in the united states court of appeals for the ninth circuit · pdf fileunited states court of...

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Jesse Dupris and Jeremy Reed., Plaintiffs-Appellants, vs. Perry Proctor, et al.,, Defendants-Appellees.

No. 12-15243

District of Arizona Court Nos. CV08-8132-PCT-PGR

CV08-8133-PCT-PGR (Consolidated)

APPELLANTS’ REPLY TO FEDERAL DEFENDANTS’ ANSWERING BRIEF

ROBBINS & CURTIN, PLLC Joel B. Robbins (AZ Bar No. 011065) 301 East Bethany Home Road Suite B-100

Phoenix, AZ 85012 Telephone (602) 285-0707 Facsimile (602) 265-0267 Attorney for Appellants

Case: 12-15243 08/13/2012 ID: 8285802 DktEntry: 28 Page: 1 of 39

TABLE OF CONTENTS

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INTRODUCTION .......................................................................................................... 1 RESPONSE TO APPELLEES’ FACTUAL STATEMENT .......................................... 1 1. Jeremy Reed ........................................................................................................... 2 2. Jesse Dupris ............................................................................................................ 7 DISCUSSION ............................................................................................................... 11

1. Genuine Issues of Material Fact Preclude Summary Judgment On Plaintiffs’ Tort Claims, Which Include The Tribal Police Officers Assigned To The Task Force. .................................................... 11

A. Defendants’ Concept Of Probable Cause, If Accepted,

Would Effectively Eviscerate The Entire Concept. ....................... 11 B. The Federal Agents Did Not Have Discretion To Violate

The United States Constitution And, As Such, Their Conduct Is Not Protected By The Discretionary Function Exception To The FTCA. .............................................................. 13

C. Arizona Revised Statutes Section 13-3620 Is Either

Inapplicable To Plaintiffs’ Claims Or, At Worst, Presents A Question Of Fact. ....................................................................... 14

1. The Arizona Constitution Precludes Application

Of Any Statute Which Abrogates A Claim For Relief, A Key Provision Of Arizona Law Which Defendants Have Chosen To Disregard. ............................. 14

2. At The Very Least, Issues Of Fact Preclude

Summary Judgment With Respect To Defendants’ Malice. ................................................................................. 16

D. The Acts and Omissions Of Tribal Officers Massey and

Anderson Also Fall Within The Purview Of The FTCA. .............. 18


TABLE OF CONTENTS

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2. Defendants Are Also Individual Liable Under Bivens ............................. 20

A. The Statute Of Limitations Did Not Accrue Until July 15,

2010, When Plaintiffs First Had the Opportunity To Learn McCoy’s and Youngman’s Role In The Investigation. .................................................................................. 20

3. As Defendants’ Conduct Is Considerably More Egregious Than

That Repeatedly Found To Violate The Constitution By This Court, Defendants Are Not Entitled To Qualified Immunity. ................. 23

A. Under Well Established Case Law, Unreliable Photo

Identifications and General Descriptions Do Not Support A Finding of Probable Cause. ........................................................ 24

B. All of The Defendants Were Involved In The

Unconstitutional Decision To Wrongfully Arrest and Prosecute Reed and Dupris. ........................................................... 26

C. Defendants Not Only Wrongfully Arrested Plaintiffs;

They Also Wrongfully Prosecuted Them In Violation Of The Fifth Amendment. ................................................................... 28

4. Since It Was The Defendants, And Not The Tribal Prosecutor,

Who Initiated The Charges Against Reed and Dupris, Defendants’ Invocation Of The “Prosecutor’s Independent Judgment” Is Meritless. ............................................................................ 29

CONCLUSION ............................................................................................................. 30


TABLE OF AUTHORITIES

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Cases: Avila v. Travelers Ins. Companies,

481 F.Supp. 431 (C,D. Cal. 1979) ...................................................................... 15 Awabdy v. City of Adelanto,

368 F.3d 1062 (9th Cir. 2004) ............................................................................ 29 Cronin v. Sheldon,

195 Ariz. 531, 991 P.2d 231 (1999) ................................................................... 15 Gallo v. City of Philadelphia,

161 F.3d 217 (3d Cir. 1998) ............................................................................... 29 Grant v. City of Long Beach,

315 F.3d 1081 (9th Cir.), amended by 334 F.3d 795 (2002) .............................. 24 Hazine v. Montgomery Elevator Co.,

176 Ariz. 340, 861 P.2d 625 (1993) ................................................................... 14 Jenkins v. City of New York,

478 F.3d 76 (2d Cir. 2007) ................................................................................ 24 Lamie v. United States Trustee,

540 U.S. 526, 124 S. Ct. 1023 (2004) ................................................................ 18 Russell v. United States,

2009 WL 2929426 (D.Ariz. 2009) ..................................................................... 19 Salgado-Diaz v. Gonzales,

395 F.3d 1158 (9th Cir. 2005) ............................................................................ 22 Starkins v. Bateman,

150 Ariz. 537, 724 P.2d 1206 (App. 1986) ........................................................ 17 State v. Thompson,

204 Ariz. 471, 65 P.3d 420 (2003) ..................................................................... 17


TABLE OF AUTHORITIES

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State, Dep’t of Admin. v. Schallock,

189 Ariz. 250, 941 P.2d 1275 (1997) ................................................................. 19 Torres v. City of Los Angeles,

548 F.3d 1197 (9th Cir. 2008) cert. denied, -- US --, 129 S.Ct. 1995 (2009) ...................................................... 12, 24-25, 28

United States v. Jensen, 425 F.3d 698 (9th Cir. 2005), cert. denied, 547 U.S. 1056, 126 S. Ct. 1664 (2006) ............................................................... 1

United States v. Lopez,

482 F.3d 1067 (9th Cir. 2007) ............................................................................ 12 United States v. Ricardo D.,

912 F.2d 337 (9th Cir.1990) ............................................................................... 12 Ybarra v. Illinois,

444 U.S. 85, 100 S. Ct. 338 (1979) .................................................................. 2, 4 Statutes & Rules: Federal Tort Claims Act ......................................................................................... passim Arizona Constitution, Article 18, section 6 .................................................................. 14 Arizona Revised Statutes section 13-3620 ............................................................. 14-15 Secondary Sources Restatement (Second) of Agency § 219 ....................................................................... 19


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INTRODUCTION

“A determination as to whether probable cause exists requires a practical,

common sense decision based on the totality of the circumstances, including the

veracity, basis of knowledge and reliability of the information provided by

informants.”1 Here, the Defendants began with a wildly implausible premise – that

not just one, not two, but three separate serial rapists were operating in the small

town of Whiteriver, all using similar M.O.s – and “supported” their wild theories

with law enforcement practices that have never been condoned, such as mixing and

matching victim and witness identifications, and relying on admitted less-than-

positive and inherently suspect identifications. It would have been self-evidence to

any reasonable office that Defendants lacked probable cause to arrest and

prosecute either Jeremy Reed or Jesse Dupris, and the grant of summary judgment

for Defendants should be reversed accordingly.

RESPONSE TO DEFENDANTS’ FACTUAL STATEMENT

Defendants’ own statement of facts demonstrates the absence of probable

cause to arrest either Jeremy Reed or Jesse Dupris.2 Indeed, Defendants misstate

or misconstrue the few “facts” they do have in a post hoc effort to justify their

1 United States v. Jensen, 425 F.3rd 698, 704 (9th Cir. 2005), cert. denied, 547 U.S. 5056, 126 S. Ct. 1664 (2006). 2 The Tribal Defendants have also raised the alleged lack of probable cause as a ground for affirmance in their answering brief; as such, Plaintiffs incorporate by reference herein any discussion of probable cause in their Reply Brief to the Tribal Defendants.


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wrongful arrests and prosecutions. None satisfy the Fourth Amendment

requirement that “probable cause [must be] particularized with respect to that

person,”3 as follows:

1. Jeremy Reed

● “When shown a photo lineup, victim B.L. identified Reed as her

attacker.”4

This assertion is incorrect. Victim B.L. did not identify Reed as her

attacker. Investigators first showed the photo lineup to victim B.L. over six

months after her attack, an attack in which her assailant was wearing a mask.5

When looking over the lineups, she pointed to the person in position B-6,

indicating that her assailant was “similar to this guy,” and also to Reed’s

photograph, stating that it “looked more like this guy.”6

Defendants themselves admit that this was not a “positive identification.”7

Michael McCoy testified:

Q. Is that a positive identification? . . . “Looked more like this guy”?

A. I wouldn’t say it was a positive identification.8

3 Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979). 4 Answering Brief, at p. 10. 5 DIR 193 ¶¶ 2, 4, ER 250-51. 6 Id. ¶ 5. 7 DIR 193 ¶ 87; ER 287, 362-63, 416, 455, 494. 8 Id.


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As did Officer Massey:

Q. . . . Would you even consider that to be a positive

identification, looked more like this guy?

A. No.9

● “Reed matched the height and weight descriptions provided by several victims and witnesses, and matched descriptions that the suspect had ‘hairy’ or ‘bushy’ eyebrows.”

Again this is inaccurate. Reed was unusually tall – 6’4” tall – and of

slender to average build.10 None of the victims described their assailant as “very

tall,” and most described the attacker as chunky and average height.11 The “bushy

eyebrows” suggestion is a complete red herring. Among other things, Aday had

hairy eyebrows.12 Moreover, the witnesses who described their attackers as having

bushy eyebrows otherwise failed to describe Reed in any manner: Victim R.K.

indicated her attacker was 5’7” to 5’8” and 30s or 40s in age; L.B. noted that her

attacker was 5’9” and chunky.13 All of the victims’ descriptions were extremely

general; even so, none of them match Reed in any significant manner whatsoever.

9 Id. Agents Proctor and Toersbijns also testified that B.L.’s statement was not a “positive identification.” Id. 10 Dupris (who was slender) described Reed as having the “same build” as him. While Reed was a few pounds heavier than Dupris, Reed certainly was not chunky or overweight. 11 See generally DIR 193, ¶ 42, ER 257-264. 12 DIR 193, ¶ 46 (Part 2), ER 319 13 Id.


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● “Like Dupris, he lived in the ‘Ben Gay’ housing area and had worked as a WMAHA security guard.”

This alleged fact is both irrelevant, and does nothing to advance the probable

cause requirement that probable cause be “particularized with respect to that

person.”14 Whiteriver is a small town, with just over 5,000 residents.15 Defendants

have failed to explain why residence in one particular housing area, as opposed to

anywhere in the relatively small town, had any particular significance in terms of

the identity of the culprit.16

● He was evasive and refused to speak with the Task Force or come in for an interview.

This is simply incorrect. Reed met with the investigators on September 25,

2006, and answered all of their questions.17 He voluntarily provided a DNA

sample.18

● Dupris identified Reed as a possible suspect based on the similarity of their appearance.

14 Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979). 15 DIR 193, at ¶ 34, ER 256. 16 In fact, common sense would suggest that the serial rapist, to the extent it was not Jimi Aday, was not even from Whiteriver. With such a small population, it would be impossible not to be recognized. Indeed, that is how Jimi Aday was initially uncovered, when one of his victims spotted him in the town’s only grocery store. 17 DIR 193, at ¶ 63 (Part 2) and Exhibit 87; ER 326. 18 Id.


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This is irrelevant, and misstates Dupris’ statements. The federal agents

specifically asked Dupris who had the same basic build as Dupris, and he truthfully

answered that Reed was also tall like him:

MR. WHITING: Jesse, if there’s a friend or a buddy of yours that’s

involved in this that’s your same size, your height, your weight, resembles you, all that stuff, this isn’t the time to cover up for anybody, you’ve got to be truthful about what you know.

A. If there’s other people - - other people like (indiscernible) and

everything. Jeremy Reed’s about the same height as me, so (indiscernible) talk to him.

* * *

Q. Why do you think he might be a suspect? A. Because he’s like same build as me, isn’t he? I’m sure you guys

talked to him, you guys seen him.19

Unless Dupris or Reed actually looked like the suspect identified by the victims or

witnesses, the fact that they looked alike is irrelevant.

● Reed’s supervisor said he was the only security guard who had

a flashlight with a blue light, which matched the type of flashlight used by the suspect.

Which “suspect?” Only three victims or witnesses indicated that the person

they saw had a blue, halogen type flashlight (available at any Wal-Mart or sporting

goods store). L.T. – the victim forming the basis for the charge against Reed – was

19 DIR 193, at ¶ 60 (Part 2), ER 324-25.


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not one of them. Moreover, the Defendants found a blue, halogen flashlight in

Jimi Aday’s belongings during their search of his residence.20

● “Reed admitted he had been accused ‘of picking up girls in different areas, and having two way radios.’”

This misstates what Reed told the investigators.21 When Task Force

members asked Reed if he had a theory, he responded: “No not really, well I’m

trying to finish my reports and don’t pay attention to anything else.”22 However,

he volunteered that Leon Nosie was a possibility: “if I was to say, I would say it

was Leon Nosie, because he was accusing me of picking up girls in different areas,

and of having two way radios. I do not have two way radios. Leon calls traffic in

every night, uses police codes, and has handcuffs. I don’t know what kind he

has.”23

● “Reed is an Apache who has lived on the Reservation his entire life, and victim B.L., who identified Reed from the photo lineup, stated that her attacker had a ‘re[z] boy’ voice.”

Reed did live on the Reservation his entire life, as did many other Whiteriver

individuals. Victim B.L. did not “identify” Reed, as noted above. Moreover, there

was nothing to indicate that “rez boy” referenced only residents of the Fort Apache

20 DIR 193, at ¶ 65, ER 269. 21 Once again, another inconsistency in Defendants’ claims. On the one hand, they assert that Reed was “evasive” and refuse to be interviewed, then they cite his candor in his interview with the Task Force. 22 DIR 193, ¶ 54 (Part 2), ER 322. 23 Id.


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Indian Reservation. There are numerous reservations within Arizona (including

other Apache reservations), many nearby the Fort Apache Indian Reservation.

Moreover, the suspect told at least five victims that he was from “San Carlos,”

presumably the San Carlos Apache Indian Reservation, located a relatively short

distance to the south of the Fort Apache Reservation. As with most of Defendants’

post hoc rationalizations, this statement proves nothing.

2. Jesse Dupris

As with Jeremy Reed, the “facts” asserted by Defendants are either

incorrect, taken out of context, or simply irrelevant.

● “Dupris had recently been a security guard for the White Mountain Apache Housing Authority (“WMAHA”), and in that capacity he had access to the locations and equipment used by the attacker, including handcuffs.”

Everyone, whether security or otherwise, had access to the locations and

equipment used by the attacker.

● “Dupris lived in the ‘Ben Gay’ housing area, near the trail

where the assaults occurred.”

A map of the central Whiteriver area – a map utilized by the investigators –

is attached as Exhibit 1.24 The home where many of the rapes occurred is on West

Cemetery Road, just to the northeast of the Activity Center. The Bengay

24 This map was Exhibit 81 to Plaintiffs’ Responsive Statement of Facts, DIR 193.


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neighborhood is clearly marked. As is self-evident, Whiteriver is a small town,

and almost anywhere in the central town area is “near” the trails and locations of

the assaults.

● “Michelle Young, a former tribal police officer, had observed

Dupris on patrol one night around the time of one of the attacks. Wearing a shirt with the word ‘security’ on it, he was running from a trail to his vehicle. Young then saw Dupris change back into his WMAHA shirt.”

Michelle Young purportedly saw Mr. Dupris changing his shirt sometime in

mid-August 2006, in Arizona. Notably, this was not around the time of one of the

attacks; indeed, no attack has been reported within days of the time Ms. Young

claims that she saw Dupris.25 Moreover, at the time Young purportedly saw

Dupris, he was no longer even employed as a security officer, a fact known by the

Defendants. Young’s story simply did not add up.26 However, even if taken at

face value, it showed nothing more than that Dupris changed his shirt on a summer

evening in Arizona.

● “Two victims, L.T. and LB., identified Dupris from a photo lineup, as did M.M., an eyewitness to another assault.”

Any reasonable officer would have recognized that these purported

“identifications” were unreliable. The circumstances` were explained in detail in

Plaintiffs’ opening brief, and shall only be briefly restated here:

25 DIR 193, ¶ 95, ER 279-80. 26 Id.


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L.T. L.T. was attacked by a masked man in November of 2005; 315 days later, after taking 13 minutes to examine the lineup spread, she pointed to Jesse’s photo in the lineup.27

L.B. L.B. was attacked in September of 2006 by a man she described as 5’9” tall, “chunky,” and having a “local” accent.28 Over a month later, she pointed to Jesse’s photo in the lineup, Jesse being 6’4” tall, very slender (170 pounds) and, as Defendants themselves like to point out, he was not a “local.”29

M.M. M.M.’s review of the photo spread occurred nearly a half year after the event at issue. M.M. described the person he saw as having a dark complexion, speaking with a local accent, and being 6’0” tall.30 Dupris, in contrast, has a light complexion,31 is considerably taller than 6’0,” and was not “local,” being raised born a Sioux and raised in the Dakotas.

As explained in the Discussion below, under clear and well-established Ninth

Circuit authority, these “identifications” were inherently unreliable.

● “Other victims provided physical details of their attacker that matched those of Dupris.”

Incorrect. None of the victims provided a description that matched Dupris.

● “Dupris had lied about his residence, and his polygraph answers were deemed ‘deceptive’ by an FBI examiner.”

Once again, Defendants refuse to provide any context for their dramatic

conclusion that Dupris “lied” about his residence. He alternated between a home 27 DIR 193, ¶¶ 14, 129, 134, ER 252-53, 289-90, 315-16. 28 DIR 193, ¶ 42 (n), ER 264. 29 Answering Brief, at p. 10. Defendants assert the fact that Dupris was not a native Apache is a fact supporting the existence of probable cause, and yet, alternately claim that his identification by someone who asserted he was an Apache also supports the finding of probable cause. This is simply one of many inconsistencies with the Defendants’ contentions in this matter. 30 DIR 193, ¶ 109, 112, ER 284. 31 As Defendants acknowledge. See id.


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in Cibecue – a small town on the Reservation – and Whiteriver, where he would

stay with his girlfriend (now wife). He explained: “I didn’t really want to tell like

where I live because I didn’t want Amanda to get in trouble because I’m not really

supposed to be staying there at that house, ‘cause she gets free rent as a student,

you know. So but I stay there from time to time. . . . So I didn’t want her to get

like charged for rent.”32 Moreover, Dupris certainly did not dispute that he worked

in Whiteriver and, in addition, Cibecue is simply not that far from Whiteriver (33

miles). Thus, Defendants fail to explain how this alleged lie has any bearing

whatsoever on their claim that Dupris was properly arrested as a serial rapist.

● “Victim C.D. stated that her attacker did not have the accent of an Apache man, had a ‘light complexion,’ and was not Apache. Dupris is Irish and Sioux, not Apache, and had lived off of the Reservation for several years.”

C.D. also described her attacked as 5’9” – seven inches shorter than the very

tall Jesse Dupris -- and muscular, in contrast to the slender Dupris.33 Once again,

Defendants claim that probable cause can be grounded upon “cherry picking” of

descriptions, taking the parts that, in general, fit, and disregarding the rest.

● “Dupris’ supervisor believed that he had once gotten into trouble when he worked for WMAHA for ‘having a young woman in his work vehicle.’”

32 DIR 193, at ¶ 58 (Part 2), ER 323. 33 DIR 193, ¶ 42(f), ER 260


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Dupris’ supervisor admitted he had no personal knowledge of this and, in

fact, acknowledged that Dupris’ personnel file contained nothing to corroborate his

belief.34 Moreover, even giving some credence to this uncorroborated speculation,

going from a work-related discipline for having someone in his truck to being a

serial rapist is an impermissible stretch.

DISCUSSION

1. Genuine Issues of Material Fact Preclude Summary Judgment On Plaintiffs’ Tort Claims, Which Include The Tribal Police Officers Assigned To The Task Force.

A. Defendants’ Concept of Probable Cause, If Accepted,

Would Effectively Eviscerate The Entire Concept.

Defendants’ construction of the probable cause requirement would, if

adopted, eviscerate the entire concept. Defendants assert that they can cherry pick

the facts they like from victim and witness statements, and completely disregard

those parts that don’t fit their theory.

Notably, virtually all of the victim and witness descriptions are, at best, very

general in nature, not surprising, given that the true culprit more often than not

wore a mask, the assaults occurred at night, the victims were inebriated, and the

identifications or descriptions were made weeks or months after the incident. The

victims and witnesses described the assailant by such general terms as “short,”

34 DIR 193, at ¶ 24 (Part 2); ER 310. Plaintiffs object to this factual reference as set forth in their motion to strike. Id.


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“chunky,” “tall,” or the like.35 Under the well established law of the Ninth Circuit,

general descriptions are insufficient to create probable cause.36 “Under the law of

this Circuit, mere resemblance to a general description is not enough to establish

probable cause.”37 In Lopez, a description of a suspect as “tall” or “taller” could

not establish probable cause to arrest an individual who was “rather short at

5′6″.”38 In Torres, this Court concluded that, despite the fact that a witness had

been in the same vehicle with the suspect for a couple of hours, her general

description and equivocal photo identification did not provide probable cause for

an arrest.39 In United States v. Ricardo D., this Court held that the fact that the

defendant matched descriptions of the crime suspect as a “young, thin man, not too

tall” and a “young, Mexican male” were insufficient to create probable cause.40

The Defendants’ conduct in the present matter is even more disturbing than

that disapproved of in the foregoing authorities. Defendants did not just rely on

general descriptions, but cherry picked among the general descriptions to create,

35 The victims’ description of the suspect’s height were all over the map. Some described the suspect as “tall,” which Defendants apparently believe describes Reed and Dupris. However, Reed and Dupris are both 6’4” tall, not just tall, but noticeably tall, very tall. The fact that no one emphasized the suspect’s height further emphasizes the complete absence of probable cause in this matter. 36 Torres v. City of Los Angeles, 548 F.3d 1197, 1208 (9th Cir. 2008), cert. denied, -- U.S. --, 129 S. Ct. 1995 (2009). 37 Id. (quoting United States v. Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007)). 38 Id. 39 Torres, 548 F.3d at 1208. 40 912 F.2d 337, 342 (9th Cir.1990).


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literally from whole cloth, the description they wanted. L.B. described her

assailant as 5’9”, chunky, but with a local accent; completely ignoring most of her

description, Defendants focus only on her claim that Reed was a “local” to claim

that her description supports a finding of probable cause. C.D. said her attacker

was 5’9”, muscular, but with a light (“not Apache”) complexion. Defendants

claim her singular reference to a “light” complexion provides probable cause for

the arrest of Dupris, the fact that nothing else about C.D.’s description matches.

This cherry picking as a basis for probable cause is unprecedented – but not

in a good way. There was no probable cause to arrest either Reed or Dupris, and

Defendants’ post-complaint efforts to justify their conduct should be rejected.

B. The Federal Agents Did Not Have Discretion To

Violate The United States Constitution and, As Such, Their Conduct Is Not Protected By The Discretionary Function Exception To The FTCA.

On the one hand, the Government contends (correctly) that “Plaintiffs do not

challenge either the decision to investigate them, or the use of photo lineups to

identify suspects,”41 but then, when convenient for its argument, incorrectly

maintains the exact opposite, “Plaintiffs have identified no mandatory statutes or

regulations that required the Task Force to conduct its investigation in a particular

41 Answering Brief, at p. 20.


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manner.”42 In fact, as Reed and Dupris made clear before the district court and in

their opening brief, they do not challenge the Government’s decision to investigate

them, or the method in which the Government chose to conduct the investigation.

These, as the authorities cited by the Government establish, are policy decisions

protected by the discretionary function exception. However, the Government can

point to no authority that Government agents, once they have made the decision as

to who and how to investigate, may then make a decision to arrest and prosecute an

individual, even if their investigation did not establish probable cause and such

arrest and prosecution would contravene the United States Constitution.

C. Arizona Revised Statutes Section 13-3620 Is Either Inapplicable To Plaintiffs’ Claims Or, At Worst, Presents A Question Of Fact.

1. The Arizona Constitution Precludes

Application Of Any Statute Which Abrogates A Claim For Relief, A Key Provision Of Arizona Law Which Defendants Have Chosen To Disregard.

The Anti-Abrogation Clause of the Arizona Constitution is a key provision

of the State governing document, forbidding “the legislature from abrogating a

cause of action to recover damages for injuries that existed at common law.”43 A

statute violates the anti-abrogation clause if it precludes a cause of action that was

42 Id. at p. 28. 43 Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 348, 861 P.2d 625, 633 (1993) (referencing Ariz.Const., Art. 18 § 6).


15

either recognized at common law when the Arizona Constitution was established in

1912, or has evolved from common law antecedents.44

In their opening brief, Plaintiffs carefully explained how section 13-3620

violated the anti-abrogation clause by effectively abrogating claims for gross

negligence, false arrest, and abuse of process.45 Defendants’ sole response is to

assert that “no court” has previously found it unconstitutional.46 Nothing in the

FTCA supports the circular reasoning advanced by Defendants, namely, that since

no court has previously addressed the statute’s constitutionality, this Court should

not address this issue fairly raised in the pleadings.47

“A federal court may not shy away from a state law question merely because

it is unclear.”48 Here, not only does section 13-3620 violate the Arizona

Constitution, there are sound policy reasons to reject its application. The present

matter demonstrates the danger of grossly negligent investigations, with the lives

of two innocent persons changed forever while a major felon may still be on the

loose.

44 Cronin v. Sheldon, 195 Ariz. 531, 539, 991 P.2d 231, 239 (1999). 45 Opening Brief, at pp. 38-40. 46 Answering Brief, at p. 33. 47 It bears note that the statute, A.R.S. 13-3620, has received very little judicial attention in any manner. 48 Avila v. Travelers Ins. Companies, 481 F.Supp. 4301, 433 (C.D. Cal. 1979).


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2. At The Very Least, Issues of Fact Preclude Summary Judgment With Respect to Defendants’ Malice.

Every time the Defendants in this matter were confronted with facts showing

that neither Reed nor Dupris was involved in any of the assaults, the Defendants

simply trotted out a new and more outlandish story. Despite the overwhelming

evidence of Jimi Aday’s evidence, they never investigated the possibility that he

was the sole serial rapist impersonating a police officer operating in the small town

of Whiteriver.49 Even giving credence to their theory that there was a second rapist

operating in the town, at the same time, using the same M.O., they then theorized –

based solely upon the unreliable statement of Victim L.T. -- that there were three

additional serial rapists acting in Whiteriver, the latter two working in tandem.

When they develop no evidence to support this theory (and it being affirmatively

rejected by the FBI as implausible, at best), they persist in the theory that three

independent rapists are at work in Whiteriver, and that all three must be local and

employees of a single security entity, despite any evidence linking the rapist to the

vicinity or the employer.

Finally, when the federal prosecutor rejects their cases against Dupris and

Reed, and when their 30-day time allotments are about to expire, the Defendants

49 As noted above, the only victim or witness who was shown photo spreads of both Aday and Dupris/Reed was M.B., who was unable to identify anyone in the Dupris/Reed spreads, but then identified Aday when shown the lineup including his photo. DIR 193, ¶ 30, ER 255.


17

arrest and prosecute Reed and Dupris in tribal court. Several weeks later, the Task

Force members collect bonuses of several thousand dollars each for their alleged

“successful” investigation.

These facts present sufficient evidence to submit the issue of Defendants’

malice to the jury. Malice, like any “state of mind,” can rarely be demonstrated by

direct evidence and can be proven through circumstantial evidence.50 In Starkins v.

Bateman,51 a defamation matter, the Court of Appeals noted that the implausibility

of a defendant’s story can, standing alone, prove malice.52 Specifically, the Court

upheld a defamation verdict, noting that the defaming party performed an

inadequate investigation and unreasonably relied upon the report of a biased party;

“[r]ecklessness may be found where there are obvious reasons to doubt the

truthfulness of the informant and the accuracy of his statements.”53 Similarly, in

the present matter, in an apparent effort to “solve” all of the rapes within the 30-

day deployment period, and to collect their bonuses (and embarrass the tribal

police as well), the Defendants advanced ludicrous and implausible stories to

support their arrests and prosecutions of Reed and Dupris.

50 See, e.g., State v. Thompson, 204 Ariz. 471, 479, 65 P.3d 420, 428 (2003). 51 150 Ariz. 537, 724 P.2d 1206 (App. 1986). 52 Id. At 541, 724 P.2d at 1210. 53 Id.


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D. The Acts And Omissions Of Tribal Officers Massey and Anderson Also Fall Within The Purview Of The FTCA.

Title 28, Section 2680 of the United States Code states that, for purposes of

law enforcement liability under the FTCA, an “investigative or law enforcement

officer” includes “any officer of the United States who is empowered by law to

execute searches, to seize evidence, or to make arrests for violations of Federal

law.”54 “[W]hen [a] statute’s language is plain, the sole function of the courts -- at

least where the disposition required by the text is not absurd -- is to enforce it

according to its terms.”55

Here, the salient facts are clear and undisputed by the Federal Defendants.

Massey and Anderson were part of the federal Operation Mountain Line Task

Force. Their activities were directed by the federal agents, including the agents in

charge, McCoy and Youngman. They participated in the execution of federal

search warrants. They participated in the arrest of Jimi Aday on a federal arrest

warrant. They seized evidence, in support of the investigation of Aday, Dupris,

and Reed. In short, they were part of a federal investigation, and conducted federal

law enforcement activities. Under the clear, plain, and unequivocal language of

section 2680(h), this should end the inquiry – Massey and Anderson were federal

54 28 U.S.C. § 2680(h). 55 Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S. Ct. 1023, 1030 (2004) (quotation omitted).


19

law enforcement officers for purposes of their involvement in Operation Mountain

Line, and the United States was responsible for their tortuous conduct accordingly.

Russell v. United States,56 upon which Defendants primarily rely,57 provides

no solace to Defendants and, in fact, highlights why Massey and Anderson are

“federal agents” for purposes of the FTCA in the present matter. In Russell, a

tribal officer conducted a traffic stop on a reservation, resulting in the arrest of a

member of the same tribe. Even with these allegations, the district court did not

dismiss the matter, but gave the plaintiffs limited discovery to address the

jurisdictional issue.58 There was no allegation that the arrest was conducted as part

of a federal investigation; that the tribal officers were authorized to, and did,

enforce federal law as part of the investigation; and that the tribal officers were

acting at the express direction of a federal law enforcement agent.

Indeed, that Massey and Anderson were federal law enforcement “agents” is

simply a matter of agency law.59 They were acting in the scope and course of their

involvement in the federal task force, and at the express direction of the two

federal law enforcement leaders. They were, for purposes of the FTCA, federal

law enforcement agents at the time they arrested and prosecuted Reed and Dupris.

56 2009 WL 2929426 (D.Ariz. 2009). 57 See Answering Brief, at p. 35. 58 Russell, 2009 WL 2929426, slip op. at p. 1. 59 See, e.g., State, Dep’t of Admin. v. Schallock, 189 Ariz. 250, 261, 941 P.2d 1275, 1286 (1997); Restatement (Second) of Agency § 219.


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2. Defendants Are Also Individually Liable Under Bivens.

A. The Statute of Limitations Did Not Accrue Until July 15, 2010, When Plaintiffs First Even Had the Opportunity To Learn McCoy’s and Youngman’s Role In The Investigation

. The following are the salient facts regarding the accrual date for the claims

against Defendants McCoy and Youngman:

● Despite diligent prefiling inquiry, the only investigative

documents available to Plaintiffs prior to litigation were the ½

inch stack that the Defendants provided to the tribal prosecutor

who, in turn, disclosed them during the tribal court

proceedings.60

● These few documents did not reference Agent Youngman at all,

and made only a brief reference to McCoy as an observer at an

interview. Absolutely nothing in these documents suggested

that either of these two individuals were decisionmakers for the

Task Force.

60 DIR 193, ¶ 144, ER 293.


21

● The Government refused to disclose any additional materials

regarding the investigation absent a protective order, asserting

that they were protected under the Privacy Act.61

● When the Government finally produced the records on July 15,

2010, Plaintiffs learned for the very first time of McCoy’s and

Youngman’s participation in the investigation and, more

specifically, in the decisions to arrest and prosecute them.62

● Plaintiffs sought (and obtained) leave to amend their complaint

to add McCoy and Youngman within three months of

discovery.63

Defendants claim that McCoy’s and Youngman’s involvement should have

been just as clear to Plaintiffs as the agents Plaintiffs did name in their original

Complaint. This is palpably untrue. In the less-than-200 pages available to

Plaintiffs, Youngman is hardly mentioned at all, and McCoy is simply an

“attendee” at a victim interview. Contrary to Defendants’ revisionist history,

Plaintiffs carefully reviewed the few documents made available to them, did their

best to reconstruct the investigation (which, of course, they were not part of), and

61 DIR 96, Exhibit E. 62 DIR 96, Exhibit H. 63 DIR 96.


22

named these officers that they reasonably believed to be responsible for their false

arrest and malicious prosecution.64

Defendants assert that “Plaintiffs failed in their requirement to fully

investigate their claims prior to filing their complaints.”65 Noticeably absent from

their brief is any discussion of what more Plaintiffs could have done to investigate.

They had obtained and reviewed every document made available to them through

the tribal lawyers (both prosecution and defense). Defendants absolutely refused

to provide any additional information prior to entry of a protective order, invoking

the Privacy Act.

Indeed, Defendants should be estopped from claiming that Plaintiffs failed to

investigate, given that the ultimate impediment to the Plaintiffs’ investigation was

the Defendants themselves.66 All of the elements of equitable estoppels are

satisfied here. The Government knew all of the relevant facts. They knew that

Plaintiffs intended to rely on those facts, either in the criminal prosecutions or in

any subsequent proceedings (Plaintiffs had served their required FTCA notice of

claim). The Government knew that Plaintiffs had no way of learning the salient

facts about the investigation, and Plaintiffs relied on what little they had learned in

64 As this Court noted in Torres, involvement in an investigation, standing alone does not create liability. Plaintiffs sought to identify those responsible for the wrongs. Plaintiffs did not name other Task Force members, such as Marcelino Toersbijns, Rick Cizek, or Duston Whiting. 65 Answering Brief, at p. 44. 66 See, e.g., Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1166 (9th Cir. 2005).


23

prosecuting their claims. Moreover, the public interest is served by invoking

equitable estoppels in this matter – the Government should not be permitted to hide

facts relevant to a major investigation such as Operation Mountain Line, and then

use their own selective disclosure as a sword against those harmed by the

Government’s conduct.

3. As Defendants’ Conduct Is Considerably More Egregious Than That Repeatedly Found To Violate The Constitution By This Court, Defendants Are Not Entitled To Qualified Immunity.

Despite their reliance on inherently unreliable photo “identifications” and

descriptions of suspects that did not even match that of Reed or Dupris, Defendants

maintain that they are protected from responsibility for the harm done to Reed or

Dupris by the doctrine of qualified immunity. However, the case law in the Ninth

Circuit clearly prohibited both an arrest and prosecution under the circumstances of

this case. Moreover, an arrest and prosecution without probable cause violates the

United States Constitution whether the decision was made by a single individual or

group consensus. Defendants’ invocation of qualified immunity should also be

rejected.


24

A. Under Well Established Case Law, Unreliable Photo Identifications and General Descriptions Do Not Support A Finding Of Probable Cause.

The wrongfulness of Defendants’ conduct in this matter is well established.

Plaintiffs have already addressed two key cases, Grant v. City of Long Beach67 and

Jenkins v. City of New York,68 in their opening brief. However, as further noted

above, this Court has repeatedly condemned arrests based upon unreliable

identifications and general descriptions. For example, in Torres v. City of Los

Angeles,69 a witness (Diana) had spent three hours in a vehicle that was then

involved in a drive-by shooting. The witness was asked to described one of the

vehicle’s occupants, whom she described as 15-16 years old, extremely

overweight, Hispanic, with a dark complexion. Six weeks after the shooting,

detectives showed a photo lineup to the witness, including the plaintiff, Raymond

Torres. After staring at the photograph of the plaintiff for approximately 5-10

minutes, the witness circled his photograph, indicating his looked “more like” the

third person in the car. Several detectives then arrested Torres.

After the charges were dismissed, Torres brought a civil rights claim against

various detectives involved in the investigation and his arrest. This Court held that

67 315 F.3d 1081 (9th Cir. 2002). 68 478 F.3d 76, 90 (2d Cir. 2007) 69 548 F.3d 1197 (9th Cir. 2008)


25

the arresting detectives lacked probable cause to arrest Torres and, further, that

they were not protected by qualified immunity.70

While Diana spent several hours in the car with the third male passenger, she had never seen him before and did not pay attention to him. In addition, as previously discussed, Diana gave only a general description of the third male passenger, which did not match Torres in two important respects (head of hair and no mention of prominent cross). Further, Diana was not shown the six-pack until six weeks after the shooting. When she was handed the six-pack, she stared at it in silence for between five and ten minutes and then, when asked at whom she was staring, made only a comparative identification: she stated that Torres looked more like the third male passenger than the other persons depicted in the six-pack (only one of whom was visibly overweight), but that she was not sure whether or not it actually was him. Thus, a reasonable jury could have concluded that Diana’s identification lacked sufficient indicia of reliability and thus did not provide the detectives with probable cause.71

As Plaintiffs have set forth at length, there is even less of a basis for

probable cause in the present matter than in Torres. The descriptions provided by

victims and witnesses were extremely general. The few alleged photo

identifications were far less reliable than that in Torres, involving purported

identifications made many weeks, if not months or years, after the incident at issue,

based upon an observation made of a masked individual, at night, by a victim or

witness who was often inebriated.

70 One detective, Rains, was not present at the identification, and had been told that there was a “positive identification.” This Court found that Rains was protected by qualified immunity due to the misinformation he received from the other detectives. Id. at 1209. 71 Id.


26

B. All Of The Defendants Were Involved In The Unconstitutional Decision To Wrongfully Arrest and Prosecute Reed and Dupris.

Defendants claim that Hernandez, Lopez, and Proctor were not involved in

the arrests and prosecutions of Reed and Dupris and, therefore, are entitled to

qualified immunity. However, as case agent Whiting testified, the decision was a

group decision: “I remember it as a group discussion, a group consensus that we

had probable cause, and to file charges in Tribal court”72 In fact, the Task Force

members (including Hernandez, Lopez, Proctor, Massey, and Anderson) met at

least once, if not twice, daily.73 All five of these Defendants had knowledge of the

facts underlying the decision to arrest and prosecute Reed and Dupris, and

provided input into this decision.

Moreover, in addition to attending the daily meetings – meetings in which

decisions were made -- each of these officers was physically present at the key

events that relate to probable cause in this matter, as follows:

Defendant Proctor:

Defendant Proctor interviewed Victim L.T., and was present at her photo

lineup. He was also present at numerous other witness and victim interviews (and

72 Id. ¶ 115, ER 286; see also id. (“I don’t remember Mike McCoy turning to Perphelia and saying arrest him, or something to that effect. I just remember that that was the consensus of the group when all those facts and circumstances came together in that day, and we summarized what he had disclosed and that he failed the polygraph”). 73 DIR 193 ¶ 113, ER 284.


27

photo lineups), including Victim L.B. and Victim B.L. Proctor was present when

Victim B.L. pointed to both the photo of Shane Cosay and Reed in her photo

lineup spread. He knew that her identification of Reed was equivocal and far from

positive. Proctor was present when Witness S.P. positively identified Security

Officer Shane Cosay – not Reed or Dupris -- as the police impersonator he had

seen. He was present at the search of Dupris’ home, a search that produced no

inculpating evidence. He assisted in the arrest of Mr. Dupris.

Defendant Hernandez:

Hernandez was one of the first Task Force members to arrive. She was part

of the team focused on Reed, and interviewed Victim B.L. She was also involved

with the investigation and arrest of Jimi Aday, and knew the strength of the case

against him, and that he fit the description of many, if not most, of the other rape

reports. She assisted Task Force member Joshua Anderson in arresting Reed, and

transported him to the jail.

Defendant Lopez:

Lopez was also present at many critical interviews and identification

processes, including that of Victim B.L. Lopez was also present at B.L. “non-

identification” of Reed, having also pointed to the photo of Shane Cosay. Lopez

was present when Witness S.P. positively (and without equivocation) identified

Shane Cosay.


28

All three were members of the Task Force from its inception, and familiar

with all aspects of the investigation. They knew that the alleged photo lineup

“identifications” were unreliable, at best. They knew that there was virtually no

evidence linking Reed and Dupris to the crimes at issue (since both were, in fact,

factually innocent), yet concurred in the decision to arrest and prosecute Plaintiffs.

Once again, Torres provides the seminal authority in this regard. There, the

Ninth Circuit upheld the dismissal of one of the detectives, Detective Hickman,

specifically observing that “there [was] no evidence that Detective Hickman

instructed the other detectives to arrest Torres or that any of those detectives

consulted with her before making the arrest. Thus, there is no evidence of ‘integral

participation’ by Detective Hickman in the alleged constitutional violation.”74

Here, in contrast, there was evidence of “integral participation” by each of the

named Defendants, including their involvement in key events and participation in

the daily meetings. Genuine issues of material fact preclude summary judgment

for the individual defendants in this regard.

C. Defendants Not Only Wrongfully Arrested Plaintiffs; They Also Wrongfully Prosecuted Them In Violation Of The Fifth Amendment.

Finally, Defendants claim that Plaintiffs have failed to make out a Fifth

Amendment claim for the constitutional tort of malicious prosecution (in addition

74 Torres, 548 F.3d at 1206.


29

to the false arrest claim).75 Notably, the prosecutions were commenced by

Defendant Massey, at the direction of the Task Force and its agents in charge,

McCoy and Youngman. As set forth in detail in Plaintiffs’ opening and reply

briefs, Plaintiffs have presented more than sufficient evidence to submit a claim for

malicious prosecution to a jury. A Fifth Amendment violation requires only one

additional element, namely, a deprivation of liberty or other constitutional right.76

Here, both Reed and Dupris were jailed for many days as a result of the

prosecution. Their liberty deprivation more than satisfied the fifth element of a

constitutional malicious prosecution claim.77

4. Since It Was The Defendants, And Not The Tribal Prosecutor, Who Initiated The Charges Against Reed and Dupris, Defendants’ Invocation Of The “Prosecutor’s Independent Judgment” Is Meritless.

The tribal prosecutor did not initiate the charges against Reed and Dupris;

Defendant Massey, acting at the express direction of the Task Force, did.

Massey’s charging documents against Dupris and Reed are attached to the

Statement of Facts,78 as Exhibits 1 and 76, respectively. This, alone, precludes

Defendants’ invocation of the “independent prosecutorial judgment” defense.

75 Answering Brief, at pp. 53-54. 76 Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) 77 See, e.g, Gallo v. City of Philadelphia, 161 F.3d 217, 224 (3d Cir. 1998) (plaintiff that had been required to post a bond and was prohibited from traveling outside of area satisfied liberty deprivation requirement). 78 DIR 193.


30

Moreover, as the tribal prosecutor noted, she received very little information from

the Defendants to evaluate the case, even after it was initiated by Defendant

Massey. When Ms. King agreed to the dismissal of the charges against Reed and

Dupris – with prejudice – her decision was not based upon evidence acquired

between the time of arrest and dismissal, but when she was finally appraised of

the evidence (or, more specifically, the lack thereof) that had been developed

prior to the arrest. Defendants’ efforts to blame Ms. King for the continued

prosecution of Plaintiffs following their own botched investigation should be

rejected.

CONCLUSION

Jesse Dupris and Jeremy Reed brought separate claims against Defendants

for violation of their common law and constitutional rights. Each is entitled to an

individual decision as to whether Defendants’ arrested and prosecuted him without

probable cause. For the reasons set forth herein, both Plaintiffs respectfully

request that this Court reverse the grant of summary judgment for the Defendants,

and remand for a trial on the merits.

RESPECTFULLY SUBMITTED this 13th day of August, 2012.

ROBBINS & CURTIN, p.l.l.c.

/s Joel B. Robbins Joel B. Robbins Attorney for Appellants


EXHIBIT 1


US-000759

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Case 3:08-cv-08132-PGR Document 195-7 Filed 10/11/11 Page 2 of 2Case: 12-15243 08/13/2012 ID: 8285802 DktEntry: 28 Page: 37 of 39

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).this brief uses a monospaced typeface and contains lines of text,

Form 6. Certificate of Compliance With Type-Volume Limitation,Typeface Requirements, and Type Style Requirements

this brief contains words, excluding the parts of the brief exempted

Signature

Date

Attorney for

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)because:

by Fed. R. App. P. 32(a)(7)(B)(iii), or

this brief has been prepared in a proportionally spaced typeface using (state name

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)and the type style requirements of Fed. R. App. P. 32(a)(6) because:

and version of word processing program)(state font size and name of type style) , or

and version of word processing program)with (state number of characters per inch and name of type style)

this brief has been prepared in a monospaced spaced typeface using (state name

.

6,993

s/ Joel B. Robbins

August 13, 2012

Plaintiffs-Appellants

Microsoft Word - 2010

14 point - Times New Roman


I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

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CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

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*********************************************************************************

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NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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s/ Joel B. Robbins

12-15243

August 13, 2012


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