1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 UNITED STATES DISTICT COURT DISTRICT OF ARIZONA Douglas C. Gilford, Plaintiff, vs. Town of Quartzsite, et. al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 2:13-cv-00468-SRB RESPONSE TO DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS ORAL ARGUMENT REQUESTED Plaintiff, Douglas C. Gilford, requests the Court deny Defendants Motion for Judgment on the Pleadings. Plaintiff has alleged sufficient non-conclusory facts from which a jury could find in Plaintiff’s favor on all counts and there are issues of material fact that remain to be tried. A motion for judgment on the pleadings must be denied unless it appears "to a certainty" that no relief is possible under any set of facts the plaintiffs could prove in support of their claim. Mostowy v. United States , 966 F.2d 668, 672 (Fed. Cir. 1992). Also, a judgment on the pleadings is only proper when there are no issues of material fact, and the moving party is therefore entitled to judgment as a matter of law. General Conference Corp. v. Seventh Day Adventist Church , 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S. 1079, 107, 110 S. Ct. 1134 (1990). Further, on November 21, 2013, Judge Aspey granted summary judgment for First Amendment Retaliation against the Town of Quartzsite, Alex Taft, Jeffrey Gilbert and Albert Johnson for terminating Quartzsite Police Officers for coming forward with evidence that KEITH M. KNOWLTON, L.L.C. 9920 S. Rural Road, Suite 108 PMB# 132 Tempe, Arizona 85284-4100 (480) 755-1777 FAX (480) 471-8956 Attorney for Plaintiff Keith M. Knowlton - SBN 011565 [email protected]
Transcript
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UNITED STATES DISTICT COURT
DISTRICT OF ARIZONA
Douglas C. Gilford,
Plaintiff,
vs.
Town of Quartzsite, et. al.,
Defendants.
) ) ) ) ) ) ) ) ) ) )
Case No. 2:13-cv-00468-SRB RESPONSE TO DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS ORAL ARGUMENT REQUESTED
Plaintiff, Douglas C. Gilford, requests the Court deny Defendants Motion for
Judgment on the Pleadings. Plaintiff has alleged sufficient non-conclusory facts from which a
jury could find in Plaintiff’s favor on all counts and there are issues of material fact that
remain to be tried. A motion for judgment on the pleadings must be denied unless it appears
"to a certainty" that no relief is possible under any set of facts the plaintiffs could prove in
support of their claim. Mostowy v. United States, 966 F.2d 668, 672 (Fed. Cir. 1992). Also, a
judgment on the pleadings is only proper when there are no issues of material fact, and the
moving party is therefore entitled to judgment as a matter of law. General Conference Corp.
v. Seventh Day Adventist Church, 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S.
1079, 107, 110 S. Ct. 1134 (1990).
Further, on November 21, 2013, Judge Aspey granted summary judgment for First
Amendment Retaliation against the Town of Quartzsite, Alex Taft, Jeffrey Gilbert and Albert
Johnson for terminating Quartzsite Police Officers for coming forward with evidence that
KEITH M. KNOWLTON, L.L.C. 9920 S. Rural Road, Suite 108 PMB# 132 Tempe, Arizona 85284-4100 (480) 755-1777 FAX (480) 471-8956 Attorney for Plaintiff Keith M. Knowlton - SBN 011565 [email protected]
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Chief Gilbert “[u]ses his authority as the Chief to intimidate both officers and members of the
community if they disagree with his methodology and political affiliation;” “Chief Gilbert
uses, or orders members of the Department to use NCIC to find ‘dirt’ on political candidates
or citizens supporting candidates the Chief dislikes;” “[f]riends of the Chief who have
warrants for their arrests are not placed in custody;” and “Officers are ordered to make traffic
stops and arrest/citizens who the Chief believes are against him.” Exhibit B to Docket 70, and
Docket 118 in Case No 2:11-cv-01637-MEA, which are incorporated herein by this reference.
These police officers are key witnesses in this case. Plaintiff will be filing a motion to amend
the complaint by December 28, 2013, the deadline set by the Court to correct any technical
errors raised by Defendants and to incorporate facts disclosed in the above litigation on
Summary Judgment.
I. FACTS RELEVANT TO RESPONSE.
THE PARTIES AND THEIR ROLES
1. The key factual basis to Plaintiff’s complaint is that Defendants conspired to have Mr.
Gilford unconstitutionally seized, falsely arrested and prosecuted without probable cause, in
retaliation for Mr. Gilford’s investigation of, complaints regarding and on his blog public
criticism of Defendants and his involvement with political adversaries of Defendants, the
2. Defendant Jeff Gilbert (“Gilbert”) was the Town of Quartzsite’s Police Chief. AC ¶
10. Defendant Albert “Al” Johnson (“Johnson”) at all relevant times was the Assistant Town
Manager. AC ¶ 13. Defendant Martin Brannan (“Brannan”) was the Town Attorney, Town
Parliamentarian and Town Prosecutor. AC ¶ 16. Defendant Joseph “Joe” Winslow
(“Winslow”) was a Town Council Member. AC ¶19. Defendant Alexandra Taft (“Taft”)
was the Town Manager. AC ¶ 22. Defendants Sgt. Frausto, Officer Rodriguez, Sgt. Garcia
were Quartzsite Town police officers. AC ¶¶ 23-31. Defendant Laura Bruno (“Ms. Bruno”)
held the position of “Interim” Town Manager after Taft. AC ¶ 33. Defendants Barbara
Cowell (“Cowell”), Norma Crooks (“Crooks”), Michael Jewitt (“Jewitt”), Carol Kelley
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(“Kelley”), Mark Orgeron (“Orgeron”), Jose Lizarraga (“Lizarraga”) and Jerry Lukkasson
(“Lukkasson”) were Town Council Members. AC ¶¶ 35- 53.
3. Plaintiff participated in a loosely organized, non-partisan “reform coalition” of
Quartzsite citizens who had begun meeting (in public places) in 2008 due to various concerns
regarding the Town’s administration and governance. Mr. Gilford is one of many Quartzsite
citizens who from the beginning have assembled or associated as the “Citizens Coalition”
who have contrary political positions from Defendants and who have published criticism of
Defendants. AC ¶ 63.
4. Mr. Gilford, like Michael Roth, Vito Austin, Sean Austin, Edward Foster, Patricia
Workman, Jennifer Jones, Jack Jones, Richard Oldham, Dean Taylor, Chaunce Hamilton, Hal
Davidson, and Russell Sias (other members of the Citizens Coalition), experienced invidious
discrimination, harassment and/or false accusations and/or false arrests (and/or Town
interference with their legitimate business operations), all of which was accomplished by
Defendants working in combination to retaliate against the forenamed citizens, because they
exercised their individual rights of freedom of press, freedom of speech, and freedom to
protest online, in public, and/or in print to criticize Defendants. AC ¶ 64.
ANIMOSITY OF TOWN COUNCIL, TOWN ATTORNEY, TOWN
MANAGERS AND POLICE CHIEF TOWARD PLAINTIFF
5. Although Mr. Gilford had attended meetings of the “Citizens Coalition” beginning in
2008, Mr. Gilford became more blatantly proactive in local town matters when he stepped
into the ‘limelight’ (in April 2009) before the town council on behalf of the “Citizens
Coalition” and described a series of arbitrary acts and omissions which Mr. Gilford and
another “Citizens Coalition” associate believed were occurring within the Planning & Zoning
department of the Town. AC ¶ 65
6. June 22, 2010, Council member Joe Winslow labeled the members of the Citizens
Coalition as a “radical organization” operating “a conspiracy to commit sedition,” as
“dedicated nihilists,” and “anarchists.” AC ¶ 118.
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7. Chief Gilbert admitted in a tape recorded conversation with Sgt. Garcia that he was
involved in the “politics” of the Town of Quartzsite because he “had to try to support the
Town Manager and the council people asking for help.” AC ¶ 93.
8. Police Officers admitted in interviews with the Arizona Department of Public Safety
(DPS) that Chief Gilbert had asked the Officers to target members of the Citizens Coalition,
including Plaintiff (AC ¶ 84) who opposed the Town Council and the Chief. AC ¶¶ 79 to 88.
9. Officer Kemp told the DPS investigator that that Town Council Members told Chief
Gilbert “hey you go, get them. Go get them. They are talking bad about us. Go after them.
Go get ‘em’”. AC ¶ 83, lns. 17-19.
10. Officer Kemp further stated the Chief wanted “selective enforcement” against the
members of Citizens Coalition. AC ¶ 83, lns. 4-5.
11. Sergeant Ponce stated to the DPS investigator that Chief Gilbert has aligned himself
with the Town Council, the Town Manager and the Assistant Town Manager. AC ¶ 78, lns 2–
12.
12. Former Town Prosecutor Matt Newman was fired because he would not succumb to
pressure by Town Officials and Chief Gilbert to “prosecute certain people.” AC ¶ 68, lns.10-
11. Matt Newman specifically stated in Court that the current Town administration is
specifically targeting certain individuals for prosecution due to their political views.” AC ¶
69, lns. 18-20.
13. Mr. Brannan admits he was hired to be a “hard ass town attorney.” AC ¶ 114. This
directly infers that he agreed to do what Matt Newman would not, target certain individuals
for prosecution because of their political views.
14. On June 22, 2010, Council member Winslow called for the resignation of then Mayor
Ed Foster (a prior “coalition” associate who had been elected Mayor in early 2010) for
editing/publishing the online Quartzsite-focused news website, the “Mineshaft.” Council
member Winslow stated at the June 22, 2010 council meeting, referring the Citizens
Coalition:
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“Members of this radical organization are engaged in an ongoing conspiracy to commit
sedition, and have been for at least year. Their objective is the elimination of all
elected town officials and selected town staff, i.e., the town manager and chief of
police, among others; and replace them with their anarchist counterparts, by any means
necessary…. Other methods include dissemination of false information, such as
disinformation, misinformation, perception management, and when all else fails,
outright lies…. I refuse to resign…. The Mayor, and members of his group of
dedicated nihilists, have submitted many, many public information requests over the
last year or so. These inquiries are part of a fishing expedition and partly an attempt to
divert town staff from other more pressing duties, I.E. serving the people of
Quartzsite.” AC ¶ 136.
15. Council Member Winslow further stated on May 18, 2011, in a Town Hall meeting
on the record that nobody was going to bully them and he was going to confront Mr.
Vederman about how he could ignore their requests to investigate the Citizens’ Coalition
members:
“As far as the chief was in here … you know as far as the department doing their job ...
they are being threatened you need to know that Council as it consists … we have been
threatened with lawsuits you name it. We are still here. We are still going to do our
job…. Nobody is going to bully us. I am going to talk to Mr. Vederman about how he
could ignore our requests for a year and a half or two years … investigate these
people….” AC ¶ 137.
16. Plaintiff posted a video on the internet that went viral and was adverse to the current
Town Council members. On Aug 25, 2011, Town Council member Cowell acknowledged
that Mr. Gilford was not allowed to enter the July 10, 2011 Council meeting (the door being
guarded from the inside by Quartzsite Police Sgt. Xavier Frausto) because she suggested that
“letting” Mr. Gilford “in the building with only one police officer to keep the peace could
have led to unnecessary violence.” AC ¶ 165.
ARREST AND PROSECUTION OF PLAINTIFF WAS WITHOUT PROBABLE
CAUSE AND WAS CONSISTENT WITH CONSPIRACY TO SEEK ARREST AND
PROSECUTION OF POLITICAL ADVERSARIES WITHOUT
PROBABLE CAUSE
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17. The then La Paz County Attorney, now La Paz Superior Court Judge, Sam Vederman,
stated to the FBI that the Town Council and Chief Gilbert had been and may currently be
targeting for arrest and prosecution, individuals “simply because they are in political
opposition to the Town, QPD, Chief of Police Jeff Gilbert or other Town officials.” AC ¶ 67-
68.
18. On July 27, 2011, Plaintiff arrived at the parking lot at Town Hall and Council
member Joe Winslow thereafter arrived in the parking lot and walked past Plaintiff. Plaintiff
asked him if he could ask him a question. AC ¶P 138, 141. Winslow rebuffed Mr. Gilford’s
request and walked away. Id. Winslow later that day provided Sgt. Frausto with a written
harassment complaint. Id.
19. Hours after the first contact, Plaintiff was at the post office to pickup his mail and
Council member Winslow showed up just after Plaintiff. Plaintiff asked him “Could you
please tell me why the Council has not put the Chief on suspension?” Winslow again
rebuffed Plaintiff, now with colorful speech. Winslow later reported this exchange in writing
to the Quartzsite Police Department. AC ¶ 142.
20. Plaintiff then drove down Main Street and parked on a side street by the “Eatery”
restaurant to record the presence of vehicles photographically. Winslow entered the Eatery
parking lot in a vehicle. AC ¶ 143. Minutes later, Mr. Gilford’s name was heard on the
police scanner radio receiver, because, upon information and belief, Sgt. Frausto and Chief
Gilbert were inside the restaurant with at least Council member Barbara Cowell and Winslow
(their cars were in the parking lot). AC ¶ 144. Also present was Lukkasson.
21. Wilson filed a written complaint which resulted in Plaintiff being charged with
harassing Wilson in case 093.
22. Defendant Alexandra Taft (“Taft”) was employed as Town Manager for the Town of
Quartzsite. AC ¶ 146. On or about July 13-19 of 2011, Mr. Gilford filed four separate factual
complaints with the Quartzsite Police Department, complaining that Town Manager Taft had
violated her own posted rule regarding no camera use in the Town Hall on July 12, 2011. AC
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¶ 147. On August 19, 2011, Plaintiff was charged in Criminal Case #097 (CR20110097) with
filing a false report regarding the events involving Ms. Taft. AC ¶ 148.
23. On or about July 13-19 of 2011, Mr. Gilford filed four separate factual complaints
with the Quartzsite Police Department regarding Town Manager Taft, Police Sgt. Fabiola
Garcia, Council member Jose Lizarraga, and Assistant Town Manager Mr. Johnson. AC ¶
119. On August 19, 2011 Plaintiff was charged for False Reporting (6 counts), Harassment (2
counts), Disorderly Conduct and Trespassing in the Quartzsite Town Hall. On July 3, 2012,
Judge Johnston III acquitted Mr. Gilford on all remaining charges for no prima facie case.
AC ¶¶ 98-99 and 120.
24. Defendant Jose Lizarraga was a Town of Quartzsite Council member. On or about
July 13-19 of 2011, Mr. Gilford filed a complaint with the Quartzsite Police Department,
complaining that Council member Jose Lizarraga committed disorderly conduct at a public
council meeting on May 24, 2011. AC ¶ 171. On August 19, 2011, Mr. Gilford was charged
in Criminal Case 097 (CR20110097) with filing a false report for filing the complaint
regarding the events involving Mr. Lizarraga. AC ¶ 173.
25. The Town Council set a policy regarding the use of audio recording, video recording
and camera-type devices in public access areas of the Town Hall. AC ¶¶ 166, 167, 170, 174.
26. On October 10, 2012, Defendant Bruno, the “interim Town Manager,” sent Plaintiff a
letter stating restrictions regarding the use of video recording camera. AC ¶¶ 155-56. On
February 8, 2013 Ms Bruno approached Mr. Gilford while he was reviewing records and told
him no audio recording could be done. AC ¶ 158. This was again stated on April 8, 2013 by
Town Clerk Frausto. AC ¶ 159.
27. On September 1, 2011, Plaintiff approached a business window at Town Hall,
reached for a self-service display of blank Public Records Request forms, took a standing
position at the counter, and proceeded to use the ledge surface to prepare a Request form for a
public record he was seeking. AC ¶ 99. Defendant Johnson presented himself in front of Mr.
Gilford and insisted on interfering with Mr. Gilford. Mr. Johnson approached the window
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from the office-side and insisted Mr. Gilford communicate with Mr. Johnson while Mr.
Gilford was still attempting to complete the paperwork. AC ¶ 100. Plaintiff felt an imminent
need to document the developing circumstances due to the insistent demand from Mr.
Johnson that he must then and there “assist” Mr. Gilford and that Mr. Gilford must submit to
his “assistance,” despite the fact Mr. Gilford had asked for no help whatsoever. Mr. Gilford
powered-up a camera device which he almost always has with him, but he did not activate the
device into record mode. AC ¶ 101
28. Upon seeing the camera in Plaintiff’s hand, Mr. Johnson suddenly snatched the
camera from Plaintiff’s hand by force and then held it behind his (Mr. Johnson’s) back so
Plaintiff could not retrieve it. AC ¶102
29. Plaintiff decided to call 911 so as to get his camera back. While Plaintiff was already
in the call process with 911, to report his camera had been snatched, Mr. Johnson set the
camera back on the counter near Plaintiff. Plaintiff remained in the lobby area on the opposite
side of the partition from Asst. Town Manager Johnson, and was still connected to dispatch
when Mr. Johnson began making sounds similar to that which a bleating-goat might make.
AC ¶ 102.
30. Plaintiff retrieved his camera from the counter ledge and departed to the outside of
the building to await a police response the dispatcher said would be forthcoming, outside the
building. Concurrent to Mr. Gilford awaiting a QPD officer arrival outside the building, Mr.
Johnson separately contacted QPD Sgt. Xavier Frausto regarding the matter. AC ¶ 103-104.
31. Officer Rodriquez admits that he arrested Plaintiff because he was ordered to by Sgt
Frausto and he admits he conducted no investigation. AC ¶ 108.
32. Sgt. Frausto testified at the criminal trial against Plaintiff that he received a call from
Mr. Johnson and was told Mr. Gilford was causing a commotion at town hall. Based on that
phone call he told Officer Rodriquez to arrest Plaintiff. AC ¶ 128.
33. In the DPS criminal investigation of Chief Gilbert, Officer Rodriguez stated that he
was being used by Chief Gilbert to violate citizens of the Town of Quartzite’s constitutional
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rights. The aforementioned excerpts are ‘haunting’ in light of the fact that Officer Rodriguez
arrested Mr. Gilford without probable cause or any investigation only two days after his DPS
interview regarding Chief Gilbert. AC ¶¶ 80, 132
34. Officer Rodriguez testified at the trial on July 3, 2012 regarding Mr. Gilford’s arrest on
September 1, 2011 that he had no probable cause, nor true material facts to support the charge
of trespassing. AC ¶ 133.
35. Then La Paz County Attorney Vederman documented that Quartzite Chief of Police
Jeff Gilbert “requested felony charges against certain citizens for which I believe no criminal
conduct occurred, or, at the very least, did not rise to the level of felony conduct and that
Chief Gilbert request his office no longer prosecute misdemeanor cases in which the
Quartzsite Police Department is involved.” AC ¶ 114.
36. January 15, 2012, Mr. Brannan labeled the members of the Citizens Coalition,
specifically mentioning Plaintiff as “self styled activists.” Days later at a public council
meeting, Mr. Brannan read a prepared statement accusing Plaintiff of being a liar. AC P 115-
16.
37. Assistant Town Manager Al Johnson, after the criminal actions were dismissed on July
3, 2012, obtained an injunction for workplace harassment against Plaintiff asserting that
Plaintiff might be “emboldened” by the dismissal of the criminal charges and might harm the
employees of the town. This injunction prohibited Plaintiff from doing his work as a real
estate broker who needed access to the Planning and Zoning department to carry out his day
to day business. AC ¶¶ 111-113.
II. STATUTE OF LIMITATIONS NOT VIOLATED - COUNTS 5, 6 AND 7
ARE TIMELY.
The statute of limitations for malicious prosecution does not commence until the
prosecution terminates in Plaintiff’s favor. Glaze v. Larsen, 207 Ariz. 26, 29 83 P.3d 26, 29
(Ariz. 2004). Case 093 terminated in Plaintiff’s favor on March 8, 2012. AC ¶ 8. Case 097
and Case 103 terminated in Plaintiffs favor on July 3, 2012, except the trespassing charge
which terminated in Plaintiff’s favor on June 25, 2012. Id. Each case terminated in
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Plaintiff’s favor within one year of the filing of the Complaint (March 6, 2013) so every tort
based on the prosecution of Plaintiff is timely. As Defendants point out the arrests are beyond
the one year statute of limitation for the State Torts, but the prosecution of Plaintiff on those
arrests is not.
Further, on July 3, 2012 (within the one year statute of limitations), Defendants
maliciously slapped Plaintiff with a Workplace Harassment Injunction from the Quartzsite
Municipal Court because Plaintiff was acquitted of the criminal charges. This was done by
the City of Quartzsite, through Defendants to stop Plaintiff from videotaping at City Hall.
Id, ¶58. The injunction was quashed.
The factual basis for Count 5, Intentional Infliction of Emotional Distress, is the
conspiracy of Defendants to maliciously prosecute Plaintiff because he was critical of those
managing the Town of Quartzsite. Id, at ¶ 218. Plaintiff specifically alleged that Defendants
acted jointly and in concert and conspired and agreed together to cause Plaintiff severe
emotional distress by having him prosecuted without probable cause. Id, at ¶ 221. Further,
Plaintiff alleges that the prosecutions and the injunction against harassment were false and
designed to cause Plaintiff severe emotional distress. Id.
Regarding Count 6, the conspiracy allegations, "there is no such thing as a civil action
for conspiracy," but rather, "[t]he action is one for damages arising out of the acts committed
pursuant to the conspiracy." Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 131,
412 P.2d 47, 63 (1966). The statute of limitations begins to run at the time the act is
committed, though damages continue to flow thereafter. Id. Each conspirator is vicariously
liable for the acts of co-conspirators who are carrying out the wrongful acts. Baker ex rel.
Hall Brake Supply, Inc. v. Steward Title & Trust of Phoenix, Inc., 197 Ariz. 535, 545, ¶42, 5
P.3d 249, 259 (App. 2000). Like Count 5, the factual basis for the conspiracy allegations is
based on statements of witnesses that the Town Council, Town Attorney and Town managers
requested Chief Gilbert pursue Plaintiff and the other members of the Citizens Coalition
criminally, without justification, because of their political activities against the Town Council
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and managers of the Town. Further, the complete lack of probable cause for the arrests and
prosecutions directly indicates that Defendants knowingly unlawfully prosecuted Plaintiff
without probable cause to intimidate and stop Plaintiff from investigating and publically
criticizing and or complaining about Defendants’ activities. AC ¶ 228.
The evidence showing the formation and existence of the conspiracy took place prior
to the one year statute of limitation. However, the acts of the conspirators in furtherance of
the conspiracy occurred within the one year statute of limitation.
Count 7, negligent hiring, retention or supervision is within the statute of limitation for
the acts of Defendants in prosecuting Plaintiff without any probable cause. “A person
conducting an activity through servants or other agents is subject to liability for harm resulting
from his conduct if he is negligent or reckless: (a) in giving improper or ambiguous orders of
(sic) in failing to make proper regulations; or (b) in the employment of improper persons or
instrumentalities in work involving risk of harm to others; (sic) (c) in the supervision of the
activity; or (d) in permitting, or failing to prevent, negligent or other tortuous conduct by
persons, whether or not his servants or agents, upon premises or with instrumentalities under
his control.” Kassman v. Busfield Enters., Inc., 131 Ariz. 163, 166, 639 P.2d 353, 356 (App.
Div. 2, 1981). For an employer to be liable, the employee must have committed a tort. Kuebn
v. Stanley, 208 Ariz. 124, 130 ¶ 21, 91 P.3d 346, 352 (App. Div. 2 2004). The allegations
against the Town of Quartzsite for the acts of its employees in agreeing to work together to
bring false allegations against Plaintiff and to prosecute him without probable cause to chill
his political speech against them is timely because it was brought within one year of the
dismissal of all the prosecutions in Plaintiff’s favor.
III. PROSECUTORIAL IMMUNITY DOES NOT APPLY.
Paragraph 16 of the Amended Complaint states Defendant Brannan “is not entitled to
absolute or qualified immunity because his wrongful acts occurred outside of his role as a
prosecutor and involved his role in initially planning and investigating potential criminal
actions against Plaintiff before they began.” Mr. Brannan was a conspirator who advised his
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co-conspirators about making false criminal allegations against Plaintiff that had no probable
cause. Plaintiff has not alleged and is not asserting any claims against Mr. Brannan for his
role as the prosecutor.
The evidence of Mr. Brannan’s involvement in a conspiracy to target Plaintiff and
other members of the “Citizens Coalition” (AC ¶¶ 63, 64 and 65) with prosecution because of
their political opposition to Defendants, comes from then La Paz County Attorney Sam
Vederman. He stated to the FBI that he came across facts and circumstances that led him to
believe “that certain citizens within the Town of Quartzsite may have been, and may currently
be, targeted for arrest and prosecution, simply because they are in political opposition to the
town, [Quartzsite Police Department], Chief of Police Jeff Gilbert or other Town officials.”
AC ¶¶ 67-68.
Further, Mr. Brannan’s predecessor, Matt Newman stated in court: “I wish to inform
this court that I will be unavailable to accept appointments in Quartzsite Magistrate Court in
the future, at any hourly rate. It is my belief that the current administration of the Town has
created an inherent conflict of interest by appointing the Town Prosecutor as the Town
Attorney and Town Parliamentarian. It is also my belief that the current administration is
specifically targeting certain individuals for prosecution due to their political views. As it is
impossible to know in each particular case if the defendant may be one of those individuals. I
do not desire to represent appointed clients at this time.” AC ¶ 69.
Mr. Brannan therefore carried the role of Town Attorney and Town Parliamentarian as
well as Prosecutor and in those other roles he is not entitled to judicial immunity. This is an
issue of fact as to his involvement in his other capacities in the conspiracy to falsely arrest and
bring malicious prosecution against Plaintiff and others for political reasons. For example, at
AC ¶74 Mr. Brannan, as Town Attorney, put on the record, at a Town Council meeting where
Mr. Gilford was being barred entry where he stated that the Council needed to vote to close
the meeting to decide if an emergency exists and a threat exists to justify a “No Notice”
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meeting. AC ¶ 74. Weeks prior to this statement on the record, an overwhelming majority of
police officers filed a written complaint with the Arizona Peace Officers Standards and
Training Board against Chief Gilbert, alleging that the officers were being used or expected to
violate the civil rights of residents of Quartzsite. AC ¶¶ 75-76.
These events took place prior to any arrests and prosecutions of Plaintiff. The acts of
Mr. Brannan to conspire with Defendants to set up Plaintiff for false arrest and malicious
prosecution took place before any actual arrest and prosecution. In his role as Town Attorney,
he had a duty and obligation to assure that the prosecutor working for the Town followed the
probable cause standard and did not act arbitrary and capricious. He had a duty to report the
prosecutor if he violated Ariz. R. Sup. Ct. 42, ER 3.8, which states: “A prosecutor has the
responsibility of a minister of justice and not simply that of an advocate. This responsibility
carries with it specific obligations to see that the defendant is accorded procedural justice and
that guilt is decided upon the basis of sufficient evidence.” The second Mr. Brannan agreed
to the terms of the conspiracy to bring baseless criminal charges and prosecutions against
Plaintiff and the other members of the “Citizens Coalition,” he created a conflict of interest
between his role as Town Attorney and Town Prosecutor.
Defendant Brannan as a prosecutor is entitled to absolute immunity for any and all
judicial or quasi judicial functions. See Kalina v. Fletcher, 522 U.S. 118, 127, 118 S. Ct. 502
(1997); Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606 (1993); Forrester v.
White, 484 U.S. 219, 229, 108 S. Ct. 538 (1988). However, absolute immunity does not apply
when a prosecutor acts as an investigator. Buckley, 509 U.S. at 273.
Before there is “probable cause to have anyone arrested, a prosecutor neither is, nor
should consider himself to be, an advocate.” Id. at 274. Qualified immunity protects
government officials from liability for acts within the scope of their public duties unless 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.
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Chamberlain v. Mathis, 151 Ariz. 551, 558, 729 P.2d 905, 912(1986). Before there is
probable cause to arrest or to initiate judicial proceedings a prosecutor’s “mission . . . [is]
entirely investigative in character.” Buckley, 509 U.S. at 273; see also Challenge, Inc. v.
State ex rel. Corbin, 138 Ariz. 200, 205, 673 P.2d 944, 949 (App. 1983) (stating that
“assisting the police in obtaining evidence was investigative”) (citing Marrero v. City of
Hialeah, 625 F.2d 499, 505-06 (5th Cir. 1980)). Additionally, a prosecutor acts in an
investigative capacity when he or she “gives advice to police during a criminal investigation,”
Van de Kamp v. Goldstein, 555 U.S. 335, 343, 129 S. Ct. 855, 172 L. Ed. 2d 706 (2009), or
otherwise “performs the investigative functions normally performed by a detective or police
officer.” Id, 509 U.S. at 273; see also Cousins v. Lockyer, 568 F.3d 1063, 1068 (9th Cir.
2009) (explaining that investigative conduct would include the prosecutor “performing the
evidence gathering and witness interviewing functions ’normally performed by a detective or
police officer’”) (quoting Buckley, 509 U.S. at 273).
On January 15, 2012, Mr. Brannan issued a “Town Attorney” press release to publicly
label and name several citizens (prior “Citizens Coalition” associates) as “self styled
activists.” All those named in the press release by Mr. Brannan were at the time being
prosecuted (without probable cause) for various alleged misdemeanor offenses by the Town,
namely, Mr. Douglas Gilford, Ed Foster, Jennifer Jones, and Michael Roth. AC ¶ 115. Days
later, on January 24, 2012, during a public council meeting in progress, Mr. Brannan read a
prepared statement where he called Mr. Gilford a liar. Id. Mr. Brannan was then present at
the Council meeting in his capacity as the Town Attorney and Town Parliamentarian.
Mr. Brannan actions only underscore his participation in the ongoing conspiracy to
politically target and charge prior “Citizens Coalition” associates with criminal counts
(without probable cause) and expressed the malice and animosity which then town council
members (who hired him to be “hard ass”) held against the most ‘vocal’ associates of the
prior organized “Citizens Coalition.” AC ¶ 117.
IV. SELECTIVE PROSECUTION – EQUAL PROTECTION.
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If the law “is applied and administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal discriminations between persons in
similar circumstances, material to their rights, the denial of equal justice is still within the
prohibition of the constitution. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).
Defendants not only conspired to, but acted with “an evil eye” to deny Plaintiff and the other
Citizen Coalition members of equal justice and legal protection to arrest and prosecution.
Plaintiff has alleged sufficient facts to establish a pattern by Defendants of generally
exercising their discretion to treat Plaintiff and the Citizens Coalition associates differently
and detrimentally from other citizens by targeting them with arrest and prosecution without
probable cause. Towery v. Brewer, --- F.3d ---, 2012 WL 627787 (9th Cir. 2012)(Note that
this is not a class of one case because the class is the members of the “Citizens Coalition” and
the rights being denied them are the constitutional rights to be free from a stop by police
without reasonable suspicion and arrest and prosecution without probable cause).
In this case Plaintiff filed criminal complaints against various Defendants for
misconduct and instead of those matters being handled in the normal course (investigated and
if valid, prosecuted), Plaintiff was prosecuted for bringing those claims. On August 23, 2011,
Plaintiff had just been assaulted and asked for an officer to identify his attacker and take a
report. Sgts. Frausto and Garcia both refused to investigate and claimed to be too busy.
Further, the evidence above is that the conspiracy was specifically designed to
selectively prosecute Plaintiff and the other Coalition members. Officer Kemp when asked by
the DPS investigator “why did chief want stops?” He answered “[s]elective enforcement.
Prevent running for office. Personal reasons. On behalf of the City Council.” AC ¶ 83.
Finally Defendants assert that Defendants only reported conduct to police or submitted
police reports for review by a prosecutor. Response at p. 7, lns 7-8. This statement without
any legal or factual support has consequences that must be discussed. The Ninth Circuit
Court of Appeals in Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008) held that in any
constitutional tort case in which a prosecutor has instigated a prosecution, Plaintiff need only
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allege a retaliatory motive on behalf of Defendants and the absence of probable cause to rebut
the presumption of independent prosecutorial review and judgment. See, McSherry v. City of
Long Beach, 584 F.3d 1129, 1137 (9th Cir. Cal. 2009). In this case, the complete lack of
probable cause and the retaliatory motive set forth above are sufficient at this stage to rebut
the presumption of independent prosecutorial review. However, because of the prosecutors
involvement in the conspiracy, Plaintiff has alleged sufficient facts from which a jury could
conclude there was no independent prosecutorial review that would block liability.
Plaintiff has alleged sufficient facts that the prosecution had discriminatory effect and
that the police were motivated by a discriminatory purpose. Both Defendants and other
citizens of Quartzsite were not being subject to arrests and prosecution without probable
cause and in retaliation for their political speech. Plaintiff therefore can prevail at trial on his
Fourteenth Amendment selective enforcement claim and equal protection claim.
V. PLAINTIFF HAS STATED A CLAIM DEFENDANTS VIOLATED HIS
FIRST AMENDMENT RIGHTS TO FREEDOM OF SPEECH AND TO
SEEK REDRESS FOR GRIEVANCES WITHOUT RETALIATION.
Plaintiff set forth sufficient non-conclusory facts to establish that Plaintiff engaged in a
constitutionally protected activity. First, the constitutional protected activity is Plaintiff’s
political speech (through his web site) criticizing Defendants and their activities. AC PP 208-
209. “Suspicion that viewpoint discrimination is afoot is at its zenith when the speech
restricted is speech critical of the government," Ridley v. Mass. Bay Transp. Auth., 390 F.3d
65, 86 (1st Cir. 2004), because "criticism of government is at the very center of the
constitutionally protected area of free discussion," Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.
Ct. 669, 15 L. Ed. 2d 597 (1966). See also City of Houston v. Hill, 482 U.S. 451, 461, 107 S.
Ct. 2502, 96 L. Ed. 2d 398 (1987) ("The First Amendment protects a significant amount of
verbal criticism and challenge directed at police officers."); New York Times, 376 U.S. at 270
(recognizing the "profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic,
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and sometimes unpleasantly sharp attacks on government and public officials"). Chaker v.
Crogan, 428 F.3d 1215 (9th Cir. Cal. 2005).
The second protected activity is his right to file complaints regarding government
official misconduct and to seek redress of grievances. Plaintiff filed complaints against
governmental officials and because of the conspiracy to have police pursue Plaintiff and the
other members of the Citizens Coalition with arrest and prosecution, Defendants retaliated
against Plaintiff for his complaints and charged him with crimes for false reporting and
harassment without probable cause and solely to silence Plaintiff political speech activities.
AC ¶¶ 208-09. It is well established that the First Amendment’s right to petition government
for redress of grievances is the right to make a complaint to, or seek the assistance of, one's
government, without fear of punishment or reprisals. Sneed v. City of Harvey, 2011 U.S.
Dist. LEXIS 112842 (N.D. Ill. Sept. 29, 2011). The "Supreme Court … described the right to
petition government for redress of grievances as 'among the most precious of the liberties
safeguarded by the Bill of Rights.'" Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1984). 589
((quoting United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 19 L. Ed. 2d
426, 88 S. Ct. 353 (1967)). The Texas federal court in Lott v. Andrews Ctr., 259 F. Supp. 2d
564, 568 (E.D. Tex. 2003), considered it axiomatic "that filing a criminal complaint with law
enforcement officials constitutes an exercise of the First Amendment right" to petition
government for the redress of grievances. Id. Finally, the United States Supreme Court has
long recognized the citizens' right to exercise constitutional, and specifically First
Amendment, freedoms without retaliation. See Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 283-84, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977).
Plaintiff thus has set forth facts supporting two constitutionally protected activities.
Defendants focus their Motion on the allegations in the Amended Complaint asserting
Defendants violated state law in prohibiting video and audio recordings in public meetings
and prohibiting a citizen of Arizona from video or audio recording any conversation he is
having in public areas of the Town Hall. AC ¶ 155 (Arizona’s Open Meeting Law - A.R.S.
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§33-1804) and ¶ 160 (right to tape record conversations - A.R.S. § 13-3005 and 18 U.S.C. §
2511(2) (c)). Plaintiff did not allege in the Amended Complaint that violation of these rights
constituted a constitutionally protected activity. These allegations were made to show the
method Defendants conspired to use to set a trap to assert criminal violations of law.
Defendants attempted to arbitrarily set laws that they felt Plaintiff would violate so that they
could have him arrested, prosecuted and hopefully silenced. This is exactly what they did in
Case 3. Defendants harassed Plaintiff while he was minding his own business, causing him to
turn on his camera. They then prosecuted him for video and audio taping in the public areas
of the Town Hall even though he never hit the record button.
However, it is firmly established that the First Amendment's reach extends beyond
simply abridging the freedom of speech, or of the press, and encompasses a private citizens
right to video tape government activities in public areas. Glik v. Cunniffe, 655 F.3d 78, 82
(1st Cir. Mass. 2011). As the United States Supreme Court observed, "the First Amendment
goes beyond protection of the press and the self-expression of individuals to prohibit
government from limiting the stock of information from which members of the public may
draw." First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978); see also Stanley v. Georgia, 394
U.S. 557, 564 (1969) ("It is . . . well established that the Constitution protects the right to
receive information and ideas."). An important corollary to this interest in protecting the stock
of public information is that "[t]here is an undoubted right to gather news 'from any source by
means within the law.'" Houchins v. KQED, Inc., 438 U.S. 1, 11(1978) (quoting Branzburg v.
Hayes, 408 U.S. 665, 681-82 (1972)). The filming of government officials engaged in their
duties in a public place, including police officers performing their responsibilities, fits
comfortably within these principles. Glik, 655 F.3d at p. 82.
The First Circuit Court of Appeals has recognized that the videotaping of public
officials is an exercise of First Amendment liberties. Glik v. Cunniffe, 655 F.3d 78, 83-84
(1st Cir. Mass. 2011). In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999), a local journalist
brought a § 1983 claim arising from his arrest in the course of filming officials in the hallway
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outside a public meeting of a historic district commission. The commissioners had objected to
the plaintiff's filming. Id. 193 F.3d at p. 18. When the plaintiff refused to desist, a police
officer on the scene arrested him for disorderly conduct. Id. The charges were later
dismissed. Id. The First Circuit in rejected the officer's appeal from a denial of qualified
immunity because the plaintiff's journalistic activities "were peaceful, not performed in
derogation of any law, and done in the exercise of his First Amendment rights, [the officer]
lacked the authority to stop them." Id. at p. 25.
The First Circuit recognized that the First Amendment protects the filming of
government officials in public spaces by private citizens is in accord with the decisions of
numerous circuit and district courts, including the Ninth Circuit Court of Appeals. Id; See,
e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) ("The First
Amendment protects the right to gather information about what public officials do on public
property, and specifically, a right to record matters of public interest."); and Fordyce v. City
of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a "First Amendment right to
film matters of public interest").
The fact that Plaintiff is a private individual rather than a reporter does not change the
First Amendment Protection to his activities. Glik, 655 F.3d at pp. 83-84. “The First
Amendment right to gather news is, as the Court has often noted, not one that inures solely to
the benefit of the news media; rather, the public's right of access to information is coextensive
with that of the press. (Citations Omitted). Moreover, changes in technology and society have
made the lines between private citizen and journalist exceedingly difficult to draw. The
proliferation of electronic devices with video-recording capability means that many of our
images of current events come from bystanders with a ready cell phone or digital camera
rather than a traditional film crew, and news stories are now just as likely to be broken by a
blogger at her computer as a reporter at a major newspaper. Such developments make clear
why the news-gathering protections of the First Amendment cannot turn on professional
credentials or status.” Id.
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The Court in Glik recognized that “the right to film is not without limitations. It may
be subject to reasonable time, place, and manner restrictions.” Id. However, setting rules that
violate Arizona’s open meeting law, A.R.S. §33-1804 on its face is not reasonable. Further
precluding a private citizen from audio recording any conversation he is having in a public
area at Town Hall which is lawful under A.R.S. § 13-3005 and 18 U.S.C. § 2511(2)(c) is
further not reasonable. This issue cannot be resolved by this Court by Judgment on the
Pleadings and requires the development of a factual record through discovery.
The Motion must be denied because Plaintiff has alleged sufficient facts to establish
Plaintiff was subject to adverse action that would chill a person of ordinary firmness from
continuing to engage in the protected activity and that there is a direct causal relationship
between the constitutionally protected activity and the adverse action. Plaintiff has submitted
non-conclusory facts that show those Defendant Town Council members, Town Attorney, the
Town Manager and Assistant Town Manager were upset with Plaintiff’s political speech and
videos on the internet contrary to their political positions, that they conspired with Police
Chief Gilbert to silence Plaintiff (and the other members of the Citizens Coalition) by using
the police power to harass, arrest and bringing false criminal charge against Plaintiff, and in
fact Defendants carried out that conspiracy by arresting Plaintiff and prosecution Plaintiff
without probable cause.
VI. PLAINTIFF HAS STATED A RETALIATORY ARREST/PROSECUTION
CLAIM.
As is fully set forth above, Plaintiff has alleged non-conclusory facts that Plaintiff was
either charged or arrested and in all cases prosecuted without probable cause. Defendants do
not challenge the sufficiency of the factual allegations raised by Plaintiff in Counts 1 to 3
which consist of State Tort and Federal Civil Rights claims for false arrest, imprisonment and
malicious/wrongful prosecution. Each of these counts is based on the lack of probable cause
which is well alleged and factually supported.
Further, as is set forth above, Plaintiff has sufficiently alleged and factually supported
his allegations that Defendants acted with the impermissible motive to interfere with
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Plaintiff’s First Amendment Rights. Finally, being arrested and prosecuted as much as
Plaintiff was in such a short time would chill a person of ordinary firmness from future First
Amendment activities, i.e., continued criticism of the Police Chief, Town Council members,
Town Attorney and the Town Manager and his Assistant.
As was stated above, the Ninth Circuit Court of Appeals in Beck v. City of Upland,
527 F.3d 853, 862 (9th Cir. 2008) held that in any retaliatory arrest/prosecution case in which
a prosecutor has instigated a prosecution, Plaintiff need only allege a retaliatory motive on
behalf of Defendants and the absence of probable cause to rebut the presumption of
independent prosecutorial review and judgment. See, McSherry v. City of Long Beach, 584
F.3d 1129, 1137 (9th Cir. Cal. 2009). Plaintiff has set forth sufficient non-conclusory facts
that Chief Gilbert conspired with the Defendant Town Council Members, Town Attorney, the
Town Manager and Assistant Town Manager to target for police harassment, to arrest and to
prosecute (without probable cause) Plaintiff the other Citizens Coalition members because of
their association and public criticism of Defendants. Plaintiff has met his burden of showing
a retaliatory motive and the absence of probable cause to rebut the presumption of
independent prosecutorial review and judgment.
Finally, the lack of probable cause for the September 1, 2011 arrest and prosecution is
clear and obvious on its face. Plaintiff did not unlawfully record (video or audio) any
conversation and he was legally in the Town Hall doing business he was legally authorized to
do (fill out a public records request). However, “in a § 1983 action the factual matters
underlying the judgment of reasonableness generally mean that probable cause is a question
for the jury.” Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir. 1981), cert. denied, 459 U.S.
829, 103 S. Ct. 65 (1982); cited for the same proposition in McKenzie v. Lamb, 738 F.2d
1005 (9th Cir. 1984). “In general, the existence of probable cause in a § 1983 action presents
a jury question, unless there is only one reasonable determination possible.” Pyles v. Raisor,
60 F.3d 1211, 1215 (6th Cir. 1995). The issues of probable cause in this case has been
properly raised and factually supported and should be determined by a Jury.
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VII. NEGLIGENT HIRING, RETENTION OR SUPERVISION AGAINST
QUARTZSITE (COUNT 7).
It is well established that the Town of Quartzsite is respondeat superior liable for the
torts of its officers and employees. The Town of Quartzsite is responsible under this count for
allowing the conflict to exist by having he Town Attorney also act as the Town Prosecutor
and for failing to properly supervise the the Town Council, Town Attorney, Town Managers,
Police Chief and employees of the Police Department. The Town of Quartzsite at a minimum
is liable for the failure of the Town Attorney, the failure of the Town Manager and Assistant
Manager, and the failure of the Town Council to stop the Police Chief and his department
from violating Plaintiff and the other Citizens Coalition members constitutional and state
rights. In fact, the evidence is that they directly encouraged the Police Chief and his
department to violate Plaintiffs constitutional and state rights. The Town of Quartzsite failed
to train and supervise the Town Attorney, the Town Manager and his assistant, and the Police
Chief to protect citizens of the Town of Quartzsite’s constitutional rights to criticize the
government without threat of retaliation and not to use the police powers without reasonable
suspicion or to arrest and prosecute without probable cause.
VIII. PLAINTIFF HAS SET FORTH SUFFICENT FACTS TO SUPPORT A
CONPIRACY CLAIM (COUNT 6) UNDER BOTH STATE AND FEDERAL
LAW.
To plead a conspiracy under § 1983, “a plaintiff must allege (1) an agreement between
the private party and state actors, (2) concerted acts to inflict an unconstitutional injury, and
(3) an overt act in furtherance of the goal.” Young v. Suffock Cnty., 705 F. Supp. 2d 183, 197
(E.D.N.Y. 2010).
“A plaintiff is not required to list the place and date of defendants[’] meetings and the
summary of their conversations when he pleads conspiracy, but the pleadings must
present facts tending to show agreement and concerted action.
Fisk v. Letterman, 401 F. Supp. 2d 362, 376 (S.D.N.Y. 2005) (emphasis added) (report and
recommendation), adopted in relevant part by Fisk v. Letterman, 401 F. Supp. 2d 362
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(S.D.N.Y. 2005) (citations omitted). The Amended Complaint adequately alleges the
elements.
Plaintiff has presented evidence from the Arizona Department of Public Safety
interviews with Town of Quartzsite police offices that Police Chief Gilbert wanted to “help”
the Town Council members and the Town Managers regarding the political heat (criticism)
they were receiving, that he agreed to target, arrest and prosecute Plaintiff and the other
members of the Citizens Coalition without reasonable suspicion and/or probable cause, that
he directed his officers to do so, including Defendants Sgt. Frausto and Officer Rodriquez and
that these two officers did in fact arrest and prosecute Plaintiff without probable cause at the
direction of the Assistant Town Manager, Johnson. Further, the evidence establishes that the
Town Attorney, Brannan, agreed to the harassment, arrest and prosecution of these citizens
without reasonable suspicion or probable cause and agreed to wink at this tactic.
The conspiracy count is well supported by non-conclusory allegations and at this stage
in the litigation, needs to go forward. Plaintiff needs to conduct discovery on these issues and
these issues should go to a jury.
Further, all conspirators are jointly liable for the acts of their co-conspirators. United
States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253-54, 60 S. Ct. 811, 858, 84 L. Ed. 1129
(1940); El Ranco, Inc. v. First National Bank of Nevada, 406 F.2d 1205, 1216 (9th Cir. 1968),
cert. denied, 396 U.S. 875, 90 S. Ct. 154, 24 L. Ed. 2d 133 (1969); Standard Oil Co. v.
Moore, 251 F.2d 188, 211 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S. Ct. 1139, 2 L. Ed.
2d 1148 (1958). Therefore, each and every individual Defendant is jointly and severally
liable for the foreseeable acts of their co-conspirators as though they committed the act. Akin
v. Dahl, 661 S.W.2d 917, 1983 Tex. LEXIS 344, 27 Tex. Sup. J. 23 (Tex. 1983) (Noting once
a conspiracy is found, each co-conspirator may be held liable for acts taken by the other co-
conspirators in furtherance of the conspiracy). Each and every individual Defendant, as a
member of the conspiracy to use police power to target Plaintiff and the other members of the
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Citizens Coalition, is liable for the acts of individual police officers in carrying out that
conspiracy.
IX. INJUNCTIVE RELIEF
Plaintiff’s Count 8 does show an ongoing violation of federal law and likelihood that
Defendants will continue their conduct in the future. AC ¶¶ 249-50. Plaintiff has presented
evidence of the current policies that violate state law and are not a reasonable restriction on
First Amendment Rights. Further, the Arizona Attorney General on December 2, 2013
entered an opinion, No. 113-012 (R13-018) that the Town of Quartzsite cannot stop citizens
from using their own equipment to photograph public records they have requested to inspect.
AG Opinion No. 113-012 at pp. 7-9.
Plaintiff however, will amend this allegation in the proposed Second Amended
Complaint to be filed before December 28, 2013, to address any language shortfall in the
Injunctive Relief allegations as set forth by Defendants and to take into account recent events.
X. PLAINTIFF HAS STATED A PLAUSIBLE CLAIM AGAINST
INDIVIDUAL DEFENDANTS.
1. Police Chief Gilbert, Sgt. Frausto And Officer Rodriguez.
Plaintiff is surprised to see Defendants assert Plaintiff has not alleged facts to raise a
claim against Chief Gilbert, Sgt. Frausto and Officer Rodriquez under 42U.S.C § 1983.
Plaintiff has set forth sufficient non conclusory facts to support his allegations that Plaintiff
was targeted by Chief Gilbert for false arrest, false imprisonment and wrongful/malicious
prosecution, in agreement with the Town Attorney, Town Council and Town Managers, and
that Sgt. Frausto and Officer Rodriquez acted in conformity with that direction when they
arrested Plaintiff on September 1, 2011 without probable cause.
Officer Rodriguez testified at trial he did not have probable cause to arrest Plaintiff on
September 1, 2011 and that he did so at the direction of Sgt. Frausto. AC ¶ 108. He further
stated to the DPS Investigator that Chief Gilbert ordered him to target certain people. AC ¶
80. Sgt. Frausto further testified at trial that he had a conversation with Assistant City
Manager Johnson that Plaintiff was causing a commotion in Town Hall and he ordered
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Officer Rodriquez to arrest him. AC ¶ 128. Plaintiff has more than set forth sufficient facts
from which a jury could infer that Sgt. Frausto was acting based on the prior direction of
Chief Gilbert to arrest and prosecute Plaintiff at any opportunity or as requested by Johnson.
The fact that Johnson called Sgt. Frausto directly rather than the police department or the
Chief of Police indicates they had a prior understanding about dealing with Plaintiff and that
Sgt. Frausto knew in advance what Johnson was going to do to incite the arrest of Plaintiff.
A police officer who commits an action directly resulting in a constitutional
deprivation (arrest and prosecution without probable cause), is liable for damages under 42
U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961), overruled on other
grounds by, Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98
S. Ct. 2018 (1978). Supervisory officers have liability for the constitutional violation where
their act or omission are shown to be a proximate cause of the constitutional injury suffered
by the plaintiff at the hands of subordinates or the supervisors failure to act amounts to
callous, reckless, or deliberate indifference to the constitutional rights of plaintiff. See
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); see also Chavez v. Ill. State Police, 251 F.3d 612,
651 (7th Cir. 2001) (“A supervisor may be subject to § 1983 liability if he knew about
unconstitutional conduct and facilitates it, approves it, condones it, or turns a blind eye to it”).
In the Amended Complaint, Plaintiff has alleged sufficient non-conclusory facts from
which the Court must infer: that Chief Gilbert knew of the arrest and that Sgt. Frausto acted
pursuant to his previous direction to harass, arrest and prosecute Plaintiff at the direction of
the Town Council, Town Managers and the Town Attorney; that Sgt. Frausto, at the direction
of the Assistant City Manager, Johnson, directed Officer Rodriguez to arrest Plaintiff without
conducting an investigation to establish probable cause; and finally, that Officer Rodriguez
voluntarily and knowingly did so. Plaintiff has set forth a proper basis for § 1983 liability
against these Defendants for their own actions resulting in the violation of Plaintiff’s
Constitutional Rights not to be arrested and prosecuted without probable cause. Further,
Plaintiff has set forth sufficient facts from which the Court must infer that Defendants acted
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in retaliation to Plaintiff’s political and public criticism of Defendants and that the arrest and
prosecutions were done to chill Plaintiff’s First Amendment Rights.
2. Defendant Garcia.
Defendants incorrectly state that Defendant Garcia is only mentioned at AC ¶¶ 106 and
122. These allegations support that Sgt. Garcia, a supervisor in the Quartzsite Police
Department, was involved in the arrest of Plaintiff (took his property) and was involved in the
harassment and arrest of other Citizens Coalition members. However, she further was
involved in the tape recorded conversation with Anton Coetzee and Chief Gilbert where they
discussed the arrest of Gilford and that it was done because the Chief had to “support the
Town Manager and the council people asking for help.” AC ¶ 93.
Further, on or about July 13-19 of 2011, Mr. Gilford filed four separate factual
complaints with the QPD. Plaintiff complained that Police Sgt. Fabiola Garcia refused to
assist Mr. Gilford on July 13, 2011 while Mr. Johnson harassed Mr. Gilford at the Town Hall
and blocked Plaintiff’s path to the business counter in the Town Hall. Garcia was present and
did not respond to Mr. Gilford’s plea to curb Mr. Johnson’s behavior that he witnessed. AC ¶
123. On August 23, 2011 Sergeant Garcia again refused Mr. Gilford’s request to report an
assault on him.
The above factual allegations infer that Sgt. Garcia, as a supervisor at the Quartzsite
Police Department was an active member of the conspiracy to harass, arrest and prosecute
Plaintiff and the other members of the Citizens Coalition and that she knew Plaintiff’s arrest
was without probable cause and did nothing about it. As a member of the conspiracy, she is
liable for the acts of the other co-conspirators taken in furtherance of the conspiracy. 3. Defendants Cowell, Crooks, Jewitt, Kelley, Lizarraga, Lukkasson, Orgeron
and Taft.
Defendant Alexandra Taft (“Taft”) was the Town Manager. AC ¶ 22. Defendants
Sgt. Frausto, Officer Rodriguez and Sgt. Garcia are Quartzsite Town police officers. AC ¶¶
23-31. Defendant Laura Bruno (“Ms. Bruno”) held the position of “Interim” Town Manager
after Taft. AC ¶ 33. Defendants Barbara Cowell (“Cowell”), Norma Crooks (“Crooks”),
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Michael Jewitt (“Jewitt”), Carol Kelley (“Kelley”), Mark Orgeron (“Orgeron”), Jose
Lizarraga (“Lizarraga”) and Jerry Lukkasson (“Lukkasson”) were Town Council Members.
AC ¶¶ 35- 53. Each of the above Defendants is a member of the conspiracy and is therefore
liable for the acts of the other Defendants taken to carry out the conspiratorial intent.
Based on Sergeant William Ponce’s interview with DPS, we have evidence that Chief
Gilbert agreed with each member of the Town Council and the Town Manager to harass, cite,
arrest and prosecute Plaintiff and the other members of the Citizens Coalition without
reasonable suspicion or probable cause. AC ¶78. Further Officer Kemp told the DPS
investigator that Defendant Cowell told him “this isn’t the chief’s fault. He was told by
people like Joe Winslow and Jerry Lukkasson go after them. Go get them. That’s why he did
the ACJIS violations was because he was told to by the Council.” AC ¶ 83.
Regarding Defendant Taft, the Town Manager, in addition to being a co-conspirator,
she was directly involved in charges being filed against Plaintiff for Plaintiff making a report
to the Police Department regarding Taft’s violation of rules regarding the use of a camera in
the Town Hall. AC ¶ ¶ 146-49. Further, Taft made a public statement that Plaintiff had
posted a video that had gone “viral” critical of the town Council and had posted online
vicious comments regarding the police and the Council. AC ¶ 148-49. This evidence supports
the inference that Taft was aware of the conspiracy, agreed to it and participated in it.
Finally, on July 26, 2011, Council member and conspirator Jerry Lukkason threatened
Plaintiff with a harassment charge. Gilford was talking to him through the chain link fence in
front of “The Eatery” restaurant, owned by Lukkasson’s company. The question Plaintiff
asked Lukkasson was whether he carried a gun into meetings? The next day, from a seat in
that same restaurant, Council member Joe Winslow brings three (3) harassment charges
against Plaintiff for alleged events occurring that day. Upon information and belief,
Lukkasson was present in the restaurant to encourage Winslow to make the charges. Upon
information and belief, Gilbert and Frausto and Cowell were also together inside. Almost all
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the conspirators were together when Winslow made the first criminal allegations against
Plaintiff.
4. Defendant Winslow
Defendant Winslow at all relevant times was a Town Council Member. AC ¶19. The
evidence presented above creates the inference that Winslow was not only a member of the
Conspiracy, but was an active participant. Winslow called for the resignation of Mayor Ed
Foster (a prior Coalition associated elected earlier in 2010). AC ¶ 136. He called the Citizens
Coalition a “radical organization” engaged in ongoing “conspiracy to commit sedition. “ Id.
He further made public comments that he was not going to be bullied by the Coalition
members and that he was going to put pressure on the County Attorney, Mr. Vederman to
investigate the Citizens Coalition members. AC ¶137. Mr. Vederman has stated he was
pressured to bring prosecutions against the Citizens Coalition members without probable
cause. It was Winslow that first pressed criminal charges against Plaintiff for Plaintiff asking
him questions when they crossed paths in public areas. AC¶¶ 138 to 143. It was Winslow
that went to a meeting with Chief Gilbert, Sgt. Frausto and Council Member Cowell at the
“Eatery” and accused Plaintiff of harassment for watching him enter into the restaurant to
meet with his co-conspirators. AC ¶¶ 143-145.
Regarding the wrongful prosecution and claims against Winslow, he filed several
written complaints with Sgt. Frausto that resulted in criminal charges that were dismissed in
Plaintiff’s favor. AC ¶¶ 138 and 145. Those charges of harassment for being asked two
questions at two separate occasions, where Winslow walked up to Plaintiff, not the other way
around, and where Winslow saw Plaintiff outside a restaurant where he and other co-
conspirators were meeting is not probable cause for harassment charges. Mr. Winslow was an
active participant in seeking unfounded arrests and prosecutions against Plaintiff and the other
Citizens Coalition Members.
5. Defendant Bruno
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Defendant Bruno was appointed as the “Interim” Town Manager when Taft left. AC ¶
154. Defendant Bruno, on October 10, 2012 informed Plaintiff of new rules setting arbitrary
and extraordinary restrictions regarding the use of video recording cameras at Town Hall. AC
¶ ¶ 155-56. Record a meeting without recording any other person in attendance. Based on this
policy, Plaintiff was precluded from using video audio recording equipment to photocopy
documents or to take notes when he was reviewing public records in a separate room set aside
for that purpose on February 8, 2012 and April 8, 2013. AC 157-159.
Further, Bruno has taken no action to discipline the conduct of the Police Chief or the
other Town Council Members who conspired against Plaintiff to pursue false allegations
against him. It was this policy that was used by Defendant Johnson to seek a protective order,
Sgt, Frausto and Officer Rodriguez to arrest and prosecute Plaintiff on September 1, 2011.
Defendant Bruno’s actions indicate she has ratified the conduct of the conspirators and has
joined the conspiracy with full knowledge of their conduct. Haugen v. Brosseau, 339 F.3d
857, 875 (9th Cir2003) (emphasis added), rev'd on other grounds, 543 U.S. 194 (2004); see
City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197 (1989).
6. Defendant Johnson
Defendant Johnson harassed Plaintiff and falsely accused Plaintiff of videotaping
where he was not authorized to do so. It was Defendant Johnson who called Sgt. Frausto to
have Plaintiff arrested. It was Johnson who taunted Plaintiff when he called the Police
regarding the matter. Johnson knew nothing was going to happen to him and that he would
get Plaintiff arrested. There is more than sufficient evidence set forth above for a jury to find
that Defendant Johnson not only brought false criminal charges against Plaintiff, but that he
did so as part of the pre-existing conspiracy to harass, falsely arrest and incarcerate and to
maliciously/wrongfully prosecute Plaintiff and the other Citizens Coalition members.
XI. PLAINTIFF HAS EASILY STATED A CLAIM FOR MUNICIPAL
LIABILITY UNDER 42 U.S.C. § 1983.
This case involves the intentional deprivation of Constitutional Rights by the chief
executive officers of the Town of Quartzsite; the Town Council, the Town Attorney, the
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Town Manager and his assistant and the Town’s Chief of Police. These individuals set the
policy, practice and procedure of the Town of Quartzsite to harass Plaintiff and the other
Citizens Coalition members without reasonable suspicion and to arrest and prosecute them
without probable cause. Plaintiff was in fact arrested and prosecuted based on this policy,
practice and procedure. The evidence supporting these allegations is not conclusory and is
based on public information regarding various investigations of this conduct, including the
Arizona Department of Public Safety. You have the prior La Paz County Attorney, now La
Paz County Superior Court Judge who documented his view that the Town of Quartzsite was
targeting Plaintiff and the other Citizens Coalition members or criminal prosecutions without
probable cause, supported by the statements in Court of the prior Town Prosecutor that this
was taking place. Under these facts, the failure to train in this case is so egregious as to
amount to deliberate indifference to the rights of its citizens.
Under Monell v. Department of Social Services of New York, 436 U.S. 658 (1978)
and its progeny, a municipality can only be found liable under 42 U.S.C. § 1983 when the
municipality itself causes a constitutional violation through the execution of its policies,
practices, procedures and/or customs. Id. A policy or custom can result from any affirmative
act on behalf of the City that caused the constitutional violation. See Harris v. County of
King, 2006 WL 2711769 (W.D. Wash. 2006). A municipality's failure to train or supervise its
employees properly can create §1983 liability where such a failure is “conscious” or “amounts
to deliberate indifference to the rights of persons” with whom its employees are likely to
come into contact. Canton, 489 U.S. at 388-91.
WHEREFORE, for the reasons set forth above, Plaintiff respectfully request the Court
deny the Motion for Judgment on the Pleadings. Plaintiff is within the appropriate statute of
limitations and has set forth sufficient facts from which a Jury could find in Plaintiff’s favor
on each count.
RESPECTFULLY SUBMITTED this 9th day of December 2013.
