This Phoenix officer is a documented liar whose history of lies were hidden during a trial. Officer Armor is entitled to qualified immunity. Armor is also on the Brady list. It was determined that it was Brady M. Simple questions. We'll answer yes. Yes. And you don't know if she was under the influence at that time, do you? No. The Professional Standards Bureau of the City of Phoenix didn't ask you how to build a clock. It was turned over to the Defense Council. Correct. It was turned over to Defense Council. Yes. Armor retired early. He gets a full pension and benefits. Welcome back to the Lackluster channel. In December of 2013, Francis Salazar was a passenger in a friend's car when Phoenix police pulled them over because the vehicle's temporary license plate had expired, during which officer Anthony Armor conducted a search of the vehicle, claiming he found a pipe used for narcotics wedged between the seat and the center console. In his report, he wrote that Francis admitted it was hers and that it contained narcotics. Francis denies that ever happened, but what no one knew at the time, not Francis or her attorney, was that officer Armor had already been disciplined for a series of serious violations. In the year before Francis was prosecuted, Phoenix police had already sustained five internal allegations against Officer Armor. He illegally entered a woman's apartment, falsely arrested her, lied in reports and to his supervisor, and jailed her despite being told to release her. He was suspended for 80 hours. Yet, none of this was disclosed to defense attorneys. Police have routinely sat on misconduct files, usually for months, sometimes a year or more, without notifying defendants. That means there are people out there who did not get fair trials. That misconduct should have landed him on the Brady list, a record of officers with credibility issues, but it didn't. People are individual officers who have been placed on a list due to honesty, integrity, bias, moral turpitude, excessive force, um, conviction of crimes or committing crimes. And in 2016, based solely on Armor's word, you never ended up testing that pipe, did you? Did I? No. No. You never ended up fingerprinting that pipe, did you? No. You didn't test Miss Salazar's blood, did you? No. Or her urine? No. Or perform a drug recognition analysis on her, did you? No. And you don't know if she was under the influence of drugs at that time, do you? No. And she admitted it was hers and that she knew that it was inside the pipe. She admitted that the pipe with the crack of in it was hers. Yes. That's your testimony. Yes. Francis was convicted of two felonies. Have an officer who got on the stand and told you I said I'll take responsibility for her. That's it. End of inquiry. And with nothing but the lying cop's word, do find the defendant as to count two guilty. Francis was sentenced to six years in prison. It was devastating. It was It was worse than a nightmare. While Francis sat in prison, officer Armor was accused of sex assaulting a woman during a traffic stop. We obtained this internal memo showing Armor was accused of assault before in 2010 by a fellow Phoenix officer. She claimed after drinking she woke up after a party at a friend's house with Armor having with her. The victim did not want a criminal case. Phoenix documented the claim. No charges were brought. 6 months after Francis was sentenced, the Maricopa County Attorney's Office quietly filed a vague one-s sentence note in her case docket. So they stuck information about his untruthfulness, his dishonesty, his lying in an out dead old case file after the trial is over without telling anybody. Yeah. And and not even that. They didn't even put his conduct or his his untruthful acts in the court file. It was just a notice of disclosure. When presented with the concealed misconduct and the late disclosure, the trial judge ordered a new trial, finding that the information should have been disclosed before trial because it directly impacted Officer Armor's credibility. And once the new trial was granted, the Maricopa County Attorney's Office dropped the charges entirely. Francis was released from prison after serving nearly 22 months. Oh, I love you guys. come here. But despite the growing list of complaints and lawsuits, Armor wasn't fired. Instead, he was allowed to quietly retire, allowing him to leave the force without accountability and with benefits. And while Armor may be retired, there are two active lawsuits against him. One for an alleged sex assault allegation that's up on appeal, another for an alleged false arrest. In 2019, Francis filed a federal lawsuit against the city of Phoenix and the Maricopa County Attorney's Office, arguing that the city had violated her constitutional right to due process by failing to disclose Armor's history. The district court agreed, ruling that Phoenix failed to train officers on constitutional disclosure obligations and that officer Armor was not protected by qualified immunity. Phoenix then appealed to the Ninth Circuit Court. My name is Lori Burke. Um, may it please the court. I'm here on behalf of the city of Phoenix and Anthony Armor appellants. Um, I have a tremendous amount of respect for Judge Bolton, but I have to say in in this ruling, she got this wrong. Um, Officer Armor is entitled to qualified immunity on both prongs of the analysis as a matter of law based on the undisputed material facts. At what point was the process I mean, so there's a determination made that's adverse um to him and then there are steps in the process and at the final step he doesn't appeal. When was that process completed? The investigation was complete upon completion of any appeal rights stemming from the disciplinary action that appeal has run. Correct. He he intended to and wanted to but there was apparently misunderstandings of the appeal. He did not appeal. He did not appeal. My colleague's question is, can you give us the date on which he did not appeal? 14 days after November 14th of 2016. So, November 28th, 3 months after the trial of Miss Salazar. What isn't there? Was there some finding before the November 14th disciplinary notice? Yes. So the finding the factual findings were complete in April of 2016. Those are factual findings. And what is the process that occurs between the factual findings in April and the disciplinary notice in uh in November? Um oh I'm I'm sorry. The PSB concluded its investigation in April, but the notice of findings was signed on June 30th of 2016. 30th. Yes. So, I apologize for that mistake. Okay. Um and then following the notice of findings being issued and signed by officer Armor, then it goes to the disciplinary review board. On in September of 2016, the DRB recommended that officer Armor receive an 80our suspension. And that September, you said that's September of 2016. So again, after her trial, the trial was in August August of 2016, at some point some arm of the justice system in Arizona determined that the results of this disciplinary process was Brady material. Correct. At at some point it was determined that it was Brady material. Simple question, simple answer. Yes. Yes. and and uh as a result of that determination, the information was turned over to Salazar's Defense Council. It was turned over by the Professional Standards Bureau of the City of Phoenix. I didn't ask you how to build a clock. It was turned over to the Defense Council. Correct. It was turned over to Defense Council. Yes. But the Defense Council filed a motion for a new trial. Correct. And what was the state's response to that motion? The state did not oppose their request for a new trial. In fact, they joined in not only the determination she was entitled to a new trial, but to issue an exoneration. Correct. She was not exonerated. They dismissed the charges, but she was never determined to be innocent. They just decided not to pursue a new trial. Uh the court granted her a new trial and then the state dismissed the charges. So this is not a case where the defenses to the criminal case is arguing that it should or should not have been Brady material. The state the state itself determined it was Brady material. Correct. And the state is who makes that decision. So, there's a review process once there are sustained findings of misconduct um of a police officer at the city of Phoenix that the responsibility for making a determination as to whether to submit it to the prosecutor for Brady determination is delegated to the Professional Standards Bureau and specifically the lieutenant within the Professional Standards Bureau. That's outlined in the uh bureau manual. When was that? after after the trial. How long after the trial? That was um in December um December 28th. So it was 190 days. November, December September um 120 days approximately. Okay. So meanwhile, Salazar in state prison serving a six-year term. Correct. It was a few weeks after her case where there's a traffic stop and drugs. She's a passenger Salazar, right? In the car. Correct. And drugs were found in the car. And at trial, Armor said she said these were my drugs. Right. Yes. And but there's a disciplinary finding that this particular officer has written false reports. One. Okay. lied to superiors in the same incident. Correct. And made a false arrest. Correct. What explains the delay with someone sitting in prison that the state ultimately determined is entitled to a new trial because the investigatory process has to be completed. Theory process was complete. You just told me after 120 days, right? But in order to bring a civil claim for this Brady violation, there has to be deliberate indifference. And there was no deliberate indifference here. The there was a process in place that was performed exactly how the prosecutor's office had requested and it had always been done. the timing of it. And in 2020, four years later, when the um when the uh county attorney informed the city that they wanted it um to receive disciplinary reports after the findings are complete, it it changed, but there was no deliberate indifference. You ha you have to have that additional element in order to prevail on a section 1983 claim for a Brady violation. It's just not it's not just that there was a Brady violation, but but the Brady violation there was no Brady violation by officer Armor because the responsibility for making this type of disclosure was delegated to the Professional Standards Bureau. When did the prosecutor in the Salazar drug case become aware of this material? in um January of 2017 when Officer Armor was added to the uh Brady list. And this is when the prosecutor asked the city of Phoenix to produce the information. No, it was a few years later that a different person within the city of Phoenix, I'm sorry, within the county attorney's office said, "We'd like to start getting these um findings of misconduct once the facts are final," which is um when the um findings are signed, notice of findings are issued and signed and the notice of findings was signed when in this case it was signed in June of 2016, June 30th of 2016. But that's in advance of the trial. That is correct. But but back at this time and consistent with the Arizona Peace Officers Bill of Rights, the investigation wasn't considered final until the whole disciplinary process had been completed. And so it was promptly provided to the county attorney's office once that process was completed. Can a state statute like the Arizona Police Officers Bill of Rights override Brady responsibilities? No. But it can create a basis for um finding that qualified immunity applies. Would it be reasonable to every police officer that or or would would every reasonable police officer believe that he or she had a responsibility to disclose a finding a misconduct prior to I don't think any part of the claims here are addressed to officer armor personally or in his capacity as Phoenix Police Department officer. They're aimed at the prosecutor, the city of Phoenix, etc. And why something so that the state state ultimately found so convincingly Brady material that they agreed that Salazar was entitled to a new trial. Count one is a section 1983 claim against Anthony Armor in his individual capacity. So plainif is claiming that officer armor wrongfully failed to disclose the report of misconduct to the county attorney and that has been delegated. There's no clearly established law um that the court addressed the the clearly established prong at much too high of a level of generality. The court did not site a single case involving police officer misconduct, the timing of disclosure of reports of police officer misconduct, and so how would a reasonable police officer know that there was a requirement to disclose it at any earlier time? There was no law to put officers on notice. This is how if the court disagrees with you on the uh Brady violation and affirms the district court, then the u the court here has to affirm on the Monell decision. Correct. And conversely, if we agree with you, that eliminates any possibility of bringing a a Monell claim or or the court I if the court affirms on the Brady violation, then the court should decline jurisdiction to rule on pendant jurisdiction to rule on the associated manel claim. Both go back then, right? Okay. Do you want to save time for I would like to. Yes. Thank you. All right. Then we'll hear uh next from Mr. Rundle. Good morning, your honors. May it please the court Benjamin Rundle for Appel Francis Salazar. Your honors, Judge Bolton correctly determined Miss Salazar, a grandmother who spent two years in prison because of a dishonest officer's suppression of impeachment material, presented genuine issues issues of fact for trial as to both of her claims. Accordingly, this court should affirm the district court's denial of summary judgment for two reasons. First, appellants arguments go beyond a question of law and inappropriately challenge the sufficiency of plaintiff's evidence, which is not reviewable by this court pursuant to Johnson v. Jones. But even if the issue were properly before the panel, the record below supports a triable issue. the City of Phoenix Police Department's lack of training and supervision was at the heart of Miss Salazar's constitutional deprivation and that officer Armor acted in reckless disregard of Miss Salazar's right to a fair trial. We have jurisdiction over the Minnell piece of this. I mean the interlocatory review of a denial of emotional summary judgement is tied to qualified immunity and maybe any issues that are inextricably intertwined. But I don't see how Monell issues um you know apart from the common issue of of liability any further issues about policy would be reviewable. Your honor, I I think that's correct. And here I would just point back to the district's court's order which said when reviewing the record in Salazar's favor, there are questions of fact whether the PPD made a deliberate or conscious choice. So I think in terms of reviewing the order and looking clearly at Johnson v Jones for the Minnell issue specifically, where is the neat issue of law? I'm going to quote from Johnson if I may on it. A defendant entitled to invoke a qualified immunity defense may not appeal a district court summary judgement order in so far as that order determines whether or not the pre-trial record sets forth a genuine issue of material fact. Well, it doesn't mean Johnson does not mean that if the district court says that there is a material issue of fact that therefore the order isn't reviewable. It means that you can't appeal it on challenging that particular ground. But there are plenty of cases where even though that is said, we can nonetheless address the legal issue whether taking the facts in the light most favorable and assuming the disputed issue of fact is resolved in favor of the appe was there nonetheless qualified immunity. So I I Johnson isn't as big an obstacle to asserting review in these cases as I think you're contending it is. Judge Collins, I would agree with that assessment and I would say that even if we turn to the Minnell claim, I think that the disputed material facts here do weigh to whether or not a jury or or a trial a a jury could find that the city acted with deliberate indifference. And if I may, but but you know, the qualified immunity is with respect to armor. And so I don't see how those issues really overlap with anything with the Monell. So I it seems to me that there's no jurisdiction, but it's not because of Johnson. It's just because denials of of summary judgement to cities in 1983 cases are not appealable because it's based on qualified immunity and qualified immunity doesn't apply to the city. That's correct, your honor. We would absolutely agree with that that um interpretation and I think moving your honor to clearly established um with respect to armor. Now, with respect to armor, your honor, I mean, the the problem there is, you know, we're not talking about something like he, you know, there was a um a confession from another person that he hid or there was a fingerprint of another person and he filed it away in the wrong drawer. something that's obviously what we have is his own conduct which he you know at some level has disputed and a finding is made in the course of a process. So what's the clearly established law that says that at the first point in the process that there's something negative? It's Brady as opposed to it's Brady at the end of the process when the you know the initial factf finding has been reviewed and now it's settled. What's the clearly established law that that says that the first instant then it's breaking? Your honor, in terms of looking to what is a clearly established law, I think we should turn to this court's opinions in Coreo and Tennyson. And Judge Collins, you appropriately identified the fact patterns in those two cases. But I think just like those cases and looking at the record in the light most favorable to plaintiff, we know that as early as June 27th, 2016, which is or 2015, which is a couple months before Miss Salazar's criminal trial, that the final factual invest uh investigation has been completed for this professional standards bureau report. That means that those findings can't be changed. You can look at Commander Collins testimony on that. He's the former professional head of the professional standard. The disciplinary review board that then goes through this before it could be appealed. They can't change, set aside or vacate those findings, according to Commander Collins. No, your honor. And so I think that's a key point of distinction between plaintiff's position and the defendants's position here. Once that factual finding is made by investigators at the Professional Standards Bureau, that's a final factual determination. Now, there's a few. So, what's the point of the appeal? If the facts are final and can't be set aside and challenged, what what are the other layers of review for? Certainly, your honor. So, a the professional standards bureau for the city of Phoenix doesn't make disciplinary findings. They make factual conclusions and they determine whether or not the policies have been violated or an officer has done something wrong. Discipline is actually held by the chief of police. There is a disciplinary review board which the chief of police uses. But the disciplinary review board is a separate pos uh process. So whether or not an officer has violated policy that's already been determined by the professional standards bureau. The chief of police and the then determines what discipline if any discipline um should relate back to the misconduct and an officer has the inability to appeal the discipline. For example, let's say that they violated policy and were terminated. Maybe the disciplinary review board disagrees the termination was the appropriate discipline for the misconduct. But there wouldn't be a question, your honor, as to whether or not misconduct occurred. And I think that that's that's a key fact here in this case is that as of June, so we're talking months before Miss Salazar's trial, Officer Armor knew that those factual findings had been confirmed by the PSV, meaning that those factual determinations were not going to change in a disciplinary review process. Do we have to determine to support what what you're arguing right now that officer armor had a personal responsibility to disclose the disciplinary findings? No, your honor, the test under clearly establishes objective. It's not a subject of inquiry that looks at officer armor's state of mind. In fact, if we look at Coreo, Curio says, "Are the facts sufficiently clear that every reasonable official would have understood that what he is doing violates that right?" Um, if we look back at Judge Bolton's order, she appropriately determined that there can be um an inference made that officer Armor, being a 12-year veteran of the city of Phoenix Police Department, that any official in his position would know that misconduct going to his dishonesty before he testifies as, and I think this is critical as well, your honors, the key witness in a criminal trial should have turned that information over at some point before the trial. And if I might, your honors, I would like to uh quote to Tennyson, and I think Tennyson makes clear in thinking about this situation, when should impeachment material be turned over? Well, that might be uh difficult to discern, but clearly it should be turned over at a time when it's of use to the criminal defendant. here. Um, as the city concedes, uh, Miss Alazar did not have this material prior to trial and it was little use to her because she didn't have it at trial. So, going back to this objective test, I would I would also say that this court is confirmed in decision after decision like Coreo and Tennyson that the right to impeachment material as required by Brady is clearly established and has been since at least 1984. Um that's because for the legal principle to be clearly established, it is not necessary that the very action in question has previously been held unlawful, but rather that in the light of pre-existing precedent that the unlawfulness is apparent. Um can I ask another question about this process? Yes. So when he is served with the disciplinary notice in November, if he had appealed, what exactly would have been the process and would that process have been able to set aside the June factual findings? Your honor, I I don't work at the City of Phoenix Police Department, but I've learned a lot about the City of Phoenix Police Department through this case, and I can tell you that it's my understanding that it did in my depositions of chief of uh Chief Williams at the time and of Commander Collins, who was the PSV commander, that a disciplinary review board for the city of Phoenix cannot change factual findings in a PSV. I'm not talking about the disciplinary review board because that's, as I understand it, the part in in September. So when he's served, it's gone through the disciplinary review board. Um, and then the disciplinary notice is served in November. And then he had 14 days to appeal, which he didn't. If he had filed that appeal, could he then have challenged in that appeal the factual findings in June? It's my understanding that he couldn't. He could only challenge the discipline that was merited out as a result of the misconduct. Where would he have been appealing to? Uh, your honor, he would have been appealing to that disciplinary review board panel in that had now I'm very confused because I thought it the fact the findings are made, it goes to the disciplinary review board and then they issue the notice and then he appeals back to the board. So your honor, breaking it down, the PSB investigation, there's a final determination by PSB, correct? After that, discipline is determined by the chief of police, though sometimes that's delegated to other levels of command within the city of Phoenix Police Department. Once discipline is issued, Officer Armor can appeal, and I'm assuming, well, based on the record, he can appeal to a board, but he's appealing the discipline found by that higher chain of command. It's very possible, your honor, that someone could be found to have engaged in misconduct in a PSB investigation, but not be disciplined. And in fact, that has happened previously. If we look at this case in in the, you know, the record in this case, this isn't the first time that there are allegations of misconduct against officer armor. This is the first time that allegations of officer misconduct resulted in discipline. Your honors, I want to go back briefly to the MCAO letter and talk about that. Um, first off, in terms of MCAO setting policy, that's in contradiction um with uh Chief Williams own deposition testimony uh which confirms that she sets PPD policy and that she's also um responsible for implementing training. Is the county uh Maricopa County a party? Your honor, they are not a party. They were dismissed [Music] by voluntary agreement or No, they were dismissed on a motion to dismiss, your honor. You're not appealing that obviously. I'm not appealing that finding by Judge Bolton. No. So, the the only Monell theory is a training theory. It's not that the official policies to to delay the communication are themselves. What causes the constitutional violation? Initially, your honor, we had pled of those theories. The theory that Judge Bolton has allowed and said that there are material fact disputes worthy of going to trial on the failure to train. And that was a result of finding that it's a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations as this court noted in Long Beach County of Los Angeles. Okay. So, the other theory was dismissed and you know that's something you could review if and this ever goes to a final judgment. Correct, your honor. Um, going back briefly though, we talked about the Maricopa County Attorney's Office involvement um in professional standards and and I want to point out this is supplemental record at 150. This is the letter from Maricopa County Attorney's Office on June 20th, 2014 to PPD reminding them of their Brady disclosure obligations. So, I just want to clarify that it's not a letter that happened in 2020. The letter in 2020 from MCAO mirrors a letter that they've sent uh back in June on June 20th, 2014. Um, your honors, I see that my time is winding down here, so I will close. Miss Salazar's right to a fair trial by receiving impeachment material was clearly established at the time officer Armor suppressed the PSB report. Moreover, there is no need issue of law for this court, and the Menel claim should not be reviewed at this time. Accordingly, Appelli Francis Salazar respectfully asks this court to uphold the district court's denial of summary judgment. Thank you, your honors. All right. Thank you, council. We hear rebuttal now. So, can you address this issue about um whether the factual findings could have been overturned after they were issued in June by any of the remaining phases of the process. Assistant Chief Cullen's testimony was that they cannot that they cannot correct. So well I mean that and even if he had taken an appeal in November to whom would the appeal have been the civil service board and would they they have been able to overturn those findings? It's my understanding that they can they have the authority to do that but looking at the record that John Assistant Chief Cullen's testimony was that the factual findings will not be disturbed. Well, if the factual findings can't be disturbed, it's it's hard to see how the rest of the process is very relevant because it's the fact that is the Brady material and not whether he's going to get any particular punishment for it. Right. And that's why I think the county attorney's office subsequently instructed the city to make the disclosure at an earlier time once the findings are complete. But the clearly established doesn't go just to the timing issue. But it's it's one thing to say it's not clearly established if the facts are not are potentially up in in the air and the issue is it clearly established that the initial facts need to be disclosed. But if the facts are done and the facts are that he lied and he lied a lot, then I don't see why any of the rest of the process is terribly relevant. And it's pretty clear that someone who lies and then gets on the stand that that's Brady Jigglio is to that person. He disputes that he lied. I know, but the factual findings were made and you've now reviewed. I understand that, but that's one of the benefits to the municipality making the disclosures instead of leaving that to the officers. Police officers aren't lawyers. Police officers have different skill sets. And so, the responsibility for making these disclosures has been delegated. It's been taken off of the officer's plate and delegated to a a department within the police department, which is how it's done all over the country that is unrefuted. Their expert did an expert disclosure or I'm sorry, a rebuttal disclosure and did not refute that in our experts report that this is the common practice. And if you look at the letter that Mr. Rundle was discussing. It's exhibit 41 to the Miss Salazar's statement of facts. The letter from the county attorney dated June 20th, 2014 reminding of the um uh disclosure obligations under Brady states that it reminds all departments, I'm sorry, we are requesting all police agency to notify us of adverse findings, not police officers. The police officers never got this letter. There's no evidence officer armor ever got this letter. That's because the responsibility lies with the professional standards bureau. That is what it is not clearly established that a police officer has to personally make this disclosure of sustained findings of misconduct where that has been delegated to a specific department within the police department. I if if a police officer could be held liable in this case, you're going to you would have thousands of cases. let you go over. I think we we have your argument and I appreciate the arguments of both council this morning in the case of Salazar versus Phoenix will be submitted for decision in March 2024 just before a ruling could be issued by the Ninth Circuit. The city agreed to settle the case. Francis received $650,000 after spending nearly 2 years of her life in prison for a crime she insists she didn't commit. With a quick vote, Phoenix City Council ending a major lawsuit. A $650,000 settlement now going to Francis Salazar. She's a grandmother who spent nearly 2 years in prison, wrongfully convicted because police hid their officers history of lying. The now disgraced ex officer Armor still receives benefits. And the city settled the lawsuit using your tax dollars and an insurance policy that is also paid for by your tax dollars. As usual, the combination of indemnification and qualified immunity continue to create a system void of consequence, and the taxpayers are the only ones to pay for the crimes of the state. [Music] [Music]