Krause v. Yavapai, County of

Opinion

Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 1 of 41

1 JL

2 WO 3 4 5 8 9 Jason Derek Krause, No. CV 19-08054-PCT-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Yavapai County, et al., 13 Defendants. 14 15 Plaintiff Jason Derek Krause, through counsel, brought this civil rights action 16 pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau 17 of Narcotics, 403 U.S. 388 (1971).1 Defendant Edward Hueske has filed a Motion to 18 Dismiss Plaintiff’s Second Amended Complaint pursuant to Federal Rule of Civil 19 Procedure 12(b)(6). (Doc. 137.) Defendants Yavapai County, Scott Mascher, Mike 20 Dannison, Dennis Price, and Roger Williamson have filed a separate Motion to Dismiss 21 the Second Amended Complaint pursuant to Rule 12(b)(6). (Doc. 138.) Plaintiff opposes 22 the Motions. (Docs. 147, 153.) The Court will grant the Motions and dismiss the Second 23 Amended Complaint and this action. 24 I. Background 25 After a jury trial in 1996, Plaintiff was found guilty of manslaughter in connection 26 27 1 Plaintiff sued Federal Bureau of Investigation Special Agent Ernest Peele pursuant 28 to Bivens. In an April 3, 2020 Order, the Court granted Peele’s Motion to Dismiss and dismissed Peele as a Defendant. (Doc. 83.) On June 22, 2021, the Ninth Circuit Court of Appeals affirmed the Court’s April 3, 2020 Order dismissing Defendant Peele. (Doc. 154.) Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 2 of 41

1 with the shooting death of Charles Thurman. (See Doc. 130 at 3.)2 Plaintiff was sentenced 2 to a 10.5-year term of imprisonment. (Id.)3 3 In 2015, the Arizona Court of Appeals overturned Plaintiff’s conviction, finding 4 that newly discovered evidence regarding comparison of the lead content of bullets 5 probably would have changed the verdict. State v. Krause, 2015 WL 7301820 (Ariz. Ct. 6 App. Nov. 19, 2015). On March 1, 2017, the Yavapai County Clerk entered the Superior 7 Court’s Order of Dismissal, dismissing the charges against Plaintiff. 8 Plaintiff filed this action on February 20, 2019. (Doc. 1.) On August 21, 2019, he 9 filed an Amended Complaint. (Doc. 56.) Defendants filed a Motion for Judgment on the 10 Pleadings. (Docs. 115-117.) In a February 11, 2021 Order, the Court granted Defendants’ 11 Motion for Judgment on the Pleadings and gave Plaintiff leave to file a second amended 12 complaint. (Doc. 130.) On March 15, 2021, Plaintiff filed the Second Amended 13 Complaint. (Doc. 131.) 14 II. Federal Rule of Civil Procedure 12(b)(6) 15 Dismissal of a complaint, or any claim within it, for failure to state a claim under 16 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 17 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 18 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 19 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 20 whether a complaint states a claim under this standard, the allegations in the complaint are 21 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 22 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 23 pleading must contain “a short and plain statement of the claim showing that the pleader is 24 2 25 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 26 3 See https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx (search by 27 case number P-1300-CR-940374 in Yavapai County Superior Court) (last accessed Oct. 21, 2021). 28 -2- Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 3 of 41

1 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 2 statement need only give the defendant fair notice of what . . . the claim is and the grounds 3 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 4 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 5 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 6 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 7 pleads factual content that allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 9 As a general rule, when deciding a Rule 12(b)(6) motion, the court looks only to the 10 face of the complaint and documents attached thereto. Van Buskirk v. Cable News 11 Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner 12 & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside 13 the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 14 judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). A court may, 15 however, consider documents incorporated by reference in the complaint or matters of 16 judicial notice without converting the motion to dismiss into a motion for summary 17 judgment. Id. 18 III. Second Amended Complaint 19 In his Second Amended Complaint (SAC), Plaintiff alleges the following: 20 A. Death of Charles Thurman 21 On the evening of June 24, 1994, Plaintiff was standing in his front yard with his 22 .22 rifle, looking for skunks that had been getting into his family’s chicken coop, when he 23 heard gunfire and a loud vehicle coming down the road toward him and his home. (Doc. 24 131 at 6 ¶ 19.) As Plaintiff’s neighbors told police, they also saw a vehicle, an open-top 25 Jeep, speeding down the road toward Plaintiff’s home, and they heard gunfire and saw 26 muzzle fire from the Jeep as it passed their homes. (Id. ¶ 20.) Plaintiff told police and later 27 testified at his criminal trial that as the Jeep approached his property and the gunfire from 28 -3- Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 4 of 41

1 it continued, he fell to the ground and tried to cover his head. (Id. ¶ 21.) When Plaintiff 2 fell to the ground, his .22 rifle accidentally discharged once. (Id. ¶ 22.) 3 As the Jeep approached Plaintiff’s house, it veered off the road and came to rest 4 after colliding with Plaintiff’s truck. (Id. ¶ 24.) Charles Thurman, the Jeep’s driver, was 5 slumped over the steering wheel. (Id. ¶ 25.) He had been shot in the head. (Id.) There 6 were three other passengers in the Jeep: T.E., who was seated in the front passenger seat; 7 A.M., who was seated in the backseat behind T.E.; and S.C., who was seated in the backseat 8 behind Charles Thurman. (Id.) The bullet entered from behind and above Thurman’s left 9 ear and exited above his left eye, in a slight downward trajectory. (Id. ¶ 26.) There were 10 also apparent bullet impacts to the Jeep’s rocker panel and left-rear tire. (Id. at 7 ¶ 27.) 11 After the Jeep crashed, and before he was aware that anyone was hurt, Plaintiff 12 asked a girl from the Jeep who approached him why they were “doing a drive by” on his 13 house. (Id. ¶ 28.) After hearing that Thurman was shot, Plaintiff immediately went inside 14 to dial 911, and alert his wife, a paramedic, to check on Thurman’s condition. (Id. ¶ 29.) 15 When questioned by police on the night of the shooting, Plaintiff admitted that his rifle had 16 discharged, explaining that it was accidental, and had occurred as he fell to the ground and 17 tried to cover his head as the gunfire-emitting Jeep approached him. 4 (Id. ¶ 30.) 18 B. Investigation of Crime Scene 19 Defendant Scott Mascher, who was then a Yavapai County Sheriff’s Office (YCSO) 20 Lieutenant, upon arriving at the scene of the shooting, believed the individuals in the Jeep 21 may have had a gun that they discharged, striking Thurman. (Id. at 8 ¶ 35.) Defendant 22 4 23 The Arizona Court of Appeals described the facts underlying Plaintiff’s conviction, in part, as follows: “[Plaintiff] gave conflicting accounts about the shooting. 24 He first stated that he had heard what sounded like gunshots, heard the crash and then called 911. Later, he revised his account to say that when he heard what he thought were 25 gunshots, he fell to the ground and the rifle he was carrying accidentally discharged. Two days later, he again revised his story to say that his rifle may have discharged more than 26 once. Investigators found a shell casing in a thick, brushy area of [Plaintiff’s] front yard much closer to the road than where he claimed to have fallen to the ground.” State v. 27 Krause, No. 2 CA-CR 2015-0326-PR, 2015 WL 7301820, at *1 (Ariz. Ct. App. Nov. 19, 2015). 28 -4- Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 5 of 41

1 Mascher asked YCSO Detective Dan Martin5 about getting a facility from outside Yavapai 2 County to test the occupants of the Jeep for gunshot residue, but Mascher failed to conduct 3 the test. (Id.) Mascher testified at Plaintiff’s trial that he believed a teenager in the Jeep 4 was a suspect and that he knew Thurman had been struck by a bullet when interviewing 5 the teenager. (Id. ¶ 36.) 6 Defendant Mascher noted the Jeep’s rocker panel had been struck by a bullet, which 7 he believed “was connected to the bullet that killed Thurman,” but Mascher failed to 8 preserve the rocker panel and determine if there were bullet fragments inside it. (Id. ¶ 37.) 9 Mascher did not “review[]” the rocker panel to see if he could remove it and determine if 10 there was a bullet fragment still inside it. (Id. at 9 ¶ 38.) Mascher supervised the towing 11 of the Jeep, allowing it to be towed back and forth from the scene to the service center 12 repeatedly before reviewing the rocker panel. (Id.) Mascher “watched and allowed” the 13 Jeep to be towed at an angle, rather than on a flatbed, despite the probability that the bullet 14 fragments in the rocker panel would be dislodged by the towing. (Id.) 15 Defendant Mascher personally collected or otherwise had personal knowledge of 16 multiple witness statements, in which witnesses reported having seen a second car 17 following the Jeep at or around the same time Thurman was shot. (Id. ¶ 39.) Mascher 18 failed to investigate who was driving the second vehicle and whether he had a gun. (Id.) 19 Defendant Mascher allowed Detective Martin to handle the gun Plaintiff was 20 holding the night of the shooting before taking photographs of the gun’s condition and 21 location. (Id. at 10 ¶ 43.) Mascher allowed Detective Martin to move the gun from its 22 position on the ground with dirt and leaves, thus “destroying” the crime scene, the leaves 23 on the gun, and the condition of the gun. (Id.) Subsequently, Defendant Mascher and 24 Detective Martin placed Plaintiff’s gun back in the position they found it to videotape its 25 26 5 Detective Martin was named as a Defendant in the Amended Complaint. (Doc. 27 56.) On May 12, 2020, Plaintiff filed a Notice of Dismissal of Defendant Martin. (Doc. 89.) 28 -5- Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 6 of 41

1 location. (Id. ¶ 44.) Mascher removed the leaves that “collected” on the gun and failed to 2 preserve them. (Id.) 3 Detective Martin found one shell casing in Plaintiff’s front yard while Defendants 4 Mascher and Williamson were present. (Id. ¶ 45.) There was a bullet hole in the right front 5 rocker panel of the Jeep and a bullet hole in one of the Jeep’s rear tires. (Id. at 11 ¶ 45.) 6 Mascher testified at Plaintiff’s trial that Detective Martin had measured the area where the 7 casing was found but no officer filed a supplemental report regarding the measurement. 8 (Id.) Defendant Price testified that officers recorded at least 86 measurements of the scene, 9 but not of the shell location. (Id.) Defendant Price testified at Plaintiff’s trial that 10 Defendants did not measure the location of Plaintiff’s van, with which the Jeep had 11 collided, until two days after the crash. (Id. at 14 ¶ 58.) 12 Defendants Mascher and Price, along with Detective Martin, used a metal detector 13 to search for bullet casings in Plaintiff’s yard, but none of them used the metal detector to 14 search the road the Jeep was driving on for bullets. (Id. at 12 ¶ 48.) Price and Mascher 15 knew, based on fragments in the Jeep’s rocker panel and the bullet found in Thurman’s 16 body, that multiple shots had been fired. (Id. ¶ 49.) Price and Mascher knew there was 17 only one casing in Plaintiff’s yard, so they knew he could not have discharged his weapon 18 more than once, and they suspected the passengers in the Jeep may have fired the bullets 19 that killed Thurman. (Id. ¶¶ 50-51.) At the time Detective Martin used the metal detector, 20 Price and Mascher knew it was likely the teenagers fired a weapon from the Jeep and that 21 there may have been casings on the roadway, but Price and Mascher failed to search for 22 casings in the Jeep and roadway. (Id. ¶ 52.) 23 Defendant Mascher testified at Plaintiff’s trial that officers found other metal 24 fragments at the crime scene that likely were bullets, but they never placed the fragments 25 into evidence. (Id. at 13 ¶ 55.) Mascher knew the fragments could have been bullet 26 fragments fired by the passengers in the Jeep, but he did not collect them. (Id.) 27 Defendant Roger Williamson, a Yavapai County Attorney’s Office Investigator, 28 -6- Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 7 of 41

1 testified at trial that shortly after the incident, he observed several .22 caliber casings and 2 at least one unspent .22 bullet in the rear seat area of the Jeep. (Id. at 28 ¶ 129.) Williamson 3 never photographed or inventoried the Jeep’s contents, contrary to “standard police 4 procedure.” (Id. ¶ 130.) Williamson testified that the Jeep’s contents should have been 5 photographed in the routine course of such an investigation. (Id. ¶ 131.) Williamson also 6 testified that he saw beer cans, multiple cartridges, and possibly fired casings of a small 7 caliber in the back of the Jeep. (Id. ¶ 132.) Williamson knew this evidence was not 8 inventoried but failed to preserve the evidence. (Id.) Williamson testified that the casings 9 he found were .22 Remington manufactured bullets, not the “Super X Winchester .22” 10 casings that Plaintiff owned and provided to Defendants. (Id. ¶ 133.) Williamson did not 11 prepare a report that stated that he had found empty beer cans and different model .22 bullet 12 casings in the Jeep. (Id. at 29 ¶ 136.) 13 One month after being sent to the impound lot, the Jeep was burglarized, and the 14 .22 casings and rounds were stolen, along with the Jeep’s stereo and speakers. (Id. at 30 15 ¶ 144.) In March 1996, Defendant Williamson returned to the Jeep specifically to search 16 for the casings because he knew they had never been collected. 6 (Id. ¶ 145.) Williamson 17 discovered the spent bullet casings had been stolen from the Jeep, but one unspent .22 18 caliber bullet remained in the Jeep. (Id.) Williamson collected the unspent bullet. (Id.) 19 C. String Trajectory Test 20 Defendant Mascher conducted a “string” trajectory test on June 27, 1994 to establish 21 that the trajectory proved the bullet came from Plaintiff’s rifle. (Id. at 15 ¶ 64.) Mascher 22 conducted the “string” test with the assistance of Defendant Williamson, YCSO Detective 23 Martin, and YCSO Officer Belmore.7 (Id. ¶ 65.) To create the rod the string was attached 24 25 6 Plaintiff does not allege why Defendant Williamson returned to the Jeep in March 26 1996. 7 27 Officer Belmore was named as a Defendant in the Amended Complaint, but he is not named in the Second Amended Complaint. 28 -7- Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 8 of 41

1 to for the string test, Defendant Mascher instructed Detective Martin to weld the rod in his 2 own home, without supervision, using a lathe he personally owned. (Id. ¶ 66.) Mascher 3 did not confirm the lathe was in proper condition or that Detective Martin’s “welding 4 experience was sufficient.” (Id.) 5 After conducting the “string” test, Defendants Mascher and Williamson concluded 6 in a report that the bullet that hit the Jeep rocker panel was shot from a standing position, 7 that Plaintiff must have fired two shots, and that he did so intentionally. (Id. at 16 ¶ 68.) 8 Defendant Mascher knew the results of the test were inaccurate because it was performed 9 outside, where the string was more likely to bow and flex, and with a “faulty” rod. (Id.) 10 At Plaintiff’s trial, Mascher testified that, because of the distance between the shooting 11 position and the Jeep (approximately 140 feet), the string was an inaccurate device because 12 it naturally bowed and flexed. (Id. ¶ 71.) 13 D. Laser Trajectory Test 14 After Plaintiff was indicted on June 30, 1994, Defendant Edward Hueske, who was 15 employed by the Arizona Department of Public Safety (DPS) Crime Lab, conducted a laser 16 analysis to determine an accurate trajectory of the bullet that hit the rocker panel. (Id. at 17 17 ¶ 73.) In analyzing the bullet trajectory, Hueske relied on photos of the vehicle and the 18 undisputed position of Plaintiff in his yard. (Id.) Hueske calculated “both vertical and 19 horizontal angles and determined the angle of the bullet in the rocker panel to be 55-degree 20 horizontal, coming from the rear.” (Id. ¶ 74.) Hueske applied a laser test to get an accurate 21 bullet trajectory. (Id. ¶ 75.) Based on that laser test, as Hueske testified at Plaintiff’s trial, 22 Hueske concluded that “the shooter was eye level with the rocker panel and that the barrel 23 and Jeep were perpendicular to one another.” (Id. ¶ 76.) Hueske never conducted a similar 24 laser test to determine the trajectory of the bullet that entered Charles Thurman’s head. (Id. 25 ¶ 77.) 26 Following Defendant Hueske’s testimony, Defendant Mascher “retracted his 27 original assumption” that Plaintiff had been standing when his gun discharged and testified 28 -8- Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 9 of 41

1 that the shot came from ground level. (Id. ¶ 79.) 2 E. Drag Sled Test 3 Defendant Price used a drag sled to estimate the Jeep’s speed based on partial 4 information. (Id. at 23 ¶¶ 103-04.) In conducting the test, Defendant Price failed to 5 consider the loss of speed during the Jeep’s impact with Plaintiff’s truck when making his 6 determination of the Jeep’s speed; failed to consider the relative weight of the Jeep and the 7 truck when making his determination of the Jeep’s speed; and failed to consider the fact 8 that Plaintiff’s truck was locked in gear. (Id. ¶¶ 105-07.) Defendant Price’s speed 9 conclusions “slowed down the Jeep” so that Plaintiff “could have fired off three rounds in 10 the time the Jeep passed Plaintiff’s house.” (Id.) Defendant Price prepared an expert report 11 stating his conclusions. (Id. at 25 ¶ 115.) According to Plaintiff, Price “purposefully 12 performed this speed test recklessly, lacking proper qualifications, and ignoring material 13 statistics to determine speed more reliably in order to produce an inaccurate report to frame 14 [Plaintiff].” (Id. ¶ 112.) 15 F. Witness Statements and Evidence of Third-Party Culpability 16 Other than talking to the three passengers who were in the Jeep with Charles 17 Thurman, investigating law enforcement representatives did not investigate the possibility 18 that an occupant of the Jeep fired the bullet that killed Charles Thurman. (Id. at 26 ¶ 122.) 19 The passengers made statements that they all had been drinking, including Thurman, on 20 the night of June 24, 1994. (Id. ¶ 123.) One of the passengers, S.C., testified at Plaintiff’s 21 trial that after the Jeep crashed into Plaintiff’s truck, the passengers threw beer cans into 22 the creek. (Id. at 27 ¶ 124.) Another passenger, T.E., admitted that after the Jeep crashed 23 into Plaintiff’s truck, he buried beer cans in the creek. (Id. ¶ 125.) Defendants Mascher, 24 Williamson, and Price failed to investigate whether the occupants of the Jeep may have hid 25 firearms when they hid their beer by the creek. (Id. ¶ 127.) 26 Defendant Mascher knew witnesses reported hearing gunshots and seeing muzzle 27 fire coming from the Jeep but failed to investigate whether one of the teenagers in the Jeep, 28 -9- Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 10 of 41

1 or another person in a car following the Jeep, could have been the responsible party. (Id. 2 ¶ 126.) Mascher did not investigate whether one of the passengers in the Jeep, or another 3 person in a car following the Jeep, could have been the responsible party. (Id.) 4 Defendant Mascher directed Detective Martin and Officer Diffendaffer to interview 5 witnesses. (Id. at 34 ¶ 167.) Various people who lived or camped in the vicinity recalled 6 significant gunfire and muzzle flash associated with the Jeep at various times of that night. 7 (Id.) None of the witnesses “refuted the reports that there was gunfire coming from the 8 Jeep.” (Id.) Mascher failed to follow up on statements from numerous witnesses that there 9 was another car following Thurman’s Jeep, which could have been firing a weapon. (Id. 10 at 37 ¶ 169.) 11 G. Evidence in the Jeep 12 Defendant Williamson testified at Plaintiff’s trial that shortly after the incident, in 13 June 1994, he observed several .22 caliber casings and at least one unspent .22 bullet in the 14 rear seat area of the Jeep. (Id. at 28 ¶ 129.) Williamson never photographed or inventoried 15 the Jeep’s contents and did not book the bullet and casings into evidence, contrary to 16 standard police procedure. (Id. ¶ 130.) Williamson testified that the Jeep’s contents should 17 have been photographed in the routine course of such an investigation. (Id. ¶ 131.) 18 Defendant Williamson testified that he saw beer cans, multiple cartridges, and 19 possibly fired casings of a small caliber in the back of the Jeep. (Id. ¶ 132.) Williamson 20 knew this evidence was not inventoried but failed to preserve the evidence. (Id.) 21 Williamson testified that the casings he found were .22 Remington manufactured bullets, 22 different from the “Super X Winchester .22” casings that Plaintiff owned and provided to 23 Defendants. (Id. ¶ 133.) Williamson knew Defendant Mascher believed there was a high 24 likelihood that the teenagers in the Jeep had a gun and testified that part of his investigation 25 was to determine whether there was a gun in the Jeep. (Id. ¶ 134.) 26 Defendant Williamson did not write a report that he found empty beer cans and 27 different model .22 bullet casings in the Jeep. (Id. at 29 ¶ 136.) He testified at Plaintiff’s 28 - 10 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 11 of 41

1 trial that he knew the Jeep had already been processed and therefore knew that if he did not 2 collect the evidence in the Jeep, no other officer would because they were done processing 3 the Jeep. (Id. ¶ 137.) Mike Winney, a YCSO property and identification supervisor, 4 accompanied Defendant Williamson. (Id. ¶ 138.) Williamson knew Winney either never 5 saw the casings or failed to collect them for evidence. (Id.) 6 Defendants knew there was a high likelihood that evidence would be stolen from 7 the Fleet Management yard where they left the Jeep. (Id. ¶ 139.) Defendant Dannison 8 testified that it was “not unusual for things to get stolen out of that impound lot” at the time 9 they placed the Jeep in it. (Id. ¶ 137.) When asked whether the impound lot was a secure 10 area, Dannison testified, “[w]e have had a few break-ins.” (Id.) Dannison, and “possibly” 11 other Defendants, including Defendant Williamson, had reason to know leaving evidence, 12 such as bullets and shell casings, in the Jeep in an insecure impound lot would lead to the 13 destruction of evidence. (Id. ¶ 140.) 14 H. Testing of Jeep 15 On June 26, 1994, Detective Martin went to the impound lot where the Jeep had 16 been stored. (Doc. 131 at 38 ¶ 173.) Martin started the vehicle, left it idling, revved the 17 engine to about 2,000 RPM, and then let the gas off, but the Jeep did not backfire. 8 (Id.) 18 Martin prepared a supplemental report in connection with his first attempt to make the Jeep 19 backfire. (Id.) 20 8 21 In its decision affirming Plaintiff’s conviction, the Arizona Court of Appeals set forth the facts underlying the conviction: 22 Four young people were returning to Prescott after an evening of four- 23 wheeling in the back country. [T.], the driver, often purposefully caused the vehicle to backfire. As the jeep passed Krause’s home two backfires 24 sounded. After the second backfire, [T.] was shot, lost control of the jeep and crashed it into a parked truck. He was taken to the hospital and pronounced 25 brain-dead as the result of a gunshot wound to the head. An examination of the jeep indicated two .22 caliber bullet hits on the vehicle, one to the running 26 board, the other to left rear tire. 27 State v. Krause, No. 2 CA-CR 2015-0326-PR, 2015 WL 7301820, at *1 (Ariz. Ct. App. Nov. 19, 2015). 28 - 11 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 12 of 41

1 On July 7, 1994, Detective Martin and Defendant Dannison returned to the impound 2 lot “to try and get the Jeep to backfire to develop evidence exculpating the passengers and 3 implicating [Plaintiff].” (Id. ¶ 174.) Dannison “wanted to make the Jeep backfire to 4 provide an excuse for why twelve witnesses heard loud noises that did not point to gunshots 5 to defeat the idea someone other than [Plaintiff] fired a gun, and conducted the test in a 6 fabricated manner to achieve the desired test results.” (Id.) 7 Defendant Dannison, with the assistance of Martin, started the Jeep, let it warm up, 8 and accelerated it while it was out of gear. (Id. ¶ 75.) While the choke was still activated, 9 the vehicle popped through the mufflers on occasion, but it was not consistent. (Id.) The 10 sound was not loud; it was more like a hiss. (Id.) Dannison and Martin then turned the car 11 off briefly, turned it back on while the engine was on compression, and the Jeep backfired 12 with a loud bang that sounded like a shot and sent out a visible flame. (Id.) Thereafter, 13 they made the Jeep backfire multiple times, with varying sounds and successions. (Id.) 14 However, there was no flame after the first backfire. (Id.) Detective Martin noted in his 15 police report that he had interviewed a mechanic, Edward Jestilia, who was at the scene on 16 the night Thurman was shot, and Jestilia told Martin it was impossible the noises were 17 backfires. (Id.) According to Plaintiff, Dannison knew about Jestilia’s conclusion based 18 on Detective Martin’s interview. (Id. at 39 ¶ 176.) 19 Detective Martin, under Defendant Mascher’s “direction and control,” and with the 20 assistance of Defendant Dannison, “fabricated test results and a report based on 21 compressing the Jeep’s engine” to “assert the Jeep backfires regularly and that this was the 22 reason witnesses at the scene heard gunshot noises,” despite knowing this explanation was 23 impossible based on Jestilia’s knowledge of automobile and being at the scene. (Id. ¶ 177.) 24 Defendant Dannison testified at Plaintiff’s trial about his and Detective Martin’s “efforts 25 to make the Jeep backfire in a fashion that sounded like a gunshot.” 9 (Id.) 26 9 27 Detective Martin was unavailable to testify at Plaintiff’s trial because he suffered a stroke that caused severe memory loss. (Doc. 131 at 37 ¶ 170.) 28 - 12 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 13 of 41

1 IV. Defendants Yavapai County, Mascher, Dannison, Price, and Williamson’s 2 Motion to Dismiss

3 Defendants Yavapai County, Mascher, Dannison, Price, and Williamson argue that 4 they did not violate Plaintiff’s due process rights, and, in any event, they are entitled to 5 qualified immunity as to Plaintiff’s claims. 6 A. Qualified Immunity Standard 7 Officers are entitled to qualified immunity under § 1983 “unless (1) they violated a 8 federal statutory or constitutional right, and (2) the unlawfulness of their conduct was 9 ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) 10 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Thus, if the Court finds no 11 violation of a constitutional right, the Court need not consider whether that right was 12 “clearly established at the time.” Id.; see Pearson v. Callahan, 555 U.S. 223, 230–32, 235– 13 36 (2009) (courts may address either prong first depending on the circumstances in the 14 particular case). 15 B. Substantive Legal Standards10 16 1. Fabrication of Evidence 17 In Pyle v. Kansas, 317 U.S. 213 (1942), the Supreme Court held that the knowing 18 use by the prosecution of perjured testimony to secure a criminal conviction violates the 19 Constitution. Id. at 216. In Miller v. Pate, 386 U.S. 1, 7 (1967), the Supreme Court 20 observed that “the Fourteenth Amendment cannot tolerate a state criminal conviction 21 obtained by the knowing use of false evidence.” In Devereaux v. Abbey, 263 F.3d 1070 22 (9th Cir. 2001), the Ninth Circuit held “that there is a clearly established constitutional due 23 process right not to be subjected to criminal charges on the basis of false evidence that was 24 deliberately fabricated by the government.” Id. at 1074-75. The Ninth Circuit in 25 Devereaux found that “the wrongfulness of charging someone on the basis of deliberately 26 10 27 The Court relies on the standards employed as of the date the relevant conduct occurred. 28 - 13 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 14 of 41

1 fabricated evidence is sufficiently obvious, and Pyle is sufficiently analogous, that the right 2 to be free from such charges is a constitutional right.” Id. at 1075. Thus, in 1994, Supreme 3 Court precedent would have informed Defendants that charging or convicting a person 4 based on deliberately fabricated or false evidence was a due process violation. 11 5 2. Disclosure of Potentially Exculpatory Evidence 6 A criminal defendant has a constitutionally protected privilege to request and obtain 7 from the prosecution evidence that is either material to the guilt of the defendant or relevant 8 to the punishment to be imposed. Brady v. Maryland, 373 U.S. 83 (1963). The prosecution 9 also has a constitutional duty to turn over exculpatory evidence that would raise a 10 reasonable doubt about the defendant’s guilt, regardless of whether the defendant requests 11 it. United States v. Agurs, 427 U.S. 97, 112 (1976). 12 3. Destruction, Failure to Preserve, and Failure to Collect 13 Potentially Exculpatory Evidence

14 In California v. Trombetta, 467 U.S. 479 (1984), the Supreme Court considered 15 whether the Due Process Clause requires the state to preserve potentially exculpatory 16 evidence on behalf of defendants. Id. at 481. The Supreme Court concluded that the failure 17 to preserve breath samples used to perform an Intoxilyzer test did not violate the Fourteenth 18 Amendment because the officers did not destroy the breath samples “in a calculated effort 19 to circumvent the disclosure requirements established by” Brady and its progeny; rather, 20 the officers acted “‘in good faith an in accord with their normal practice.’” Id. at 487 21 (quoting Killian v. United States, 368 U.S. 231 (1961)). The Supreme Court concluded 22 that “[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty 23 24 11 In Spencer v. Peters, 857 F.3d 789 (9th Cir. 2017), the Ninth Circuit observed 25 that deliberate fabrication of evidence can be established by circumstantial evidence, such as evidence that officials “continued their investigation of [a person] despite the fact that 26 they knew or should have known that he was innocent.’’ Id. at 793 (quoting Devereaux, 263 F.3d at 1076). Fabrication of evidence can also be shown by direct evidence, for 27 example, when an interviewer deliberately mischaracterizes witness statements in her investigative report. Id. (citation omitted). 28 - 14 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 15 of 41

1 must be limited to evidence that might be expected to play a significant role in the suspect’s 2 defense.” Id. at 488. “To meet this standard of constitutional materiality, evidence must 3 both possess an exculpatory value that was apparent before the evidence was destroyed, 4 and be of such a nature that the defendant would be unable to obtain comparable evidence 5 by other reasonably available means.” Id. at 489; see Carrillo v. County of Los Angeles, 6 798 F.3d 1210, 1223 (9th Cir. 2015) (holding that in 1984, “circuit precedent clearly 7 established that police officers were bound by Brady’s disclosure requirements”). 8 In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court, expanding on 9 Trombetta, held that “unless a criminal defendant can show bad faith on the part of the 10 police, failure to preserve potentially useful evidence does not constitute a denial of due 11 process of law.” Id. at 58. “The presence or absence of bad faith by the police for purposes 12 of the Due Process Clause must necessarily turn on the police’s knowledge of the 13 exculpatory value of the evidence at the time it was lost or destroyed.” Id. at 56 n.*. In 14 Youngblood, police officers collected a rectal swab and clothing on the night that a child 15 was sexually assaulted but failed to refrigerate the clothing or to perform tests on the semen 16 samples from the rectal swab. Id. The Supreme Court stated the officers’ failure to 17 preserve the evidence “can at worst be described as negligent.” Id. In addition, the 18 information was not concealed from the defendant, and the evidence was made available 19 to the defense for testing. Id. Thus, the Court concluded, the failure to preserve the 20 evidence did not violate the defendant’s due process rights. 21 One year after Youngblood, in Mitchell v. Goldsmith, 878 F.2d 319 (9th Cir. 1989), 22 the Ninth Circuit concluded that police did not fail to preserve evidence in bad faith where 23 the police did not know whether a semen sample would have exculpated the defendant 24 when they failed to perform further testing and failed to refrigerate the sample; the police 25 followed departmental procedure in not sending the sample to the FBI given that no suspect 26 had been identified; and the police department itself lacked the capability to perform the 27 tests. Id. at 322. 28 - 15 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 16 of 41

1 In United States v. Heffington, 952 F.2d 275 (9th Cir. 1991), the Ninth Circuit 2 concluded that police had not failed in bad faith to preserve laboratory items allegedly used 3 to manufacture methamphetamine. The court observed that bad faith can be shown where 4 “the police themselves by their conduct indicate that the evidence could form a basis for 5 exonerating the defendant.” Id. at 281 (quoting Youngblood, 488 U.S. at 58). The Ninth 6 Circuit also stated that a police department’s compliance with “departmental procedure” 7 should be regarded as an indication that the disposal of evidence was not performed in “bad 8 faith.” Id. (quoting Mitchell, 878 F.2d at 322). 9 The year before the investigation into Thurman’s death, the Ninth Circuit concluded 10 in United States v. Cooper, 983 F.2d 928 (9th Cir. 1993), that the government, in bad faith, 11 had failed to preserve potentially exculpatory laboratory equipment. Id. at 932. The 12 defendants were alleged to have manufactured methamphetamine, and they claimed the 13 equipment seized—and later destroyed by the government—could not be used to 14 manufacture methamphetamine. Id. at 929. The Ninth Circuit found bad faith where the 15 equipment’s value as potentially exculpatory evidence was repeatedly suggested to 16 government agents, including by one defendant’s parole officer; and the government agents 17 told defendants’ counsel that the equipment was held as evidence, although the agents 18 knew it had been destroyed. Id. at 931. The Ninth Circuit also found that the defendants 19 did not have a “comparable, alternative means to support their assertion of innocence.” Id. 20 4. “Reckless Investigation” 21 To the extent Plaintiff has attempted to state a claim based on a “reckless 22 investigation,” such a claim does not rise to the level of a due process violation. The 23 Supreme Court has held that “the substantive component of the Due Process Clause is 24 violated by executive action only when it can properly be characterized as arbitrary, or 25 conscience shocking, in a constitutional sense.’” County of Sacramento v. Lewis, 523 U.S. 26 833, 847 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115, 129 (1992)). The “Due 27 Process Clause is simply not implicated by a negligent act of an official causing unintended 28 - 16 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 17 of 41

1 loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). 2 And, as Plaintiff recognizes, there is no constitutional due process right to “have [an] 3 investigation carried out in a particular way.” Devereaux, 263 F.3d at 1075. 4 C. Mascher 5 1. Fabrication of Evidence 6 a. Gunshot Residue 7 Plaintiff alleges that Defendant Mascher intentionally failed to test for gunshot 8 residue despite being able to because he “knew or was recklessly indifferent” to the fact 9 that results showing gunshot residue on the teenagers would be exculpatory to Plaintiff and 10 would point to third-party liability. (Doc. 131 at 8 ¶ 35.) According to Plaintiff, by failing 11 to test for gunshot residue, Defendant Mascher deliberately destroyed evidence that 12 potentially could have exculpated Plaintiff and would point to third-party liability. (Id.) 13 Plaintiff alleges that Mascher believed a teenager in the Jeep was a suspect and knew 14 Thurman had been struck by a bullet when interviewing the teenager but did nothing to 15 “determine scientifically or to preserve evidence to determine whether or not” the teenager 16 fired a weapon because he knew that such evidence would or could be exculpatory to 17 Plaintiff. (Id. ¶ 36.) 18 Defendants argue in their Motion that the conduct attributed to Defendant Mascher 19 with respect to the gunshot residue was not fabrication or concealment of exculpatory 20 evidence, or the destruction of evidence that had an exculpatory value that was apparent at 21 the time. (Doc. 138 at 13-14.) The Court agrees. Defendant Mascher’s failure to test the 22 occupants of the Jeep for gunshot residue cannot be characterized as fabrication, 23 concealment, or destruction of potentially exculpatory evidence. Plaintiff’s claim that 24 Mascher could have but did not test for gunshot residue is, at best, a reckless investigation 25 claim. Moreover, Plaintiff alleges that testing for gunshot residue “could have . . . point[ed] 26 to third-party liability,” but he does not explain how the results of any testing could have 27 exculpated him. Even if the teenager whom Mascher believed was a suspect had gunshot 28 - 17 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 18 of 41

1 residue on him, Plaintiff does not allege how that would have exculpated him. Indeed, 2 Plaintiff admitted his shotgun discharged once and alleges that multiple witnesses reported 3 hearing gunshots come from the Jeep. Assuming it is true that gunshots came from the 4 Jeep, one would expect to find gunshot residue on one of the occupants of the Jeep; that 5 does not change the fact that Plaintiff’s gun also discharged and therefore could have killed 6 Thurman. 7 Citing Smith v. Wade, 461 U.S. 30 (1983), Plaintiff argues that even if Defendant 8 Mascher “acted recklessly, he is still liable.” (Doc. 153 at 14.) Smith is inapposite. There, 9 the Supreme Court held that “a jury may be permitted to assess punitive damages in an 10 action under § 1983 when the defendant’s conduct is shown to be motivated by evil motive 11 or intent, or when it involves reckless or callous indifference to the federally protected 12 rights of others.” Id. at 56. Smith did not involve a claim that an officer performed a 13 reckless criminal investigation; it involved a claim that prison officials violated the 14 plaintiff’s Eighth Amendment rights by failing to protect him from being assaulted by other 15 prisoners. Id. at 32. The mere appearance of the word “reckless” in a pre-1994 opinion 16 in a § 1983 case does not mean Mascher may be held liable for a purportedly “reckless” 17 criminal investigation. 18 Plaintiff further contends Mascher’s failure to perform the gunshot residue test was 19 “an investigative technique so ‘coercive or abusive’ that Mascher knew it would help to 20 convict an innocent defendant.” (Doc. 153 at 14.) However, the case in which the 21 “coercive or abusive” language appears—Devereaux—involved officers eliciting false 22 testimony from children by using coercive interviewing techniques. Devereaux does not 23 support Plaintiff’s claim that Mascher “fabricated” evidence by failing to perform specific 24 testing. 25 In Devereaux, the plaintiff alleged that law enforcement officers who interviewed 26 children in a sex abuse investigation elicited false testimony from the children, which 27 resulted in the plaintiff being charged with abuse. The Ninth Circuit assumed that the 28 - 18 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 19 of 41

1 plaintiff had raised a deliberate-fabrication-of-evidence claim based on the interviews of 2 the children and that to support such a claim, the plaintiff “must, at a minimum, point to 3 evidence that supports at least one of the following two propositions: (1) Defendants 4 continued their investigation of [the plaintiff] despite the fact that they knew or should have 5 known that he was innocent; or (2) Defendants used investigative techniques that were so 6 coercive and abusive that they knew or should have known that those techniques would 7 yield false information.” Id. at 1076. The Ninth Circuit described an interview in which a 8 victim, A.S., initially denied being a victim of abuse but later changed her story and 9 accused the plaintiff. Id. at 1077. The interviewer repeatedly admonished A.S. to tell the 10 truth. Id. The Ninth Circuit observed, “It is difficult to see, however, how repeated 11 admonitions to be truthful can amount to a constitutional violation for deliberate fabrication 12 of evidence, in the absence of any independent allegations or evidence that [the 13 interviewer] knew or should have known that Devereaux was innocent and that A.S., in 14 testifying to that effect, had already told the truth.” Id. 15 Here, Plaintiff has not alleged that Defendants used “coercive and abusive” 16 investigative techniques to obtain false testimony or to coerce a confession from Plaintiff. 17 It is not at all clear that the analysis in Devereaux can be applied to a claim that officers in 18 a criminal investigation failed to perform certain tests that might have yielded results that 19 tended to exculpate a suspect.12 20 In sum, as the Ninth Circuit recognized in Devereaux, “[f]ailing to . . . carry out an 21 investigation in a manner that will ensure an error-free result is one thing; intentionally 22 fabricating false evidence is quite another.” Id. at 1076-77. The Court finds Plaintiff has 23 not stated a fabrication-of-evidence claim against Defendant Mascher with respect to 24 testing for gunshot residue. 25 26 12 Indeed, in Hall v. City of Los Angeles, 697 F.3d 1059, 1069 (9th Cir. 2012), the 27 Ninth Circuit observed that all its published cases that follow Devereaux concern interview techniques used to elicit evidence from third-party witnesses. 28 - 19 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 20 of 41

1 b. String Trajectory Test 2 Plaintiff alleges that Defendant Mascher “knowingly conduct[ed] a ‘string’ test” he 3 knew was inaccurate and thereby “fabricated a result that the angle and trajectory of the 4 bullet established that the bullet that killed the victim came from [Plaintiff’s] rifle.” (Doc. 5 131 at 15 ¶ 65.) Plaintiff further claims that Mascher “fabricated the string test results; he 6 knew the results were inaccurate because he performed the test outside and conducted it in 7 a reckless manner with a faulty rod.” (Id. ¶ 68.) 8 In their Motion, Defendants argue that in 1994, no clearly established law prohibited 9 Defendant Mascher from using, or relying on, the trajectory string test. (Doc. 138 at 13.) 10 Defendants assert that Youngblood “would have instructed Mascher that the Constitution 11 does not proscribe his reliance on one type of forensic test over another.” (Id.) Defendants 12 also contend that by 1994, the Ninth Circuit recognized that “the police had no 13 constitutional duty to perform . . . more sophisticated tests.” (Id.) (quoting United States 14 v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991)). 15 In his Response, Plaintiff argues that Defendant Mascher “fabricated evidence by 16 conducting a string test outdoors, knowing it would produce flawed results that implicated 17 [Plaintiff] because the test was inherently inaccurate when conducted outside.” (Doc. 153 18 at 14.) Thus, Plaintiff contends, “Mascher knew or was recklessly indifferent to the fact 19 that for these reasons and others, the string test would produce unreliable results.” (Id.) 20 Plaintiff further asserts that the string trajectory test formed a basis for his June 30, 1994 21 indictment and allowed investigators to place Plaintiff in a standing position at the time of 22 the shooting to concoct a theory that Plaintiff fired three rounds at the Jeep. (Id. at 16.) 23 Thus, according to Plaintiff, the string test “may therefore have provided a purported basis 24 for the officers’ failure to collect other exculpatory evidence and/or to allow that evidence 25 to be destroyed.” (Id.) 26 Plaintiff has not alleged facts to support a fabrication-of-evidence claim against 27 Defendant Mascher based on the string trajectory test. Plaintiff alleges that Mascher 28 - 20 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 21 of 41

1 knowingly performed the test in conditions that would produce flawed results. (Id.) 2 However, the performance of a test under dissimilar conditions does not amount to a 3 fabrication of evidence. Moreover, Plaintiff concedes that Mascher testified at Plaintiff’s 4 trial that the string test was flawed and that a subsequent laser test was necessary; Plaintiff 5 does not allege that Mascher lied during his testimony about how he performed the string 6 trajectory test or the results of those tests, and, in any event, Plaintiff had an opportunity to 7 cross-examine Mascher about the test and did so successfully. Thus, Plaintiff has not 8 shown that he suffered any injury because of the string trajectory test. 9 2. Failure to Collect/Preserve Potentially Exculpatory Evidence 10 Plaintiff alleges Defendant Mascher intentionally or recklessly failed to preserve the 11 Jeep’s rocker panel and determine if there were bullet fragments inside it; deliberately 12 failed to investigate who was driving the second vehicle and whether he had a gun; 13 destroyed exculpatory evidence by altering the crime scene and condition of Plaintiff’s 14 gun; intentionally refused or recklessly failed to report the location Detective Martin found 15 the bullet casing or ensure Martin reported the location; and “deliberately and recklessly” 16 failed to search for casings in the Jeep and roadway. (Doc. 131 at 8-13 ¶¶ 35-53.) 17 First, the Court has found no pre-1994 case in which the Supreme Court or the Ninth 18 Circuit found that failure to perform a particular test amounted to a due process violation. 19 As discussed above, due process does not compel the police to conduct any particular 20 forensic tests. Moreover, Plaintiff has not alleged facts sufficient to support a conclusion 21 that such tests, if they had been performed, would have been likely to produce exculpatory 22 evidence. Plaintiff does not even allege what tests could have been performed, let alone 23 allege facts to support a conclusion that those tests would have produced results that tended 24 to exculpate Plaintiff. 25 Plaintiff also alleges in the SAC that Defendant Mascher “intentionally or recklessly 26 failed to preserve the rocker panel and determine if there were bullet fragments inside it 27 because he knew or was recklessly indifferent to the fact that such evidence would or could 28 - 21 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 22 of 41

1 be exculpatory to [Plaintiff]. This resulted in the inevitable destruction of evidence that 2 would have exonerated [Plaintiff]” because Plaintiff only discharged one bullet, which was 3 believed to have killed Thurman. (Id. ¶ 37.) Even if there were bullet fragments in the 4 rocker panel, that does not “exonerate” Plaintiff; the bullet he admits was discharged from 5 his rifle still could have been the bullet that killed Thurman. The mere existence of bullet 6 fragments in no way exculpates Plaintiff. 7 As discussed above, to meet the standard of constitutional materiality for purposes 8 of a claim for failure to collect or preserve evidence, “evidence must both possess an 9 exculpatory value that was apparent before the evidence was destroyed, and be of such a 10 nature that the defendant would be unable to obtain comparable evidence by other 11 reasonably available means.” Trombetta, 467 U.S. at 489. Plaintiff has not alleged facts 12 to support that the rocker panel possessed an exculpatory value that was apparent at the 13 time. 14 3. Reckless Investigation 15 Defendants argue that there is no constitutional claim for reckless investigation, and 16 the closest the Ninth Circuit has ever come to recognizing a separate claim for 17 constitutional “reckless investigation’” was in Tennison v. City and County of San 18 Francisco, 570 F.3d 1078 (9th Cir. 2009), a case that was decided 15 years after the 19 investigation in this case occurred. The Court agrees with Defendants. In 1994, neither 20 the Supreme Court nor the Ninth Circuit had recognized a due process claim based on a 21 reckless criminal investigation. 22 Plaintiff attempts to rely on Tennison for the proposition that “[t]he Ninth Circuit 23 has also recognized that recklessness (even without malicious intent) in investigating a 24 criminal case can be a constitutional violation.” (Doc. 153 at 12.) However, Tennison did 25 not stand for the principle that recklessly investigating a crime amounts to a due process 26 violation. The plaintiffs in Tennison alleged that inspectors withheld material, exculpatory 27 evidence in violation of Brady. Id. at 1086. The Ninth Circuit held that “a § 1983 plaintiff 28 - 22 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 23 of 41

1 must show that police officers acted with deliberate indifference to or reckless disregard 2 for an accused’s rights or for the truth in withholding evidence from prosecutors.” Id. at 3 1088. Here, Plaintiff does not allege that Mascher withheld material, exculpatory evidence 4 from prosecutors. In any event, as noted above, Tennison was decided 15 years too late to 5 be of any use to Plaintiff. 6 Plaintiff also relies on Wilson v. Lawrence County, Mo., 260 F.3d 946 (8th Cir. 7 2001), in which the Eighth Circuit recognized a due process claim for reckless 8 investigation, but that case was decided seven years after the investigation at issue here, 9 and, in any event, is not binding on this Court. The Eighth Circuit in Wilson, citing Brady, 10 observed that law enforcement officers “have a responsibility to criminal defendants to 11 conduct their investigations and prosecutions fairly” and identified the liberty interest at 12 stake as the “interest in obtaining fair criminal proceedings.” Id. at 956-57. However, this 13 broad statement of law does not constitute clearly established precedent that a reckless 14 investigation could violate the Due Process Clause. And the facts in Wilson are not 15 analogous to the facts in this case. 16 In Wilson, the plaintiff asserted a claim that officers conducting a post-arrest 17 investigation had chosen not to pursue certain leads that pointed away from the plaintiff’s 18 guilt for a homicide. Id. at 957. The plaintiff pointed to information concerning an escaped 19 felon with a modus operandi matching the homicide and an eyewitness who saw someone 20 outside of the house shortly before the fire (and who would have testified that the person 21 she saw was not the plaintiff) as the leads the officers chose not to pursue. Id. at 955. 22 Importantly, the Eighth Circuit did not conclude the plaintiff had stated a due process claim 23 based on these facts; rather, the court concluded only that the proper standard to judge 24 whether the officers’ conduct violated due process was recklessness. Id. at 957. 25 As discussed above, “the substantive component of the Due Process Clause is 26 violated by executive action only when it can properly be characterized as arbitrary, or 27 conscience shocking, in a constitutional sense.” Lewis, 523 U.S. at 847. The Supreme 28 - 23 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 24 of 41

1 Court in Collins stated that its cases “dealing with abusive executive action have repeatedly 2 emphasized that only the most egregious official conduct can be said to be ‘arbitrary in the 3 constitutional sense.” 503 U.S. at 129. In Lewis, the Supreme Court “made it clear that 4 the due process guarantee does not entail a body of constitutional law imposing liability 5 whenever someone cloaked with state authority causes harm.” 523 U.S. at 848. Thus, only 6 “conduct intended to injure in some way unjustifiable by any government interest is the 7 sort of official action most likely to rise to the conscience-shocking level.” Id. at 849. 8 Since Collins, neither the Supreme Court nor the Ninth Circuit has applied the 9 “conscience-shocking” test to a reckless investigation claim. In Albright v. Oliver, the 10 Supreme Court observed that “the protections of substantive due process have for the most 11 part been accorded to matters relating to marriage, family, procreation, and the right to 12 bodily integrity,” and the petitioner’s claim “to be free from prosecution except on the basis 13 of probable cause [was] markedly different from those recognized in this group of cases.” 14 510 U.S. 266, 272 (1994). Id. The Court concluded that substantive due process could not 15 afford the petitioner relief for his claim that he was prosecuted without probable cause. Id. 16 at 275. Likewise, in Baker v. McCollan, 443 U.S. 137 (1979), the Supreme Court found 17 no cognizable constitutional claim where the defendant’s actions in detaining the plaintiff 18 for three days, despite his protestations of innocence and without investigating those 19 protests, amounted to no more than negligence. Id. at 144. 20 Plaintiff’s allegations do not support a conclusion that Defendant Mascher’s 21 investigation “rose to the conscience-shocking level.” Lewis, 523 U.S. at 849. Thus, the 22 Court finds that Plaintiff fails to state a claim against Defendant Mascher in the Second 23 Amended Complaint. 24 D. Dannison 25 1. Fabrication of Evidence 26 In his Response to Defendants’ Motion to Dismiss, Plaintiff asserts that Defendant 27 Dannison “fabricated evidence” by “drafting false forensic reports with unsupported, 28 - 24 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 25 of 41

1 inaccurate findings that the Jeep could backfire and make a noise like a gunshot.” (Doc. 2 153 at 18.) However, Plaintiff’s allegations regarding Dannison’s testing of the Jeep do 3 not support a conclusion that Dannison “fabricated” evidence. Regardless of Dannison’s 4 purpose for conducting the testing, Plaintiff has not alleged that the results of the tests were 5 fabricated; rather, Plaintiff’s claim is that Dannison purposely tested the Jeep in conditions 6 that he knew did not match the conditions on the night Thurman was killed. 7 As Defendants point out in their Reply to Plaintiff’s Response, Plaintiff does not 8 allege in the Second Amended Complaint that Defendant Dannison manipulated any part 9 of the Jeep. (Doc. 157 at 10.) The only mention of the ignition in the SAC is that in 10 connection with his post-conviction-relief efforts, Plaintiff obtained opinions from multiple 11 third-party mechanics who indicated that rapid, consecutive, fire-emitting backfires would 12 have required perfect and precise conditions that are not easily replicated, such as problems 13 with the ignition system, voltage leaks, and quickly switching the ignition on and off and 14 on again. (Doc. 131 at 39 ¶ 178.) 15 Plaintiff alleges in the SAC that because Defendant Dannison knew Detective 16 Martin had interviewed an individual at the scene who claimed to be a mechanic and that 17 this individual had told Martin it was “impossible” for a Jeep to backfire in those 18 conditions, Dannison’s attempts to produce contrary test results amounted to “fabricating” 19 evidence in an effort to “frame” Plaintiff. (Id. at 38 ¶ 175.) The Court rejects Plaintiff’s 20 suggestion that a police officer can be held liable for a due process violation because the 21 officer attempted to achieve test results that contradicted the opinion of a witness 22 interviewed by a different officer. 23 The Court finds that Plaintiff’s allegations do not support a conclusion that 24 Defendant Dannison “fabricated” evidence by testing the Jeep. 25 2. Destruction of Exculpatory Evidence 26 Plaintiff’s claim that Defendant Dannison left shell casings in an unsecured lot is 27 not fairly characterized as a claim for deliberate destruction of exculpatory evidence. 28 - 25 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 26 of 41

1 Rather, Plaintiff’s complaint is that Defendant Dannison failed to preserve the shell 2 casings. As discussed above, in Youngblood, the Supreme Court reasoned that “failure of 3 the State to preserve evidentiary material of which no more can be said than that it could 4 have been subjected to tests, the results of which might have exonerated the defendant,” 5 does not violate the Due Process Clause. 488 U.S. at 57. “The presence or absence of bad 6 faith by the police for purposes of the Due Process Clause must necessarily turn on the 7 police’s knowledge of the exculpatory value of the evidence at the time it was lost or 8 destroyed.” Id. at 56 n.*. 9 Plaintiff’s allegations suggest, at most, that Defendant Dannison negligently failed 10 to preserve evidence by leaving it in an unsecured impound lot. However, negligence does 11 not amount to bad faith. Plaintiff has not alleged that Dannison knew that the shell casings 12 had exculpatory value at the time he left the casings in the Jeep. Plaintiff alleges only that 13 Dannison knew of the “existence” of casings. (Doc. 131 at 31 ¶ 146.) Plaintiff claims the 14 casings, if collected, “would have proven [Plaintiff’s] evidence by showing the teenagers 15 in the Jeep had a gun that fired .22 calibers and possibly fired the bullet that killed 16 Thurman.” (Id. ¶ 147.) Even if the passengers in the Jeep had a .22 caliber weapon, that 17 does not negate the fact that Plaintiff’s rifle shot a .22 caliber bullet; the existence of other 18 casings does not tend to show that Plaintiff’s bullet was not the bullet that struck and killed 19 Thurman. Thus, even if the shell casings ultimately would have proved useful to Plaintiff, 20 Defendant Dannison’s failure to preserve the evidence did not violate Plaintiff’s due 21 process rights. 22 E. Price 23 1. Destruction of Exculpatory Evidence 24 Plaintiff alleges that Defendant Price “deliberately and recklessly destroyed 25 exculpatory evidence by failing to search for casings in the Jeep and roadway that would 26 have established someone other than [Plaintiff] fired the weapon that killed” Charles 27 Thurman. (Doc. 131 at 12 ¶ 53.) Thus, Plaintiff alleges that by failing to search for 28 - 26 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 27 of 41

1 evidence, Defendant Price deliberately and recklessly destroyed potentially exculpatory 2 evidence. This characterization of Defendant Price’s conduct is disingenuous; his alleged 3 conduct is more accurately portrayed as a claim for failure to collect potentially exculpatory 4 evidence. See United States v. Martinez-Martinez, 369 F.3d 1076, 1087 (9th Cir. 2004) 5 (recognizing that failure to collect potentially useful evidence is “distinctly different” from 6 “destruction of evidence that is already extant”). 7 As noted above, in Trombetta, the Supreme Court held that the government may 8 have a duty to preserve evidence after the evidence is gathered and in possession of the 9 police, but the Court did not impose a duty to obtain evidence. 467 U.S. at 488-90. In 10 Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989), the Ninth Circuit applied the principles 11 set forth in Youngblood and held that “a bad faith failure to collect potentially exculpatory 12 evidence would violate the due process clause.” Id. at 1120. The Ninth Circuit reasoned 13 that “[s]ince, in the absence of bad faith, the police’s failure to preserve evidence that is 14 only potentially exculpatory does not violate due process, then a fortiori neither does the 15 good faith failure to collect such evidence violate due process.” Id. 16 Even construing Plaintiff’s claim against Defendant Price as a claim for failure to 17 preserve evidence, Plaintiff fails to state a claim. In Youngblood, the Supreme Court noted 18 that failure to preserve even potentially exculpatory evidence does not automatically 19 constitute a due process violation. 488 U.S. at 58. It is only when the “defendant can show 20 bad faith on the part of the police[ ] [that] failure to preserve potentially useful evidence” 21 amounts to the denial of due process. Id. In Miller, the Ninth Circuit found there was a 22 colorable habeas corpus claim that an officer had failed to collect potentially exculpatory 23 evidence in bad faith where the officer referred to the defendant “by using an extremely 24 derogative expletive”; interviewed the victim less than 24 hours of an attack, learned of the 25 existence of a blood-stained jacket belonging to the victim, and failed to collect it; the 26 officer later testified he had “forgotten” the jacket; and the officer “tried to dissuade 27 28 - 27 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 28 of 41

1 witnesses from testifying by informing them of [the defendant’s] prior criminal history and 2 indicating that their testimony would not exonerate [the defendant].” 868 F.2d at 1121. 3 Here, Plaintiff has not alleged facts to support a conclusion that Defendant Price 4 knew that additional casings in the Jeep and roadway existed, that this evidence was 5 potentially exculpatory, and that Price nevertheless failed to search for it. Rather, Plaintiff 6 alleges only that the failure to use the metal detector on the roadway and Jeep “was either 7 intentional or extremely reckless to avoid finding proof the teenagers had a weapon, which 8 would have proved [Plaintiff’s] innocence.” (Doc. 131 at 13 ¶ 53.) The potential existence 9 of evidence cannot support a claim for bad faith failure to potentially exculpatory evidence. 10 Price could not have been aware of the potentially exculpatory value of evidence that might 11 have existed. Thus, Plaintiff has not adequately alleged that Defendant Price failed, in bad 12 faith, to collect or preserve potentially exculpatory evidence. 13 Plaintiff also alleges that Defendant Price conducted a reckless investigation. As 14 discussed above, in 1994, there was no clearly established law recognizing a due process 15 claim based on reckless investigation. See Trombetta, 467 U.S. at 488 (bad faith requires 16 more than mere negligence or recklessness; it requires “official animus” or a “conscious 17 effort to suppress exculpatory evidence”). 18 Plaintiff contends Defendant Price is not entitled to qualified immunity if he 19 conducted a reckless investigation “with bias.” (Doc. 153 at 20.) He cites no authority for 20 this proposition. Instead, Plaintiff argues that before 1994, “Ninth Circuit precedent 21 required police officers to conduct their investigations neutrally and thoroughly.” (Id. at 22 11.) Plaintiff cites Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283 23 (9th Cir. 1999), for this proposition, but that case does not stand for the proposition that a 24 defendant is not entitled to qualified immunity if he conducts a reckless investigation with 25 bias. The issue there was whether local police officers were entitled to qualified immunity 26 as to a claim that the officers had knowingly or recklessly included false information in 27 search warrant affidavits because they had reasonably relied on information provided by 28 - 28 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 29 of 41

1 FBI agents. Id. at 1289-90. Although Plaintiff asserts the Ninth Circuit in Mendocino 2 Environmental Center held that police officers have a “duty to reasonably inquire or 3 investigate . . . reported facts,” and are not entitled to qualified immunity when relying “on 4 information obtained from other law enforcement officials” in violation of duty to 5 investigate further, that is not an accurate characterization. The Ninth Circuit only 6 observed, in a footnote, that “[a]lthough a police officer is entitled to rely on information 7 obtained from fellow law enforcement officers, this in no way negates a police officer’s 8 duty to reasonably inquire or investigate these reported facts. We have denied qualified 9 immunity to police officers who had indisputably relied on information obtained from other 10 law enforcement officials, when we concluded that they violated their duty to conduct 11 further investigation.”13 Id. at 1293 n.16. 12 Plaintiff also cites Brady and Agurs as pre-1994 sources of the proposition that a 13 constitutional violation occurs when officials do not “conduct their investigations and 14 prosecutions fairly.” (Doc. 153 at 12.) However, Brady does not apply to Plaintiff’s claim 15 against Defendant Price because Plaintiff has not alleged that material, exculpatory 16 evidence was withheld by the State. See 373 U.S. at 87 (holding that “the suppression by 17 the prosecution of evidence favorable to an accused upon request violates due process 18 where the evidence is material either to guilt or to punishment, irrespective of the good 19 faith or bad faith of the prosecution”). Likewise, the Supreme Court in Agurs considered 20 whether a prosecutor “has any constitutional duty to volunteer exculpatory matter to the 21 defense, and if so, what standard of materiality gives rise to that duty.” 427 U.S. at 107. 22 13 23 Mendocino Environmental Center also was decided five years after the investigation in this case, and the cases the Ninth Circuit cited do not assist Plaintiff. See 24 Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986) (federal agents’ reliance on assurances by local police officers that appropriate warrants had been obtained, and 25 resultant failure to inquire about the nature or scope of these warrants, was unreasonable); United States v. Kyllo, 37 F.3d 526, 529 (9th Cir. 1994) (inclusion in affidavit of account 26 of arrest provided by another police officer and failure to conduct additional investigation may be reckless when account omitted material facts). Neither Guerra nor Kyllo stands 27 for the proposition that conducting a reckless investigation with bias violates a criminal defendant’s due process rights. 28 - 29 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 30 of 41

1 Agurs has no relevance to Plaintiff’s claim that Defendant Price conducted a reckless 2 investigation. 3 Furthermore, Plaintiff has not alleged facts to support a conclusion that Defendant 4 Price conducted his investigation with bias. Plaintiff does not identify a particular bias 5 Defendant Price had against him, let alone allege facts to support a conclusion that Price 6 recklessly conducted his investigation because of any such bias. 7 For the foregoing reasons, the Court finds that Plaintiff fails to state a claim against 8 Defendant Price. 9 F. Williamson 10 1. Fabrication of Evidence 11 Plaintiff alleges that Defendant Williamson fabricated evidence with respect to the 12 string trajectory test. For the reasons discussed above with respect to Defendant Mascher, 13 the Court finds Plaintiff fails to state a fabrication-of-evidence claim against Defendant 14 Williamson based on the string trajectory test. 15 2. Failure to Preserve/Collect Exculpatory Evidence 16 Defendant Williamson testified at trial that shortly after the incident, in June 1994, 17 he observed several .22 caliber casings and at least one unspent .22 bullet in the rear seat 18 area of the Jeep. Defendant Williamson also testified that he saw beer cans, multiple 19 cartridges, and possibly fired casings of a small caliber in the back of the Jeep. Defendant 20 Williamson testified that the casings he found were .22 Remington manufactured bullets, 21 not the “Super X Winchester .22” casings that Plaintiff owned and provided to Defendants. 22 (Id. ¶ 133.) Defendant Williamson did not prepare a report that stated that he had found 23 empty beer cans and different model .22 bullet casings in the Jeep. (Id. at 29 ¶ 136.) 24 Defendants argue that in the SAC, Plaintiff identifies Mike Winney as the public 25 employee with the responsibility to collect and photograph evidence, and that the casings 26 and bullet were not destroyed but, rather, lost in a theft at the impound yard. (Doc. 138 at 27 15.) Defendants contend that even without a report from Defendant Williamson, “Plaintiff 28 - 30 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 31 of 41

1 knew enough about his observations to obtain admissions during the trial from 2 Williamson.” (Id.) Defendants further assert that despite the theft, Defendant Williamson 3 found and collected an unspent .22 cartridge from the Jeep, which Plaintiff does not allege 4 was tested in any manner, much less a manner yielding exculpatory results. (Id.) Thus, 5 Defendants argue, Plaintiff does not allege a “destruction of evidence,” but an argument 6 that someone “ought to have” collected the evidence. (Id.) 7 In his Response, Plaintiff contends that “turning a blind [sic] to obvious material 8 exculpatory evidence, then allowing it to be lost or stolen from an open-top Jeep in an 9 unsecure impound, is a failure to preserve (if not the destruction of) evidence.” (Id. at 17.) 10 Plaintiff argues that “photographing or collecting this key evidence would have indeed 11 impacted [Plaintiff’s] ability to prove his innocence” because evidence of ammunition from 12 a different bullet manufacturer established the existence of a separate weapon and 13 separately fired shots, as evidenced by the spent shell casings. (Id.) 14 The Ninth Circuit in Miller held that a bad faith failure to collect potentially 15 exculpatory evidence would violate the due process clause. Thus, Plaintiff must allege 16 facts to support a conclusion that the evidence that was not collected was potentially 17 exculpatory and that the potentially exculpatory value was apparent at the time the evidence 18 was not collected. 19 Plaintiff asserts that the unspent bullet and shell casings were potentially 20 exculpatory because evidence of ammunition from a different bullet manufacturer 21 established the existence of a separate weapon and separately fired shots, as evidenced by 22 the spent shell casings. (Doc. 153 at 17.) Plaintiff obliquely alleges that Defendants knew 23 bullets “involved in the incident” were produced by a different manufacturer than the 24 bullets Plaintiff gave to police. (Id. at 7.) However, Plaintiff does not allege what type of 25 bullet killed Charles Thurman. If the bullet that killed Thurman was also manufactured by 26 Winchester, the fact that other .22 casings were found in the Jeep would not tend to 27 28 - 31 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 32 of 41

1 exculpate Plaintiff.14 See Youngblood, 488 U.S. at 56 n.* (noting that the plaintiff, who 2 had been convicted of sexual assault of child, had not shown that the police “knew the 3 semen samples [from the victim’s body and clothing] would have exculpated him when 4 they failed to perform certain tests or to refrigerate the boy’s clothing; this evidence was 5 simply an avenue of investigation that might have led in any number of directions”). 6 Although Defendant Williamson testified at Plaintiff’s trial that he had observed 7 several .22 caliber casings and at least one unspent .22 bullet in the rear seat area of the 8 Jeep and that the Jeep’s contents should have been photographed before it was seized in 9 the routine course of such an investigation, Williamson’s recognition that evidence could 10 have been relevant does not amount to recognition that the evidence was potentially 11 exculpatory. Thus, Plaintiff has not alleged facts to support a conclusion that the 12 potentially exculpatory value of the shell casings was apparent at the time Defendant 13 Williamson observed them in the Jeep. 14 In addition, as discussed above, Plaintiff cross-examined Defendant Williamson 15 about the shell casings, unspent bullet, and beer cans, and Williamson described what he 16 had seen. Plaintiff therefore had an opportunity to argue at his trial, for example, that the 17 investigation was flawed and that the shell casings and bullet that were not collected 18 pointed to his innocence. Plaintiff does not identify any testing that could have been 19 conducted on the evidence or how the results of any such testing would tended to have 20 exculpate him. Thus, Plaintiff has not alleged facts to support a conclusion that the 21 evidence was “of such a nature that [he] would be unable to obtain comparable evidence 22 by other reasonably available means.” See Trombetta, 467 U.S. at 489. 23 24 14 Plaintiff sought post-conviction relief based on former Defendant Ernest Peele’s 25 testimony that, based on comparative bullet lead analysis, the bullet that killed Thurman, as well as a lead fragment found in the Jeep’s tire, was “analytically indistinguishable” 26 from .22 caliber ammunition found in Plaintiff’s possession. Peele testified that the test results were “typical of … what we expect when we analyze bullets from the same box of 27 cartridges. State v. Krause, No. 2 CA-CR 2015-0326-PR, 2015 WL 7301820, at *1 (Ariz. Ct. App. Nov. 19, 2015). 28 - 32 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 33 of 41

1 Plaintiff also alleges that Defendant Williamson “destroyed potentially exculpatory 2 evidence in bad faith, since it is practice and custom to collect ballistic evidence and 3 evidence of potential intoxication of occupants of a car involved in a shooting at a crime 4 scene, and any reasonable investigator would do so.” (Doc. 131 at 28 ¶ 132.) These 5 allegations do not permit a reasonable inference that Williamson failed in bad faith to 6 collect the evidence. Although the Ninth Circuit in Heffington stated that a police 7 department’s compliance with “departmental procedure” should be regarded as an 8 indication that the disposal of evidence was not performed in “bad faith,” it does not follow 9 that failure to comply with “departmental procedure” indicates a failure to collect evidence 10 was in bad faith. 952 F.2d at 281. Mere failure to comply with “departmental procedure” 11 suggests failure to collect the evidence was negligent as much as it suggests that the failure 12 was in bad faith. Like the police in Youngblood, Defendant Williamson’s failure to collect 13 or preserve the evidence “can at worst be described as negligent.” Id. at 58; see also 14 Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (failure to follow departmental 15 regulations does not establish a constitutional violation). 16 Finally, to the extent that Plaintiff’s claim against Defendant Williamson is based 17 on Williamson’s failure to write a report stating that he had observed but had not collected 18 empty beer cans and different model .22 bullet casings in the Jeep, as Defendants note, 19 Plaintiff knew about the empty beer cans and bullet casings despite Williamson not having 20 noted them in a report. As noted above, Plaintiff questioned Defendant Williamson at trial 21 about the beer cans and bullet casings. Thus, the existence of the beer cans and bullet 22 casings was not concealed from Plaintiff. See id. at 58. 23 The Court finds that Plaintiff fails to state a claim against Defendant Williamson in 24 the Second Amended Complaint. 25 G. Yavapai County 26 The Court has concluded that Plaintiff has not stated a claim against any of the 27 individual Defendants. Plaintiff’s claim against Yavapai County under Monell v. 28 - 33 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 34 of 41

1 Department of Soc. Servs. of New York, 436 U.S. 658 (1978), necessarily fails because he 2 has not alleged facts sufficient to support a conclusion that he suffered any injury. See id. 3 at 694 (holding that “a local government may not be sued under § 1983 for an injury 4 inflicted solely by its employees or agents. Instead, it is when execution of a government’s 5 policy or custom, whether made by its lawmakers or by those whose edicts or acts may 6 fairly be said to represent official policy, inflicts the injury that the government as an entity 7 is responsible under § 1983”) (emphasis added). 8 H. Conclusion 9 The Court concludes that Plaintiff fails to state a claim upon which relief can be 10 granted against Defendants Yavapai County, Mascher, Dannison, Price, and Williamson. 11 The Court will therefore grant these Defendants’ Motion to Dismiss. 12 V. Defendant Hueske’s Motion to Dismiss 13 A. Allegations Specific to Defendant Hueske 14 Defendant Hueske analyzed the speed at which consecutive shots could be fired 15 from Plaintiff’s rifle and the velocity of bullets emitted from the rifle. (Doc. 131 at 19 ¶ 16 85.) Hueske also conducted an accident reconstruction that analyzed how the three 17 presumed bullets could have been shot by a single shooter. (Id. ¶ 86.) In conducting the 18 test, Hueske relied on Defendant Price’s estimate of the speed at which the Jeep was 19 traveling and assumed the speed test results were accurate. (Id. ¶¶ 87-88.) 20 As Plaintiff’s trial, Hueske testified to the following conclusions based on his tests: 21 all three bullets could have been shot from one shooter; the presumed bullet holes in the 22 rocker panel and the tire well were shot by the same gun held in the same position; the 23 bullet that hit Thurman could also have been shot by the same gun, but the gun would have 24 had to have been repositioned due to the difference in height and its position directly above 25 the rocker panel; that the shooter could have been “tracking” Thurman, which Hueske 26 defined as “following the target with the sights of the weapon”; and the shooter would have 27 had to have been positioned lying on the ground. (Id. at 20 ¶¶ 89-93.) 28 - 34 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 35 of 41

1 Defendant Hueske testified that he did not test whether the rifle would fire a shot 2 when hit against the ground because he “wasn’t asked” to do so and because he “saw no 3 reason to do it as well, given the information that [he] was supplied.” (Id. ¶ 94.) Hueske 4 testified that he did not test how much force was needed, or distance required, to pull the 5 trigger of the rifle and make it fire and that he did not test whether Plaintiff had sufficient 6 time to fire three shots at Thurman’s Jeep while changing the angle of the rifle between 7 shots to reflect the different bullet entries found in the Jeep, which Plaintiff admitted struck 8 at different heights. (Id. ¶¶ 95-96.) Hueske further testified that the variance in height of 9 the three bullets that struck the Jeep was caused by a shooter changing the angle of the gun 10 barrel or gun butt. (Id. at 22 ¶ 97.) 11 Plaintiff alleges, “[u]pon information and belief, Defendant Hueske intentionally 12 omitted material facts in performing the laser test and analysis to fabricate reports 13 implicating [Plaintiff]. Hueske knew that if he incorporated the facts above in his analysis, 14 available to them at the time of testing, it was extremely likely, if not a certain[ty], his test 15 results would have established Plaintiff’s innocence—that he could not have fired the 3 16 shots in the time that the Jeep passed [Plaintiff] on the road.” (Id. at 22 ¶ 99.) Plaintiff 17 also claims that “Defendant Hueske further intentionally omitted material facts in testing 18 the speed at which [Plaintiff’s] rifle could fire and whether it was possible [Plaintiff] fired 19 three shots of various heights at the Jeep to fabricate a report that would frame [Plaintiff] 20 and avoid finding exculpatory evidence.” (Id. ¶ 100.) Plaintiff contends that “[b]ased on 21 the numerosity and materiality of Hueske’s omissions . . . it is reasonable to conclude he 22 acted intentionally, not negligently, in refusing to incorporate available, material and 23 exculpatory facts in his test methods since he knew doing so would produce evidence 24 establishing [Plaintiff’s] innocence.” (Id. at 23 ¶ 102.) 25 B. Defendant Hueske’s Arguments 26 In his Motion to Dismiss, Defendant Hueske argues that Plaintiff has not stated a 27 claim against him and in any event, Hueske is entitled to qualified immunity with respect 28 - 35 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 36 of 41

1 to his analysis and trial testimony. (Doc. 137 at 9, 12.) Defendant Hueske contends that 2 Plaintiff does not assert that Hueske lost or destroyed evidence; “rather, Plaintiff complains 3 that Hueske did not conduct or perform certain additional tests and, without any factual 4 basis, Plaintiff creatively asserts that tests were intentionally or recklessly not completed 5 because of some alleged conspiracy to convict Plaintiff.” (Id.) Defendant Hueske asserts 6 that Plaintiff’s allegations “are not supported by clearly established law at the time of the 7 events” described in the Second Amended Complaint, and if anything, “clearly established 8 law demonstrates that Hueske’s conduct was permitted by law.” (Id. at 10.) Defendant 9 Hueske contends that “[a]dding an unsupported allegation that an action was done 10 intentionally does not make it a viable claim.” (Id. at 13.) 11 C. Plaintiff’s Response 12 In his Response, Plaintiff argues that Defendant Hueske violated his constitutional 13 rights because Hueske deliberately ignored material evidence that was likely to exculpate 14 Plaintiff; recklessly or intentionally refused to investigate material facts; and failed to test 15 or otherwise determine whether Plaintiff could have possibly fired all three shots that struck 16 the Jeep and Thurman. (Doc. 147 at 11-12.) Plaintiff contends Defendant Hueske is not 17 entitled to qualified immunity because each of Hueske’s alleged constitutional violations 18 was clearly established before Hueske’s 1994 investigation and the violations are 19 “sufficiently fundamental to be rooted in common sense, and need not be established by 20 specific precedent.” (Id. at 7.) 21 With respect to the claim that Defendant Hueske fabricated evidence, Plaintiff 22 contends that the Ninth Circuit in Devereaux “did not create a constitutional right” but 23 instead “relied on the long-established, common-sense right to be free from prosecution 24 based on knowingly false evidence.” (Id. at 8.) Plaintiff further argues that before 1994, 25 the Ninth Circuit required police officers to conduct their investigation neutrally and 26 thoroughly. (Id. at 9.) With respect to the conspiracy claim, Plaintiff asserts that it has 27 been well established since at least 1989 that officers are not entitled to qualified immunity 28 - 36 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 37 of 41

1 when conspiring to violate a person’s constitutional rights. (Id. at 10.) Plaintiff further 2 argues that even if Defendant Hueske’s individual conduct did not rise to the level of 3 violating his constitutional rights, “case law also supports liability for an officer’s ‘integral 4 participation’ in an alleged violation, or joinder in a conspiracy to violate constitutional 5 rights.” (Id.) 6 D. Analysis 7 1. Fabricated Evidence 8 Plaintiff’s first basis for Defendant Hueske’s liability is that Hueske “fabricated” 9 evidence. However, in the Second Amended Complaint, Plaintiff alleges that Defendant 10 Hueske failed to conduct certain tests and relied on inaccurate data. Plaintiff does not 11 allege that Defendant Hueske presented false testimony or evidence or acted in bad faith 12 in conducting the test to determine the trajectory of the bullet that hit the Jeep’s rocker 13 level. Plaintiff’s assertion that failure to conduct tests and reliance on inaccurate data 14 amounts to deliberate fabrication of evidence is specious. Plaintiff has not alleged facts to 15 support a conclusion that Defendant Hueske fabricated evidence. 16 2. Reckless Investigation 17 For the reasons discussed above, the Court concludes Plaintiff fails to state a 18 reckless investigation claim against Defendant Hueske. 19 3. Conspiracy 20 Plaintiff’s third basis for Defendant Hueske’s liability is that Hueske engaged in a 21 conspiracy with Defendants to secure Plaintiff’s conviction. To state a 22 § 1983 conspiracy claim, Plaintiff must allege: (1) the existence of an express or implied 23 agreement among the defendant officers to deprive him of his constitutional rights and 24 (2) an actual deprivation of those rights resulting from that agreement. Ting v. United 25 States, 927 F.2d 1505, 1512 (9th Cir. 1991). “To establish the defendants’ liability for 26 a conspiracy, a plaintiff must demonstrate the existence of an agreement or 27 ‘meeting of the minds’ to violate constitutional rights.” Mendocino Envtl. Ctr., 192 F.3d 28 - 37 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 38 of 41

1 at 1301-02. That is, Plaintiff must allege “which defendants conspired, how they conspired 2 and how the conspiracy led to a deprivation of [the plaintiff’s] constitutional rights.” 3 Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997). Plaintiff must allege that 4 Defendants have, “by some concerted action, intended to accomplish some unlawful 5 objective for the purpose of harming another which results in damage. Such an agreement 6 need not be overt, and may be inferred on the basis of circumstantial evidence such as the 7 actions of the defendants.” Mendocino Envtl. Ctr., 192 F.3d at 1301. 8 Because conspiracy requires proof of subjective intent, it is subject to 9 a heightened pleading standard. Harris, 126 F.3d at 1196. The complaint must include 10 “nonconclusory allegations containing evidence of unlawful intent.” Branch v. Tunnell, 11 937 F.3d 1382, 1386 (9th Cir. 1991), overruled on other grounds by Galbraith v. Cnty. of 12 Santa Clara, 307 F.3d 1119 (9th Cir. 2002). A complaint consisting of nothing more than 13 “‘naked assertion[s]’ devoid of ‘further factual enhancement’” must be dismissed under 14 Rule 8. Iqbal, 556 U.S. at 678. 15 Here, Plaintiff fails to specifically allege how, when, or with whom Defendant 16 Hueske conspired or how the conspiracy led to a deprivation of his rights. Plaintiff’s 17 general allegation that Defendants “conspired and agreed to commit the above[-]described 18 unconstitutional deprivations of [Plaintiff’s] rights and acted in concert to deprive 19 [Plaintiff] of his rights to be free from unreasonable seizures, to due process, to a fair trial, 20 and to be free from groundless criminal prosecutions based on false evidence” is 21 insufficient to state a conspiracy claim. (Doc. 131 at 46 ¶ 211.) 22 Plaintiff argues in his Response to Defendant Hueske’s Motion that Hueske “relied 23 on” Defendant Price’s speed test, “refusing to assess its accuracy, which significantly 24 underestimated the speed Thurman’s Jeep was travelling.” (Doc. 147 at 14.) Plaintiff 25 claims this allowed Defendant Hueske to conclude Plaintiff had time to fire three bullets, 26 two at the Jeep and one at Thurman. (Id.) These allegations do not support a conclusion 27 that there was a “meeting of the minds” between Defendants Hueske and Price. Mendocino 28 - 38 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 39 of 41

1 Envtl. Ctr., 192 F.3d at 1301-02. Plaintiff does not allege that Defendants Hueske and 2 Price ever discussed Plaintiff’s case or their respective investigations. Thus, Plaintiff fails 3 to state a conspiracy claim against Defendant Hueske. 4 4. Integral Participation/Joinder 5 Finally, Plaintiff contends that even if Defendant Hueske’s individual conduct did 6 not rise to the level of violating his constitutional rights, “case law also supports liability 7 for an officer’s ‘integral participation’ in an alleged violation, or joinder in a conspiracy to 8 violate constitutional rights.” (Doc. 147 at 10.) Plaintiff cites no pre-1994 precedent to 9 support this assertion. (See id.) 10 In Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978), the Ninth Circuit stated, “A 11 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 12 section 1983, if he does an affirmative act, participates in another’s affirmative acts, or 13 omits to perform an act which he is legally required to do that causes the deprivation of 14 which complaint is made.” Id. at 743. In addition, “[a]nyone who ‘causes’ any citizen to 15 be subjected to a constitutional deprivation is also liable. The requisite causal connection 16 can be established not only by some kind of direct personal participation in the deprivation, 17 but also by setting in motion a series of acts by others which the actor knows or reasonably 18 should know would cause others to inflict the constitutional injury.” Id. at 743-44. 19 Here, Plaintiff does not allege facts sufficient to support a conclusion that Defendant 20 Hueske knew or reasonably should have known that the testing he conducted or failed to 21 conduct would cause others to inflict a constitutional injury on Plaintiff. Furthermore, as 22 recently as 2020, the Ninth Circuit has recognized that it has “yet to define the minimum 23 level of involvement for liability under the integral-participant doctrine.” Reynaga 24 Hernandez v. Skinner, 969 F.3d 930, 941 (9th Cir. 2020). The Ninth Circuit also has not 25 clarified whether both legal (or proximate) cause and actual (or but-for) cause are required. 26 Id. at 942. Thus, there necessarily was no clearly established law in 1994 that governed 27 the requisite level of participation and causation for an integral participation claim. 28 - 39 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 40 of 41

1 For the foregoing reasons, the Court will grant Defendant Hueske’s Motion to 2 Dismiss. 3 VI. Leave to Amend 4 The Court has broad discretion to grant or deny leave to amend. See Okwu v. 5 McKim, 682 F.3d 841, 844 (9th Cir. 2012). “Normally, when a viable case may be pled, a 6 district court should freely grant leave to amend.” United States ex rel. Cafasso v. Gen. 7 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citing Lipton v. Pathogenesis 8 Corp., 284 F.3d 1027, 1039 (9th Cir. 2002)). “However, ‘liberality in granting leave to 9 amend is subject to several limitations.’” Id. (quoting Ascon Props., Inc. v. Mobil Oil Co., 10 866 F.2d 1149, 1160 (9th Cir. 1989)). “Those limitations include undue prejudice to the 11 opposing party, bad faith by the movant, futility, and undue delay.” Id. The Court’s 12 discretion to deny leave to amend is particularly broad where a plaintiff has previously 13 amended the complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 14 (9th Cir. 1996). 15 Here, Plaintiff has made multiple attempts at stating a viable claim against 16 Defendants. This case has been pending for nearly two-and-a-half years and has not 17 advanced beyond the pleading stage. Defendants have litigated two Motions to Dismiss 18 and a Motion for Judgment on the Pleadings. The Court finds allowing Plaintiff to amend 19 his claims for a fourth time would unduly prejudice Defendants. In addition, Plaintiff has 20 not identified any amendment consistent with facts he has already alleged that would give 21 him a viable claim. See Okwu, 682 F.3d at 846. The Court finds allowing Plaintiff to 22 amend his claims would be futile. Thus, the Court will dismiss the Second Amended 23 Complaint without leave to amend. 24 IT IS ORDERED: 25 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 26 Motions to Dismiss (Docs. 137, 138). 27 (2) Defendant Hueske’s Motion to Dismiss (Doc. 137) is granted. Defendants 28 - 40 - Case 3:19-cv-08054-MTL Document 161 Filed 10/27/21 Page 41 of 41

1 Yavapai County, Mascher, Price, Williamson, and Dannison’s Motion to Dismiss (Doc. 2 138) is granted. 3 (3) The Second Amended Complaint (Doc. 131) is dismissed without leave to 4 amend. 5 (4) The Clerk of Court must close this case and enter Judgment accordingly. 6 Dated this 27th day of October, 2021. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 41 -