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HomeMy WebLinkAbout021325 Correspondence re Art Frank RECEIVED FEB 13 2025 Board of County Commissioners CONMllss COUNTY PO BOX 1220 Port Townsend, WA 98368 Re: Serious Concerns Regarding Deputy Art Frank's Consideration for Appointment as Sheriff Dear Commissioners, I am writing anonymously to express my grave concerns regarding Deputy Art Frank's potential appointment to the vacant Sheriff's position. Given the immense responsibility of leading the Jefferson County Sheriff's Office, I believe it is imperative that the Commissioners consider Deputy Frank's past conduct and whether he is fit to serve in such a leadership role. As someone who works within the court system, I have a strong interest in ensuring that law enforcement leadership upholds the highest standards of integrity and accountability. Deputy Frank was previously employed as a detective with the Glendale Police Department in California. His actions in that role led to a federal civil lawsuit in Ovasapyan v. City of Glendale, Case No. CV 08-194-CAS (JWJx), filed in the U.S. District Court, Central District of California, Western Division. The allegations in that case included wrongful arrest and malicious prosecution. The jury found that Deputy Frank unlawfully arrested and maliciously prosecuted Mr. Edmond Ovasapyan without probable cause. The jury further found that Deputy Frank's conduct was malicious, oppressive, or in reckless disregard of Mr. Ovasapyan's rights, awarding the plaintiff$2.16 million in damages, including punitive damages of $75,000 against Deputy Frank personally. Notably, the U.S. District Court's decision was later affirmed by the Ninth Circuit Court of Appeals, a fact that was not mentioned in Mr. Kennedy's Brady letter. The Ninth Circuit upheld the jury's findings that Deputy Frank's actions violated Mr. Ovasapyan's constitutional rights and that he was not entitled to qualified immunity. This further underscores the gravity of Deputy Frank's misconduct and reinforces the argument that he is unfit to lead the Jefferson County Sheriff's Office. These findings raise significant concerns about Deputy Frank's judgment, integrity, and ability to uphold the constitutional rights of citizens. Law enforcement leaders must exemplify the highest ethical standards, and a jury's determination that Deputy Frank engaged in conduct violating a citizen's civil rights is deeply troubling. Moreover, the Jefferson County Prosecutor's Office issued a Brady letter regarding Deputy Frank on September 16, 2022, acknowledging the findings from the Ovasapyan case. This suggests that his credibility as a law enforcement officer is already compromised. While some may argue that this case is in the past, the fact remains that the fmdings against Deputy Frank were not minor, nor were they merely allegations—his actions were substantiated in a court of law. Jefferson County deserves a Sheriff with an unblemished record of fairness, integrity, and sound judgment. Appointing someone with a documented history of wrongful arrest and malicious prosecution would send the wrong message to the public and could expose the County to unnecessary liability. Enclosed with this letter, I am including copies of the court's decision in the Ovasapyan case, the Ninth Circuit Court of Appeals' ruling affirming that decision, as well as the September 16, 2022, Brady letter from the Jefferson County Prosecutor's Office. I strongly urge the Commissioners to review these documents carefully and take them into account when considering Deputy Frank's appointment. I urge the Commissioners to weigh these concerns heavily in your deliberations. The leadership of the Sheriff's Office is too critical to entrust to someone with such a troubling history. Jefferson County residents deserve a Sheriff who inspires confidence, not controversy. Thank you for your time and consideration. Sincerely, A Concerned Citizen Ovasapyan v.City of Glendale,Not Reported in Fed.Supp.(2009) The case proceeded to trial. On February 20, 2009,the jury 2009 WL 10699128 returned a special verdict.The verdict read as follows: Only the Westlaw citation is currently available. We, the jury in the above entitled action, render the United States District Court,C.D. following findings of fact as to the issues submitted to us: California,Western Division. Question No. 1: Was Plaintiff Edmond Ovasapyan Edmond OVASAPYAN,Plaintiff, unlawfully arrested for murder without probable cause? v. CITY OF GLENDALE,et al.Defendants. Yes # No Case No.CV 08-194-CAS(JWJx) If you answered"yes"please proceed to Question No.2. If you answered no,proceed to Question No.3. Signed 04/27/2009 Question No. 2: Please place a check mark next to Attorneys and Law Firms the name of each Defendant who either unlawfully arrested Plaintiff Edmond Ovasapyan,or caused Plaintiff Eugene Patterson Harris, Law Offices of Pat Harris, Edmond Ovasapyan to be unlawfully arrested. Pasadena,CA,Mark John Geragos, Shelley Lynn Kaufman, Geragos and Geragos PC,Los Angeles,CA,for Plaintiff. Defendant Frank_#_ Ann M. Maurer,Scott H.Howard,Miah Yun,Glendale City Defendant Grimes_#_ Attorney,Glendale,CA,for Defendants. Question No.3:Did Defendants subject Plaintiff Edmond Ovasapyan to malicious prosecution? ORDER DENYING DEFENDANTS'RENEWED Yes_# No MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO FED.R.CIV.P.50(b)AND MOTION If you answered"yes"please proceed to Question No.4. FOR NEW TRIAL PURSUANT TO FED.R.CIV.P.59 If you answered"no",please proceed to Question No.5. CHRISTINA A. SNYDER, UNITED STATES DISTRICT Question No.4:Please place a check mark next to the name JUDGE of each Defendant who caused the malicious prosecution of Plaintiff Edmond Ovasapyan. I.INTRODUCTION *1 On October 29, 2009, plaintiff Edmond Ovasapyan Defendant Frank_#_ ("plaintiff") filed the instant action in Los Angeles County Superior Court against defendants City of Glendale ("the Defendant Grimes_#_ City"), Arthur Frank ("Detective Frank"), Ian Grimes Please proceed to Question 5. ("Sergeant Grimes"), Matthew Irvine ("Detective Irvine"), and``Does 1 through 25.Plaintiff asserted claims for violation Question No. 5: Did a practice or custom of the City of P142 U.S.C. § 1983 against defendant officers and Does of Glendale cause a violation of Edmond Ovasapyan's ` constitutional rights? I through 10, and liability under f Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), Yes No_#_ against the City and Does 11-25. On January 11, 2008, defendants removed the action to this Court. On November If you answered "yes" to Questions 1, 3, or 5, please 24,2008, defendants filed a motion for summary judgment. proceed to Question No. 6. If you answered "no" to The Court denied defendants'motion for summary judgment Questions 1,3 and 5,please sign and date this form. on December 22,2008. Question No. 6: Did any conduct about which you answered "yes" above, cause plaintiff Edmond Ovasapyan to suffer injury or damages? WESTLAW ©2025 Thomson Reuters. No claim to original U.S. Government Works. 1 Ovasapyan v.City of Glendale, Not Reported in Fed. Supp.(2009) Yes # No Subsequent to the shooting,Ms. Shahnazari was interviewed If you answered"yes"please proceed to Question No.7. by Detective Irvine, both outside of her home and later at the police station, about the individuals who entered her Question No. 7: Please state the total amount of damages home. During the interview, Ms. Shahnazari described the you award to plaintiff Edmond Ovasapyan man who had shot her son. Officers showed Ms. Shahnazari photographs, one of which was a photograph of plaintiff. $_2.16* 10 6_ In addition,officers interviewed Ms.Shahnazari's neighbors, who reported seeing a black Honda parked in front of Please proceed to Question No. 8. Shahnazari's house at the time of the murder. Question No. 8: Do you find by a preponderance of On November 1, 2005, GPD officers arrested plaintiff the evidence that the conduct of any defendant which pursuant to two outstanding warrants unrelated to the murder caused injury or damage to plaintiff Edmond Ovasapyan of Christopher Shahnazari. Subsequent to his arrest,plaintiff was malicious, oppressive, or in reckless disregard for was interviewed by Detective Irvine and Detective Frank. plaintiff Edmond Ovasapyan's rights During the interview,plaintiff also stated that he had left his Yes #_No work site for lunch to go to a Home Depot in Glendale around the time of the murder,and that he was driving a black Honda. If you answered"yes"proceed to Question No.9.If you answered"no",please sign and date this form. Later in the evening of November 1, 2005, while plaintiff was still in custody on the outstanding warrants, plaintiff Question No. 9: Please place a check mark next to the was arrested for the murder of Christopher Shahnazari. name of each defendant whose conduct you find to On November 4, 2005, Detective Frank presented the case be malicious, oppressive, or in reckless disregard of to Deputy District Attorney Susan Navas ("DA Navas") plaintiff Edmond Ovasapyan's rights. for filing. DA Navas charged plaintiff with the murder of *2 Defendant Frank # Christopher Shahnazari. Defendant Grimes_# On December 13,2005 and December 14,2005,a preliminary hearing was held. At the end of the preliminary hearing,the The jury originally awarded $2,160,000 to plaintiff in court ordered that plaintiff be held to answer. damages, which included a $1,000,000 award of punitive damages.This award of$1,000,000 in punitive damages was In May,2006,Detective Frank learned that a DNA match had improper, because the jury had not yet heard evidence on been made on a baseball hat that had been found by Sevan punitive damages; therefore the Court disregarded it. After Shahnazari on November 2,2005,at the scene of the crime. hearing further testimony on punitive damages, the jury on Detective Frank interviewed the suspect to whom the DNA February 25,2009 awarded punitive damages in the amount match was made, who confessed to murdering Christopher of $75,000 against Detective Frank and $75,000 against Shahnazari, identified other individuals who were involved, Sergeant Grimes. and stated that plaintiff was not involved in the murder. Detective Frank provided this information to DA Navas. In May,2006,a meeting was held between Detective Frank,DA II.FACTUAL BACKGROUND Navas,and DA Navas'supervisor,Richard Burns,III.A live- On November 1,2008,at approximately 12:35 p.m.,Carmen line up was thereafter conducted, at which Ms. Shahnazari Shahnazari ("Ms. Shahnazari") was home at approximately positively identified the suspect who confessed to murdering noon when at least two men forcibly entered her home, her son, and stated that she had misidentified plaintiff. On stating that they were looking for her son Sevan. While the June 21, 2006, the District Attorney's office requested that men were in Ms. Shahnazari's house looking for money, plaintiff be released on his own recognizance. On July 7, Christopher Shahnazari,Ms.Shahnazari's son,came home At 2006,the case against plaintiff was dismissed on a motion by approximately 12:35 p.m.Christopher Shahnazari was fatally the District Attorney's office. shot by one of the men. WESTLAW ©2025 Thomson Reuters. No claim to original U.S. Government Works. 2 Ovasapyan v.City of Glendale, Not Reported in Fed.Supp.(2009) 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a HI.LEGAL STANDARD motion for summary judgment, "the inferences to be drawn A.Judgment as a Matter of Law Pursuant to Fed.R from the underlying facts...must be viewed in the light most Civ.P.50(b) favorable to the party opposing the motion." PMatsushita *3 Judgment as a matter of law is appropriate when "a Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 party has been fully heard on an issue during a jury trial (1986) (citation omitted); PliValley Nat'l Bank of Ariz. v. and the court finds that a reasonable jury would not have a A.E.Rouse&Co., 121 F.3d 1332, 1335 (9th Cir. 1997); see legally sufficient evidentiary basis to find for the party on that issue..."Fed.R.Civ.P.50(a)(1);see also Reeves v.Sanderson also PiBerry v.Bunnell,39 F.3d 1056, 1057(9th Cir. 1994) Plumbing Products. Inc., 530 U.S. 139, 149 (2000). If the (articulating the same standard in the context of a directed court does not grant a motion for judgment as a matter of law verdict). Summary judgment for the moving party is proper pursuant to Rule 50(a), a party may file a renewed motion when a rational trier of fact would not be able to find for the for judgment as a matter of law after the trial. Fed. R. Civ. nonmoving party on the claims at issue. See PMatsushita, P. 50(b). It is well-settled that the standard for judgment as 475 U.S.at 587. a matter of law is the same as the standard for summary judgment. Reeves. 530 U.S. at 150 (citing Anderson v. In a motion for summary judgment, a court must review Liberty Lobby.Inc.,447 U.S.242,250-52(1986)). the record "taken as a whole." Matsushita, 475 U.S. at 587. Similarly, in entertaining a motion for judgment as a Summary judgment is appropriate where"there is no genuine matter of law, the court should review all of the evidence issue as to any material fact"and"the moving party is entitled to a judgment as a matter of law."Fed. R.Civ.P. 56(c).The in the record. Reeves, 530 U.S. at I50. In so doing, moving party has the initial burden of identifying relevant however, the court must draw all reasonable inferences portions of the record that demonstrate the absence of a fact in favor of the nonmoving party, and it may not make or facts necessary for one or more essential elements of each credibility determinationslti or weigh the evidence.Id.(citations cause of action upon which the moving party seeks judgment. omitted); see also ("°Berry, 39 F.3d at 1057. "Credibility See Celotex Corp.v.Catrett,477 U.S.317,323(1986). determinations,the weighing of the evidence,and the drawing of legitimate inferences from the facts are jury functions, If the moving party has sustained its burden,the nonmoving not those of a judge." Anderson, 447 U.S. at 255. Thus, party must then identify specific facts, drawn from materials although the court should review the record as a whole, it on file,that demonstrate that there is a dispute as to material must disregard all evidence favorable to the moving party facts on the elements that the moving party has contested. that the jury is not required to believe. Reeves, 530 U.S. See Fed. R. Civ. P. 56(c). The nonmoving party must not at 151 (citing 9A C. Wright & A. Miller, Federal Practice simply rely on the pleadings and must do more than make and Procedure§ 2529 at 299(2d ed. 1995)).In other words, "conclusory allegations [in] an affidavit." f Lujan v. Nat'l the court should give credence to the evidence favoring the Wildlife Fed'n,497 U.S.871,888(1990);see also PICelotex nonmovant as well as that"evidence supporting the moving Coro.,477 U.S.at 324. Summary judgment must be granted party that is uncontradicted and unimpeached,at least to the for the moving party if the nonmoving party "fails to make extent that that evidence comes from disinterested wifiesses.". a showing sufficient to establish the existence of an element f'�Reeves,530 U.S.at 151 (citing Wright&Miller,supra,at essential to that party's case,and on which that party will bear 300). the burden of proof at trial."141Id.at 322;see also Abromson v.Am.Pac.Corp., 114 F.3d 898,902(9th Cir. 1997). B.Motion for New Trial Pursuant to Fed.R.Civ.P.59 *4 A court may grant a new trial if the jury's verdict is In light of the facts presented by the nonmoving party,along with any undisputed facts,the Court must decide whether the against the clear weight of the evidence. PLandes Const. moving party is entitled to judgment as a matter of law. See Co., Inc. v. Royal Bank of Can., 833 F.2d 1365, 1371 (9th Cir. 1987). In considering a Fed. R. Civ. P. 59 motion, the T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, court may "weigh the evidence and assess the credibility WESTLAW ©2025 Thomson Reuters. No claim to original U.S. Government Works. 3 • Ovasapyan v.City of Glendale, Not Reported in Fed.Supp.(2009) of witnesses, and need not view the evidence from the favorable to the party asserting the injury do the facts alleged perspective most favorable to the prevailing party."PlId. at show the officer's conduct violated a constitutional right?" 1371-72 (citing 11 C. Wright& A. Miller, Federal Practice Rid. at 201. If so, the court must then consider whether and Procedure§2806,at 48-49(1973)("If,having given full the constitutional right was clearly established. Id. A right is respect to the jury's findings,the judge on the entire evidence clearly established only if"it would be clear to a reasonable is left with the definite and firm conviction that a mistake has officer that his conduct was unlawful in the situation he been committed,it is to be expected that he will grant a new confronted."11111Id.at 202. trial.")). However,the court should only grant a new trial if, without substituting its judgment for that of the jury,the court Defendants argue that their actions did not violate a clearly is firmly convinced that the jury made a mistake.Pk andes established right, because in arresting plaintiff for murder, Constr.Co.,833 F.2d at 1372. defendants relied on the eyewitness identification of plaintiff by Mrs.Shahnazari.Specifically,defendants argue that: IV.DISCUSSION A.Judgment as a Matter of Law Frank and Grimes made an arrest As an initial matter,plaintiff argues that defendants are barred based on a witness identification, the from bringing the instant renewed motion pursuant to Fed. fact that the suspect matched the R.Civ.P. 50(b),because defendants failed to bring a Fed.R. description provided by the victim,the Civ.P.50(a)motion before the case was submitted to the jury. the suspect, the fact that the suspect fact that the victim thought she knew Opp'n at 4;see Tortu v.Las Vegas Metropolitan Police,556 had connections to the victim's family F.3d 1075 (March 2009) ("Rule 50 requires a party seeking and a dispute with the oldest son and judgment as a matter of law to file a Rule 50(a)motion at any the fact that he was driving a car time before the case is submitted to the jury. ...a Rule 50(b) that matched the description of a car motion may be considered only if a Rule 50(a) motion for observed at the crime scene. judgment as a matter of law has been previously made.") However, defendants note that at the close of evidence on February 18, 2009, defense counsel advised the Court that Mot. at 6. Defendants argue that it would not have been clear to an objectively reasonable officer that defendants' defendants wished to be heard on their Rule 50 motion. Reply at 2.The Court stated that it would not hear argument conduct violated any of plaintiffs rights in the situation.Mot. regarding defendants' motion at that time, but that it would at 5, citing PM Spiegel v. Cortese, 196 F.3d 717, 724 (7th reserve judgment on the issue and the Court recognized Cir. 1999) ("it is well-established that when an officer has that all of defendants' rights were preserved. Reply at 2. received ... information from some person — normally the Therefore,defendants are not barred from bringing the instant putative victim or an eye witness—who it seems reasonable renewed motion. to believe is telling the truth, he has probable cause."); MIRodis v. City&County of San Francisco, 558 F.3d 964, 970-71 (9th Cir. 2009) ("[t]he qualified immunity standard 1.False Arrest Claim gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate Defendants argue that judgment as a matter of law should be granted in their favor,because Detective Frank and Sergeant the law"); 1111McSherry v. City of Long Beach, 560 F.3d Grimes are entitled to qualified immunity on the false arrest 1125,2009 WL 805804(9th Cir.2009)("Defendants do not claim. dispute that[plaintiff]did not resemble the initial descriptions given by the [two witnesses],however,nothing in the record The Supreme Court enunciated the two-part test for qualified shows that Defendants acted in bad faith by relying on the [witnesses]' photo lineup identification of[plaintiff] rather immunity in PISaucier v. Katz• 533 U.S. 194(2001).First, than their initial descriptions"). the court must answer the question: "Taken in the light most WESTLAW ©2025 Thomson Reuters. No claim to original U.S. Government Works. 4 Ovasapyan v.City of Glendale,Not Reported in Fed.Supp.(2009) *5 Defendants argue that qualified immunity has been Circumstantial evidence is sufficient granted to officers in more egregious situations. Mot. at 7, to show that Detective Frank and Sgt. citing,e.g.,PaRomero v.Fay,45 F.3d 1472(10th Cir. 1995) Grimes were the creators of all of these (officer's failure to investigate plaintiffs alleged alibi witness facts. did not negate probable cause for arrest where there was no showing that officer's initial probable cause determination Opp'n at 8. was unreasonable); illiCriss v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988)(defendants had probable cause to arrest Furthermore, plaintiff argues that, with regard to the second plaintiff for receipt of stolen property, despite failing to prong of the Saucier test for qualified immunity, the law is investigate plaintiffs statement that property was owned by clearly established that an individual has a constitutional right his roommates, finding that a "policeman ... is under no to be free from being held without probable cause. Opp'n at obligation to give any credence to a suspect's story nor should a plausible explanation in any sense require the officer to 8, citing PliBeck v.Ohio, 379 U.S. 89(1964).Furthermore, forego arrest pending further investigation if the facts as plaintiff argues that in this situation, a reasonable officer initially discovered provide probable cause"). would have recognized that Ms. Shahnazari's statement was not an identification,and would have therefore made further Plaintiff, however, argues that the question of whether a inquiry prior to effectuating an arrest. Opp'n at 10, citing constitutional right was violated was properly submitted Merriman v.Walton,856 F.2d 1333, 1335(9th Cir. 1988) to the jury as a factual determination, and that the jury (where there was insufficient probable cause for arrest, a reasonably determined that plaintiffs Fourth Amendment reasonable police officer"would have made further inquiry rights were violated. Opp'n at 7, citing fillTortu, 556 F.3d before effecting a warrentless arrest"); see also 1 IGiebel v. at 1085 ("The first step [of Saucier analyzes whether a Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001) ("Precedent constitutional right was violated, which is a question of directly on point is not necessary to demonstrate that a right fact.").Plaintiff argues that numerous facts were submitted to is clearly established...even if there is no closely analogous the jury to support a finding of a constitutional violation.First, case law, a right can be clearly established on the basis of plaintiff argues that Detective Irvine's testimony indicated common sense").Plaintiff argues that because a statement by that Ms. Shahnazari's equivocal statements regarding the a witness that an individual looks like the assailant is only resemblance of plaintiffs photograph to the assailant was "useful information" and not an identification, a reasonable not a an "identification" but only "useful information." officer would know that it does not give rise to probable Opp'n at 7.Defendants nevertheless based their arrest on her cause.Opp'n at 9.Moreover,plaintiff argues that the evidence statements.Opp'n at 7.Plaintiff further argues: showed that, rather than making further inquiry, defendants arrested plaintiff and ignored plaintiffs alibi and cellular records placing him five miles away from the crime site.I In submitting a probable cause Opp'n at 11. declaration to the judicial officer, Officer Tweedy, who obtained *6 The Court concludes that defendants have failed to information directly from Detective meet their burden in demonstrating that they are entitled Frank, and who did not interact with to judgment as a matter of law. Based on the evidence the witnesses to this crime, asserted presented at trail, a jury could have reasonably determined that the probable cause to arrest was that defendants lacked probable cause for plaintiffs' arrest, based upon a victim identification of and that defendants' conduct, as a result, violated plaintiffs the defendant in a photo line up, constitutional right. Furthermore, under the second prong neighbors identifying a suspect as driving a Dark Honda Accord, that of PISaucier, 533 U.S. at 202, the Court concludes that Mr.Ovasapyan was driving an Accord plaintiffs right was clearly established.Specifically,the Court and that Mr. Ovasapyan had no alibi concludes that it would have been clear to a reasonable during the time of the robbery. All officer under the circumstances that defendants' reliance on of these facts were simply] not true. Ms. Shahnazari's equivocal statements, and their additional WESTLAW ©2025 Thomson Reuters. No claim to original U.S. Government Works. 5 Ovasapyan v. City of Glendale, Not Reported in Fed.Supp.(2009) failure to consider plaintiffs alibi and cellular records, was to DA Navas, Detective Irvine described Ms. Shahnazari's clearly unlawful.See Saucier,533 U.S.at 202.Therefore, alleged identification of plaintiff by stating "the more she defendants are not entitled to qualified immunity. talked, the more Carmen felt that the man she first saw at her door today was one of the two men who remodeled her bathroom.However,she was still not entirely sure."Defs'Ex. A(Supplemental Report 002)at 3.A report also provided: 2.Malicious Prosecution Claim With regard to the malicious prosecution claim, defendants argue that they are entitled to judgment as a matter of law, After reviewing the array, her gaze because plaintiff failed to show that defendants had concealed settled on Ovasapyan's photo and she material information or exerted undue pressure on the district pointed to it. She said he looked like attorney. Mot. at 10. Without such evidence, defendants the man who knocked on her door .... argue,the presumption of independent judgment on the part Carmen said, The face — everything of the prosecutor is not rebutted,and defendants can only be — look like him, exactly." The hair, liable for damages incurred between the time of the arrest and too, was the same. Except, Carmen the time the district attorney filed charges.Mot.at 10. said,the man in the phot looked older than the man who came to her door In order to prevail on a malicious prosecution claim under today.Therefore,she said, she did not think it was the same guy despite the Section 1983, a plaintiff"must show that the defendants resemblances. prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] equal protection or another specific constitutional right." *7 Defs' Ex.B(Supplemental Report 003)at 1. PaAwabdy v.City of Adelanto,368 F.3d 1062, 1067(9th Cir. 2004). "Ordinarily,the decision to file a criminal complaint Defendants argue that this was an accurate description of is presumed to result from an independent determination on the identification, and if it, along with other evidence, did the part of the prosecutor, and thus, precludes liability for not give rise to a finding of probable cause, it was DA those who participated in the investigation or filed a report Navas' duty to recognize that. Mot. at 14. Furthermore, that resulted in the initiation of proceedings." Id., citing defendants argue that plaintiff presented no evidence that raSmiddy v. Varney,665 F.2d 261,266-68(9th Cir. 1981). defendants intentionally misrepresented material information or concealed exculpatory evidence from the district attorney. "However, the presumption of prosecutorial independence Mot.at 14."The fact that DDA Navas filed the case knowing does not bar a subsequent Fa§ 1983 claim against state all of the relevant facts which the police knew at the time, or local officials who improperly exerted pressure on the immunizes the defendant officers from liability."Mot.at 14. prosecutor, knowingly provided misinformation to him, Plaintiff, however, argues that the evidence demonstrated concealed exculpatory evidence, or otherwise engaged in that material information was omitted from the information wrongful or bad faith conduct that was actively instrumental presented to DA Navas. Opp'n at 14. Plaintiff argues that in causing the initiation of legal proceedings." Id; see these omissions support a finding of malicious prosecution. also PliBarlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. See F Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 • 1991)(where prosecutor's only information came from police (9th Cir. 2004). Specifically,plaintiff argues that defendants reports which contained "glaring omissions," "the jury was failed to submit any report mentioning the interview of clearly entitled to conclude that the officers misrepresented plaintiffs key alibi witness, and that this "was certainly the facts to the prosecutor and that these misrepresentations material information."2 Opp'n at 14.Plaintiff also notes that were responsible for the filing of the criminal complaint"). no police report was provided to DA Navas regarding the cellular phone study placing plaintiff five miles away from Defendants argue that in this case, an accurate account of the site of the murder. Opp'n at 15. Plaintiff also argues the factual basis for the arrest was clearly set forth in the that the evidence indicated that officers failed to submit any police reports that were provided to DA Navas. Mot. at report regarding plaintiffs interview and statements contained 13.In Supplemental Report 002,a relevant report submitted WESTLAW ©2025 Thomson Reuters. No claim to original U.S. Government Works. 6 Ovasapyan v.City of Glendale,Not Reported in Fed.Supp.(2009) therein regarding his alibi, and failed to report that Sevan argument rebuttal in which she showed Shahnazari was uncooperative in the investigation. Opp'n at the jury the press release issued by the 15. Glendale Police Department regarding the arrest of plaintiff.Defense counsel In addition,the Court notes that while DA Navas testified at objected ... [Plaintiffs counsel] then trial that Detective Frank provided the relevant information stated that it went to malice and the omitted from the reports to her orally, her testimony was Court responded that it did go to impeached by deposition testimony indicating that she did not malice.As a threshold matter,nothing recall any conversations with Detective Frank and that she about the press release could got to in fact relied only on written reports in making her decision malice against the individual officers. to file the case. See November 12, 2008 Deposition of DA The uncontroverted evidence was that Navas 19:9-22. the officers had nothing to do with the issuance of the press release. Even if In light of plaintiffs arguments, as well as evidence they were involved, the press release regarding the impeachment of DA Navas, the Court finds merely set forth the fact that a suspect that defendants have not met their burden to show that had been arrested in a murder.How can a reasonable jury could not have found that plaintiff set that be malicious? forth sufficient evidence to support a finding of malicious prosecution.As plaintiff argues,there was sufficient evidence of material omissions in the information defendants provided Mot.at 15. to DA Navas in order to reasonably rebut the presumption of independent judgment. See, Lg.,., fyr Borunda v. Richmond. Plaintiff,however,argues that the evidence presented at trial 885 F.2d 1384, 1390(9th Cir. 1988)("[t]he jury was entitled demonstrated that defendants acted with reckless disregard to find,amidst the striking omissions in the police report,as for plaintiffs rights.Opp'n at 16.Specifically,plaintiff argues well as the two officers'conflicting accounts of the incident, that, inter alia, evidence regarding(1)the failure to submit that appellants procured the filing of the criminal complaint known evidence to DA Navas (2) defendants' statements by making misrepresentations to the prosecuting attorney").3 to Ms. Shahnazari that her identification of plaintiff would not be used as a basis for arrest without further evidence, and (3) defendants' concealment of conversations they had with Sevan Shahnazari from plaintiff, all indicate reckless (3)Punitive Damages Claim indifference on the part of defendants.Opp'n at 17.The Court agrees that the evidence presented by plaintiff in this case (a)Award of Punitive Damages could have led a reasonable jury to conclude that defendants acted with reckless indifference and that,therefore,a finding *8 Defendants argue that there was no evidence from which of punitive damages was not unwarranted. a jury could find that defendants acted with malice,reckless disregard, or oppression that would warrant a finding of punitive damages, and that instead, "the evidence, at best, (b)Amount of Punitive Damages showed that the officers could have or should have done more to determine if plaintiff was involved."Mot.at 15. "Courts reviewing punitive damages must consider three guideposts: (1) the degree of reprehensibility of the Furthermore, defendants argue that at trial and in closing defendant's misconduct;(2)the disparity between the actual argument, plaintiffs counsel presented no evidence or or potential harm suffered by the plaintiff and the punitive argument regarding malice,reckless disregard,or oppression damages award; and(3)the difference between the punitive on the part of defendants.Defendants argue that damages awarded by the jury and the civil penalties authorized or imposed in comparable cases."riliState Farm Mut.Auto.Ins.Co.v.Campbell,538 U.S.408(2003). [t]he only comment was made by [plaintiffs counsel] in the closing WESTLAW C 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 Ovasapyan v.City of Glendale. Not Reported in Fed. Supp.(2009) Defendants argue that the amount of punitive damages Defendants argue that, for the reasons set forth herein, the awarded —$75,000 against each officer—was excessive as verdict is against the clear weight of the evidence,and a new a matter of law. Defendants argue that Sergeant Grimes' trial is warranted.However,the court should only grant a new conduct could not be deemed reprehensible,because he was trial if,without substituting its judgment for that of the jury, "accused of nothing more than authorizing an arrest and the court is firmly convinced that the jury made a mistake. not listening to audio tapes of interviews before approving MNLandes Constr. Co. 833 F.2d at 1372. For the reasons reports." Mot. at 16. Furthermore, defendants argue that stated herein,the Court is not"firmly convinced"that the jury the evidence showed that Detective Frank"was performing made a mistake and does not find that the verdict went against his job in a good faith manner." Defendants argue that in the clear weight of the evidence. similar cases involving more reprehensible conduct on the part of defendant officers, punitive damage awards have been lower, or were reduced by the court. Reply at 12, 1199-2000 B.Prejudicial Misconduct by the Court citing,e.g. Gordan v.Norman,788 F.2d 1194, (6th Cir. 1986) (jury award of$45,000 in punitive damages "[A] trial judge must always remain fair and impartial." against police officers who struck plaintiff in head with billy- FF.,"VDuckett v. Godinez,67 F.3d 734, 739(9th Cir. 1995). clubs reduced by the trial court); Hinshaw v.Doffer, 785 Therefore,the Court"must be ever mindful of the sensitive F.2d 1260, 1269-70 (5th Cir. 1986)(affirming $2000 award role [the court] plays in a jury trial and avoid even the in punitive damages against police officer where officer appearance of advocacy or partiality." Id. However, "it is "repeatedly stomped on plaintiffs head"). perfectly appropriate for a judge to'take part where necessary to clarify testimony and assist the jury in understanding the *9 However, defendants' argument are unpersuasive. As evidence.' " Id. Therefore, the "standard for reversing a stated herein, the jury was entitled to find, based on the verdict because of general judicial misconduct during trial evidence,that defendants acted with reckless indifference or is rather stringent. To sustain a claim of this kind, there malice. Furthermore, defendants have failed to demonstrate must be an extremely high level of interference by the trial that the amounts awarded are excessive as a matter of law. judge which creates a pervasive climate of partiality and The Court first notes that the ratio of punitive damages to compensatory damages is far below a single digit ratio. See unfairness:'MYld. at 740(internal citations omitted); see State Farm 538 U.S. at 419 ("few awards exceeding also United States v.Laurins, 857 F.2d 529,537(9th Cir. a single-digit ratio between punitive and compensatory 1988) ("A judge's participation [in the trial]justifies a new damages, to a significant degree, will satisfy due process"). trial only if the record shows actual bias or leaves an abiding In fact, in this case,the punitive damage award is somewhat impression that the jury perceived an appearance of advocacy modest compared to the actual harm suffered by plaintiff. or partiality.") See PIState Farm,538 U.S.at 419(court must consider"the First,defendants argue that the Court's statement in overruling disparity between the actual or potential harm suffered by defendant'objection to a press release issued by the Glendale the plaintiff and the punitive damages award").Furthermore, Police Department that the press release went to the issue although defendants cite a number of cases in which punitive of malice was extremely prejudicial to defendants in that"it damage awards were lower than in the instant action,or where was a statement to the jury that the Court believed there was comparable damage awards were reduced,none of these cases malice." Mot. at 18. "As there is no other evidence from involve factual scenarios similar to the instant case, and the which a reasonable jury could have found malice ..., the Court does not view them as necessitating a reduction in the only conclusion is that the statement by the Court about the award here.4 existence of malice prejudicially impacted the verdict against defendants."Mot.at 18. B.New Trial Second, defendants argue that the Court committed error when it read in open court the jury's first verdict which A.Verdict Against the Clear Weight of the Evidence contained an improper award of $1 million in punitive damages. Defendants argue that"by reading the verdict,the WESTLAW ©2025 Thomson Reuters. No claim to original U.S. Government Works. 8 Ovasapyan v.City of Glendale,Not Reported in Fed.Supp.(2009) Court rendered it impossible for defendants to get a fair trial to explain that,while the question of malice was before the on punitive damages ... Once the verdict was read in open jury in phase I, the amount of punitive damages was not, court,the court eliminated the possibility that the jury might because the jury had not yet heard evidence regarding the award no damages."Mot.at 18. amount. The jury returned the next week, heard evidence, and awarded$75,000 against each defendant,not$1,000,000. *10 Defendants'arguments,however,are unpersuasive.The None of this indicates that defendants did not receive a fair Court's evidentiary ruling on the admissibility of the press trial;instead,it demonstrates that the jury properly took into release does not in any way amount to an "extremely high account the evidence presented in awarding$75,000 against level of interference" in the proceedings that would warrant each defendant. the granting of a new trial. Seeuckett v.Godinez,67 F.3d at 740. IV.CONCLUSION For the foregoing reasons, the Court DENIES defendants' Similarly,defendants have presented no basis for finding that renewed motion for judgment as a matter of law and motion the reading of the jury's original finding regarding punitive for new trial. damages denied defendants a fair trial on the issue of punitive damages. In this case, all parties agreed that in phase I,the IT IS SO ORDERED jury was required to determine whether,assuming defendants were liable,defendants acted with malice.The Court read the initial award by the jury of$1 million in punitive damages, All Citations which was not then before the jury.The Court took a recess, Not Reported in Fed.Supp.,2009 WL 10699128 conferred with counsel, and called the jury back in order Footnotes 1 Defendants, however, argue that the alibi and cellular phone records were not sufficiently specific so as to render them exculpatory. Reply at 6. 2 Defendants respond that Detective Frank testified that he told DA Navas about plaintiffs alibi's statements. Reply at 9. 3 Defendants also argue that they are entitled to qualified immunity with regard to the malicious prosecution claim. However, the Court finds that, based on the evidence presented, the jury could have reasonably determined that a reasonable officer would have known that omitting relevant information was unlawful under the circumstances, and thus that they were violating a clearly established right. See 1111Saucier, 533 U.S. at 202. 4 Furthermore, the Court notes that the jury in this case originally awarded $1,000,000 in punitive damages, before they received evidence and the full instruction on punitive damages. The Court disregarded this punitive damages award, and ordered the jury to return for the punitive damages phase of the trial. After presentation of evidence, including testimony regarding defendants' income, the jury reduced the punitive damage award substantially, indicating that the jury properly took into account the jury instructions and the evidence presented and determined the award accordingly. See Opp'n at 17. End of Document ©2025 Thomson Reuters.No claim to original U.S.Government Works. WESTLAW ©2025 Thomson Reuters. No claim to original U.S. Government Works. 9 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 13 2010 MOLLY C. DWYER,CLERK U.S.COURT OF APPEALS EDMOND OVASAPYAN, No. 09-55798 Plaintiff- Appellee, D.C. No. 2:08-cv-00194-CAS-JWJ v. MEMORANDUM* ARTHUR FRANK; IAN GRIMES, Defendants - Appellants, CITY OF GLENDALE; MATTHEW IRVINE, Defendants. EDMOND OVASAPYAN, No. 09-55990 Plaintiff- Appellant, D.C. No. 2:08-cv-00194-CAS-JWJ v. ARTHUR FRANK; IAN GRIMES, Defendants - Appellees, and This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. CITY OF GLENDALE, MATTHEW IRVINE, Defendants. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding Argued and Submitted December 6, 2010 Pasadena, California Before: TROTT and WARDLAW, Circuit Judges, and BREWSTER, Senior District Judge." A jury found that two Glendale, California, police officers, Detective Arthur Frank and Lieutenant Ian Grimes (the "Officers"), unlawfully arrested and caused the malicious prosecution of Edmond Ovasapyan. The district court denied the Officers' motion for judgment as a matter of law, finding that sufficient evidence supported the jury's verdict. The district court also denied the Officers qualified immunity on both claims, ruling that a reasonable officer would know that the conduct in which they engaged was unlawful. During the punitive damages phase of the trial, the district court quashed subpoenas issued to members of the Glendale " The Honorable Rudi M. Brewster, Senior United States District Judge for the Southern District of California, sitting by designation. -2- City Council. The subpoenas were presumably issued for the purposes of eliciting testimony regarding potential indemnification of the Officers by the City of Glendale. The Officers appeal the district court's denial of their motion for judgment as a matter of law, and Mr. Ovasapyan appeals the district court's quashal of the subpoenas. We affirm. A. The District Court Properly Denied the Officers' Motion for Judgment as a Matter of Law Denial of a renewed motion for judgment as a matter of law is reviewed de novo. Gilbrook v. City of Westminster, 177 F.3d 839, 864 (9th Cir. 1999). "A jury's verdict must be upheld if it is supported by substantial evidence, which is evidence adequate to support the jury's conclusion, even if it is also possible to draw a contrary conclusion." Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). The evidence presented at trial sufficiently supported the jury's finding that the Officers lacked probable cause to arrest Mr. Ovasapyan. The evidence presented at trial also supported the jury's finding that the Officers misled the prosecutor and withheld exculpatory information from her. "When a police officer asserts qualified immunity, we apply a two-part analysis." Tones v. City of Los Angeles, 548 F.3d 1197, 1210 (9th Cir. 2008). The first question is whether "the officer's conduct violated a constitutional right." -3- Saucier v. Katz, 533 U.S. 194, 201 (2001). The second question is whether the right was "clearly established." Id. at 202. In determining whether a right was "clearly established," the court considers whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. The first question is one of fact, while the second is a question of law. Tortu v. Las Vegas Metropolitan Police Dept., 556 F.3d 1075, 1085 (9th Cir. 2009). It is clear to a reasonable officer that omitting material, exculpatory information from reports submitted to a district attorney, as the jury found the Officers did in this case, constitutes unlawful conduct. Awabdy v. City of Adelanto, 368 F.3d 1062, 1067-68 (9th Cir. 2004). Qualified immunity is appropriate when a reasonable officer could have believed that probable cause existed to arrest a plaintiff. Franklin v. Fox, 312 F.3d 423, 437 (9th Cir. 2002) (internal quotations omitted). Mrs. Shahnazari unequivocally stated that Mr. Ovasapyan was not one of the perpetrators, though she said that he bore a strong resemblance thereto. The totality of the remaining evidence did not compensate for Mrs. Shahnazari's non-identification. It was not reasonable for the Officers to believe they had probable cause to arrest Mr. Ovasapyan. -4- e B. The District Court Did Not Abuse its Discretion By Quashing Subpoenas Issued to Members of the Glendale City Council A decision to quash a civil subpoena is reviewed for abuse of discretion, Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 813 (9th Cir. 2003), as are evidentiary rulings, Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). The district court did not abuse its discretion by finding that purely speculative testimony regarding the possibility that the City of Glendale might choose to indemnify the Officers against punitive damages pursuant to California Government Code § 825(b) was irrelevant, even after the Officers' testified about their personal financial status. Both Bell v. Clackamas County, 341 F.3d 858 (9th Cir. 2003), and Lawson v. Trowbridge, 153 F.3d 368 (7th Cir. 1998) are distinguishable because those cases considered mandatory indemnification statutes. Allegations of shadowy sources inside the Glendale City Council, with no further offer of proof, did not support the plaintiff's request. AFFIRMED. -5- v_yON C, e` JAMES M. KENNEDY Jefferson County Prosecuting Attorney g Philip C Hunsucker,Chief Civil Deputy Prosecutor Jefferson County Prosecutor's Office Christopher Ashcratl.Chief Criminal Deputy Prosecutor 1820 Jefferson Street Barbara Ehrtiehman,Deputy Prosecutoi Post Office Box 1220 Tuppence Macintyre,Deputy Prosecutor Port Townsend,WA 98368 Anna Phillips,Deputy Prosecutor Phone:(360)385-9180 Melissa Pleimann,Deputy Prosecutor Fax:(360)385-0073 Amanda Hamilton.Victim Services www co.jefferson wa us/prosecutor Lysa Phillis,Child Support Enforcement 16 September 2022 To: Attorney for the Defendant Re: Potential Impeachment Disclosure—JCSO Det. A. Frank It was recently brought to my attention that Det. Frank was found liable in a civil trial that occurred in California in 2009.The case, Ovasapyan1 v. City of Glendale2, alleged that Det. Frank3, then a detective with the Glendale Police Department engaged in actions that constituted Wrongful Arrest and Malicious Prosecution. At the conclusion of the trial, the jury made following specific findings with respect to Det. Frank:The plaintiff was wrongfully arrested,the wrongful arrest was executed by Det. Frank, the plaintiff was subject to wrongful prosecution, Det. Frank caused the plaintiff to be subject to wrongful prosecution,the conduct caused the plaintiff suffer injury or damage, and that preponderance of the evidence demonstrated that the defendant's conduct was malicious, oppressive, or in reckless disregard of the plaintiff's rights.The jury also provided the plaintiff with a monetary award due to its findings. I conducted a public records request with the City of Glendale, California by requesting copies of any internal investigations into Det. Frank with respect to the allegations in this case as well as any records indicating that Det. Frank had been placed on a "Brady List" as a result of this or any other case. Both requests did not result in any responsive records. 1 Edmond Ovasapyan was arrested and charged with murder relating to a murder committed by a group of individuals in 2008 at the decedent's home,witnessed by relatives.The Plaintiff was held for approximately seven months in jail while the charges were pending. Follow up investigation and forensic test results eventually eliminated the Plaintiff as a suspect leading to charges being dismissed against him. 22009 U.S. Dist. Lexis 140866, US District Court for the Central District of California Case No.CV 08-194-CAS 3 As well as another police officer, Lt.Grimes. 1'agc 2 I then contacted a Deputy District Attorney for Los Angeles County who was familiar with Det. Frank and the Ovasapyan case. This individual provided me a summary of the claims as well as a complete transcript of the trial. I have conducted a review of potential areas of concern regarding Det. Frank's performance in the Ovasapyan case and have compared them to the trial transcripts in my possession. The argument for deficient performance appears to be as follows: 1. Det. Frank falsely stated that a witness had positively identified the plaintiff in an interview 2. Det. Frank falsely stated that the Plaintiff drove a car of the same make and model as the shooter 3. Det. Frank withheld exonerating cell phone evidence from the District Attorney's office that would have exonerated the Plaintiff 4. Det. Frank failed to investigate the Plaintiff's alibi evidence 5. The Plaintiff's evidence suggesting a different suspect was deliberately or negligently ignored by the Glendale Police Department A review of the trial transcripts indicates the following with respect to each allegation: 1. Det. Frank did not interview the witness who made the identification. He relayed what he had been told by the detective who did.The detective told him that the witness identified the plaintiff as someone who had recently done work at a location where the witness worked. a. Later during a photo montage,conducted by the same detective who conducted the interview, the witness selected a photo of the Plaintiff and said the shooter looked just like the Plaintiff, but younger. This was relayed to the prosecutor assigned to the case in the report authored by the detective conducting the montage. 2. Another detective drafted the probable cause statement, which said that the shooter drove a black Honda Accord —the same type of car driven by the Plaintiff.The detective who wrote the probable cause statement does not know where he got the information that the shooter drove a black Honda Accord. Other statements indicate the shooter drove a black Honda or a burgundy Tundra but make no mention of the car being an Accord. 3. Cell phone records were separately obtained by both the Plaintiff via subpoena duces tecum and Det. Frank by search warrant. Copies of the Plaintiffs cell phone records were given to the Glendale Police Department,which were then provided to the District Attorney's Office. Copies of the Plaintiff's cell phone records obtained by Det. Frank were given to the Plaintiffs defense team while Page 3 he was pending charges.The contents of the cell phone records do not appear to have had any material impact with the case. 4. The Probable Cause statement, authored by another detective, stated that the Plaintiff did not have an alibi. The alibi evidence later provided by the Plaintiff, if true and accurate, still would not have conclusively ruled out the Plaintiff's participation in the murder. Detectives did conduct a follow up investigation to corroborate the Plaintiff's alibi assertion, but were unable to find evidence that supported it. 5. The evidence available to the detectives suggested that multiple suspects were involved in the commission of the original crime being investigated. DNA evidence collected from a baseball cap found at the crime scene was traced back to an individual who was not the Plaintiff. It took approximately seven months following the arrest of the Plaintiff for the DNA test results to come back. The DNA matched another individual who was then incarcerated. Det. Frank interviewed this individual who stated that the Plaintiff was not involved in the murder. This information was provided to the District Attorney's Office, which ultimately lead to the dismissal of charges against the Plaintiff. In conclusion, it does not appear that Det. Frank personally authored any reports or directly engaged in any aspect of the investigation that lead to the false arrest or malicious prosecution of the Plaintiff. Contrary to the findings made by the jury in Ovasapyan v. City of Glendale, it appears that Det. Frank's actions are what actually lead to the charges being dismissed against the Plaintiff. This disclosure is being made pursuant to the Prosecutor Attorney's obligation according to Stickler v. Greene, 527 U.S. 263, 281, 119 S. Ct. 1936, 1948, 144 L. ed. 2d 286, 301 (1999), CrR 4.7, and CrRU 4.7. This memorandum has been generated to provide the defense notice of potential impeachment issues. Copies of the trial transcript of Ovasapyan v. City of Glendale will be made available upon request. Re •ectfully, i /mesM. Kennesy Jefferson Count Pros:cuting Attorney (360) 385-9239 kenned • co. of •rso .wa.us