PHOENIX — An attorney for the City of Phoenix told a panel of federal appellate judges that an officer with a history of dishonesty should be immune from civil liability for failing to disclose his past lies before he testified in court.
The argument was made before the U.S. Ninth Circuit Court of Appeals on Monday in the case of Salazar v. City of Phoenix.
The city had appealed a pre-trial decision made by Judge Susan Bolton, who denied qualified immunity to now-retired Officer Anthony Armour and also ruled that Phoenix failed to train officers about a basic constitutional requirement.
“I have a tremendous amount of respect for Judge Bolton,” said Lori Berke, an outside attorney hired by Phoenix. “But I have to say in this ruling… she got this wrong.”
Bolton’s previous ruling against Phoenix was damning.
She found former Phoenix Chief Jeri Williams lacked a basic understanding of her department’s constitutional duty to release “Brady” material.
“In sum, the evidence shows that there is little, if any, training provided by the PPD regarding Brady requirements,” Bolton wrote. “Deposition testimony showing that a veteran police officer and the Chief of Police exhibit little understanding of officers’ obligations under Brady supports that there is a lack of training about Brady requirements.”
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The ruling was made in a lawsuit filed by a woman named Frances Salazar.
She was wrongfully convicted in August 2016 and spent nearly two years in prison because evidence of her arresting officer’s history of dishonesty was never disclosed before trial.
Bolton’s order means Salazar’s case will go to trial unless Phoenix settles or the Ninth Circuit overturns her decision.
“When viewing the record in Salazar’s favor, there are questions of fact whether the PPD made a deliberate or conscious choice not to train officers about Brady requirements, and whether the unconstitutional consequences of that failure to train are patently obvious,” Bolton wrote.
In 1963, the U.S. Supreme Court in Brady v. Maryland ruled that police and prosecutors cannot withhold exculpatory evidence, including past cases of dishonesty and other misconduct by officers.
That evidence is known as “Brady” material.
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“It would not be unreasonable for a jury to conclude that Salazar’s injury and her 22-month confinement would have been avoided if PPD had implemented proper training and supervision regarding police officers’ obligations under Brady,” Bolton wrote.
Berke argued to the Ninth Circuit panel that it wasn’t Armour’s responsibility to report his own history of dishonesty. Rather, that’s the responsibility of the police department.
But Berke further argued the city also didn’t violate Salazar’s right to a fair trial because of internal policies that outline its timeline for internal investigations.
Records show Armour was accused of falsely arresting a different woman in November 2015 and lying to his supervisors about it.
The internal investigation was completed in April 2016.
But the city didn’t finalize an 80-hour suspension against Armour until November 2016, which was several months after Salazar’s trial in August of that year.
Berke said the city doesn’t consider an internal investigation to be complete until after the discipline is finalized even though the facts and findings are concluded months earlier.
The appellate panel of judges sharply questioned that argument.
“The facts are done. And if the facts are that he lied and he lied a lot, then I don’t see why the rest of the process is terribly relevant,” said Judge Daniel Collins. “It’s pretty clear that someone who lies and gets on the stand, then that’s Brady to that person.”
A decision on the city’s appeal is likely several weeks away.
Contact ABC15 Chief Investigator Dave Biscobing at Dave@ABC15.com.
