Hamberlin v. Arizona, State of

• Court: District Court, D. Arizona
• Decided: July 6, 2021
• Docket: 2:18-cv-03624
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 James D Hamberlin, et al., No. CV-18-03624-PHX-DLR

10 Plaintiffs, ORDER

11 v.

12 State of Arizona, et al.,

13 Defendants. 14 15 16 Before the Court is Defendants’ motion for summary judgment, which is fully 17 briefed. (Docs. 69, 74, 75.) The Court heard oral argument on June 22, 2021 and thereafter 18 took the matter under advisement. The Court will grant in part and deny in part 19 Defendants’ motion for the following reasons. 20 I. Background 21 On September 6, 2017, witnesses called the Arizona Game and Fish Department’s 22 (“AZGF”) hotline to file a report (the “September Report”). (Doc. 70-4 at 6.) The 23 witnesses described that Tim Downs, a hunting guide, had sought permission to fly over 24 their land in the Superstition Mountains (the “Superstitions”) in a paraplane. (Id.) Even 25 though the witnesses denied Mr. Downs’ request, they observed a yellow and orange 26 paraplane overfly their property in August 2017 and on September 2 and 4, 2017. (Id.) 27 They suspected the paraplane pilot to be Shane Koury, a hunting guide and associate of 28 Mr. Downs, and believed that the paraplane was being used to locate bighorn sheep as part 1 of a hunt for an auction tag holder, Shane Rhoton, in violation of AZGF regulations.1 (Id.) 2 Mr. Rhoton’s special hunting season opened when his hunting auction tag issued in late 3 August 2017, but Mr. Rhoton did not actually begin the hunt until he arrived in Arizona 4 and signed the auction tag on September 21, 2017. (Doc. 74-1 at 51.) 5 Officer Kriselle Colvin was tasked with investigating the allegations stemming from 6 the September Report. (Doc. 69 at 4.) During her investigation, other informants reported 7 seeing two individuals—a pilot and a passenger with a large camera—flying a paraplane 8 while looking for bighorn sheep. (Doc. 70-4 at 6.) Officer Colvin grew to suspect Mr. 9 Hamberlin’s involvement because Mr. Hamberlin, a licensed hunter and friends with Mr. 10 Downs, was known as an avid photographer of desert bighorn sheep and owned a registered 11 paraplane matching the eyewitnesses’ descriptions. (Id.) She searched his social media 12 accounts and cell phone records and discovered that he had posted several photographs— 13 which included his watermark—of bighorn sheep between August 22 and September 5, 14 2017 that she concluded could have been taken from the air.2 (Id.) 15 On September 15, 2017, Officer Colvin obtained search warrants for the phone 16 records of Mr. Koury, Mr. Downs, and Mr. Hamberlin. The resulting evidence 17 demonstrated that Mr. Koury’s cell phone had not been near the relevant site on the dates 18 in question, leading Officer Colvin to conclude that Mr. Koury had not been flying to locate 19 bighorn sheep in August and early September 2017, contrary to the September Report’s 20 indications. (Id. at 8.) Officer Colvin eliminated Mr. Koury as a suspect and continued 21 her investigation of Mr. Hamberlin and Mr. Downs, noting that the records indicated that 22 (1) Mr. Hamberlin’s cell phone had been in the relevant area on the dates in question, (2) 23 Mr. Hamberlin posted pictures of desert bighorn sheep that appeared to be taken from the 24 air in August and September 2017, (3) Mr. Hamberlin and Mr. Downs communicated 25 several times with each other on the dates that the witnesses reported seeing the paraplane, 26 and (4) Mr. Hamberlin and Mr. Downs had communicated about a particular big horn sheep

27 1 Particularly, it is unlawful for an individual to assist a special big game license tag possessor in locating wildlife with the aid of an aircraft during the special season or within 28 48 hours of the opening of the season. Ariz. Admin. Code R12-4-319. 2 None of these photos were, in fact, taken from the air. 1 named Elvis, his location, and the logistics and timing of the hunt for him. (Doc. 70-4 at 2 7.) 3 On October 21, 2017, Mr. Rhoton shot and killed Elvis. (Doc. 70-6 at 10.) Soon 4 after, Officer Colvin saw Mr. Hamberlin flying over the Superstitions in a paraplane like 5 the one described in the September Report. (Doc. 70-4 at 7.) After Mr. Hamberlin landed, 6 he and Officer Colvin spoke. Mr. Hamberlin confirmed that he took photos of bighorn 7 sheep and had photographed Elvis with Mr. Downs when Elvis was successfully harvested 8 by Mr. Rhoton. (Id.) During the conversation, he showed Officer Colvin pictures he had 9 on his cell phone of Elvis and other desert bighorn sheep. (Id.) Also in November 2017, 10 Officer Colvin received new reports from witnesses that the same paraplane flew in the 11 Superstitions in October and November 2017 in a manner suggesting that the pilot was 12 looking for desert bighorn sheep. (Doc. 70-4 at 7.) 13 Officer Colvin then sought three search warrants for Mr. Hamberlin’s (1) person, 14 home, vehicles, and paraplane; (2) mobile phone records; and (3) social media accounts. 15 In support, she provided three virtually identical affidavits. (Doc. 70-4). In her affidavits, 16 Officer Colvin failed to note that she cleared Mr. Koury as a suspect—despite including 17 information about him stemming from the September Report—and did not disclose that 18 Mr. Rhoton did not begin his hunt until September 21, 2017, even though the special 19 hunting season opened in late August. Officer Colvin submitted her affidavits for review 20 to supervisors and thereafter presented her sworn affidavits in support of search warrants 21 to a Maricopa County Superior Court judge, who found that they contained probable cause 22 to support the issuance of search warrants. Based on the information contained in Officer 23 Colvin’s affidavits, the Court issued the search warrants at issue. (Id. at 10; Doc. 70-8.) 24 On November 21, 2017, Officer Colvin and other AZGF officers executed the search 25 warrant of the Hamberlins’ home, seizing valuable property. (Id. at 10-11.) 26 Mr. Hamberlin filed a motion to controvert the search warrant for his home, seeking 27 the return of his seized property. (Id. at 11.) On July 9, 2018, the Maricopa County 28 Superior Court granted the motion, ruling that the home search warrant was not supported 1 by probable cause and ordering the State to return the seized property.3 (Doc. 70-11.) The 2 Arizona Court of Appeals affirmed. Hamberlin v. State by & through Arizona Game & 3 Fish Dep’t, 465 P.3d 521 (Ariz. Ct. App. 2020). 4 On August 7, 2018, Plaintiffs filed suit against the State of Arizona and Officer 5 Colvin in Maricopa County Superior Court. (Doc. 1-3.) Defendants removed the action 6 to this Court on October 21, 2018. (Doc. 1.) Plaintiffs’ complaint brings claims against 7 both Defendants pursuant to 42 U.S.C. § 1983 for violations of their Fourth and Fourteenth 8 Amendment rights. Particularly, they assert that Officer Colvin “violated the Fourth and 9 Fourteenth Amendments when she used materially false and misleading information to 10 obtain a search warrant for the Hamberlins’ home and personal effects” and “Defendant 11 State of Arizona contributed to and/or caused the violation of constitutional rights 12 described above through its unconstitutional policies, practices, and procedures.” (Doc. 1- 13 3 at 12.) Plaintiffs’ complaint also brings state law claims against the State of Arizona for 14 invasion of privacy, conversion, trespass to chattels, trespass to land, negligence/gross 15 negligence, and intentional infliction of emotional distress. On December 4, 2020, 16 Defendants filed their motion for summary judgment, which is now ripe. 17 II. Legal Standard 18 Summary judgment is appropriate when there is no genuine dispute as to any 19 material fact and, viewing those facts in a light most favorable to the nonmoving party, the 20 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material 21 if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could 22 find for the nonmoving party based on the competing evidence. Anderson v. Liberty 23 Lobby, Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 24 1061 (9th Cir. 2002). Summary judgment may also be entered “against a party who fails 25 to make a showing sufficient to establish the existence of an element essential to that 26 party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. 27 v. Catrett, 477 U.S. 317, 322 (1986).

28 3 This Court found on July 23, 2019 that the state court probable cause ruling has preclusive effect as to the home search warrant, here. (Doc. 30.) 1 The party seeking summary judgment “bears the initial responsibility of informing 2 the district court of the basis for its motion, and identifying those portions of [the record] 3 which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. 4 The burden then shifts to the non-movant to establish the existence of a genuine and 5 material factual dispute. Id. at 324. The non-movant “must do more than simply show that 6 there is some metaphysical doubt as to the material facts[,]” and instead “come forward 7 with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. 8 Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation 9 omitted). 10 III. Discussion 11 A. Section 1983 Claims 12 Section 1983 creates a cause of action against a person who, acting under color of 13 state law, violates the constitutional rights of another person. “[O]fficers are entitled to 14 qualified immunity under § 1983 unless (1) they violated a federal . . . constitutional right, 15 and (2) the unlawfulness of their conduct was clearly established at the time.” Tobias v. 16 Arteaga, 996 F.3d 571, 579 (9th Cir. 2021) (quoting D.C. v. Wesby, 138 S. Ct. 577, 589 17 (2018)). The Court may address either prong first, but both must be satisfied for a plaintiff 18 to defeat qualified immunity. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing 19 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Defendants assert that they are entitled 20 to qualified immunity on Plaintiffs’ § 1983 claims, and the Court agrees. 21 Beginning with the clearly established prong, “[t]he Fourth Amendment provides 22 in relevant part that ‘[t]he right of the people to be secure in their persons, houses, papers, 23 and effects, against unreasonable searches and seizures, shall not be violated.’” U.S. v. 24 Jones, 565 U.S. 400, 404 (2012). It is clearly established in the Ninth Circuit that, “if an 25 officer submitted a [warrant] affidavit that contained statements [s]he knew to be false or 26 would have known were false had [s]he not recklessly disregarded the truth and no accurate 27 information sufficient to constitute probable cause attended the false statements, . . . [s]he 28 cannot be said to have acted in an objectively reasonable manner,’ and the shield of 1 qualified immunity is lost.” Hervey v. Estes, 65 F.3d 784, 788 (9th Cir. 1995) (quotations 2 and citations omitted). “[A] plaintiff can only survive summary judgment on a defense 3 claim of qualified immunity if the plaintiff can both establish a substantial showing of a 4 deliberate falsehood or reckless disregard and establish that, without the dishonestly 5 included or omitted information, the magistrate would not have issued the warrant.” Id. at 6 789. “If a party makes a substantial showing of deception, the court must determine the 7 materiality of the allegedly false statements or omissions.” Ewing v. City of Stockton, 588 8 F.3d 1218, 1224 (9th Cir. 2009) (citing KRL v. Moore, 384 F.3d 1105, 117 (9th Cir. 2004). 9 The Court now assesses whether Plaintiffs have established the violation of this 10 clearly established Fourth Amendment right. Here, Plaintiffs allege that Officer Colvin 11 deceived the magistrate judge to secure a warrant, thereby violating their Fourth 12 Amendment rights, by omitting two facts: (1) that she cleared Mr. Koury as a suspect and 13 (2) that Mr. Rhoton did not begin his bighorn sheep hunt until September 21, 2017.4 The 14 Court will address each omission, in turn. 15 First, Plaintiffs allege Officer Colvin committed unconstitutional judicial deception 16 by submitting affidavits that included information implicating Mr. Koury while failing to 17 note that she had eliminated him as a suspect. Particularly, the affidavits explain that 18 witnesses filed the September Report, contending that Mr. Koury was flying a powered 19 parachute on September 2 and 4, 2017 and “was reported to be the guide service hired by 20 the auction tag holder.” (Doc. 70-4 at 5.) Even if evidence existed that Officer Colvin 21 intentionally or recklessly neglected to note that Mr. Koury was not the individual that had 22 flown a powered parachute on the relevant dates or that had been hired by Mr. Rhoton— 23 which the Court does not decide, these omissions were not material to a probable cause 24 finding and therefore cannot provide the basis for a Fourth Amendment judicial deception 25 claim. Particularly, the Superior Court concluded that Officer Colvin’s affidavit as to the

26 4 Plaintiffs raised a third misrepresentation in their response—that Officer Colvin believed Mr. Hamberlin’s Facebook photographs of bighorn sheep could have been taken 27 from the air. However, counsel conceded at oral argument that Officer Colvin did not profess with certainty that Mr. Hamberlin’s photographs were taken from the air and a 28 claim of judicial deception cannot rest on “an officer’s erroneous assumptions about the evidence [s]he has received.” Ewing, 588 F.3d at 1224. 1 home warrant lacked probable cause because it was “based on suspicion that someone was 2 engaged in prohibited activities . . . without any actual proof.” (Doc. 70-11 at 4.) It did 3 not find that the elimination of Mr. Koury as a suspect, specifically, eradicated probable 4 cause that otherwise existed. (Id.) To the contrary, the Superior Court emphasized that the 5 affidavit, in its original state, entirely failed to “establish a direct connection between 6 Hamberlin and Shane Koury.” (Id.) Importantly, the affidavits tied Mr. Hamberlin to the 7 scheme based on his affiliation with Mr. Downs, not Mr. Koury.5 The affidavits maintained 8 one degree of separation between Mr. Hamberlin and Mr. Koury, and their link, Mr. 9 Downs, remained a suspect at all times. 10 Moreover, in its order affirming the Superior Court, the Court of Appeals held, 11 “activities on September 2 and September 4 were simply too remote in time from the 12 October 21 hunt to support a probable cause finding that [Mr. Hamberlin] used his 13 paraplane to assist Rhoton in locating and hunting Elvis.” Hamberlin, 465 P.3d at 524. 14 However, the affidavits only mention Mr. Koury in connection to dates in August 2017 15 and on September 2 and 4, 2017. Applying the Court of Appeals’ logic, even if Mr. Koury 16 had remained a suspect and the affidavit had directly tied Mr. Koury to Mr. Hamberlin, 17 Mr. Koury’s involvement, as laid out in the affidavits, could not support a probable cause 18 finding. In sum, Officer Colvin’s omission as to Mr. Koury’s involvement was not material 19 and Plaintiffs have therefore not established that Defendants violated their clearly 20 established rights under the Fourth Amendment on this basis. 21 Second, Plaintiffs assert that Officer Colvin engaged in judicial deception to secure 22 5 The affidavits tie Mr. Hamberlin to Mr. Downs, and thereby into the scheme, in 23 the following manner. First, they describe that Mr. Downs contacted the initial reporting party to ask permission to cross their land via aircraft to scout for bighorn sheep. Then, 24 they note the reporting party observed a yellow and orange paraplane—carrying a pilot and passenger wielding a large camera—fly over the property in August and on September 2 25 and 4, 2017. Next, they explain that Mr. Hamberlin was known to use a large camera and “to go out with Tim Downs to photograph bighorn sheep.” Finally, the affidavits 26 underscore that “[c]ell phone records obtained from a previous search warrant show that James Doyle Hamberlin and Tim Downs [were] closely associated and that they spoke to 27 each other via cell phones on the mornings of September 2nd and 4th 2017.” (Doc. 70-4 at 6-7.) The affidavits never mention any interaction or affiliation between Mr. Koury and 28 Mr. Hamberlin such that Mr. Koury’s elimination as a suspect would impact the evidence against Mr. Hamberlin. 1 warrants in violation of the Fourth Amendment by noting in her affidavits that the bighorn 2 sheep auction tag was printed and issued on August 25, 2017 while omitting the fact that 3 Mr. Rhoton did not arrive in Arizona and sign the tag until September 21, 2017. (Doc. 74- 4 1 at 41, 51; Doc. 70-3 at 69-70.) Even if Plaintiffs had made a substantial showing of 5 judicial deception, the fact that Mr. Rhoton did not sign his auction tag or arrive in Arizona 6 until late September is not material. Under the relevant regulation, “[a] person who 7 possesses a special big game license tag for a special season [] or a person who assists or 8 will assist such a licensee shall not use an aircraft, including drones, to locate wildlife 9 beginning 48 hours before and during a Commission-ordered special season.” Ariz. 10 Admin. Code R12-4-319. The special season opened on August 25, 2017, when Mr. 11 Rhoton’s tag issued.6 Looking to its plain language, Mr. Hamberlin could violate the 12 regulation by assisting Mr. Rhoton to locate bighorn sheep via aircraft during the season— 13 by, for example, scouting for the herd in his paraplane and reporting his findings—even if 14 Mr. Rhoton was not physically present in the paraplane or Arizona, itself. As a result, 15 Plaintiffs have not established that Defendants violated their clearly established rights 16 under the Fourth Amendment on this basis. Consequently, Defendants are entitled to 17 qualified immunity on Plaintiffs’ § 1983 claims and the Court will grant summary 18 judgment in their favor on these claims. 19 B. State Law Claims 20 Plaintiffs also bring state law claims against the State of Arizona for invasion of 21 privacy, conversion, trespass to chattels, trespass to land, negligence/gross negligence, and 22 intentional infliction of emotional distress. Defendants assert that they are entitled to 23 qualified immunity on all of Plaintiffs’ state law claims, citing to Spooner in support of the 24 far-reaching propositions that “[c]ommon law qualified immunity generally provides 25 public officials, including police officers, limited protection from liability when

26 6 Officer Colvin testified that, pursuant to Arizona hunting regulations, the special season began when the auction tag issued. (Doc. 74-1 at 51.) While Plaintiffs suggested at 27 oral argument that the special season, instead, began when the auction tag was signed and became valid, they have produced no authority or evidence to support their contention that 28 special seasons only begin when an auction tag is signed or when the tag possessor is physically present in Arizona. 1 performing an act that inherently requires judgment or discretion,” “public policy mandates 2 that investigative police work, performed in the scope of an officer’s public duty, is a 3 discretionary act subject to qualified immunity,” and “[i]f qualified immunity applies, a 4 public official performing a discretionary act within the scope of [her] public duties may 5 be liable only if she knew or should have known that she was acting in violation of 6 established law or acted in reckless disregard of whether h[er] activities would deprive 7 another person of their rights.” Spooner v. City of Phoenix, 435 P.3d 462, 466-67 (Ariz. 8 Ct. App. 2018). 9 While Spooner adopts this broad language to describe immunity for police 10 investigations, Spooner involved a case of mere negligence. This District has since 11 construed Spooner as applying only to cases of simple negligence, as opposed to gross 12 negligence. Merritt v. Arizona, 425 F. Supp. 1201 (D. Ariz. 2019). In addition, Defendants 13 have proffered no authority, and the Court has found none, that has extended Spooner 14 immunity to any of the state claims asserted here, other than Plaintiffs’ claim for simple 15 negligence. Therefore, the Court will deny Defendants’ motion for summary judgment as 16 to Plaintiffs’ state law claims for invasion of privacy, conversion, trespass to chattels, 17 trespass to land, gross negligence, and intentional infliction of emotional distress. 18 Turning to the remaining negligence claim, Plaintiffs must produce evidence that 19 Officer Colvin knew or should have known that she was acting in violation of established 20 law or acted in reckless disregard of whether her activities would deprive another person 21 of their rights. In support of this claim, Plaintiffs state, “Officer Colvin knew that Koury 22 had been eliminated as a suspect from the initial report. A reasonable officer would have 23 known that failure to include this fact in an affidavit, while otherwise relying on the initial 24 report, rendered the affidavit misleading and false.” (Doc. 74 at 17-18.) The only 25 established law that Plaintiffs allege Officer Colvin violated through this omission is their 26 Fourth Amendment rights. As the Court explained when addressing Plaintiffs’ § 1983 27 claims, Mr. Koury remaining a suspect was not material to a probable cause finding, and 28 Officer Colvin’s omission of the fact that he had been cleared did not violate Plaintiffs’ |} Fourth Amendment rights. Consequently, Defendants are entitled to qualified immunity 2|| on Plaintiffs’ claim for simple negligence. 3 C. Punitive Damages 4 In their complaint, Plaintiffs seek punitive damages “to the extent permitted by 5|| law.” (Doc. 1-3 at 18.) At summary judgment, Defendants note that—should any state || claims remain following summary judgment—the State of Arizona cannot be held liable 7\| for punitive damages pursuant to A.R.S. § 12-820.04, which shields public entities and 8 || public employees from punitive damages if the employee’s conduct was within the scope of their employment. It is undisputed that Officer Colvin was working within the scope || of heremployment as an AZGE officer at all relevant times. Punitive damages are therefore 11 || inappropriate on the surviving claims. Plaintiffs are foreclosed from seeking punitive 12 || damages at trial. 13 D. Attorneys’ Fees 14 Finally, at summary judgment, Defendants attempt to dispose of Plaintiffs’ request 15 || for attorneys’ fees, as asserted in their complaint. Local Rule of Civil Procedure 54.2 sets forth the procedure for seeking attorneys’ fees. Should Plaintiffs prevail on any of their 17 || remaining state law claims and wish to recover fees, they will be required to move for them in accordance with procedure. If there is no legal basis for fee-shifting, the Court will deny fees. But, at present it 1s premature to address this issue. Accordingly, 20 IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 69) is || GRANTED IN PART and DENIED IN PART as described herein. 22 IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment 23 || in favor of Officer Colvin and terminate her as a party. 24 Dated this 6th day of July, 2021. 25 - 26 J _—S □□ ee 27 Do . Rayes 38 United States District Judge

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