Ochser v. Funk

240 P.3d [acquired gift, ... 1. property property Minnesota or descent.” devise OCHSER, single J. Clifford marriage, but during the acquired Plaintiff/Appellant, man, an af- Accordingly, absent by gift. acquired by the demonstrating an intent firmative act interests their spouses to transfer FUNK, in his individual Deputy Gerard jointly their interests community, they hold Maricopa deputy with the capacity as a property interests. separate Office, Doe County and Jane Sheriffs 25-318(A), § A.R.S. wife; Pursuant Sergeant An Funk, husband proceeding shall family capacity in a dissolution Cruz, court thony individual in his R. tenancy community, joint Maricopa “divide deputy with the as a equitably.” Cruz, held in common property Office, hus and Jane Doe Sheriff's Minneso- parties’ interests Though Defendants/Appellees. wife, band interests, community are not property ta No. 1 CA-CV 09-0141. subject to tenancy interests joint they are further remand for therefore division. We Arizona, Court to di- the trial court permit proceedings 1, Department D. Division joint interests. parties’ vide

Sept. APPEAL FEES ON

ATTORNEY’S attorney’s request parties Both § 25-324. to A.R.S. appeal pursuant

fees on discretion, deny requests and we their

In our fees on party to his or her

order each bear pre parties partially both

appeal. Because to award costs appeal, we decline

vailed on party.

either

CONCLUSION reasons, we affirm foregoing 26 For the for fur- part and remand part, reverse opinion. with this proceedings consistent

ther MARGARET H.

CONCURRING:

DOWNIE, Presiding Judge and DONN

KESSLER, Judge.

486 non-moving party and the

favorable summary judgment was against whom party Saba, 222 Ariz. entered. Mousa v. 1038, 1042 15, 218 (App.2009). P.3d May Maricopa 3 On (MCSO) “Opera- conducted Office Sheriffs 2004,” Day operation Mother’s tion outstanding support child parents arrest with active a list of MCSO obtained warrants. Ari- warrants from the support child (DPS). Safety Department of Public zona “Opera- included in the Each of the warrants for Day 2004” list was checked tion Mother’s Och- validity to inclusion on the list. prior active included on MCSO’s ser’s name was he had an arrest war- warrant list because January as a result of rant issued on warrant, unpaid support. child The arrest however, previously quashed in a had been entry. Despite being March 2003 minute in active quashed, Ochser’s warrant remained MCSO, and his name was includ- status with 4,May 2004 list.1 Pursuant ed on the Curtin, By & PLLC Joel B. Rob- Robbins procedure, Defendants con- MCSO warrant Phoenix, bins, Attorneys Findling, E. Anne validity of Oehser’s warrant with firmed the Appellant. for executing the war- the MCSO OIC Hochuli, Jones, By & PLC Eileen Skelton rant. Struck, GilBride, Daniel P. Lisa S. Dennis Wahlin, Phoenix, Attorneys Appellees. May 4 On Defendants arrived Flagstaff, workplace

Ochser’s Arizona and OPINION him he was under arrest informed outstanding support with an child connection OROZCO, Judge. protested arrest warrant. Ochser ¶ Appellant-Plaintiff Clifford J. Ochser quashed. explaining the warrant had been (Ochser) appeals grant the trial court’s Defendants he had a certified He told Appellees- summary judgment in favor of entry the minute on his office desk that Funk, (collectively, et al. Defen- Defendants had been would confirm warrant dants). reasons, following affirm For the we quashed. agreed Defendants conferred and summary judgment grant of the trial court's inquiry regarding validity to make an in favor of Defendants. alleges the warrant. One Defendant officer phone inquire call to about to have made a AND PROCEDURAL HISTORY FACTS validity of the warrant to both OIC and judge who issued the reviewing motions for the chambers of When Despite protests, Defen- judgment, we view the facts in the most warrant.2 indicating quashed. Quack- Ahlquist, Specialist a warrant has been Records Su- 1. Julie Sheriff's opinion, pervisor, in her MCSO was had received no testified that enbush further noted that OIC likely quash quashed the court to most not contacted warrant had been notice that Ochser’s Quackenbush, Rec- period the warrant. Alan Sheriff’s during of March the time Operation Information Center ords Lead for the through September the end of division, (OIC) verified for the MCSO warrants "implausible” because if 2. Ochser claims this is log quash maintains a for all verbal the OIC done, Defendants would have found the quash warrants. Addition- notices it receives to taking quashed. summary judgment, On ally, cop- Quackenbush indicated OIC maintains that Defendants did not a court true Ochser’s assertion ies of all documents it receives from pursuant to the war- dants arrested Oehser DISCUSSION rant. ¶ Summary proper judgment when any genuine “there is no as to material issue following day was released the 5 Oehser moving party fact and ... is entitled to a it was determined the warrant had after judgment as a law.” Ariz. R. Civ. matter of complaint, been Oehser filed al- 56(c)(1). summary judgment P. A motion for leging among wrongs, violations of his granted produced “if the facts should rights. Fourth and Fourteenth Amendment support proba- of the claim ... have so little summary judg- filed a Defendants motion for value, given quantum of tive evidence (1) ment, arguing that: Oehser failed to com- required, people that reasonable could not (2) statute; ply with Arizona’s notice of claim agree with the advanced conclusion the facially a Defendants arrested Oehser on val- proponent of the Orme claim.” Sch. v. warrant; (3) id arrest and Defendants were Reeves, 1000, 166 Ariz. 802 P.2d qualified immunity entitled on all claims. (1990). reviewing grant 1008 When a or reviewing response, After Defen- of judgment, denial “we determine reply argument, hearing dants’ oral the novo whether any genuine de issues of mate- granted trial court Defendants’ motion for superior fact rial exist and whether the court summary judgment explained: Mousa, properly applied the law.” 222 Ariz. Supreme U.S. Court and Ninth Circuit at 218 P.3d at 1042. authority provide that a law enforcement ¶ 9 appeal. Oehser two issues on raises is qualified immunity entitled to First, whether “an arrest is unlawful if the §a from 1983 claim when the officer apparently officer’s on an reliance facially an makes arrest on a valid war light valid warrant is in unreasonable McCollan, Baker v. 443 rant. U.S. 137 [99 Second, relevant circumstances.” whether as 2689, (1979); S.Ct. 433] L.Ed.2d Arns ease, the in of date of the this “was arrest the States, berg v. United F.2d 971 clearly that an established officer could Cir.1985) cert. U.S. denied 475 1010 [106 rely apparently on an valid warrant when (1986). 300] S.Ct. 89 L.Ed.2d Plain light it would be to do so in unreasonable tiff not challenge does that the warrant the relevant circumstances'?” essence, was valid its face. Plaintiff argues that these Defendants were re question 10 Oehser that the contends be quired investigate Plaintiff’s claim that whether, us fixre is of the date of the warrant had been Baker is clearly “it was established that where result, contrary. As a Defendants’ put objective is on notice that investigate failure did not violate “clear readily evidence is at hand that would show ly statutory established or constitutional warrant, invalidity the of an arrest that the rights of which a reasonable required objective officer was to examine this Fitzgerald, have known.” Harlow v. prior effecting evidence an arrest.” He U.S. 818 [102 S.Ct. 73 L.Ed.2d argues ruling that the trial court’s conflicts (1982). 396] with federal court decisions various cases including Berg Allegheny County, v. filed 6 Oehser a motion for reconsidera- (3d Cir.2000), denied, cert. 531 U.S. tion, which was signed denied. The trial court 762,148 (2001), 121 S.Ct. L.Ed.2d 664 Torres judgment a pur- final favor of Defendants Garcia, Ramirez v. Bermudez F.2d 224 suant to Arizona Civil Rule of Procedure (1st Cir.1990) and Pena-Borrero Estreme 58(a) prejudice. and dismissed the with action (1st Cir.2004). da, 365 F.3d 7 Oehser ex timely appealed. ju- plains 7 Oehser We have that that “[t]o the extent the trial pursuant risdiction to Arizona Revised Stat- held right court that this exists but was not - (A.R.S.) established, clearly utes sections 12-120.21.A.1 and federal the court cases (2003). pre-existed and, 2101.B ... all Mr. Ochser’s arrest chamber, warrant, issuing judge’s executing call OIC or either dants checked records, undisputed is which MCSO’s Defen- reflected Ochser’s warrant was active. fact, step is to determine whether constitu immunity was not first qualified hold that so, Id. If right was violated. officers.” tional available to Defendant step second is determine counter because Defendants “clearly at the right issue was established” valid, they facially was "were alleged violation. Id. deter time of the investigate obligated to [Ochser’s] further right “clearly is as to whether a mination innocence,” and whether protestations of its depends specifically on con established” not “is checked the warrant’s status or In order text in the instant case. genuine here is not a issue irrelevant “clearly right ... to be essentially are fact.” Defendants material sufficiently clear that a reasonable must be correctly held court arguing the trial what official would understand that he any liability on qualified immunity precluded right.” Anderson v. doing violates Specifically, Defen- part of Defendants. 635, 640, Creighton, summary judgment prop- contend dants (1987). 97 L.Ed.2d 523 Stated reasonably have er because officers could terms, protected by government official is law, believed, as a matter of that Ochser’s immunity if qualified can “demonstrate lawful, discretionary performing that he was func governing pur- principles established arrests tion and that a reasonable law enforcement facially suant to valid warrants. that, at the officer would have believed time acted, actions within the bounds his Qualified immunity Norton, 742, of 497 F.3d the law.” Belcher v. immunity Qualified 12 a 42 as to Cir.2007). (7th determining 749 When question section claim is a of U.S.C. 1988 are qualified immunity, of “courts sen claims Court, Superior federal law. State v. 185 range sitive to broad of reasonable ‘[t]he 47, 49, 51, (App.1996). 53 Ariz. 912 P.2d professional judgment law accorded’ enforce Therefore, “we follow federal court decisions Berg, § in the ment officials 1983 context.” subject.” Qualified immunity on the Id. Reeves, v. (quoting 219 F.3d at 272 80 Greene government liabil protects officials from civil (6th Cir.1996)). 1101, 1107 F.3d ity government if a could reasonable official lawful, have believed actions to be in the inquiry present 14 Oar case is clearly light of law and the infor a Defendants’ conduct violated con- possessed mation he at time of the action. clearly right which was stitutional estab- Bryant, 112 Hunter v. 502 U.S. so, law; if did Defendants never- lished (1991). 534, S.Ct. 116 L.Ed.2d 589 It is a reasonably believe that their conduct theless but protects plainly doctrine that “all light was lawful in of the information incompetent knowingly or who violate those possessed at the time of Ochser’s arrest? 335, Malley Briggs, the law.” v. U.S. 475 (1986). 341, 1092, 106 S.Ct. 89 L.Ed.2d 271 right a constitutional was violat- Whether protections Officials are entitled to the ed “the qualified immunity, unless proscribed actions” that were taken. ¶ 15 There is doubt that Ochser no 528, 511, Forsyth, v. 472 U.S. Mitchell 105 has be free right a constitutional from (1985). 2806, S.Ct. 86 L.Ed.2d 411 seizures, pursu here an unreasonable case, ant The quali 13 In this we consider to the Fourth Amendment.4 Su Coui’t, however, immunity preme recognized using two-step fied test set has that Katz, 201, 194, viewing rights, when constitutional such as forth Saucier v. (2001).3 272 be right L.Ed.2d free from unreasonable 150 guarantees Supreme recently 3. We note the Court revisited The Fourth Amendment individuals two-step the sequential while the persons Saucier test concluded right to be "secure in their ... analysis may helpful Saucier be against unreasonable searches and seizures” cases, longer qualified immunity regarded "it Const, should no be government officials. amend. IV. U.S. Callahan, mandatory.” Pearson v. U.S. S.Ct. 172 L.Ed.2d (2009). seizures, right “clearly searches and is Next we must determine competence whether an officer of reasonable any when established” action violates the disagree investigation could whether further right, “no how matter unclear it be that required light of the warrant was of Oeh particular action is violation.” documentary Anderson, ser’s statements that he had 483 U.S. at 107 S.Ct. 3034. support evidencing the warrant had been explained The Court further that “if the test Whether reasonable officer could ‘clearly applied established law5were to be have believed his actions were lawful is a generality, this level of it would bear no question of law and not one of fact. Romero relationship ‘objective legal reason- (9th County, Kitsap 931 F.2d ableness’ that is the of [the touchstone Har- Cir.1991). In this Defendants relied on low Id. The decision].”5 Court also held facially valid arrest warrant for Oehser. right allegedly violated must Oehser asserts he informed Defendants that “clearly articulated and established” in a entry he had a certified of a minute particularized way. more Specif- Id. at 640. warrant, however, quashing his “[u]nless ically, right “[t]he contours of must be facially invalid an officer has no sufficiently clear that a reasonable official duty independently constitutional deter doing understand what he is violates validity.” Bogans, mine its Hill v. words, right.” Id. “in Cir.1984). pre-existing law the unlawfulness the ac- [of question] tion in apparent.” must be ease, undisputed 19 In this it is facially Ochser’s warrant was valid. De “clearly Whether the estab- information, knowledge fendants had no or lished ” day to Oehser’s assertions the of his arrest, previously that the warrant had been “clearly Whether law is quashed. The warrant had itself been offi government established” and whether a offi cially validly issued in connection with reasonably cial could have believed his con prior pay Ochser’s support. failure to child duct was in light surrounding lawful procedures, Pursuant to MCSO the warrant’s questions circumstances are of law. See validity was verified after inclusion on the Harlow, 457 U.S. at 102 S.Ct. 2727. “Operation Day Mother’s 2004” list was actually “[E]ven if a defendant’s conduct vio very day also verified on the it was served. plaintiffs lates a right, Constitutional permitted Government officials are qualified immunity defendant is entitled to if rely upon validity officially trained to objectively the conduct was reasonable.” through issued documents verified official Park, City Duckett v. Cedar See, Aluisi, e.g., channels. Mitchell v. (5th Cir.1992) omitted). (quotation Cir.1989) F.2d (holding 579-80 facially arrest based valid warrant did ¶ 17 While Oehser indeed has process not violate rights arrestee’s due broad constitutional to be free from where the sheriffs office had not received seizures, unreasonable searches and it does notice that the warrant had been cancelled as necessarily not follow that the unlawfulness claimed). the arrestee had readily of Ochser’s apparent arrest was to light facially Defendants of a valid arrest 20 If “officers of reasonable com surrounding warrant and the circumstances. issue, petence disagree could on this immuni It is arresting not established that an ty recognized.” Malley, should be 475 U.S. acting pursuant facially to a valid (stating qualified 106 S.Ct. 1092 obligation investigate warrant has the to doc immunity protects plainly “all but the incom umentary light evidence. We conclude that petent knowingly or those who violate the warrant, law”). facially of a valid arrest the unlaw We find that “officers of reasonable readily fulness of competence disagree” Oehser’s arrest was not could as to whether apparent they required to investigate Defendants. were to further the Harlow, Supreme Fitzgerald, In Court defined the lim- Harlow v. (1982). qualified immunity "objective its of terms.” 73 L.Ed.2d 396 by a consta- The warrant was executed validity light Oehser’s claims 67.

warrant’s entry person minute copy of the a fee for each arrest- he had a certified ble who earned reasonable the warrant. Because quashing plaintiff offered ed. Id. at 267. further disagree as to whether officers could he was no documents that indicated produce required, Defendants are investigation was however, re- parole, the constable longer on immunity. qualified See Id. entitled to look at the documents. Id. fused to cases for the Ochser cites numerous case, Berg distinguishable from this are not entitled proposition that Defendants unreasonably Berg, the constable because immunity. find them distin qualified We warrant that was errone- relied on an arrest Ramirez, the court guishable. In Torres ously wrong person for the and thus issued from which a there was evidence determined by probable cause. In this supported jury the defendant officer could determine stated, rea- previously Defendants already knew had had sent out a warrant he sonably regard- relied on official information Qualified 898 F.2d at 226. been vacated. ing validity of Oehser’s warrant and re- was not immunity given was not because it facially Defendants lied on a valid warrant. government offi objectively reasonable for validity of the warrant checked the knew or process an arrest warrant he cial executing it. Defendants had no information already been vacated. have known had should protests prior to Ochser’s that the Peña-Borrero, officers arrest Id. at 228. invalid. In the face of official confirma- physical after he had shown them a ed a man valid, the warrant was Defendants tion that warrant, particularly, the copy of an executed investigate protests by required were not purporting to exe exact warrant Ochser as to his innocence. immunity Qualified cute. 365 F.3d at 10. to defendant officers be was not extended ¶ Citing cases from United States Cir- the evidence viewed most cause Circuit, for the First and Third cuit Courts to the arrestee indicated the offi favorable that, the dissent concludes as of the date of unambiguous ignored evidence that the cers “clearly it established” already warrant was unenforceable as had disregard that “an City at 14. In Beier v. been served. of documentary offered evidence Lewiston, arrested Beier for violat officers proves named on an arrest warrant that relying solely ing protection an order of ¶ 45. As of the warrant was invalid.” Infra actually his ex-wife’s statements without arrest, however, the date of Ochser’s neither looking at the order itself. 354 F.3d supreme court nor the Ninth Circuit our Cir.2004). The officers it to Court of has held unlawful qualified immunity to in that case entitled person facially valid pursuant arrest a to reading arresting Beier without the because examining documentary warrant without first something a terms of the order was not subject evidence offered the who is reasonably competent do under officer would above, to an arrest warrant. As indicated we circumstances. Id. at 1072. the same explained why upon by have the cases relied ¶22 Berg Alleghany also cites Ochser such, distinguishable. the dissent are As proposition County, 219 F.3d 261 for the qualified to immuni- Defendants are entitled facially provide the valid warrant does not ty. qualified immunity if “reliance on it is of the relevant circum- unreasonable include, Such circumstances but are stances. CONCLUSION to, the

not limited other information reasons, foregoing For the we find possesses to which he has reason- or the that the trial court did not err and affirm access, failing and whether to make an able dismissing this ease. order public immediate arrest creates a threat or danger flight.” at 273. Id. THOMPSON, JON CONCURRING: W. Berg, an warrant was mis- 23 In plaintiff. Judge.

takenly issued for the 266- JOHNSEN, dissenting. summary we Judge, judgment, 29 On must take handcuffed, as true that after he was Ochser deputies told the that the arrest warrant was AND FACTS PROCEDURAL longer deposition testimony no valid. BACKGROUND the for submitted on cross-motions 6,2003, January superior 27 On the court judgment, then Ochser related: issued a warrant for Ochser’s arrest vio- Q: What did did either one or —what lation of a support Roughly child order. say you both said it of them when wasn’t later, days on March the court valid? quashed Unfortunately, al- warrant. said, They A: said —he have what we “We though entry the minute con- court’s order bring you need to in.” I told him that And legend: MCSO,” the tained “FAXED: check____ to I he needed And told him March 13 way order did not make its into office, go my my that he should into and in Maricopa records of Of- Sheriffs inbox is a of the min- copy there certified Deputies fice. Before Funk and Cruz set out entry actually where order ute the —or the Flagstaff morning to arrest Ochser the judge quashes of where the warrant. May they confirmed that Sheriffs me, said go And he “I don’t need to outstanding Office records showed the war- your anything. got office find I’ve ev- course, rant for his Of arrest. erything I need.”7 many deputies matter how times checked protested, 30 After Ochser Funk left him records; the Sheriffs because the order the the parking Cruz in lot and entered the had year court issued more than a before however, not, building. go He did to Och- quashing missing the arrest warrant was pick up ser’s desk to certified records, from the Sheriffs the warrant would order had told there. In- Ochser him was continue to up show valid on rec- those stead, observatory phone used an Funk ords. telephone one Funk make at least call. testi- “quite fied that because Ochser insis- thought Ochser had ahead how about quashed, tent” that the warrant had been he protect against precisely himself sort this OIC, called the verified “[i]t Sheriffs which mishap. of bureaucratic Out of an abun- awas valid warrant.” Funk also testified he caution, had dance he obtained two certi- telephoned judge’s spoke office and to a copies fied quashing of the order war- temporary worker who “had clue on how no car; rant. He carried one his (Cruz’s anything anything.” to cheek or do kept Observatory in his desk at the Lowell different; account was he testified that when Flagstaff. But Ochser was not in office ear, Funk returned he told Cruz he They or his ear when the arrived. had a court reached clerk who confirmed that parking waited for him in the lot of valid.)8 the warrant observatory approached and him he when pulled up observatory in an van.6 response Over deputies’ 31 In to. the motion him, protests, they handcuffed then judgment, shackled Ochser offered evi- and put circumstances, him him in the back patrol of a car. dence that under these if the Ochser, According questions 6. the their 8. had Ochser whether in fact tele- Funk him; guns they approached drawn when Funk phoned argues Ahlquist, He OIC. that the head guns denied that had he or Cruz removed their OIC, deputy report of testified that if a called to from their holsters. subject protest- of an that the arrest warrant was ing quashed, that warrant had been she 7. Funk admitted Ochser told him the warrant would have searched the court's docket for an denied, however, quashed. had been He that fact, quashing order the warrant. at her copy quashing Ochser told him a of the order deposition, Ahlquist pull up copy was able a of Cruz, partner, warrant was in his office. Funk’s quashing the order warrant Ochser’s arrest also was a asked whether Ochser said he had did about two minutes. Since OIC not search copy quashing of the order the arrest on warrant case, argues court records Ochser’s Ochser first, responded, his desk. At Cruz "I don’t re- did, or, that, later, however, did not he he did Funk either call OIC if call no.” A or minute so volunteered, that, know not let OIC that Ochser had said the war- Cruz do "I not recall it but possible.” could be rant had been 492 determining right clearly is a ry in whether informs officers

subject of an arrest warrant be clear a is it would established whether quashing the warrant copy a of order that was un his conduct course for the reasonable that by, the is close reasonable Id. at exam- he confronted. the order. For lawful situation is to retrieve officers Callahan, 2151; 202, 121 v. on law en- S.Ct. see Pearson deputies’ expert witness ple, the 808, 822, 223, -, 172 129 S.Ct. U.S. practices testified 555 forcement (2009) (collapsing the two ana that Mr. 565 jury if the believes L.Ed.2d agree “that ‘objec on the got steps; ‘I’ve a “turns lytical outcome [Funk Cruz] Ochser told and [deputies’] sitting legal reasonableness of quashing tive of the order it,’ action, desk; legal get light have done rules my go that he should assessed supervisor at the at time Funk Cruz’s that were that.” ”) Layne, agreed (quoting want Wilson v. 526 that he would his was taken’ time likewise 1692, papers 143 L.Ed.2d inspect deputies to take the time to U.S. (1999)). if they arrest target of an 818 proffered safely. could do so ordinary In the a enforce- may reasonably assume that ment officer

DISCUSSION anof probable supports cause issuance Berg, 272. As 219 F.3d at warrant. deputies immunity reviewing 32 In in another Supreme explained Court con- has defense, the dep we first whether determine text: violated uties Ochser’s constitutional requirements that arrest be Given the probable free of arrest without cause.

be only probable cause and one Katz, made 121 Saucier v. 533 U.S. See trial, (2001). speedy we do detained accorded 150 L.Ed.2d 272 S.Ct. executing an arrest not think sheriff majority seems to conclude the arrest consti required by Constitution warrant is rights of under the tuted breach every investigate claim of agree. independently 17. I Supra Amendment. Fourth innocence, Boston, whether the claim based on City Wilson v. 55 See of (arrest Cir.2005) such as (1st identity mistaken or a defense lack made on mistaken be requisite intent. of that a warrant had been issued violated lief Amendment); Berg v. Alle Fourth 137, 145-6, McCollan, U.S. 99 Baker v. (3d Cir.2000) gheny, 219 F.3d (1979).9 2689, 61 L.Ed.2d 433 Never S.Ct. (“[T]he Supreme clear Court has made that a theless, apparently “an valid warrant does mistakenly warrant can issued or executed render an immune from suit if his not arrest.”) provide probable cause for an reliance on it is unreasonable Warden, Whiteley (citing v. Berg, relevant circumstances.” F.3d (1971)); 1031, 28 L.Ed.2d 306 State v. S.Ct. The “relevant circumstances” (1994) Evans, Ariz. 866 P.2d 869 render reliance on a warrant unreasonable (arrest that had made on warrant been “include, to, but are limited other infor “plainly quashed was “warrantless” possesses that the officer or which mation arrest) grounds, illegal” Ari rev’d on access, failing he has reasonable 1185, 131 Evans, 1, 115 S.Ct. zona U.S. public creates a to make an immediate arrest (1995). L.Ed.2d danger flight.” Id. threat or ¶ case, in Saucier, Berg in this court question next 35 As the trial Under the person judgment against violated entered the that was was brought rights a civil claim after was the time. 533 U.S. at who established at warrant. inquiry pursuant ... an invalid Id. 121 S.Ct. 2151. This must arrested The in that case specific at 267-68. mistak- undertaken of the context parole. proposi- enly issued violation of general not as a broad tion____Id. relevant, inqui- up to make the dispositive an officer showed The When out, repeated gate suspect’s assertions that the points not concern the 9. As Ochser Baker did the whether, wrong person See Brown v. validity had been arrested. of an arrest after incarcer- but Cir.1989). duty Byer, ating suspect, F.2d the had a to investi- sheriff arrest, invalid, plaintiff protested the arresting may and “offered to the officers disre- produce proving gard simply release documents that he that documentation because longer parole.” was no Id. at 267. The headquarters “proven” call to has the officer, however, arresting refused to look at outstanding. warrant remains the release documents and instead told the ¶ Appeals 38 The First Circuit Court of plaintiff bring jail. them with him to Id. applied Berg the rule in Peña-Borrero v. The Third Circuit Court of vacated (1st Estremeda, Cir.2004). dismissing the plaintiffs order claim and Having once been arrested on a valid war remanded for consideration of facts that it rant, plaintiff posted in Peña-Borrero held questions concerning raised “valid later, bail and was Six released. Id. weeks arresting reasonableness” of the officer’s police officers came to his home and arrested conduct, including that the warrant was three pursuant him to the identical warrant. Id. at old, years suspect documentation the of- plaintiff 9-10. The told the officers he had a completed fered to show that he had copy of the executed warrant and a bond parole and the “nonviolent nature of the receipt in the trunk of his car. Id. at 10. crime.” Id. at 273-74. retrieved officers the documents from majority attempts distinguish 36 The car, plaintiffs anyway but arrested him Berg ground on the that the warrant in that brought police headquarters, him to supported by case was not probable cause. where he was detained for several hours. Supra quashed 24. But the order that plain- 39 The First Circuit concluded the civil arrest warrant in this ease eliminated allegation tiffs that officers made legal basis on which the warrant had “in unambiguous the face of evidence that Indeed, been issued. premise the universal their warrant was unenforceable” “would variety rights this civil false-arrest support jury conclusion that defendants claim is that the supported by arrest was not unreasonably arresting acted [him] probable Wilson, cause. See 421 F.3d at 56 taking custody.” him into Id. at 13-14. “In (no probable cause existed for arrest made in view,” held, our the court “such a seizure mistaken belief that warrant had been is- objectively could be unreasonable and a vio- sued); Berg, 219 (“mistakenly F.3d at 270 appellant’s clearly lation of provide issued or executed warrant cannot rights.” Fourth Amendment Id. at 14. arrest”) probable (emphasis cause for an alone, Standing the officers’ failure to check added). probable That is if because there is validity executing the warrant’s before cause for the absent excessive force supported plaintiffs would not have here, or other present circumstances not claim; it was their proceeding insistence on there is no constitutional violation on which with the arrest after were confronted to base a § claim under 42 U.S.C. 1983.10 plaintiff with the documents offered that re- ¶ Moreover, deputies the fact that the disregard” flected “a much more deliberate this case have called to check on the plaintiffs for the rights. constitutional Id. at complained warrant after Ochser does not 13. distinguish Berg. this case from As in this ease, majority attempts 40 The suspect Berg distinguish after the disputed the warrant, ground Peña-Borrero on the telephoned in that headquarters plaintiff case the officers arrested the confirm the warrant even Thus, Berg though they “unambiguous valid. 219 F.3d at had 268. estab- evidence” lishes that when a that the warrant was not Supra named an arrest valid. precise warrant offers But allegation: documentation close at hand that is Ochser’s He support his contention that the warrant is contends he told the he had unam- deputies similarly argue Berg Berg's The probable that is dis- looks observation that cause does 10. tinguishable because the warrant in that case “mistakenly not exist for a warrant that is issued (rather than, mistakenly was issued in this or executed.” 219 F.3d at 270. executed). mistakenly argument But this over- ¶ majority concludes that after they sought 43 The proof that the warrant

biguous he had a certified told Funk and Cruz See, Oehser e.g., quashed. De- had been to execute arrest on his quashing the order his copy of Suffolk, F.Supp.2d toledo v. desk, officers reasonable law enforcement (motion (D.Mass.2005) to dismiss they to whether were disagree “as could denied; if officer had rights claim even civil ¶ investigate Supra 20. required to further.” from duty retrieve other documents no to contrary, My is that to the reasonable view locker, nearby storage proceeded with disagree enforcement officers could despite having quash order at arrest deputies should have retrieved that the hand). that order Oehser offered inspected the deputies’ argument, Contrary to the they were there to exe- quashed the warrant is not that Funk and Ochser’s contention Saucier, U.S. at cute. See indepen- obligated to launch (issue Cruz were a broad posed not be “as should validity investigation into the dent general proposition” but instead “must Rather, depu- contends the specific warrant. Oehser context of undertaken case”). his offer deputies should not have brushed aside do not contend that ties The offered inspecting them with a certified court docu- the documentation Oehser provide required extraordinary effort. they would have proving ment the warrant retrieving deputies contend that Nor do the By had been trying to execute offered them would have the order Oehser not, token, majority is as the same the issue safety.11 jeopardized public mission or their it, deputies acted unreason- puts whether the investigate ably by failing independently record, 44 On this under the authorities Instead, it Supra warrant. 17. construing the facts and all cited above unreasonably by refusing acted Oehser, I as we must in favor of inferences entreaty examine the order he any law en- cannot conclude that reasonable quashed provide them that had offered that Funk forcement officer would decide year than a Un- that warrant more before. reasonably by rejecting and Cruz acted Och- circumstances, as the court held der these they inspect request ser’s the certified Peñar-Borrero, plaintiffs im- “claim of copy order he told them was on of the court required indepen- proper arguably arrest no desk.12 investigation; simply he did not assert a dent Furthermore, my view there is no mistake, provided also but substantiation.” “clearly question that it was established” at at 13. the time of the arrest this case that an reason, 42 For the Mitchell v. Alui- same disregard documen (4th Cir.1989), si, which the 872 F.2d 577 tary by person evidence offered named on relies, majority point. is not on Defendants proves the warrant is an arrest warrant that plaintiff over her in that case arrested the Berg invalid. was decided a United protests warrant had been re- oral that the 2000; Court of an States Circuit called. Id. at 578. She did not offer or offer other Circuit Court handed down Peña-Bor copy recalling provide of the order 2004, prior rero in to Ochser’s arrest. Cf contrast, In Oehser did more warrant. Bzdel, F.Supp.2d Soto v. 76-77 complain warrant was (D.Mass.2002) than (holding although officers deputies invalid: He informed the that a provided arrested after he them who entry quashing documentary certified of the minute evidence that warrant had with charged not be with the warrant was on his desk. been recalled would response deputies' undisputed motion for sum- evidence is that a third Sher- 12. (a member) mary judgment, testimony by representative posse Oehser offered iff's Office Oehser, expert deputies' super- present, deputies only deputies' and the whom knew witness violator, securely child-support have been reasonable for the hand- visor that would proffered. patrol inspect seat of a the document cuffed and shackled back Supra 31. car.

495 knowing violating clearly 1999 240 1257 P.3d ought right, not hold true “[t]his POTTER, Petitioner, Carol Ann future.”). appeal, deputies On v. rejects ques- cited no case that or even have VANDERPOOL, Judge principle eases Hon. Janna L. of tions these federal estab- Superior Ari- lished.13 Court of State of zona, County Pinal, in and of for the ¶46 Accordingly, I conclude that would Respondent, presented, under the facts Oehser and “in the and law,” pre-existing of of the unlawfulness deputies’ conduct in this ease was clear. by Arizona, through of and State Creighton, See Anderson v. Attorney, County the Pinal Real (1987); S.Ct. 523 107 97 L.Ed.2d see Party in Interest. Layne, Wilson v. U.S. also (1999) (“contours 1692, 143 S.Ct. L.Ed.2d 818 Joy Petitioner, Merryman, Debra sufficiently of the must be clear that a v. reasonable official understand Judge Vanderpool, Janna L. Hon. of the doing right”); what violates that Mc Superior Arizona, Court State of (7th Haskins, Donald 966 F.2d Pinal, Respon- in and for the of Cir.1992) (issue “require does not dent, ‘precisely that is fours on case on all the facts ”) (citing and involved here’ Landstrom and Dep’t Family v. Illinois & Children by Arizona, through The State of Sews., Cir.1990)). County Attorney, the Pinal Real Party in Interest. CONCLUSION 2010-0047, 2Nos. CA-SA 2 CA-SA 2010-0048. above, 47 Based on the cited authorities because Oehser submitted evidence on which Arizona, Court of be concluded that the knew Division B. Department or should have known their conduct violated established constitutional Oct. 2010.

right, I judgment would reverse the

remand for trial. Dahlberg, F.Supp. reasonably authenticity, In given

13. Lauer v. doubted its (N.D.Ill.1989) (7th Cir.1990), aff'd, 907 F.2d 152 copy. F.Supp. it was not a certified the court concluded was enti contrast, here, By Funk and course. disregard copy tled an uncertified of a warrant inspect Cruz did not bother the certified case, however, order. recall the officer of the order to which directed them. Oehser inspected proffered suspect. the document

Case Details

Case Name: Ochser v. Funk

Court Name: Court of Appeals of Arizona

Date Published: Sep 28, 2010

Citation: 240 P.3d 1246

Docket Number: 1 CA-CV 09-0141

Court Abbreviation: Ariz. Ct. App.