Donahoe v. Arpaio (986 F. Supp. 2d 1091, 2013)

ORDER

NEIL V. WAKE, District Judge.

TABLE OF CONTENTS

I. SUMMARY OF RULINGS.............................................1101

II. LEGAL STANDARD..................................................1102

III. STAPLEYI...........................................................1103

A. Legal standard....................................................1103

B. Probable cause....................................................1104

1. The 1994 Board of Supervisors resolution .........................1104

2. Statute of limitations...........................................1106

C. Malice............................................................1107

D. Favorable termination..............................................1107

E. Accrual of action...................................................1108

IV. THE SEARCH........................................................1108

A. Legal standard....................................................1109

B. Evidence supporting the search warrant..............................1109

1. Evidence regarding fraud.......................................1110

2. Evidence regarding bribery.....................................1110

3. Evidence regarding misuse of public funds ........................1111

C. Misrepresentations and omissions in the supporting affidavit............1112

1. Misrepresentation and omissions of evidence of bribery.............1112

i. Review of bank records...................................1112

ii. Partnership documents...................................1113

iii. Public records of partnership..............................1113

iv. Disclosure..............................................1114

v. Voting record ...........................................1114

2. Misrepresentation and omissions of evidence of misused public funds.......................................................1115

D. Materiality of misrepresentations and omissions.......................1116

E. Deliberate or reckless disregard for the truth.........................1117

1. Aubuchon.....................................................1117

i. Involvement.............................................1117

ii. Evidence ...............................................1118

2. Thomas.......................................................1120

3. Hendershott...................................................1120

4. Arpaio........................................................1122

F. Qualified immunity.................................................1122

1. Legal standard ................................................1122

2. Application to the search........................................1123

V. THE ARREST AND STAPLEY II INDICTMENT........................1123

A. Legal standard....................................................1124

B. Probable cause....................................................1124

1. Fraudulent schemes and artifices (arrest) .........................1125

2. Perjury (arrest and indictment)..................................1127

3. False swearing (indictment).....................................1127

C. Defendants’ roles in the arrest......................................1128

D. Malice or improper purpose in prosecuting Stapley II..................1128

E. Favorable termination..............................................1129

F. Qualified immunity for the arrest....................................1129

VI. THE RACKETEERING ACTION ......................................1130

A. Background.......................................................1130

B. Legal standard....................................................1132

C. Analysis..........................................................1132

1. Involvement...................................•................1132

2. Probable cause (reasonable belief and advice of counsel).............1133

3. Malice........................................................1133

4. Favorable termination..........................................1134

VII. RETALIATION AND QUALIFIED IMMUNITY.........................1134

A. Constitutional violation.............................................1135

B. Clearly established right............................................1136

VIII. ABSOLUTE IMMUNITY..............................................1137

A. Legal standard.......................................'.............1137

B. Analysis..........................................................1138

IX. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND

PUNITIVE DAMAGES..............................................1139

A. Legal standard....................................................1139

B. Analysis..........................................................1139

X. UNCONSTITUTIONAL POLICIES OR CUSTOMS.......................1140

XI. PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT.................1140

Before the Court are seven motions for summary judgment filed by Plaintiff Donald T. Stapley, Jr. and Defendants Joseph Arpaio, Lisa Aubuchon, David Hendershott, and Andrew Thomas. For the following reasons, Plaintiffs motions will be denied and Defendants’ motions will be granted in part and denied in part.

I. SUMMARY OF RULINGS

The allegations underlying this dispute are set forth in Donahoe v. Arpaio, 869 F.Supp.2d 1020 (D.Ariz.2012), aff'd sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir.2013). They describe an extended criminal and civil campaign against the Maricopa County Board of Supervisors, of which Stapley was then a member, by the Maricopa County Sheriffs Office (MCSO), the Maricopa County Attorney’s Office (MCAO), and their joint anti-corruption task force (MACE). The details are not recounted here except as necessary to explain the rulings. Stapley has now moved for partial summary judgment against Sheriff Joseph Arpaio (Doc. 1060), former Deputy County Attorney Lisa Aubuchon (Doc. 1065), and former Chief Deputy David Hendershott (Doc. 1056). In turn, Arpaio (Doc. 1062), Aubuchon (Doc. 1066), Hendershott (Doc. 1072), and former County Attorney Andrew Thomas (Doc. 1063) have moved for summary judgment. Stapley’s motion for partial summary judgment against Thomas (Doc. 1147) and Maricopa County’s motion for summary judgment against Stapley (Doc. 1149) were previously denied.

Stapley seeks summary judgment that

(1) Arpaio ordered a retaliatory arrest in violation of 42 U.S.C. § 1983;

(2) Aubuchon engaged in judicial deception and searched his office in violation of 42 U.S.C. § 1983; and

(3) Hendershott wrongfully instituted a federal racketeering action against him in violation of state law and 42 U.S.C. § 1983.

All Defendants seek summary judgment that

(1) they are not liable for maliciously prosecuting or investigating Stapley in the criminal actions commonly referred to as Stapley I and Stapley II;

(2) they are not liable for retaliating against Stapley for exercising his constitutional rights;

(3) they are not liable for the search of Stapley’s office;

(4) they have absolute or qualified immunity as to various claims;

(5) they are not liable for intentional infliction of emotional distress; and

(6) Stapley may not recover punitive . damages.

Arpaio, Aubuchon, and Hendershott also seek summary judgment that they are not liable for Stapley’s arrest.

Arpaio and Hendershott also seek summary judgment that

(1) their roles in the federal racketeering action do not give rise to liability; and

(2) they are not liable for establishing unconstitutional policies or customs within MCSO, for failing to train employees, or for negligently supervising them.

The Defendants’ motions for summary judgment will be granted against the following claims.

As to Defendant Arpaio, summary judgment will be granted against Stapley’s ninth claim for unconstitutional policies, customs, failure to train, and negligent supervision.

As to Defendant Aubuchon, summary judgment will be granted against Stapley’s second and fifth claims for malicious prosecution and against his fourth claim for false arrest.

As to Defendant Hendershott, summary judgment will be granted against Stapley’s ninth claim for unconstitutional policies, customs, failure to train, and negligent supervision.

As to Defendant Thomas, summary judgment will be granted against Stapley’s second and fifth claims for malicious prosecution and against his tenth claim for unlawful search.

The motions will otherwise be denied.

II. LEGAL STANDARD

A motion for summary judgment tests whether the opposing party has sufficient evidence to merit a trial. At its core, it questions whether sufficient evidence exists from which a reasonable jury could find in favor of the party opposing the motion for summary judgment. Summary judgment should be granted if the evidence shows there is no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party has the burden of demonstrating that no material issue of fact exists for the jury to decide. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To meet this burden, the moving party must point out the lack of evidence supporting the nonmoving party’s claim but need not produce evidence negating that claim. Id. at 325, 106 S.Ct. 2548.

When the moving party has carried its burden under Federal Rule of Civil Procedure 56(c), the nonmoving party must show that there are genuine issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that might affect the outcome of the suit under the governing law, and a factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. The nonmoving party must produce evidence to support its claim or defense by more than simply showing “there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must view the evidence in the light most favorable to the nonmoving party, must not weigh the evidence or assess its credibility, and must draw all justifiable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

On summary judgment, the nonmoving party’s evidence is presumed true, and all inferences from the evidence are drawn in the light most favorable to the nonmoving party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987); Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir.2001). But the evidence presented by the parties must be admissible or able to be produced in admissible form. See Fed.R.Civ.P. 56(c)(2). Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

III. STAPLEY I

On November 20, 2008, a grand jury returned a 118-eount indictment against Stapley (Stapley I), charging him largely with violations of disclosure laws related to his position as a Maricopa County Supervisor. See Doc. 1112-9 at 26. On December 2, an MCSO sergeant served Stapley with the summons. See id. at 29.

Stapley seeks damages for malicious prosecution based on the investigations that led to this indictment-his third claim for relief. Stapley no longer asserts separate malicious prosecution claims against Thomas and Aubuchon, which the Court has held absolutely immune from suit. Thus, Arpaio and Hendershott are the only remaining defendants with respect to the malicious prosecution claims. Each moves for summary judgment.

A. Legal standard

For malicious prosecution under Arizona law, Stapley must prove (1) Defendants initiated or procured the criminal proceeding, (2) the prosecution terminated in Stapley’s favor, (3) the prosecution lacked probable cause, and (4) malice, or a primary purpose other than bringing him to justice. See Restatement (Second) of Torts § 653 (1977); see also Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274, 277 (1986). “A criminal defendant may maintain a malicious prosecution claim not only against prosecutors but also against others — including police officers and investigators — who wrongfully caused his prosecution.” Smith v. Almada, 640 F.3d 931, 938 (9th Cir.2011).

Notably, “a malicious prosecution claim is treated differently from one for false arrest: whereas probable cause to believe that a person has committed any crime will preclude a false arrest claim, even if the person was arrested on additional or different charges for which there was no probable cause, ... probable cause as to one charge will not bar a malicious prosecution claim based on a second, distinct charge as to which probable cause was lacking.” Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682 (7th Cir.2007) (internal citations omitted); accord Jemigan v. Richard, 907 F.Supp.2d 998, 1041 (D.Ariz.2012) (upholding malicious prosecution claim where probable cause supported some — but not all — of the criminal counts charged against plaintiff).

B. Probable cause

Both Arpaio and Hendershott assert the existence of probable cause. “In the context of malicious prosecution, probable cause is defined as ‘a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused is guilty of the offense.... The test generally applied is: upon the appearances presented to the defendant, would a reasonably prudent man have instituted or continued the proceeding?’ ” Gonzales v. City of Phoenix, 203 Ariz. 152, 155, 52 P.3d 184, 187 (2002) (quoting McClinton v. Rice, 76 Ariz. 358, 367, 265 P.2d 425, 431 (1953)). The question of probable cause is generally one for the court. Gonzales, 203 Ariz. at 155, 52 P.3d at 187. “If, however, the evidence is conflicting, so that on one conclusion as to the facts drawn therefrom probable cause exists, while from another it does not, it is then for the jury to determine the true state of facts and to apply the law as laid down by the court to those facts.” Sarwark Motor Sales, Inc. v. Woolridge, 88 Ariz. 173, 177, 354 P.2d 34, 36 (1960). Summary judgment is appropriate if a reasonable jury could not find an absence of probable cause based on the undisputed facts. See, e.g., Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir.1994).

1. The 1994 Board of Supervisors resolution

The Stapley I charges were premised on Staplers knowing failure to disclose financial transactions as required by state law. As early as January 2007, Special Deputy County Attorney Mark Goldman — a volunteer attorney with MCAO— and MCSO Sergeant Brandon Luth began investigating Stapley. See Doc. 1112-6 at 74-75; Doc. 1112-14 at 132; 1112-3 at 75. Thomas either directed Goldman to search public records regarding Stapley’s relationship with another lawyer, Tom Irvine, or approved Goldman voluntarily undertaking the task. Compare Doc. 1112-6 at 74-75 with id. at 90. Luth was ordered by Hendershott to “start looking into [Stapley’s] business dealings and [other] matters.” Doc. 1112-3 at 75.

The parties dispute the origin of the investigation. There is evidence that “[t]here was no traditional complainant for any of the investigations concerning Supervisor Stapley” and instead that the investigations “spawned from Thomas’[s] directive to Goldman to search public records to find evidence of a crime.” Doc. 1112 ¶¶ 122, 132; see also Doc. 1112-9 at 6 (MCAO employee suggesting Thomas decided to investigate Stapley in response to news reports regarding Stapley). But see Doc. 1112-6 at 108-11 (Thomas testifying that Goldman volunteered to research Stapley’s financial relationship with Irvine after Thomas received a tip about potential wrongdoing between Stapley and Irvine); Doc. 1142 ¶ 122 (Arpaio also stating there was a complainant in the earlier investigation regarding Irvine).

By May 2007, Goldman informed Thomas of potential issues with Stapley’s records and then informed MACE at Thomas’s direction. See Doc. 1112-6 at 113-14, 117-18. No further action appears to have been taken until March 2008 when Aubuchon took over Goldman’s research, learned from him that there were “issues” with Stapley’s records, and concluded there were criminal nondisclosures. See Doc. 1112-8 at 11-15. When Aubuchon received Goldman’s research, she noted that they were time stamped from early 2007. See id. at 15. She then met with MACE deputies on May 14, 2008, see id. at 25-26, presented a draft indictment dated May 29, see id. at 22, and told the deputies to use May 14 as the date on which the investigation started. See Doc. 1112-3 at 88.

On May 8, 2009, Thomas enlisted MCAO Commander Mark Stribling to assist the investigation. See Doc. 1112-9 at 5. At Aubuchon’s suggestion, Stribling contacted Fran McCarroll, the Clerk of the Board of Supervisors, to “get some documents about resolutions that the board had passed related to how disclosures were done because apparently throughout the years the way disclosures were handled had changed some.” Id. at 17. Because MCAO sought to indict Stapley for violating the 1994 Maricopa County rule or resolution applying state disclosure rules to county officers, his criminal culpability turned on whether the Board’s 1994 resolution had in fact adopted state law.

On May 22, 2008, McCarroll informed Stribling that the Board had in fact adopted a resolution “consistent with [state law].” Doc. 1069-2 at 3. Stribling informed Luth of this the same day, and Luth entered it into an MCSO supplemental report. Id. at 2. Indeed, McCarroll “confirmed that elected county officials, including the Board of Supervisors, were required to file financial disclosure statements with her office.” Doc. 1073 at 2. McCarroll also provided copies of past Board minutes. These reflect that the Board resolved to adopt the disclosure requirements in 1974 and amended the requirements in 1979. They further reflect that in 1994 the Board resolved to rescind the 1979 resolution “and update the Financial Disclosure form for Elected Officials to bring the form and process into compliance with A.R.S. 38-541.” Doc. 1112 ¶ 110 (“Financial disclosure forms must be filed by January 31, each year, with the Clerk of the Board.”). Stribling appears to have provided these documents to Luth, and it appears that somebody created a handwritten timeline on one of these documents indicating that the Board rescinded the 1979 resolution. See Doc. 1069-2 at 4 (“1994 — Rescind reso re: Exempt employees & update Fin. Disc. Form”). Notwithstanding the Board’s apparent intent to update its disclosure protocol, the Board’s 1994 resolution did not adopt state law requiring disclosures. See State v. Stapley, 227 Ariz. 61, 65-66, 251 P.3d 1048, 1052-53 (Ct.App.2011).

MCSO deputies obtained Stapley’s financial disclosures and discovered evidence that Stapley had “omitted information in his required disclosures for thirteen years, from 1994 through 2007.” Doc. 1072 at 4. Aubuchon presented the case to a grand jury, see Doc. 1112-9 at 50, which returned a 118-count indictment against Stapley “in connection with false and/or incomplete financial disclosures he filed,” Doc. 1072 at 4, in violation of “A.R.S. §§ 38-542, 38-542(A)(5), 38-544, 38-541, 38-545, 13-707, 13-802, and Maricopa County Rule or Resolution adopted January 20, 1994.” Stapley, 227 Ariz. at 64 n. 4, 251 P.3d at 1051 n. 4.

Here, there is a factual dispute as to what MCSO and MCAO officials believed and when they believed it. Aubuchon presented Stapley I to the grand jury in November 2008, six months after McCarroll disclosed the relevant documents and communicated her belief regarding the disclosure requirements to Stribling. At the grand jury hearing, a state witness explained that “there’s a resolution by the county that was adopted in '94 that requires county officials to comply with the Arizona statute 38-542, which requires those disclosures be completed.” Doc. 1112-9 at 50. Aubuchon asked whether the resolution “address[ed] candidate disclosure forms” and the witness responded that “[i]t wasn’t clearly covered under the resolution.” Id.

Even if McCarroll actually believed the 1994 resolution adopted the disclosure requirements — and it appears she did— MACE had six months to review the language of the 1994 resolution and conduct further investigation as to whether the intention reflected in the 1994 resolution was ever acted on (it was not). It is clear that someone handwrote on the documents McCarroll disclosed to Stribling that the 1994 resolution rescinded the 1979 resolution, but it is unclear whether the author of those notes appreciated the impact of the 1994 resolution — the grand jury testimony quoted above suggests it was either misunderstood or deliberately ignored. Further, it is unclear who wrote it or when. If everyone believed that the resolution had been adopted at the time Aubuchon presented the indictment to the grand jury — because that is what McCarroll told them — then an ordinarily prudent person may have continued the investigation. But it is at best a matter of debate, and therefore jury trial, whether it was reasonable to seek indictment without ever seeing the supposed resolution to confirm its existence and to know exactly what the text of the resolution required to be disclosed. Moreover, if Stribling (or Luth, or Aubuchon) knew the effect of the resolution prior to the grand jury hearing in November 2008, and thus had reason to know that McCarroll was incorrect, then an ordinarily prudent person would not have believed probable cause existed to charge Stapley with disclosure violations. A plain reading of the 1994 resolution shows that it rescinded prior resolutions and adopted nothing in their place. The facts preclude summary judgment that probable cause existed.

2. Statute of limitations

Irrespective of whether Luth or Stribling had probable cause to charge Stapley based on MeCarroll’s statement and a misreading of the 1994 resolution, Aubuchon attended the MACE meeting and presented the Stapley I draft indictment before the Stribling-MeCarroll interactions. Because McCarroll had not yet stated the 1994 resolution adopted the Arizona statutes regarding financial disclosures, her statement could not supply a factual basis for probable cause at that point-mere inconsistencies among Stapley’s publicly recorded disclosures do not establish what he was required to disclose.

Moreover, when questioned by Stribling about whether the inconsistencies might reflect clerical error rather than knowing nondisclosure, Aubuchon stated that “if [the disclosure information is] not there then it’s a crime.” Doc. 1112-9 at 18. This also suggests lack of probable cause to believe Stapley knowingly failed to disclose the relevant information.

Further, as noted above there is evidence Aubuchon instructed MACE deputies at the May 14 meeting to forward date their investigation, using May 14, 2008, rather than January 2007, as the date on which their work began. See Doc. 1112-3 at 87-88. This supports a finding that Aubuchon knew the statute of limitations on filing misdemeanor charges had run. Indeed, Luth testified that he understood that forward dating could have been an attempt to circumvent the statute of limitations. See id. at 9-10. This could lead a reasonable juror to conclude that even if Luth had probable cause to believe Stapley failed to disclose information, he knew or suspected that any resulting misdemeanor charges would be barred by the statute of limitations. This is consistent with Commissioner Passomonte’s concerns at the Stapley I grand jury hearing, who declined to issue an arrest warrant in part because “[s]ome of th[e] charges, on their face, appeared] to be outside of the statute of limitations time.” Doc. 1112-9 at 58, 64. Indeed, Aubuchon’s negligence or knowledge as to the statute of limitations constituted partial grounds for her disbarment. See In re Aubuchon, 233 Ariz. 62, 309 P.3d 886, 892-93 (2013). To the extent Aubuchon, Luth, or other MACE deputies knew the claims were time barred, this supports a finding that there was no probable cause by the time Aubuchon presented the case to the grand jury. The evidence precludes summary judgment for Defendants.

C. Malice

Arpaio and Hendershott have not refuted an inference of malice — that they “initiate[d] or procure[d] the proceedings ... primarily for a purpose other than that of bringing an offender to justice----” Restatement (Second) of Torts § 653 (1977). A lack of probable cause may serve as evidence of improper purpose. Id. § 669. “The converse is not true. The fact that the defendant initiated or continued the prosecution or procured it for an improper purpose ... is not in any way inconsistent with his reasonable belief in the guilt of the accused and the existence of grounds reasonably justifying that belief.” Id. § 669A cmt. b. Finally, “[w]hen there is evidence that [an ulterior] motive played a substantial part in influencing his decision, the determination of whether the ulterior purpose was the primary one is normally for the jury.” Id. § 668.

Here, Stapley has testified that Arpaio and Hendershott both threatened to sue him sometime prior to the spring of 2008 for making budget decisions adverse to MCSO and that in the spring of 2008 Hendershott told Stapley that if the supervisor crossed a metaphorical line in the sand regarding budget cuts, “I will get you. We will get you.” Doc. 1112-5 at 20. A reasonable jury could conclude that these coinciding threats were made and reflect that Arpaio and Hendershott directed or approved the criminal investigation that concluded with the Stapley I indictment for an improper purpose. Arpaio and Hendershott therefore have not refuted the inference that they acted with malice.

D. Favorable termination

Arpaio and Hendershott are nonetheless entitled to summary judgment on malicious prosecution of Stapley I if the case did not terminate in Stapley’s favor.

Generally, a criminal proceeding terminates favorably by “final order in favor of the accused by a trial or appellate court.” Restatement (Second) of Torts § 659(f). “When a termination or dismissal indicates in some fashion that the accused is innocent of wrongdoing it is a favorable termination. However, if it is merely a procedural or technical dismissal it is not favorable.” Frey v. Stoneman, 150 Ariz. 106, 110, 722 P.2d 274, 278 (1986); see also Jaffe v. Stone, 18 Cal.2d 146, 150, 114 P.2d 335, 338 (1941) (“If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.”).

Here, Stapley I terminated by final order of the court of appeals in favor of Stapley. The Stapley 1 termination was inconsistent with guilt because one cannot be guilty of a law that does not exist. See Stapley, 227 Ariz. at 66, 251 P.3d at 1053. Irrespective of what McCarroll and Stapley believed Stapley was required to do by law, the fact is there was no properly adopted law requiring the disclosures.

E. Accrual of action

“A claim for malicious prosecution does not accrue until the prior proceedings have terminated in the accused’s favor, including any pending appeal that could lead to further proceedings.” Ekweani v. Maricopa Cnty. Sheriff’s Office, No. CV-08-01551-PHX-FJM, 2010 WL 2079773, at *6 (D.Ariz. May 24, 2010), aff'd, 471 Fed. Appx. 583 (9th Cir.2012). Of. Amfac Distribution Corp. v. Miller, 138 Ariz. 152, 154, 673 P.2d 792, 794 (1983) (concluding that the “damaging effect” of litigation is “not ascertainable until the appellate process is completed or is waived by a failure to appeal”).

The Court of Appeals affirmed dismissal of the misdemeanor charges on March 24, 2011. Stapley filed his suit on December 23, 2010. His claim is not time barred by state law, which requires that “actions against any public entity or public employee shall be brought within one year after the cause of action accrues.... ” Ariz. Rev.Stat. Ann. § 12-821.

For the forgoing reasons, Arpaio and Thomas are not entitled to summary judgment as to Stapley’s claim for malicious prosecution based on Stapley I.

IV. THE SEARCH

On February 25, 2009, MCSO Sergeant Jeff Gentry presented an application for a search warrant and supporting affidavit to Justice of the Peace Ore. Judge Ore issued the search warrant for Stapley’s office. See Doc. 1067-2 at 8-12. The accompanying affidavit set out the evidence uncovered by MCSO and MCAO allegedly suggesting that Stapley may have committed bribery, fraudulent schemes, and/or conspiracy to misuse public money. See Doc. 1067-2 at 13-24. The next day, MCSO executed the warrant. See Doc. 1072 at 7.

Stapley seeks summary judgment that Aubuchon violated the Fourth Amendment because she effected the warrant without probable cause. See Doc. 1065 at 5. Stapley asserts the warrant issued because of judicial deception. See, e.g., Doc. 1065 at 5; Doc. 246 ¶¶ 307-08. Defendants seek summary judgment that the search was supported by probable cause, precluding liability, see, e.g., Doc. 1072 at 6-7; Doc. 1062 at 13; Doc. 1066 at 12 n. 7, that they are entitled to immunity, see, e.g., Doc. 1066 at 13-15; Doc. 1063 at 11 n. 8, or that they were otherwise uninvolved. Doc. 1063 at 10-11; Doc. 1139 at 4. Defendants’ motions are addressed presently.

A. Legal standard

The Fourth Amendment prohibits search warrants that lack probable cause. U.S. Const, amend. IV (“no Warrants shall issue, but upon probable cause”). Probable cause for a search exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United, States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). When evaluating an affidavit for probable cause, a judge may draw “reasonable inferences” from the materials offered. United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir.2006). A “fair probability” that evidence of a crime will be found suffices for probable cause, Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); “mere suspicion” of criminal activity does not. United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir.1978).

As a general matter, a determination of probable cause by a judge deserves a great deal of deference. Gates, 462 U.S. at 236, 103 S.Ct. 2317. The deference, however, has limits. United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). To prevail in a § 1983 action asserting deception in an affidavit, a plaintiff must establish both (1) the defendant deliberately or recklessly made false statements in the affidavit and (2) the falsehoods or omissions were material to the finding of probable cause. KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004). Omissions or falsehoods are material if the judge could not have “issued the warrant in the absence of the contested statements.” Hervey v. Estes, 65 F.3d 784, 789 (9th Cir.1995). Materiality is a matter for the court to determine. KRL, 384 F.3d at 1117. No good-faith exception preserves the reasonableness of a search when the affidavit underlying the warrant included information that the affiant knew was false or would have known was false, save for reckless disregard for the truth. Leon, 468 U.S. at 923, 104 S.Ct. 3405.

Finally, whether a particular set of facts constitutes probable cause is a question of law for the court. Cullison v. City of Peoria, 120 Ariz. 165, 168, 584 P.2d 1156, 1159 (1978). As such, absent a factual dispute, a court decides the question of probable cause. Hansen v. Garcia, 148 Ariz. 205, 207, 713 P.2d 1263, 1265 (Ct.App. 1986). However, “if from one set of facts the conclusion can be inferred that probable cause exists, and from another that it does not, it is for the jury to determine the true state of facts.” Carroll v. Kalar, 112 Ariz. 595, 598-99, 545 P.2d 411, 414-15 (1976).

Because Stapley asserts judicial deception, Defendants are not entitled to summary judgment if Stapley makes a “substantial showing” that they deliberately or recklessly disregarded the truth and establishes that the search would not have occurred but for the dishonesty. See Chism v. Washington, 661 F.3d 380 (9th Cir.2011). Consequently, the Court must determine (1) whether the affidavit contained false statements, misrepresentations, or omissions, (2) whether those statements and omissions were material to the probable cause determination, and (3) whether Stapley has made a substantial showing of deliberate or reckless disregard for the truth.

B. Evidence supporting the search warrant

The affidavit signed and sworn to by Gentry declared that between 1995 and 2009, Stapley committed the crimes of bribery in violation of A.R.S § 13-2602(A), engaging in a fraudulent scheme in violation of A.R.S. § 13-2310(A), and/or conspiracy to commit misuse of public monies in violation of A.R.S. § 35-301. See Doc. 1067-2 at 13-14.

To commit bribery, an individual must: (1) “confer[ ] or agree[ ] to confer any benefit upon a public servant or party officer,” and (2) do so with the “intent to influence the public servant’s ... vote, opinion, judgment, exercise of discretion or other action in his official capacity----” A.R.S. § 13-2602(A)(1). An individual is guilty of participating in a fraudulent scheme when, “pursuant to a scheme or artifice to defraud, [he] knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions....” Id. § 13-2310(A). Finally, a “public officer or other person ... charged with the receipt, safekeeping, transfer or disbursement of public money” commits misuse, inter alia, by appropriating it, without authority of law, “to his own use, or to the use of another.” Id. § 35-301.

The affidavit offered the following in support of probable cause: (1) evidence that Stapley misreported income “for the purpose of obtaining commercial loan funding”; (2) evidence of undocumented payments by Wolfswinkel-owned entities to Stapley, which “raise[d] suspicion regarding potential issues he may have voted or used influence to impact the transactions or decisions so that it may be construed as favorable to land and properties owned by Conley Wolfswinkel or related entities, in short-bribery or related crimes”; (3) evidence that Stapley or the Board may have misused public funds because Stapley’s secretary, Susan Schuerman, used county-issued equipment to facilitate Stapley’s personal business and because the Board may have “pay[ed] for criminal defense services for [Schuerman]” in violation of procurement laws. See Doc. 1067-2 at 17-23.

1. Evidence regarding fraud

The entirety of evidence of fraudulently obtained loans, as presented in the affidavit for the search warrant, was the following:

[Stapley’s] reported income for purposes of the U.S. Individual Tax Return is/was not consistent with reported income statements and records filed by, and on behalf of, Donald T. Stapley, Jr., and in his behalf as an owner of Arroyo Pacific Investments and / or Arroyo Pecans Partners, LLC, and Arroyo Pacific Partners, LLC for the purpose of obtaining commercial loan funding.

An analysis of [Stapley’s] personal and corporate account balances reveals an approximate reported personal worth of $8,061,246 according to a financial statement dated 5/10/2006; however, [Stapley’s] U.S. Individual income Tax Return documents filed on his behalf by his accountant ... show significant difference between claimed personal worth and reported personal worth, specifically adjusted gross income shows— $49,577.00 in 2006.

Id. at 17. Claims of high net worth and low net income are not, without more, evidence of a crime. Many assets have more carrying expense than regular income. Taxable income in any one year may not be proportional to asset value.

2. Evidence regarding bribery

The crux of the evidence of bribery, as presented in the affidavit for the search warrant, was the following: Stapley’s former bookkeeper, Joan Stoops, told detectives that Stapley had received monthly payments of $10,000 for a “partnership” he had with Conley Wolfswinkel having to do with land in Queen Creek, Arizona. See id. at 18. She initially told detectives that the payments were made in 2003 before erroneously stating, and then repeating, that they occurred in 2002. See Doc. 1067-4 at 26, 29. Stoops indicated that the payments were deposited into the Bank of America account of Stapley’s company, Arroyo Pacific Investments, Inc. The affidavit noted, however, that the funds could not be reconciled with the bank records but that the “existence of the funds may be found in additional accounts but these accounts are currently unknown to investigators.” Id. at 18. Stoops further explained that she never saw any documentation relating to the Stapley-Wolfswinkel “partnership,” and she was unable to identify how the $10,000 payments were reported on Stapley’s 2002 individual tax return. See id. at 18-19. In addition, the affidavit explained that no documented partnership between Stapley and Wolfswinkel could be found in public records during the relevant period, and that Stapley never made the requisite disclosures as a member of the Maricopa County Board of Supervisors of the $10,000 payments or of any partnership. See id. at 18. The affidavit then suggested that this “raisefs] suspicion regarding potential issues [Stapley] may have voted or used [his] influence” as a county supervisor in a manner favorable to Conley Wolfswinkel. Id. at 19. It remarked that “further analysis of financial records is still pending,” and it listed known payments from Wolfswinkel-owned companies to Arroyo Pacific, none of which occurred in 2002. Id.

Additionally, it asserted that Maricopa County board minutes showed that Stapley voted on tax issues and other issues related to land, and that in “some of these minutes, Supervisor Stapley is noted voting on issues concerning land or nearby land that he would later own or be affiliated with himself or was or would be owned by a company described above.” Id. at 20. The only example of such a vote, however, is that in October 2002, Stapley signed the resolution “appointing Brandon Wolfswinkel to serve as trustee of the Spectrum Irrigation Water Delivery District No. 48 and approving the organization [of the District] that included parcels owned by Vanderbilt Farms, a [Wolfswinkel] company that he did not declare a conflict on until 2006 when he indicated that he had business dealings with the principals of Vanderbilt Farms.” Id.

3. Evidence regarding misuse of public funds

As set out in the affidavit, the evidence that someone conspired to misuse public funds comprises two distinct issues:

(1) Stapley’s secretary, Susan Schuerman, served as the Statutory Agent for Arroyo Pacific and listed her Board office telephone number as a contact number for Arroyo Pacific on the Arizona Corporation Commission website. See Doc. 1067-2 at 20. Moreover, investigators learned of a fax cover sheet with an official Board cover form that was sent from Stapley to a business associate regarding property “associated with Stapley’s companies and the Wolfswinkels” and instructed the recipient to direct questions to Schuerman. See id. at 22. From this, investigators believed that Schuerman “is/has used county issued equipment including, but not limited to: telephones, fax machines, emails, computers, for use in personal business dealings in regards to that of [Stapley]. If these actions were committed, it is the belief of investigators that Susan Schuerman may have been compensated by [Stapley] in some other means or by way of a financial compensation through her pay by the County of Maricopa.” Id. at 21.

(2) Attorney Stephen Dichter emailed the MCAO and stated he would be representing Schuerman, citing a contract with Maricopa County Materials Management, and had consulted with her regarding interviews with MCSO detectives. The affidavit continues:

Since any contract with Dichter’s firm from the Maricopa County Materials Management would be limited to civil matters, Dichter, by his own acknowledgment is representing Schuerman in this criminal matter and may be doing so at taxpayer expense, which is a violation of procurement laws.

[MCAO] sent a response to Dichter’s email that they would not honor this representation, and that such actions would be in violation of the current Procurement Law. In response to that, Dichter stated that if [MCAO] was unwilling to compensate him for his legal assistance that he would agree to represent [Schuerman] “Pro Bono.” Investigators believe that this order of events and communications show that ... Schuerman had already sought legal council [sic] pertaining to these matters and that [the Board] would be in violation of procurement law with regard to the retention of Mr. Dichter for the criminal defense of Ms. Schuerman.

In a letter to [MCAO] dated February 20, 2009[,] Mr. Dichter again stated that he is representing ... Schuerman without regard to when or how he will be paid. It is clear however that Schuerman will not be paying for her own defense. Dichter stated in the first paragraph of this letter, “... although I had been asked to provide legal services to Susan Schuerman in connection with the Don Stapley case ...” it remains unclear to investigators exactly who it is that asked Mr. Dichter for any type of representation in this criminal matter. If in fact [the board] and/or Sandi Wilson in some way asked for this representation it would violate procurement law, but would also have to have been approved in an open meeting of the Board.... Investigators have been unable to locate any public record of such an approval.”

Therefore, investigators believe that evidence of misuse of public monies by the use of public funds to retain and pay for criminal defense services for Susan Schuerman and theft will be found in the offices of [Stapley and Schuerman].

Id. at 21-22.

C. Misrepresentations and omissions in the supporting affidavit

Stapley argues the affidavit presented to Judge Ore in support of the search warrant contained a number of misrepresentations and omissions, given the relevant facts and circumstances that were known at the time the warrant was sought. See Ornelas, 517 U.S. at 696, 116 S.Ct. 1657. Those misrepresentations and omissions created false impressions as to the nature and extent of the evidence suggestive of criminal activity by Stapley.

1. Misrepresentation and omissions of evidence of bribery

i. Review of bank records

The proposed evidence of bribery hinged on Stoops’s testimony that Stapley received payments from Wolfswinkelowned companies in 2002, which could not otherwise be explained by legitimate business dealing between Stapley and the Wolfswinkels beginning in 2003. Similarly, probable cause for the Wolfswinkel search also turned largely on Stoops’s statements regarding payments from Wolfswinkel to Stapley’s Bank of America account in 2002. Thus, when MCSO sought the Wolfswinkel search warrant on January 21, 2009, the affidavit indicated that “[a]s of 01/20/2009, Investigators ha[d] not received all the documents requested by subpoena from Bank of America. After speaking with Bank of America representatives, Investigators were informed that the anticipated time for these documents is between eight to ten days.... ” Doc. 1067-3 at 22. MCSO sought Stapley’s bank records to establish the bribery.

Over a month later, when MCSO sought the Stapley search warrant, a draft affidavit repeated that information from Bank of America was still unavailable: “As of 02/24/2009, investigators have not received all the documents requested by subpoena from Bank of America. After speaking with Bank of America representatives, investigators were informed that the anticipated time for these documents is between eight to ten days....” Doc. 1112-17 at 5. By the time the final affidavit was submitted, the following language took its place: “As of 02/24/2009, further analysis of financial records is still pending.” Doc. 1067-2 at 19.

This statement obscures the undisputed fact that by the time MCSO searched Stapley’s office it already had over 3500 pages of the records that Stoops indicated might confirm the Wolfswinkel payments (and which of course did not). See Doc. 1067 ¶ 33. Indeed, at oral argument, Hendershott conceded that he believed the “further analysis” language reflected that the documents simply had not been reviewed. See Doc. 1167 at 45. The affidavit’s representation that further analysis was pending, while not untrue, obfuscated the fact MCSO had all the bank records it had requested and had not found any support for Stoops’s misstatement about payments in 2002.

ii. Partnership documents

As part of its discussion of the alleged “partnership” between Wolfswinkel and Stapley, the affidavit stated that Stoops said she never saw any documentation relating to the Queen Creek land deal or the Wolfswinkel-Stapley “partnership.” Doc. 1067-2 at 18. Stoops repeatedly clarified, however, that she added “[cjommon paperwork” between the two, such as “closing papers,” to Stapley’s files. Doc. 1067-4 at 28. Moreover, Stoops clarified that she dropped off papers from Stapley at Wolfswinkel’s office and that she had picked up papers from Wolfswinkel for Stapley that she was “sure” was “paperwork to the partnership.” Doc. 779-1 at 90, 92. Thus, while the affidavit did not misquote Stoops, it falsely implied that she believed — and that in fact — there was no documentation about the “partnership” in question,

iii. Public records of partnership

Like the affidavit’s note on partnership documentation, its assertion regarding public documentation of the “partnership” was technically correct but misleading. The affidavit indicated that investigators searching public records had found “no documented partnership” between Stapley and Wolfswinkel during the relevant period. Doc. 1067-2 at 18. While this was true (albeit unsurprising, as investigators later learned that no actual partnership existed), the affidavit neglected to mention that there were public records documenting the relevant transactions between Stapley and Wolfswinkel. In particular, an exclusive option agreement between Arroyo Pacific and Wolfswinkel entities regarding Queen Creek land, which was dated August 11, 2003, and which resulted in Wolfswinkel making monthly payments to Stapley’s company, was on file with the Pinal County Recorder. Doc. 1067 ¶ 24; Doc. 1067-5 at 4-14. The affidavit’s insinuation that no public record existed concerning Stapley’s business dealings with the Wolfswinkels misrepresented the truth.

iv. Disclosure

According to the affidavit, neither the monthly $10,000 payments from the “partnership” with Wolfswinkel nor the “partnership” itself “were ever disclosed” on Stapley’s Financial Disclosure Statements as required by his position on the Maricopa County Board of Supervisors. Doc. 1067-2 at 18. This lack of disclosure, according to the affidavit, raised “suspicion regarding potential issues he may have voted or used influence to impact the transactions or decisions so that it may be construed as favorable to land and properties owned by Conley Wolfswinkel or related entities.... ” Id. at 18-19. But this was partly belied by the affidavit itself. Two pages later, the affidavit states that in 2006, Stapley disclosed a conflict of interest arising out of business dealings with Wolfswinkel-company Vanderbilt Farms before a vote involving Vanderbilt Farms came before the Board of Supervisors. See id. at 20; Doc. 1067-5 at 2. He did so in a letter to the Clerk of the Maricopa County Board of Supervisors, citing the statutes requiring such disclosure. See id. Thus, the affidavit fairly suggested Stapley failed to disclose his business relationship with the Wolfswinkels before stating, somewhat obliquely, that he later formally declared a conflict because of that relationship,

v. Voting record

As evidence that Stapley had received bribes and as a result acted favorably to the Wolfswinkels in his position as supervisor, the affidavit offered the following:

Investigators have learned from official Maricopa County board minutes that Donald Stapley voted on tax issues for land and other land related issues. In some of these minutes, Supervisor Stapley is noted voting on issues concerning land or nearby land that he would later own or be affiliated with or was or would be owned by [one of other companies described in the affidavit].

Doc. 1067-2 at 19.

Gentry testified, however, that he never found any evidence supporting that Stapley had ever voted concerning land he or his friends owned. See Doc. 1067-3 at 5, 10. Instead, Gentry recalled “one or two [votes] where he recused himself because ... the Board was going to vote on something that he was personally involved in.... ” Id. at 5. This is consistent with the fact that Stapley disclosed his business dealings with Vanderbilt Farms in writing to Fran McCarroll and recused himself from a vote “to avoid any appearance of impropriety.” Doc. 1067-5 at 2. Indeed, Aubuchon conceded that even after the search warrant she could not identify any votes implicating Wolfswinkel-owned land. See Doc. 1067-4 at 20.

In fact, the only vote identified in the affidavit was from April 2002. There, Stapley “voted to approve the district impact statement and authorize the persons proposing the district to circulate petitions” for the Spectrum Irrigation Water Irrigation District, to which the Board had earlier appointed Conley Wolfswinkel’s son, Brandon, as trustee, and which comprised parcels owned by Vanderbilt Farms. Doc. 1067-2 at 20.

The affidavit suggests Stapley may have voted in favor of organization in exchange for the (nonexistent) 2002 payments. Stapley has offered evidence, however, showing that the approval of Brandon Wolfswinkel was a ministerial and unanimous decision by the Board of Supervisors: Stapley characterizes the vote as “rote” because “the petition [to form the district] had been signed by all affected landowners, so the Board was statutorily-authorized [under A.R.S. § 48-3425] to enter an order immediately approving it.” Doc. 1065 at 9. Indeed, Wolfswinkel’s name did not even appear on the Board agenda when the organization was approved. See Doc. 1167 at 87. Defendants do not offer any evidence contradicting the ministerial nature of the water district vote.

Thus, at best the statement in the affidavit declaring that Stapley had voted on a matter involving land he or his associates would one day own or with which they would be affiliated is severely misleading. As noted above, the affidavit also asserted that Stapley “may have voted or used influence to impact the transactions or decisions so that it may be construed as favorable to land and properties owned by Conley Wolfswinkel or related entities----” Doc. 1067-2 at 19-20. For the same reason, this assertion that Stapley “may” have acted improperly misrepresented the truth; it was belied by the lack of evidence at the time the affidavit was signed that Stapley had voted or used his influence to benefit himself or the Wolfswinkels in any meaningful way.

2. Misrepresentation and omissions of evidence of misused public funds

The second justification for alleging conspiracy to misuse public funds involved Stephen Dichter providing counsel to Schuerman. There is a dispute, however, as to whether Aubuehon, Gentry, or both knew that Dichter would represent Schuerman pro bono or otherwise had reason to know there was no crime when Gentry declared that Dichter might have been representing her “at taxpayer expense, which is a violation of procurement laws.” Compare Doc. 1067-2 at 21 with Doc. 1123 at 25.

On February 13, 2009, Andrew Thomas copied a letter to Dichter in which he wrote that Dichter’s representation was impermissible because “[r]etaining a criminal defense attorney at county expense, to advise or represent a Maricopa County employee suspected of criminal activity, is an unlawful expenditure of county funds.” Doc. 1067-6 at 2. Thomas went on to note that “[g]overnment employees suspected of criminal activity are required to retain counsel at their own expense. They may not hire criminal defense lawyers at county taxpayer expense.” Id. at 3. Thomas did not articulate any particular procurement law or regulation. The affidavit likewise refers only to “the current Procurement Law” and to “procurement laws” generally. Doc. 1067-2 at 21.

But the county hired Dichter to represent Schuerman in December 2008 as an interviewee, before she became a suspect (or at least before the county, Dichter, or Schuerman believed she was a suspect). Doc. 1067-5 at 72. And both before and after Thomas’s letter, Dichter wrote Aubuchon to inform her that he would represent Schuerman irrespective of whether he would ultimately be paid. Id. at 72, 74. The obvious inference is that nobody, let alone the Board or the county, had paid Dichter — and certainly not after Schuerman transformed from an interviewee to a suspect. Dichter’s second letter to Aubuchon was dated two days before Gentry sought the search warrant. Moreover, the affidavit plainly states that Dichter agreed to represent Schuerman if he was not compensated. See Doc. 1067-2 at 21. Thus, the assertion that Dichter may have been representing a criminal suspect at taxpayer expense was belied by the facts known to MCSO and MCAO and included in the affidavit — and it did not create probable cause to believe Stapley or the Board “[kjnowingly transfer[ed] ... money when not authorized or directed by law,” A.R.S. § 85-301(9), or otherwise misused or conspired to misuse public funds.

D. Materiality of misrepresentations and omissions

Without the misleading statements regarding Stapley’s actions, the affidavit amounts to a discrepancy between Stapley’s reported personal worth and his adjusted income in 2006, an insufficient proclamation by Stoops, refuted by unreviewed bank records in MCSO’s possession, that Conley Wolfswinkel was making payments to Stapley’s company in 2002, and two facts about Stapley’s secretary: She listed her county office telephone number as a contact number for Arroyo Pacific on the Arizona Corporation Commission website, and she sent a fax three years before the search warrant regarding Stapley’s non-county business and put her county phone number as a contact. These two facts are trivial and simply would not lead “a man of reasonable prudence [to believe] that contraband or evidence of a crime [would] be found” by searching the office. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

All of the other purported “evidence” of criminal activity — Stoops’s inability to locate the payments on Stapley’s tax records, the lack of public documentation of a partnerships, and even the absence of $10,000 payments on Stapley’s bank records — were at least as exculpatory as they were inculpatory. Defendants’ theory of probable cause for bribery hinged on the wild assumption that if no records of payments existed, then the payments were made under the table. They disregarded the more logical inference: that no record of payments in 2002 meant no payments then but instead in 2003 as publicly documented and as Stoops first said. For the information in an affidavit to constitute probable cause, it must include reason to believe (1) that a crime was committed, (2) that the individual identified in the affidavit committed the crime, and (3) that evidence of the crime will be found in the place to be searched. Chism, v. Washington, 661 F.3d 380, 389 (9th Cir.2011). Absent the misrepresentations regarding Stapley’s actions, the affidavit does not satisfy even the first prong of this triad. As such, the misstatements as to Stapley’s conduct were material to the finding of probable cause.

Moreover, the misrepresentations shrouded the fact that the investigation was less complete than it was made out to be. Through its misleading statements, the affidavit cloaked that investigators (1) had not reviewed the relevant bank statements, which they had in their possession; (2) had not found the paperwork that Stoops believed existed relating to the payments in question; and (3) had not located — or at least had not revealed they had found-public records related to Stapley’s business dealings with the Wolfswinkels. At least two of those sets of documents were publicly available, but in early 2009, some six or seven years after the alleged crimes occurred, investigators appeared to be in too much of a rush to look for them. The misstatements covered holes in the investigation that undermined any “fair probability” of a crime. As such, they were material to the question of probable cause.

“The false statements and omissions contained in [the] affidavit were material if ‘the affidavit, once corrected and supplemented,’ would not have provided a magistrate judge with a substantial basis for finding probable cause.” Id. at 389. Here, even making any reasonable inferenees, see Gourde, 440 F.3d at 1071, the affidavit falls short of the “fair probability” of a crime needed to establish probable cause. As a general matter, investigators have no duty to corroborate their evidence once they have established probable cause. Id. at 1073. Similarly, they need not gather exculpatory evidence once probable cause has been established. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1147 (9th Cir.2012). However, they cannot stop looking at evidence before they have probable cause for a search, which is what happened here. A reasonable magistrate would not have issued the warrant based on an accurate and complete representation of the known evidence. See Chism, 661 F.3d at 392.

E. Deliberate or reckless disregard for the truth

To survive Defendants’ motion for summary judgment, Stapley “need only make a ‘substantial showing’ of the [their] deliberate or reckless false statements and omissions. ‘Clear proof of deliberation or recklessness is not required’ at the summary judgment stage. If [he] make[s] such a substantial showing, then ‘the question of intent or recklessness is a factual determination’ that must be made by the trier of fact.” Chism, 661 F.3d at 387-88 (alterations and internal citations omitted). “Summary judgment is improper where ‘there is a genuine dispute as to the facts and circumstances within an officer’s knowledge or what the officer and claimant did or failed to do.’” Bravo v. City of Santa Maria, 665 F.3d 1076, 1087 (9th Cir.2011) (quoting Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir.2009)).

1. Aubuchon

i. Involvement

Aubuchon was the lead prosecutor for MACE and oversaw its day-to-day operations. See Doc. 797-6 at 7. Although her general role was to provide legal advice and guidance, Stapley has offered evidence that she in fact directed MACE investigations rather than the MCSO case agents. See Doc. 1112-1 at 29. For example, one MCSO employee described her role in MACE activities thus: “I realized [it] did not matter what detectives said or what ... sergeants, lieutenants, captains said, it mattered what Lisa Aubuchon said.” Doc. 1112-2 at 28. There is evidence that her role generally involved reviewing applications for search warrants to ensure they were “accurate and defendable.” Doc. 1112-1 at 42-43. And there is also disputed evidence that her role went further. For example, Hendersho