he observed, that Gillen was armed. In these circumstances, officer safety supported White and Engwis pointing their weapons at Gillen.
In sum, "[p]olice officers ... are not required to use the least intrusive degree of force possible." Forrester v. City of San Diego , 25 F.3d 804, 807 (9th Cir. 1994). Viewing the evidence in the light most favorable to Gillen, some of the relevant interests weighed against White and Engwish pointing their weapons but the interest in officer safety outweighed those interests. Therefore, the amount of force White and Engwis used was reasonable. White and Engwis are entitled to summary judgment on the excessive force claim.
Even if Gillen had established a constitutional violation occurred, White and Engwis would be entitled to qualified immunity because there is no clearly established law that prohibits officers from pointing their weapons at an individual expected to be armed and was then reasonably observed to be armed.
Gillen's excessive force claim is based solely on the actions of White and Engwis. Therefore, all other defendants are entitled to summary judgment on this claim as well because they cannot be liable as integral participants when there was no underlying constitutional violation.
IV. Illegal Search
Gillen asserts a § 1983 claim for "illegal search," apparently based on the searches of his homes and vehicles. Defendants seek summary judgment, claiming the search warrant defeats this claim. The parties have briefed Gillen's search-based claim under two theories. First, Gillen alleges the warrant on its face did not establish probable cause. Second, Haddad allegedly engaged in "judicial deception" when procuring the warrant by including false statements and omitting important information. These two theories overlap and there would be no need to reach the judicial deception theory if the warrant was deficient on its face. See, e.g. , Kohler v. Englade , 470 F.3d 1104, 1114 (5th Cir. 2006) (officer cannot be liable to presenting false information if the warrant was already "facially deficient"). Only if the warrant was sufficient on its face must the Court go on to determine if the warrant remained valid after the false statements are omitted and the additional information added in.
A. Warrant Was Valid On Its Face
Gillen first argues Haddad's affidavit supporting the warrant was deficient on its face. This argument requires an analysis of the search warrant application exactly as it was presented to the independent judicial officer.
To be valid, a search warrant must have been issued by a "neutral, disinterested" judicial officer, it was supported by probable cause "that the evidence sought will aid in a ... conviction for a particular offense," and it "particularly describe[d] the things to be seized, as well as the place to be searched." Bill v. Brewer , 799 F.3d 1295, 1300 (9th Cir. 2015) (citation omitted). Gillen's attacks only the second requirement regarding probable cause.
"The probable cause standard for a search warrant is whether, based on common sense considerations, there was a fair probability that contraband or evidence of a crime [would] be found in a particular place." United States v. Ruiz , 758 F.3d 1144, 1148 (9th Cir. 2014) (quotation marks and citation omitted). This is a "common sense determination" that does not require "the evidence [be] more likely than not to be found where the search takes place." Id. When deciding whether to approve a warrant, the independent officer may "draw such reasonable inferences as he will from the material supplied to him." Illinois v. Gates , 462 U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). And it is enough if the independent officer could have "reasonabl[y]" concluded the evidence would be found "in the place indicated in the affidavit." Id. Put differently, the independent officer may approve a warrant if the evidence and inferences from the evidence create "a fair probability" that the place to be searched will yield the evidence at issue. United States v. Reeves , 210 F.3d 1041, 1046 (9th Cir. 2000).
Once a search warrant is approved, the "finding of probable cause is entitled to great deference." United States v. Reeves , 210 F.3d 1041, 1046 (9th Cir. 2000). Accordingly, the independent officer's determination of probable cause must be accepted even in "doubtful or marginal cases." United States v. Ventresca , 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Because it is undisputed an independent officer approved the warrant in this case, Gillen must show the warrant application was so lacking that it did not qualify as even a "doubtful" case.
Haddad's affidavit recounted the following. In October 2012, Gillen was overheard commenting to Neuss that he liked the pistols and wanted to make one of them his "personal gun[ ]." Neuss later stated the pistols may be located in Gillen's closet. Another individual, Waddell, observed Gillen take the pistols from the armory and never return them. After Gillen left his position and it was discovered the pistols were missing, Gillen refused to meet with Haddad and refused to return Haddad's phone calls. Finally, Gillen had a documented history of mishandling evidence. That history included being found in possession of property "for periods up to nine years before the items were logged into evidence."
The independent officer presented with these facts approved the warrant. Gillen claims that was unreasonable based on two related contentions. First, Gillen claims the underlying facts were stale. And second, Gillen argues none of these facts indicated the pistols might be located in Gillen's homes or vehicles. These arguments, however, are not convincing.
On the alleged staleness, the relevant dates are undisputed. Gillen was observed with the pistols in October 2012 and the search warrant was not executed until March 2014. This was a substantial amount of time but "[t]he mere passage of substantial amounts of time is not controlling in a question of staleness." United States v. Flores , 802 F.3d 1028, 1043 (9th Cir. 2015). "Rather, staleness is evaluated in light of the particular facts of the case and the nature of the criminal activity and property sought." United States v. Collins , 61 F.3d 1379, 1384 (9th Cir. 1995). For example, in a recent case the Ninth Circuit concluded information supporting a search warrant was not stale despite an almost two-year delay. In that case, there was information that an individual possessed child pornography as of October 2008 but the search did not take place until June 2010. The Ninth Circuit rejected a staleness argument because of the particular facts of the case. That is, there was evidence that collectors of child pornography "rarely, if ever, dispose of sexually explicit images of children." United States v. Schesso , 730 F.3d 1040, 1047 (9th Cir. 2013). Thus, the two-year delay was not meaningful.
Here, Gillen's alleged criminal activity was the theft and continued possession of the pistols. While the information that Gillen had expressed an interest in the pistols was from months earlier, Haddad's affidavit reflected that Gillen was the last individual seen with the pistols, Gillen had allegedly expressed a desire to keep one of the pistols as his "personal gun," and another officer believed the pistols might be in Gillen's closet. More importantly, as noted by the Seventh Circuit, "firearms, unlike drugs, are durable goods useful to their owners for long periods of time." United States v. Singer , 943 F.2d 758, 763 (7th Cir. 1991) ; see also United States v. Piloto , 562 Fed.Appx. 907, 913 (11th Cir. 2014) (reasonable to believe individual would retain possession of firearm for thirteen months). Thus, it was reasonable to believe that if Gillen had taken the pistols, he would still have them. In these circumstances, Gillen's staleness argument is not convincing.
Gillen's second argument is that the facts in the affidavit did not establish a "reasonable nexus between the activities supporting probable cause and the locations being searched." United States v. Ocampo , 937 F.2d 485, 490 (9th Cir. 1991). In other words, Gillen appears to be claiming that even assuming there was a basis to believe he might have taken the pistols, there was no reason to believe the pistols might be in his homes or vehicles. But the standard for determining where evidence might be located is relatively low. It need only "be reasonable to seek the evidence in the place indicated in the affidavit." Id. This "does not require direct evidence that the items listed as the objects of the search are on the premises to be searched." United States v. Pitts , 6 F.3d 1366, 1369 (9th Cir. 1993). Instead, "[a] magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense." United States v. Angulo–Lopez , 791 F.2d 1394, 1399 (9th Cir. 1986).
In this case, it was reasonable for the independent officer who approved the warrant to have drawn the inference that the pistols would be found where Gillen lived or in his vehicles. Cf. id. ("In the case of drug dealers, evidence is likely to be found where the dealers live."). Gillen does not explain what other locations would be reasonable targets of a search for the alleged crimes at issue. And for pistols, Gillen's homes and vehicles were the obvious locations where they might be found. Accordingly, a reasonable basis existed to conclude the pistols might be located in the locations identified in the warrant.
Viewing the totality of the circumstances, the warrant affidavit established that witnesses had described Gillen as admiring the pistols, Gillen was the last individual seen with them, an officer stated the pistols might be in Gillen's closet, Gillen had a history of mishandling evidence, and Gillen refused to respond to Haddad's interview requests. A reasonable judicial officer could have concluded the pistols might be found in Gillen's homes or vehicles. Thus, probable cause existed. At the very least, the facts in the affidavit establish this was a "doubtful or marginal" case. In light of the deferential standard of review, that very low bar is enough to prevent this Court from second-guessing issuance of the warrant. Defendants are entitled to summary judgment on Gillen's first illegal search theory.
B. Judicial Deception
Having determined the warrant was sufficient on its face, the next issue is whether Defendants are entitled to summary judgment on Gillen's "judicial deception" theory. This theory requires Gillen "show that [Haddad] deliberately or recklessly made false statements or omissions that were material to the finding of probable cause." Ewing v. City of Stockton , 588 F.3d 1218, 1223 (9th Cir. 2009). This requires a multistep process. First, Gillen must point to the false statements in the warrant application or to information that should have been included. Next, "the court purges [the false] statements" and adds in the omitted information. Id. Finally, the court reviews the corrected application "and determines whether what is left justifie[d] issuance of the warrant." Id. at 1224. This inquiry is conducted "without the usual deference owed to the magistrate's initial finding of probable cause." United States v. Job , 851 F.3d 889, 900 (9th Cir. 2017). If probable cause existed notwithstanding the false statements or omissions, "no constitutional error ... occurred." Bravo v. City of Santa Maria , 665 F.3d 1076, 1084 (9th Cir. 2011).
To succeed at trial Gillen must show Haddad's alleged false statements, omissions, or misleading recital of true statements were not merely the result of "negligence or good faith mistakes." Id. See also Bravo v. City of Santa Maria , 665 F.3d 1076, 1083 (9th Cir. 2011) (noting "technically true statements" may be basis for judicial deception claim when statements were sufficiently "misleading"). That is a difficult standard to meet. The standard at summary judgment, however, is lower. To survive summary judgement, Gillen "need only make a substantial showing of the officers' deliberate or reckless false statements and omissions." Chism v. Washington State , 661 F.3d 380, 387 (9th Cir. 2011). This means "[c]lear proof of deliberat[ion] or reckless[ness] is not required" to survive summary judgment. Id. 661 F.3d at 387.
In opposing the motion for summary judgment Gillen attacks particular portions of the warrant application. The Court will only address the portions Gillen explicitly identifies and discusses. See Reliance Ins. Co. v. Doctors Co. , 299 F.Supp.2d 1131, 1154 (D. Haw. 2003) ("Failure to raise issues in opposition to summary judgment functions as a waiver.").
The first portion of the affidavit Gillen attacks is the statement that Waddell observed Neuss and Gillen handling and discussing the pistols. It is undisputed that statement was false as the interactions Waddell observed and overheard were between Gillen and Keck, not Gillen and Neuss. Thus, the statement that Gillen and Neuss discussed the weapons must be disregarded.
The second portion of the affidavit Gillen attacks is the way in which Haddad described the result of his interview of Neuss. According to Haddad's affidavit, during the interview Neuss "simply stated that he could not help with the investigation, that either [Gillen] had the guns in his closet, or one of the two Interim Hayden Chiefs had them." (Doc. 139–5 at 31). Gillen claims this represented a "substantial[ ] change" to Neuss' actual wording and Neuss was obviously being sarcastic when he mentioned the pistols possibly being in Gillen's closet. Only the latter argument is convincing.
The argument that Haddad made "substantial[ ]" changes to Neuss' statements is overstated. According to the recording of the interview, Neuss stated he had no contact with the pistols and, if they were missing, Haddad should go to Heaslip and say "stop asking people to look for a gun that's either in your closet, Marquez's closet, or the other fools that used to work here's closet, or [Gillen's] closet, 'cause I don't even know him it could be in his closet." Given that Neuss did, in fact, state the guns might be in Gillen's closet, Haddad's later description of this statement was different and painted the statement in a different light. But it is difficult to deem Haddad's later description a "substantial[ ] change" of Neuss' statement.
The argument that Neuss' statement was sarcastic is more difficult. According to his affidavit, Neuss made the statement about the pistols being in someone's closet "half jokingly" and it was not meant as "the slightest indication that the weapons were actually in anyone's closet." (Doc. 156–13 at 30). The Ninth Circuit has recognized an officer is not entitled to interpret statements literally when the speaker was "obviously employing a literary device known as sarcasm." Demuth v. Cty. of Los Angeles , 798 F.3d 837, 839 (9th Cir. 2015) (quotation marks and citation omitted). But reviewing an audio recording to determine if a particular comment was meant as sarcastic or literal is not an easy task. Similar to a dispute about what was actually said, a dispute about the manner in which a certain comment was made is not one that can be resolved at summary judgment. For present purposes, the Court will construe the evidence in the light most favorable to Gillen and accept that Neuss' statement was meant as sarcastic and that Haddad should have realized that. Under that view of the statement, it was inappropriate for Haddad to include the statement in the warrant affidavit without making clear what Neuss said. Neuss's statement, therefore, must be removed when assessing probable cause.
It is unclear why Neuss claims the statement was only "half-joking[ ]" if the statement was not meant as "the slightest indication" where the guns might be. Half-joking usually conveys half-serious. For purposes of summary judgment, however, the Court will overlook the confusing manner in which Neuss used the phrase "half-joking[ ]" and rely instead on his statement that he did not mean to give any indication where the pistols might be located.
Gillen next attacks the discussion in the affidavit of his status with the Pinal County Sheriff's Office. The affidavit stated "Gillen was the target of an investigation with the Pinal County Sheriff's Office," the investigation found Gillen had "a pattern of inappropriate handling of property that he comes into contact with," and described the "incident" as "an ongoing matter." (Doc. 139–5 at 31). Gillen disputes only the final portion which described the "incident" as "an ongoing matter."
At the time Haddad prepared his affidavit, Gillen had been reinstated by the Merit Commission and the only thing "ongoing" was "Pinal County's appeal to the Superior Court" seeking to undo the reinstatement. (Doc. 155 at 15). While literally true that the "incident" was "ongoing," Gillen claims it was potentially misleading not to provide the additional details that the formal investigatory phase had long ago concluded, Gillen had been terminated, but that termination had been overturned based on a finding that Gillen's actions were similar to others in that office. Construed in the light most favorable to Gillen, Haddad's failure to include the additional details may have been a misleading description of the status of the investigation. Thus, the Court will add in the additional relevant aspects of the investigation.
Gillen's final attack is that Haddad failed to include important information regarding his own credibility. It is undisputed that, years earlier, Haddad had been placed on the Brady list maintained by the Maricopa County Attorney's Office after falsifying a police report. (Doc. 156–13 at 15). Later, Haddad had chosen to resign after another internal investigation had uncovered additional wrongdoing. In general, officers are not required to disclose all possible exculpatory information in warrant applications. Olvera v. Cty. of Sacramento , 932 F.Supp.2d 1123, 1154 (E.D. Cal. 2013) ("[T]he Ninth Circuit has repeatedly emphasized that the Fourth Amendment does not require inclusion of all exculpatory evidence."). See also Mays v. City of Dayton , 134 F.3d 809, 816 (6th Cir. 1998) (noting that except in the "very rare case" it is inappropriate "[t]o interweave the Brady due process rationale into warrant application proceedings and to require that all potentially exculpatory evidence be included in an affidavit"). But the Ninth Circuit has indicated that some exculpatory evidence, especially evidence going to an individual's credibility, should be disclosed in warrant applications.
The situation which ended with Haddad on the Brady list is similar to the situation with Gillen's termination from his previous position. (Doc. 156–10); (Doc. 156–13 at 14). In March 2001, Haddad was involved in a traffic stop with another officer. During that stop, the other officer seized a shotgun from the driver. The other officer then stored the shotgun in his personal locker for ten months instead of following proper procedures and logging the shotgun into the evidence system. The other officer later sought to justify his improper handling of the shotgun by preparing a report with false information regarding when and where the shotgun had been seized. Haddad reviewed that report and changed the other officer's report to include the correct information. In making those changes, Haddad pretended it was the other officer, not him, who had made the corrections to the report. Haddad's correction contained a knowingly false statement.
For example, in United States v. Hall an officer seeking a search warrant did not disclose an informant's full criminal history, including a prior conviction for making a false police report. 113 F.3d 157, 159 (9th Cir. 1997). The Ninth Circuit held the failure to disclose that information was material to the finding of probable cause such that the evidence eventually derived from the search warrant had to be suppressed. Other Ninth Circuit cases have also concluded information regarding an informant's credibility should be disclosed in warrant applications. United States v. Ruiz , 758 F.3d 1144, 1150 (9th Cir. 2014) (citing cases). Those cases, however, often conflate the issue of whether the additional information should have been disclosed with the analysis of whether the undisclosed material impacted the ultimate finding of probable cause. See id.
In light of the way the Ninth Circuit often conflates the issues, there is no clear standard for assessing when information regarding credibility of the officer seeking the warrant should be included. See, e.g. , United States v. Perkins , 850 F.3d 1109, 1116 (9th Cir. 2017) (discussing omissions in warrant affidavit). In a recent decision, the Ninth Circuit simply concluded certain information was "relevant" such that it should have been included. Id. at 1117. Another decision described omitted information as "highly material" such that it should have been included. Bravo v. City of Santa Maria , 665 F.3d 1076, 1084 (9th Cir. 2011). It is unclear where on this continuum the facts regarding Haddad should fall. Haddad's placement on the Brady list may have qualified as "relevant" in the strict definition of that term. See Fed. R. Evid. 401. But the information was not "highly material" to the issues presented in the affidavit because at least some of Haddad's misconduct occurred years earlier and had no direct connection to the events described in his affidavit. Viewing the evidence in the light most favorable to Gillen, the Court will assume the information should have been included and focus much more on whether its omission affected the probable cause conclusion.
There are differences between information regarding an informant's credibility and information regarding the credibility of the officer seeking the warrant. The Ninth Circuit authority focuses on informant credibility. For present purposes, the Court will assume a similar analysis applies to officer credibility.
There is an additional complication that during Gillen's deposition, Gillen did not identify the information regarding Haddad as something that should have been included in the warrant application. (Doc. 139–3 at 93). This concession, along with the uncertainty regarding the need to include the information in the first place, requires the Court place very little emphasis on the alleged omissions.
Removing the inappropriate material, and adding in the information regarding Haddad's credibility, results in a reconstituted warrant application reflecting the following:
• Gillen found the pistols in the police station on October 15, 2012.
• A few days later, Waddell saw Gillen retrieve the pistols from the armory and take them to his personal office. She did not see him return them to the armory.
• Gillen was terminated on August 5, 2013 and, after that date, the pistols could not be found.
• Gillen was not available to speak with Haddad when Haddad attempted an in-person visit and Gillen did not return Haddad's phone calls.
• Gillen had been the target of an investigation regarding the mishandling of property at his prior job. That investigation concluded Gillen had engaged in "inappropriate handling of property" but Gillen was not terminated as a result because his conduct was similar to general practices at the time.
• In a previous job, Haddad had engaged in misconduct that negatively impacted his credibility.
Analyzing these facts in context establishes probable cause did not exist.
The reconstituted affidavit did not contain information that was stale as a matter of law but the fact that the pistols were last seen in Gillen's possession seventeen months before the warrant was issued provided a weak link to Gillen. As Chief of Police, Gillen had a legitimate reason to handle the pistols at the station and the pistols were never seen in Gillen's possession outside the police station. In fact, no individual even speculated that the pistols might be in Gillen's personal possession. Gillen had refused to cooperate in Haddad's investigation but, of course, he had no obligation to do so. See Florida v. Bostick , 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ("We have consistently held that a refusal to cooperate [with the police], without more, does not furnish the minimal level of objective justification needed for a detention or seizure."). Gillen had been the subject of an investigation regarding mishandled evidence but his practices were later found to be commonplace. And Haddad's own credibility was questionable given his past instances of misconduct.
Viewed together, these facts fell short of establishing probable cause and make a "substantial showing" that Haddad was either deliberate or reckless in crafting the original affidavit. Viewed in the light most favorable to Gillen, no "reasonable magistrate judge would have issued the search warrant if she had been apprised of an accurate version of the evidence." Chism v. Washington State , 661 F.3d 380, 392 (9th Cir. 2011). Therefore, the judicial deception claim must proceed to trial.
Even assuming Haddad did not have an obligation to disclose his placement on the Brady list, the affidavit would not establish probable cause.
The Ninth Circuit has repeatedly held qualify immunity is not available "once a plaintiff has made out a judicial deception claim." Chism v. Washington State , 661 F.3d 380, 393 (9th Cir. 2011).
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C. Responsible Parties
The illegal search claim appears to have been brought against Haddad and Vega. Haddad's possible liability is obvious but Gillen does not explain how Vega could be liable for Haddad's actions in procuring the warrant. At trial, Gillen must be prepared to establish some plausible legal basis for continuing to pursue this claim against Vega.
V. Summary
Engwis, White, and Bowling are liable on the federal and state-law claims involving false arrest and false imprisonment stemming from the detention of Gillen outside his home and continuing at the station. Vega is not liable on those claims. The liability of Haddad on these claims must be determined at trial and the liability of the Town of Hayden on only the state-law claims must be determined at trial.
Defendants are entitled to summary judgment on the excessive force claim.
Finally, the illegal search claim limited to the theory of judicial deception must proceed to trial against Vega and Haddad.
Accordingly,
IT IS ORDERED the Motion for Summary Judgment (Doc. 136) is GRANTED IN PART and DENIED IN PART .
IT IS FURTHER ORDERED the Motion for Summary Judgment (Doc. 138) is GRANTED IN PART and DENIED IN PART .
IT IS FURTHER ORDERED the Motion for Summary Judgment (Doc. 141) is GRANTED .
IT IS FURTHER ORDERED no later than August 11, 2017 , the parties shall file a joint statement identifying the expected length of trial and the dates between November 2017 and February 2018 they are available for trial.