En Banc Appeal

Case: 13-15209, 05/15/2015, ID: 9539703, DktEntry: 51, Page 1 of 32
No. 13-15209
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
GLENN SCOTTI,
Plaintiff - Appellant,
vs.
City of Phoenix, et al.,
Defendants - Appellees.
PLAINTIFF-APPELLANTS PETITION FOR REHEARING EN BANC
On Appeal from the Decision of the United States District Court

for the District of Arizona, Case No. CV 09-1264-PHX-TMB
The Honorable Timothy Burgess
John Houston Scott (SBN 72578)

Lizabeth N. de Vries (SBN 227215)
SCOTT LAW FIRM
1388 Sutter Street, Suite 715
San Francisco, California 94109
Telephone: (415) 561-9600
Facsimile: (415) 561-9609
Attorneys for Plaintiff-Appellant

Glenn Scotti
TABLE OF CONTENTS
INTRODUCTION AND RULE 35(B) STATEMENT ............................................................. 1
STATEMENT OF FACTS & PROCEDURAL HISTORY ....................................................... 3
I BACKGROUND INFORMATION ON GLENN SCOTTI AND MARY

FREUND ..................................................................................................3
a. Glenn Scotti was a private investigator who created a

website .............................................................................................3
b. Rehkow hired Scotti to perform private-investigation services

relating to his custody battle with ex-wife, Lewis ........................... 4
II. ON MARCH 22, 2007 MARY FREUND SHUT DOWN SCOTTIS ................ 5
III. FREUND FABRICATED EVIDENCE IN HER MAY 29, 2007 AFFIDAVIT ...... 5
IV. THE SOURCE OF PROBABLE-CAUSE EVIDENCE YIELDED FROM THE

SEARCH WARRANT WAS DOCUMENTS FROM THE WEBSITES. ............... 7
V. ON JUNE 7, 2007, FREUND CONFIRMED HER CONTENTIONS ABOUT

SANDRA GRAY WERE FALSE BUT SHE DID NOT NOTHING ABOUT IT .... 8
VI. ON JUNE 12, 2007 A GRAND JURY INDICTED SCOTTI AS AN

ACCOMPLICE TO CRIMINAL STALKING................................................... 9
VII. ON AUGUST 5, 2008, THE CRIMINAL COURT TOSSED SCOTTIS

INDICTMENT FOR WANT OF PROBABLE CAUSE ...................................10
PETITION FOR REHEARING EN BANC ........................................................................11
I. TO PROVE MALICIOUS PROSECUTION FOR ABETTING FOR

STALKING IN ARIZONA REQUIRES PLAINTIFF DEMONSTRATE NO
PROBABLE CAUSE ................................................................................11
i
Table of Contents Contd
II. THE MAJORITYS HOLDING FAILED TO CONSIDER THE SOURCE

OF SO-CALLED INDEPENDENT EVIDENCE TO ESTABLISH
PROBABLE CAUSE ................................................................................13
III. THE MAJORITYS HOLDING RAISES THE QUESTION OF WHERE TO

DRAW THE LINE BETWEEN PRIVATE INVESTIGATIONS AND
ACCOMPLICE STALKING .......................................................................15
CONCLUSION .............................................................................................................15
ii
TABLE OF AUTHORITIES
CASES
Alpha Energy Savers, Incorporated v. Hansen, 381 F.3d 917 (9th Cir. 2004) ....... 11
Awabdy v. City of Adelanto, 368 F.3d 1062 (9th Cir. 2004) ...................................11
Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008) .............................................11
Carroll v. Kalar, 112 Ariz. 595 (1976)....................................................................13
Freeman v. City of Santa Ana, 68 F.3d 1180 (9th Cir.1995)...................................11
Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002) .......................11
Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. Fla. 2004)...........................15
Murphy v. Russell, 40 Ariz. 109, 9 P.2d 1020 (1932) .............................................13
Nastal v. Henderson and Assocs. Investigations, Inc., 471 Mich.

712 (Mich. 2005).................................................................................................15
Poppell v. City of San Diego, 149 F.3d 951 (9th Cir. 1998) ...................................11
Sarwark Motor Sales, Incorporated v. Woolridge, 88 Ariz. 173,

354 P.2d 34 (1960) ..............................................................................................13
Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006) ..............................11
Smith v. Almada, 640 F.3d 931 (9th Cir. Cal. 2011) ..............................................14
STATUTES
A.R.S. 13-301..................................................................................................10, 12
A.R.S. 13-303..................................................................................................10, 12
A.R.S. 13-304........................................................................................................10
iii
Table of Authorities Contd
A.R.S. 13-702.01...................................................................................................10
A.R.S. 13-801........................................................................................................10
A.R.S. 13-2923................................................................................................10, 13
OTHER AUTHORITIES
RAJI (Criminal) 3d 29.23 ........................................................................................13
iv
INTRODUCTION AND RULE 35(B) STATEMENT
This is a case about a City of Phoenix Department Detective Mary Freund
who fabricated evidence to maliciously prosecute private investigator Glenn Scotti
for routine private-investigation services. Defendant Freund caused plaintiff Scotti
to be prosecuted for stalking the ex-wife of his client in a hotly contested divorce
and custody battle. This request is only as to Freund.
On June 12, 2007 a grand jury indicted Scotti for aiding and abetting
Andrew Rehkow to stalk his ex-wife, Kimberly Lewis. On August 5, 2008, the
state court determined the grand jurys indictment was invalid because probable
cause was based on Freunds false and fabricated evidence about (1) a doctor
who allegedly examined Rehkow and found he was psychotic, delusional and
likely to kill Lewis but was really a polygrapher who never said anything close
to those statements; and, (2) a non-existent family-court order precluding Rehkow
from hiring a private investigator. The only evidence that was not exclusively
reliant on Freunds credibility related to Scottis role in hosting websites (Black
Robes) which posted content that was critical of the Maricopa County Family
Court and Freund personally as an investigator to that court.
Scotti sued Freund and others in federal court alleging malicious prosecution
and retaliation in a Section 1983 civil-rights lawsuit. No one deposed Kimberly
Lewis. Accordingly, the record relating to her statements is entirely hearsay.
1
Fruends allegations are the primary factual basis supporting probable cause. As
noted by the majority, there are serious concerns in this record about her veracity.
We are concerned about some of Detective Freunds actions and the overall poor
quality of police work which produced misleading and, in some cases, outright
false statements to Scottis prosecutors. Memorandum at p. 2.
The district court granted summary judgment in favor of Freund based on
probable cause without considering the fact that Scottis protected conducthis
First Amendment protected criticisms of Freundwas the only evidence which
established probable cause on summary judgment in this record. The district court
did not explain how it reached the conclusion that the totality of evidence was
sufficient to believe that Scotti aided Rehkow in his felony stalking of Lewis.
Nowhere in the district courts decision is there an explanation or analysis of how
the credible evidence presented would establish Scotti specifically intended to
cause a reasonable person to fear the death of Kimberly Lewis.
Scotti appealed the order. The Ninth Circuit panel issued a Memorandum on
May 1, 2015 which was split two to one. The majority relied exclusively on
Freunds police reports, despite objections to that evidence in the record, to hold
that probable cause based on additional evidence that came exclusively from
Freund, after excising her fraudulent and fabricated statements.
2
Under Federal Rule of Civil Procedure 35(b), this case is one of exceptional
importance for two reasons.
First, the majority incorrectly held probable cause was established based on
Detective Freunds otherwise unsupported hearsay evidencestatements by the
ex-wife, Kimberly Lewiswho was never deposed and submitted no declaration.
As noted by the Dissenting Circuit Judge Watford, on summary judgment Freunds
credibility cut against believing her otherwise unsupported statements.
[T]he existence of probable cause turns on statements Lewis allegedly made

to Freund. The problem here is that during the course of discovery, Freund
never deposed Lewis, so we dont know whether Lewis in fact made the
statements attributed to her. On the current record, a jury would have to take
Freunds word for it that Lewis actually made the statements recounted in
Freunds report. Because Scotti has already shown that Freund falsely
represented the statements Dr. Gray supposedly made, I think a reasonable
jury could harbor serious doubts about whether Freund truthfully represented
the statements Lewis supposedly made as well.
Memorandum, Dkt. 48-1, filed May 1, 2015, dissent.
Second, this case raises the question of where to draw the line between
lawful private-investigation services and criminal stalking.
STATEMENT OF FACTS & PROCEDURAL HISTORY
I. BACKGROUND INFORMATION ON GLENN SCOTTI AND MARY FREUND
a. Glenn Scotti was a private investigator who created a website
Glenn Scotti was a retired probation officer and a licensed private
investigator when he created a website (www.blackrobeaz.com) about perceived
3
injustices within the Maricopa County Superior family-court system. The website
allowed parents to communicate about perceived abuses by the family court
regarding child-custody matters. ( ER 1365 2, ER 608-609 2-5; ER 877).
The website directly and indirectly criticized Mary Freund. Freund and her
co-worker, David Sampson, were in charge of the Phoenix Police Department
Family Investigation Bureau's Threat Management Team. She was the lead
investigator in the custody battle between William Rehkow and his ex-wife
Kimberly Lewis. The website included Rehkows commentary on the Rehkow-
Lewis case. (ER 608-610; ER 1438: 4-15; ER 615-618; ER 876-902). Most of the
content from BlackrobeAZ was uploaded to BlackrobeARIZONAthey were both
intended to be the peoples websites for contested custody disputes. (ER 673: 10-
20, ER 674:16-19, ER 677:13-15, ER 679:15-18, ER 680:1-3, 681:3-5).
b. Rehkow hired Scotti to perform private-investigation services

relating to his custody battle with ex-wife, Lewis
In approximately 2003 William Rehkow hired Scotti to perform private-
investigation services relating to his custody battle against his ex-wife, Kimberly
Lewis. (Search Warrant at ER 1365 2, ER 608 2-3; ER 609 7, ER 1544). For
reasons that were unclear to Rehkow, Freund regularly attended the Rehkow-Lewis
family-court hearings. On March 3, 2007, Scotti sent an email to Phoenix Police
Chief Jack Harris inquiring why Freund was conducting a criminal investigation
off the clock in the family courts. (ER 127).

4
II. ON MARCH 22, 2007 MARY FREUND SHUT DOWN SCOTTIS WEBSITE
On March 20, 2007, Freund told Scotti that his email triggered her
supervisors scrutiny and affected her credibility with the Chief. Freund also told
Scotti to shut down his website because it contained confidential information
relating to the Rehkow-Lewis matter. Scotti posted information about his
conversation with Freund. (Search Warrant at ER 1365 4, ER 609-610 12-14).
On March 22, 2007, Freund threatened GoDaddy and caused the company to
shut down Scottis website, www.blackrobeaz.com.( ER 610 15 and 17). On or
about May 7, 2007, Freund discovered Scotti created a second website,
(www.blackrobearizona.com), with an additional page criticizing Freund for
violating the First Amendment. Thereafter, she pursued his prosecution. (ER 610
15-16 ; ER 616-618; Search Warrant at ER 1366).
III. FREUND FABRICATED EVIDENCE IN HER MAY 29, 2007 AFFIDAVIT
On May 29, 2007, Freund executed a search warrant and affidavit against
Scotti to seize his property relating to his websites BlackrobeAZ.com and
BlackrobeARIZONA.com alleging Scotti engaged in felony stalking (and
aggravated assault) of Kimberly Lewis between December 18, 2006 and May 27,
2007 (Search Warrant at ER 1360, 1366 2).
In her search-warrant affidavit, Freund misrepresented Dr. Sandra Gray as a
psychologist appointed to evaluate Rehkow five years prior who held the opinion
5
that Rehkow "was psychotic, delusional, on the edge and very likely to kill
Kimberly Lewis" and told her lawyer this to comply with Tarasoff: (ER 1366 6)
Mary Freund knew Sandra Gray was not a psychologist but a polygrapher
who worked with psychologist Dr. Selmi (who had been appointed by the court to
evaluate Rehkow). (ER 1472:7-12; ER 1478:15-21; ER 1480:22-1481:17; ER
1497: 11-1498:17). Critically, Gray never conveyed to Rendler that she had
any concerns about Lewiss safety, rather, she was concerned about her own
safety. (ER 709:1-24; ER 710:18-711:9; Gray interview with Freund at ER 1376-
1395; ER 1563:2-7; ER 1563:18-1564:6; ER 1567:24-1570:1).
Freund also misrepresented that Scotti had violated a court order by
performing private-investigation services for Rehkow. (ER 1364 5 ; ER 1365
2). Freund was very familiar with the Rehkow-Lewis matter prior to May 29,
2007. Although Freund considered whether to generate another report before
Sampson testified to the grand jury to disclose that no such order existed, Freund
forgot about it and moved on. (Compare ER 609 11, 611, 647:11-684:4,
with Search Warrant at ER 1364-65; ER 798-804; ER 1452:23-1453:20; ER
1454:4-7; ER 1455:25-56:16; ER 1457:7-18 ; ER 1458:11-1460:2; ER 1461:13-
1462:15; ER 1462:23-1463:20; ER 1471:3-9; ER 1575:3-8; ER 1576:4-21).
Lewis ran and operated Kimberly Lewis School of Dance. (ER 664:23-ER
665:4) Freund falsely stated that Lewis had seen Scotti outside her dance studio
6
taking pictures of her and felt threatened by him. Freund omitted that Lewis later
admitted the person was doing a photo shoot for her neighbor. Moreover, Freund
knew that Lewis had never seen Scotti prior to his arrest and that she did not fear
him as an individual. (Compare Search Warrant at ER 1367 3-4, with ER 634:11-
636:23; ER 637:4-638:22; ER 651:3-24 ; ER 652:3-22; ER 611 26).
IV. THE SOURCE OF PROBABLE-CAUSE EVIDENCE YIELDED FROM THE

SEARCH WARRANT WAS DOCUMENTS FROM THE WEBSITES.
On May 29, 2007, Freund effected the search warrant of the home of Glenn
Scotti, Susan Stranton, and her five-year old child at 6:47 a.m. Over twenty-five
officers smashed a battering ram into their front door. (ER 610-611 20-23).
Freund seized a honeymoon tape, Nutcracker video and brochure, and trash
recovered from Lewis's dance studio. All were lawfully obtained from the public.
The inadmissible hearsay statements by Freund and Sampson regarding emails
(which were not produced) that mentioned wiretapping were not death threats. (ER
609-610, ER 634-38; ER 641-642; ER 646:7- 647:10; ER 651:3-24; ER 652:3-22;
ER 654:21-25; ER 657-695; ER 623:5-624:2 ; ER 625:22-626:18 ; ER 642:14-16 ;
ER 651-652; ER 654:21-25; ER 1302; ER 1079; ER 1520:5-1521:15; ER 1540:18-
1541:2; ER 1551:3-8; ER 1543:21-25).
The only proof Freund had that Scotti engaged in felony stalking came
from tons of documents about Black Robe Arizona. (ER 1468-1470). But the
websites contained no threats. (ER 623:5-624:2; ER 625:22-626:18; ER 1507:9-

7
20; ER 641:20- 642:8; ER 642:14-16; ER 646:7-647:10; ER 651:3-14 ; ER 652:3-
22 ; ER 654:21-25; ER 610 19). Rather, as stated in Freunds search warrant,
Lewiss concern with the website postings was the effect on her business, and
potential costs associated with going back to family court. (ER 1363-64).
V. ON JUNE 7, 2007, FREUND CONFIRMED HER CONTENTIONS ABOUT

SANDRA GRAY WERE FALSE BUT SHE DID NOT NOTHING ABOUT IT
Freund spoke with Sandra Gray on one occasion, June 7, 2007, in a
telephone conversation which Freund surreptitiously tape-recorded. (ER 1473:7-
11). Freund interviewed Gray because she had to know why she called and issued
basically a Tarasoff warning to Rendler and Lewis. Gray did not say anything
close to the explosive information attributed to Gray, namely that Rehkow was
psychotic, delusional, on the edge, very likely to kill anyone. Gray had never
talked with, seen, or evaluated Rehkow. (ER 1474:1-11, 19-22; ER 1477:12-24;
ER 1482:21-23; ER 1483:19-ER 1484:12; ER 1484:25-ER 1486:1; ER 1487:1-11;
ER 1489:4-ER 1490:25; ER 1498:11-:17, ER 1379:21-23). Grays contact with
Rendler was not to issue a Tarasoff warning. (ER 1488:4-490:25; ER 1375-95).
Yet Freund shamelessly contradicted her previous testimony on summary
judgment. She submitted a declaration that states:
14. Based on Sandra Grays statements and description of Rehkow, I

had no reason to believe that the information provided to me by Lewis
or Rendler was false or inaccurate. In fact, my conversation with Gray
corroborated what they had said. I also still believed that Sandra Gray
8
was a psychologist. Nothing during my conversation led me to believe

otherwise.
15. Between the time I acquired the information regarding Sandra

Gray from Lewis and Rendler on April 23, 2007, and the grand jury
proceedings on June 12, 2007, I did not obtain any information to cast
doubt on its accuracy or truthfulness. At the time of the grand jury
proceeding, I still believed Sandra Gray was a psychologist and that
the statements attributed to her were true and accurate.
Freund Affidavit, e-filed as document 101-2. (Compare ER 1366, with, 1483:19-
1484:12, ER 1376-1395, ER 1043-1049).
Freund concealed material exculpatory information from Sampson, prior to
the grand jury hearing on June 12, 2007, including: (1) the tape or transcript of her
interview with Gray; (2) a supplemental report; and/or (3) the letter and messages
from Rehkow to Gray. (Compare Transcribed 6/7/07 Gray Interview at ER
1379:21-23, with ER 627:8-22; ER 628:5-12; ER 821-824: ER 1472:7-22; ER
1381:17-1382:13; ER 1474:11-11, 19-22; ER 1475:17-1476:17; ER 1477:12-24 ;
ER 1478:15-21 ; ER 1481:1-17 ; ER 1482:21-23; ER 1483:19-1484:12 ; ER
1484:25-1486:1; ER 1487:1-11; ER 1488:4-1490:25; ER 1491:18-1494:7; ER
1495:3-1497:10; ER 1497:11-1498:17; ER 1497:25-1498:4).
VI. ON JUNE 12, 2007 A GRAND JURY INDICTED SCOTTI AS AN

ACCOMPLICE TO CRIMINAL STALKING
Freunds partner, David Sampson, presented the false information provided
by Freund to the grand jury (ER 1513-1550). Sampsons source for this false
evidence was Freund. (Compare ER 634:11- 636:23 ; ER 637:4- 638:22 ; ER

9
641:20- 642:8; ER 642:14-16; ER 646:7-647:10; ER 651:3-24; ER 652:3-22; ER
654:21-25; ER 609 8-9, with ER 657-695; ER 654:21- 655:16).
On June 12, 2007, the grand jury indicted Scotti on one count of felony
stalking. (ER 1515:1-3, and 6-6; ER 1408-1410). The indictment alleges Scotti
engaged in a course of conduct intending or knowing his conduct would cause a
reasonable person to fear the death of KIMBERLY LEWIS or her immediate
family member, in violation of A.R.S. 13-2923, 13-301, 13-303, 13-304, 13-
701, 13-702.01, and 13-801. (ER 1409).
VII. ON AUGUST 5, 2008, THE CRIMINAL COURT TOSSED SCOTTIS

INDICTMENT FOR WANT OF PROBABLE CAUSE
On August 8, 2008, the criminal state court issued an order remanding the
matter to the grand jury. (ER 1551-57).
The parties agree regarding some of the evidence presented to the grand jury
was false. Specifically, the grand jurors were told that Sandra Gray was a
psychologist who had been appointed to conduct a psychosexual evaluation
of Defendant Rehkow. That information was incorrect in many regards.
Sandra Gray was not a psychologist and therefore had never been
appointed to make such an evaluation. . . . To compound the error, the
grand jurors were told that Dr. Gray had contacted the victim to advise
her that it was Dr. Grays professional opinion that Defendant Rehkow
was psychotic, delusional, on the edge, and very likely to kill her. . . .
The opinion subscribed to Dr. Gray appears to be false as well.
....
The admitted false information presented is more than sufficient to call into
question how the grand jurors viewed the evidence presented. To the grand
jurors, the State had evidence of a trained psychologist that had
examined Defendant and determined that he was psychotic, delusional
and very likely to kill the victim. This was not correct. It is hard to
10
fathom how such evidence did not color how the grand jurors viewed all
of the other evidence presented to it.
(Ruling dated August 5, 2008 page 2-3, ER 1553-1554). (emphasis in original but
bold emphasis added).
The criminal courts order also turned on false testimony regarding a
nonexistent order precluding Rehkow from hiring licensed investigator Scotti to
conduct private-investigation services:
The parties likewise to [sic.] not dispute that the grand jurors were informed
that there was a specific order prohibiting Defendant Rehkow from hiring a
private investigator to monitor the victim in the family court proceeding.
That is not correct; there is no record of such an order. The grand jurors
were understandably perplexed regarding why Defendant Rehkow
would violate such an order in hiring Defendant Scotti. . Likewise, the
grand jury heard that Defendants actions directly violated a previous
court order. Again, this information was not correct and severely
undermines the fairness of the proceedings. Id.
(Id.) On December 18, 2008, the criminal case against Scotti was dismissed.
(Dismissal, ER 1556-1557).
PETITION FOR REHEARING EN BANC
I. TO PROVE MALICIOUS PROSECUTION FOR ABETTING FOR STALKING

IN ARIZONA REQUIRES PLAINTIFF DEMONSTRATE NO PROBABLE
CAUSE
The elements of a malicious prosecution claim under Section1983 are: (i)
tortious conduct under the elements of state law, and (ii) intent to deprive the
individual of a constitutional right. Poppell v. City of San Diego, 149 F.3d 951, 961
(9th Cir. 1998); Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995).
11
Malicious-prosecution actions may be brought against other persons who have
wrongfully caused the charges to be filed. Awabdy v. City of Adelanto, 368 F.3d
1062, 1066 (9th Cir. 2004); Galbraith v. County of Santa Clara, 307 F.3d 1119,
1126-27 (9th Cir.2002).
Freunds prosecution was in retaliation of Scottis First Amendment rights.
Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006). Speech
critical of the government is protected if it is a matter of public concern. Alpha
Energy Savers, Inc. v. Hansen, 381 F.3d 917, 925 (9th Cir. 2004). As noted by the
dissent: [M]aliciously prosecuting someone for exercising their First Amendment
rights violated clearly established law at the time Freund drafted her report. See
Beck v. City of Upland, 527 F.3d 853, 861 n.7, 871 (9th Cir. 2008).
Arizona's accomplice statute defines "accomplice" as any person "who with
the intent to promote or facilitate the commission of an offense . . . aids, counsels,
agrees to aid or attempts to aid another person in planning or committing the
offense." Ariz. Revised Statutes Sections 13-301, and 13-303. The crime of
stalking requires proof that the defendant:
1. knowingly or intentionally engaged in a course of conduct that was

directed toward another person; and
2. that conduct:
a. would cause a reasonable person to fear for the death of that person
or that person's immediate family; and
b. that person in fact feared for the death of that person or that
person's immediate family.
12
"Course of conduct" means maintaining visual or physical proximity to a

specific person or directing verbal, written or other threats, whether express
or implied, to a specific person on two or more occasions over a period of
time, however short, but does not include constitutionally-protected activity.
"Immediate family member" means a spouse, parent, child, or sibling or any

other person who regularly resides in a person's household or resided in a
person's household within the past six months.
RAJI (Criminal) 3d 29.23 (modified); see also, A.R.S. 13-2923.
II. THE MAJORITYS HOLDING FAILED TO CONSIDER THE SOURCE OF SO-

CALLED INDEPENDENT EVIDENCE TO ESTABLISH PROBABLE CAUSE
Whether a given set of facts constitutes probable cause is a question of law;
the function of the jury is to determine what facts are if the facts are conflicting.
Sarwark Motor Sales, Inc. v. Woolridge, 88 Ariz. 173, 354 P.2d 34 (1960); Murphy
v. Russell, 40 Ariz. 109, 9 P.2d 1020 (1932). Whether the facts in a particular case
are sufficient is determined by a reasonable man test. "[U]pon the appearances
presented o the defendant, would a reasonably prudent man have instituted or
continued the proceeding?" McClinton, 76 Ariz. at 367; see also, Carroll v. Kalar,
112 Ariz. 595, 596 (1976). If from one set of facts the conclusion can be inferred
that probable cause exists, and from another that it does not, it is for the jury to
determine the true state of facts. Carroll, 112 Ariz. at 598-599.
As noted in the majoritys portion of the Memorandum, the independent
evidence all comes from Freunds police reports: (1) Lewis said Rehkows conduct
caused her to fear her life; (2) Rehkow and Lewis endured a protracted and ugly
13
divorce battle; (3) Rehkow hired a private investigator; (4) Rehkow posted
information about the divorce on Scottis websites; (5) Scotti took photographs of
the family (to prove the mother was not using the fathers last name); (6) Lewis
believed Rehkow was responsible for property damage to home, vehicles, and dog;
(7) Scottis home had public information including Lewiss trash, data about
officers and judges, a sexually explicit honeymoon video, and emails between
Rehkow and Scotti. Any allegation of wiretapping is unfounded and not in this
record. Memorandum at pp.s. 4-5. Absent a court order precluding Rehkow from
hiring a private investigator, nothing generically about this list is beyond the scope
of a private investigators usual activities. Collectively, it does not rise to stalking
because the source of the hearsay is not credible. Scotti objected in this record at
ER 564-570.
Unlike in the majoritys citation to Smith v. Almada, 640 F.3d 931, 938 (9th
Cir. Cal. 2011), there is no admission by Scotti or other evidence derived from a
source independent of Freund in this record to establish that Scotti intended to
cause the fear of death in Lewis. Instead, the Eleventh Circuit has determined that
unsupported statements such as Freunds, which here are challenged by the fact
that Scotti was just doing his job, should not warrant summary judgment.
We cannot allow a probable cause determination to stand principally on the

unsupported statements of interested officers, when those statements have
been challenged and countered by objective evidence.
14
Kingsland v. City of Miami, 382 F.3d 1220, 1228 (11th Cir. Fla. 2004)
III. THE MAJORITYS HOLDING RAISES THE QUESTION OF WHERE TO

DRAW THE LINE BETWEEN PRIVATE INVESTIGATIONS AND
ACCOMPLICE STALKING
Very few published decisions have defined the line between accomplice
stalking and lawful investigation services. In Nastal v. Henderson & Assocs.
Investigations, Inc., 471 Mich. 712, 723-724 (Mich. 2005) the court compared
what private investigators are licensed to do to stalking. Similarly, in Arizona,
investigators are licensed to do just what Scotti did in this case. It would set a
dangerous precedent to affirm stalking based on Freunds unreliable reports.
CONCLUSION
For the foregoing reasons, this Memorandum should be reviewed en banc.
Dated: May 15, 2015

SCOTT LAW FIRM
By: /s/ John Houston Scott

JOHN HOUSTON SCOTT
Attorneys for Plaintiff-Appellant
15
(1 of 9)
Case:
Case: 13-15209,
13-15209, 05/15/2015,
05/01/2015, ID:
ID: 9539703,
9522316, DktEntry:
DktEntry: 51,
48-1,
Page
Page
211ofof32
7
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAY 01 2015
MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
GLEN R. SCOTTI, an individual, No. 13-15209
Plaintiff - Appellant, D.C. No. 2:09-cv-01264-TMB
v.
MEMORANDUM*
CITY OF PHOENIX, a political
subdivision of the State of Arizona; JACK
HARRIS; MARY FREUND; CHRISTINA
GONZALEZ; DAVID SAMPSON;
SANDRA RENTERIA,
Defendants - Appellees.
Appeal from the United States District Court

for the District of Arizona
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted March 13, 2015

San Francisco, California
Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.
Scotti appeals from the district courts order granting summary judgment
against him on his section 1983 malicious prosecution claim and his state-law
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(2 of 9)
Case:
Case: 13-15209,
13-15209, 05/15/2015,
05/01/2015, ID:
ID: 9539703,
9522316, DktEntry:
DktEntry: 51,
48-1,
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negligence claims. He also appeals from the district courts interlocutory rulings
declining to take judicial notice and to apply judicial estoppel.
We have jurisdiction pursuant to 28 U.S.C. 1291. We review a summary
judgment de novo, Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014), and
we review the particular interlocutory rulings challenged here for an abuse of
discretion. See Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458 (9th Cir. 1995)
(judicial notice); United States v. Ibrahim, 522 F.3d 1003, 1009 (9th Cir. 2008)
(judicial estoppel). We affirm.
I.
We begin with Scottis malicious prosecution claim. We are concerned
about some of Detective Freunds actions and the overall poor quality of police
work which produced misleading and, in some cases, outright false statements to
Scottis prosecutors. For example, rather than independently obtain and analyze the
family court order, Freund relied upon Kimberly Lewiss statements about its
contents, which led to misstatements about what constituted violations of that
order. Similarly, Freund never confirmed that Sandra Gray was not in fact a
psychologist, even though Freund spoke directly to Gray. Freund simply relayed
secondhand allegations of what Dr. Gray supposedly had said regarding
2
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Case: 13-15209,
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Rehkows behavior, even after Freund confirmed that Gray herself had not said
anything near that.
Nevertheless, the existence of independent probable cause is an absolute
defense to a malicious prosecution claim. Lassiter v. City of Bremerton, 556 F.3d
1049, 1054-55 (9th Cir. 2009); Freeman v. City of Santa Ana, 68 F.3d 1180, 1189
(9th Cir. 1995); see Gonzales v. City of Phoenix, 52 P.3d 184, 187 (Ariz. 2002) (en
banc). Here, we must affirm the district court because we conclude that probable
causeindependent of the false information conveyed by Freundsupported
Scottis arrest and prosecution. See Smith v. Almada, 640 F.3d 931, 938 (9th Cir.
2011) (rejecting plaintiffs claim that an officers false statements and failure to
disclose material information to the prosecutor caused [his] malicious prosecution
because even after correcting for the allegedly false and omitted information[,]
. . . probable cause supported [plaintiffs] arrest . . . [and] prosecution).
Arizona law defines probable cause in the context of a malicious prosecution
claim as a reasonable ground of suspicion, supported by circumstances sufficient
to warrant an ordinarily prudent man in believing the accused is guilty of the
offense. Gonzales, 52 P.3d at 187 (internal quotation marks omitted). Scotti was
arrested and ultimately indicted as an accomplice to Rehkows alleged stalking. To
establish probable cause, Defendants were therefore required to have a reasonable
3
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Case: 13-15209,
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ground of suspicion that two things had occurred. First, that Rehkow knowingly
engage[d] in a course of conduct[,] . . . directed toward another person[,] . . . that
. . . [w]ould cause a reasonable person to fear death of that person or that persons
immediate family member[,] and that person in fact so fears. ARIZ. REV. STAT.
13-2923(A)(2); and second, that Scotti intended to promote or facilitate
Rehkows alleged stalking conduct, and that Scotti counseled, agreed to aid, or
attempted to aid Rehkow in planning or committing the offense, or at least
provided Rehkow the means or opportunity to commit the offense. See id.
13-301. The question is whether Defendants lacked a reasonable ground of
suspicion that those two circumstances were present.
With respect to Rehkows conduct, Freund stated in her police report (and it
is not disputed) that Kimberly Lewis told Freund that Rehkows pattern of
behavior caused her to fear for her life. This fear was based on Rehkows prior
history of sending threatening communications during the course of a protracted
custody battle, and his hiring a private investigator who posted sealed information
online and who took photographs and videos of Lewis and her daughter at her
dance studio. In addition, Lewis reported that she believed Rehkow had been
behind a string of property damage to homes and vehicles belonging to her and her
4
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Case: 13-15209,
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DktEntry: 51,
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relatives and friends, which began only after Lewis became involved with Rehkow.
During this same time, Lewis also found her dog drowned in her pool.
As for Scottis involvement in Rehkows allegedly illegal course of conduct,
Freund reported (and it is not disputed) that Scotti was behind the Blackrobe
websites to which he posted sealed information relating to the custody case,
including Lewiss daughters name and age. Scotti was also at Lewiss dance
studio and took pictures of Lewis. Upon executing a valid search warrant of
Scottis residence, Defendants uncovered dry-erase boards referring to the
Rehkow/Lewis case and listing the names and driving directions to the home
addresses of both the assigned judge and Detective Freund. During the search,
detectives also discovered a sexually explicit honeymoon video of Rehkow and
Lewis, accompanied by a letter from Rehkow to Scotti granting him permission to
use the tape for bachelor parties. Further solidifying Scottis connection to
Rehkows allegedly illegal conduct, detectives found emails between Rehkow and
Scotti discussing wiretapping Lewiss home and cell phones, as well as other
emails discussing rummaging through Lewiss trash for anything that can be used
against her.
It may well be true that some of these activities are run of the mill for private
investigators, and do not themselves amount to aiding and abetting stalking.
5
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However, the totality of the above circumstancesindependent of the misleading
or false statements in Freunds police reportprovided a reasonable ground of
suspicion that Rehkow engaged in a course of conduct that actually caused Lewis
reasonably to fear death, and that Scotti intended to, and did, assist Rehkow in
engaging in that course of conduct, or at least provided him the means or
opportunity to do so. See Almada, 640 F.3d at 938. We therefore affirm summary
judgment of Scottis malicious prosecution claim as to all defendants.
We do not reach Scottis respondeat superior theory of liability because it
was inadequately briefed. See James River Ins. Co. v. Hebert Schenk, P.C., 523
F.3d 915, 920 n.1 (9th Cir. 2008) (refusing to consider an issue that was
inadequately presented in the opening appeal brief ).
II.
It follows that the existence of independent probable cause also compels us
to affirm summary judgment on Scottis state-law negligence and gross negligence
claims. See Hansen v. Garcia, Fletcher, Lund & McVean, 713 P.2d 1263, 1265
(Ariz. Ct. App. 1985) (affirming summary judgment on the basis that [s]ince the
officers made an arrest with probable cause, there were no facts before the trial
court which would support [plaintiffs] claim that the officers conduct [amounted
to negligence or gross negligence]).
6
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Case: 13-15209,
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ID: 9539703,
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III.
Finally, the district court did not err in declining to take judicial notice of the
criminal courts factual findings. See Wyatt v. Terhune, 315 F.3d 1108, 1114 (9th
Cir. 2003) ([T]aking judicial notice of findings of fact from another case exceeds
the limits of Rule 201.), overruled on other grounds by Albino v. Baca, 747 F.3d
1162 (9th Cir. 2014). In addition, the district court committed no error in refusing
to apply the doctrine of judicial estoppel because Scotti failed to establish the
required elements. See Ibrahim, 522 F.3d at 1009.
AFFIRMED.
7
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Case: 13-15209,
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05/01/2015, ID:
ID: 9539703,
9522316, DktEntry:
DktEntry: 51,
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FILED
Scotti v. City of Phoenix, No. 13-15209 MAY 01 2015
MOLLY C. DWYER, CLERK

WATFORD, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I would affirm as to all defendants except Detective Freund. In my view, a
reasonable jury could conclude that Freund knew she lacked probable cause to
believe Scotti had aided and abetted a violation of Ariz. Rev. Stat. 13-2923(A)(2)
(2001) (amended 2012), yet nonetheless instituted charges as a means of retaliating
against Scotti for exercising his First Amendment rightsnamely, for publicly
criticizing Freund on his web site.
Once we excise from Freunds report the statements Freund falsely
attributed to Dr. Gray, the existence of probable cause turns on statements Lewis
allegedly made to Freund. The problem here is that during the course of discovery,
Freund never deposed Lewis, so we dont know whether Lewis in fact made the
statements attributed to her. On the current record, a jury would have to take
Freunds word for it that Lewis actually made the statements recounted in Freunds
report. Because Scotti has already shown that Freund falsely represented the
statements Dr. Gray supposedly made, I think a reasonable jury could harbor
serious doubts about whether Freund truthfully represented the statements Lewis
supposedly made as well.
If the jury concluded that Freund knowingly falsified the statements
attributed to both Lewis and Gray, the remainder of the evidence cited by the
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majority would fall short of establishing probable cause. Freund would not be
entitled to qualified immunity in that event, because maliciously prosecuting
someone for exercising their First Amendment rights violated clearly established
law at the time Freund drafted her report. See Beck v. City of Upland, 527 F.3d
853, 861 n.7, 871 (9th Cir. 2008).
I would therefore reverse the grant of summary judgment to Freund.

Form 11. Certificate of Compliance Pursuant to

Circuit Rules 35-4 and 40-1
Form Must be Signed by Attorney or Unrepresented Litigant

and Attached to the Back of Each Copy of the Petition or Answer
(signature block below)
I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for panel rehearing/petition for rehearing en
banc/answer is: (check applicable option)
x
____ 3,584 words (petitions
Proportionately spaced, has a typeface of 14 points or more and contains __________
and answers must not exceed 4,200 words).
or
____ Monospaced, has 10.5 or fewer characters per inch and contains _______
words or ________ lines of text (petitions and answers must not exceed
4,200 words or 390 lines of text).
or
____ In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.
/s/John Houston Scott

___________________________
Signature of Attorney or
Unrepresented Litigant
(New Form 7/1/2000)
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the Plaintiff-Appellants Petition
for Rehearing En Banc and attached current Service List with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on May 15, 2015.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
By: /s/ Sherry Alhawwash

Sherry Alhawwash
SERVICE LIST
Attorneys for Plaintiff-Appellant, GLEN SCOTTI:
John Houston Scott

Lizabeth N. de Vries
Scott Law Firm
1388 Sutter Street, Suite 715
San Francisco, CA 94109
Telephone: (415) 561-9601
Facsimile: (415) 561-9609
Emails: john@scottlawfirm.net; liza@scottlawfirm.net
Attorneys for Defendants-Appellees, CITY OF PHOENIX, JACK HARRIS,

MARY FREUND, CHRISTINA GONZALES, DAVID SAMPSON AND
SANDRA RENTERIA
Kathleen L. Wieneke
Nick Acedo
Struck, Wieneke & Love, P.L.C.
3100 W. Ray Road, Suite 300
Chandler, Arizona 95226
Telephone: (480) 420-1600
Facsimile: (480) 420-1696
E-mails: kwieneke@swlfirm.com; nacedo@swlfirm.com

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Case: 13-15209, 05/15/2015, ID: 9539703, DktEntry: 51, Page 1 of 32

UNITED STATES COURT OF APPEALS

City of Phoenix, et al.,

PLAINTIFF-APPELLANTS PETITION FOR REHEARING EN BANC

On Appeal from the Decision of the United States District Court

John Houston Scott (SBN 72578)

Attorneys for Plaintiff-Appellant

INTRODUCTION AND RULE 35(B) STATEMENT ............................................................. 1

STATEMENT OF FACTS & PROCEDURAL HISTORY ....................................................... 3

I BACKGROUND INFORMATION ON GLENN SCOTTI AND MARY

a. Glenn Scotti was a private investigator who created a

b. Rehkow hired Scotti to perform private-investigation services

IV. THE SOURCE OF PROBABLE-CAUSE EVIDENCE YIELDED FROM THE

V. ON JUNE 7, 2007, FREUND CONFIRMED HER CONTENTIONS ABOUT

VI. ON JUNE 12, 2007 A GRAND JURY INDICTED SCOTTI AS AN

VII. ON AUGUST 5, 2008, THE CRIMINAL COURT TOSSED SCOTTIS

PETITION FOR REHEARING EN BANC ........................................................................11

I. TO PROVE MALICIOUS PROSECUTION FOR ABETTING FOR

Table of Contents Contd

II. THE MAJORITYS HOLDING FAILED TO CONSIDER THE SOURCE

III. THE MAJORITYS HOLDING RAISES THE QUESTION OF WHERE TO

Carroll v. Kalar, 112 Ariz. 595 (1976)....................................................................13

Freeman v. City of Santa Ana, 68 F.3d 1180 (9th Cir.1995)...................................11

Murphy v. Russell, 40 Ariz. 109, 9 P.2d 1020 (1932) .............................................13

Nastal v. Henderson and Assocs. Investigations, Inc., 471 Mich.

Sarwark Motor Sales, Incorporated v. Woolridge, 88 Ariz. 173,

Table of Authorities Contd

RAJI (Criminal) 3d 29.23 ........................................................................................13

INTRODUCTION AND RULE 35(B) STATEMENT

This is a case about a City of Phoenix Department Detective Mary Freund

who fabricated evidence to maliciously prosecute private investigator Glenn Scotti

for routine private-investigation services. Defendant Freund caused plaintiff Scotti

and custody battle. This request is only as to Freund.

to those statements; and, (2) a non-existent family-court order precluding Rehkow

reliant on Freunds credibility related to Scottis role in hosting websites (Black

Court and Freund personally as an investigator to that court.

and retaliation in a Section 1983 civil-rights lawsuit. No one deposed Kimberly

Lewis. Accordingly, the record relating to her statements is entirely hearsay.

false statements to Scottis prosecutors. Memorandum at p. 2.

The district court granted summary judgment in favor of Freund based on

First Amendment protected criticisms of Freundwas the only evidence which

Nowhere in the district courts decision is there an explanation or analysis of how

the credible evidence presented would establish Scotti specifically intended to

cause a reasonable person to fear the death of Kimberly Lewis.

Freund, after excising her fraudulent and fabricated statements.

importance for two reasons.

Detective Freunds otherwise unsupported hearsay evidencestatements by the

ex-wife, Kimberly Lewiswho was never deposed and submitted no declaration.

As noted by the Dissenting Circuit Judge Watford, on summary judgment Freunds

credibility cut against believing her otherwise unsupported statements.

[T]he existence of probable cause turns on statements Lewis allegedly made

Memorandum, Dkt. 48-1, filed May 1, 2015, dissent.

lawful private-investigation services and criminal stalking.

STATEMENT OF FACTS & PROCEDURAL HISTORY

I. BACKGROUND INFORMATION ON GLENN SCOTTI AND MARY FREUND

a. Glenn Scotti was a private investigator who created a website

Glenn Scotti was a retired probation officer and a licensed private

investigator when he created a website (www.blackrobeaz.com) about perceived

allowed parents to communicate about perceived abuses by the family court

regarding child-custody matters. ( ER 1365 2, ER 608-609 2-5; ER 877).

co-worker, David Sampson, were in charge of the Phoenix Police Department

Kimberly Lewis. The website included Rehkows commentary on the Rehkow-

content from BlackrobeAZ was uploaded to BlackrobeARIZONAthey were both