JOSEPH MCGHEE P.O. Box 91 Flagstaff, AZ 86002 (928) 600-0954 spurfy@icloud.com September 20, 2021 CITY OF FLAGSTAFF 211 W Aspen Ave Flagstaff, AZ 86001 FLAGSTAFF POLICE DEPARTMENT 911 E Sawmill Rd. Flagstaff, AZ 86001 CHIEF DAN MUSSELMAN 911 E Sawmill Rd Flagstaff, AZ 86001 DEPUTY CHIEF OF OPERATIONS SCOTT MANSFIELD 911 E Sawmill Rd Flagstaff, AZ 86001 LIEUTENANT RYAN DARR 911 E Sawmill Rd Flagstaff, AZ 86001 DETECTIVE RYAN FORSMAN 911 E Sawmill Rd Flagstaff, AZ 86001 DETECTIVE TODD MARTINET 911 E Sawmill Rd Flagstaff, AZ 86001 FPD DEPUTIES, AGENTS, OFFICERS, AND EMPLOYEES STILL UNKNOWN 911 E Sawmill Rd Flagstaff, AZ 86001 RE: Notice of Claim Pursuant to A.R.S. § 12-821.01 USPS article number To Whom It May Concern: This letter constitutes a Notice of Claim pursuant to Arizona Revised Statute § 12-821.01 against the Flagstaff Police Department (“FPD”), Police Chief Dan Musselman (“Musselman”), Deputy Chief Scott Mansfield (“Mansfield”), Lieutenant Ryan Darr (“Darr”), Detective Ryan Forsman (“Forsman”), Detective Todd Martinet (“Martinet”), and FPD employees still unknown. This Notice of Claim is served by Joseph McGhee (“Claimant”). This letter also satisfies the requirements of A.R.S. § 11-622(A), to the extent that section applies. The conduct of other FPD employees, officers, agents or others acting with the authority and/or at the direction of the FPD (“Responsible parties”) may also have contributed to the injuries suffered by Claimant as discussed here within, and when their identities become known, this claim may be supplemented to include them. This Notice of Claim is given without the benefit of formal discovery and is subject to amendment or supplementation. Claimant reserves the right to amend this Notice of Claim. If for any reason you believe this Notice of Claim Is not in compliance with A.R.S. § 12-821.01, or if additional facts or information is needed please contact Claimant. The Claimant seeks an award of damages reasonably calculated to compensate for the injuries he suffered in connection with a stalking investigation conducted by FPD, his subsequent arrest and indictment on these charges, and his protracted and unlawful detention in the Coconino County Detention Facility from June 8, 2021 until September 14, 2021. These events all occurred beginning on or about August 1, 2020 and ended on September 14, 2021. Furthermore, the terms and content of this Notice of Claim are subject to Rule 408 of the Arizona Rules of Evidence and Rule 408 of the Federal Rules of Evidence, I. FACTUAL BASIS FOR CLAIM A. RELEVANT BACKGROUND Claimant and his ex-wife, Dara Rabin, share a child-in-common, Silas McGhee, born February 14, 2015. On August 7, 2018 Silas obtained Ms. Rabin’s unsecured Epi-Pen and injected himself in the hand with a full adult dose of epinephrine, requiring emergency medical treatment at Flagstaff Medical Center. Three days later, on August 10, 2018, Silas fell approximately 12 feet from an open window at Ms. Rabin’s home while he was left alone and unsupervised while Ms. Rabin was “asleep,” suffering a concussions, facial lacerations and contusions, and an eye injury. May of 2019, the Arizona Department of Child Safety substantiated a finding of serious neglect against Ms. Rabin for the life-threatening injuries suffered by Silas’ on August 10, 2018, after a hearing where Ms. Rabin was represented by Flagstaff attorney Neil Sherman. On or about March 6, 2020 Claimant’s ex-wife, Dara Rabin, was trespassed from Claimant’s home, then located at 1000 N. Turquoise Blvd, Flagstaff, by FPD officers, after Ms. Rabin showed up at claimant’s home uninvited and refused to leave after Claimant repeatedly asked her to. Around July of 2020 Division VI of the Coconino County Superior Court entered an order as to a change in parenting time and custody exchange location as to Claimant and Ms. Rabin, with regard to their child, Silas McGhee, who was five years-old at the time. In this order the Court increased Claimant’s parenting time and ordered that all custody exchanges were to occur in the parking lot of the YMCA on Turquoise Drive, in Flagstaff. B. CIRCUMSTANCES GIVING RISE TO THIS CLAIM On or about August 6, 2020 Ms. Rabin made a report to FPD after allegedly finding a GPS tracking device in Silas’ stuffed toy after Claimant dropped off the child with Ms. Rabin in the parking lot of the YMCA for a custody exchange. In this report Ms. Rabin alleged that Claimant placed the device into the child’s toy, but did not allege that this conduct caused her any fear for her safety or the safety of any other person, related to her allegedly finding this device. A FPD officer thereafter contacted Claimant by phone to ask him about this device, whereupon Claimant told the officer he had no comment. 1 From on or about August 11, 2020 – approximately one week after Ms. Rabin allegedly found the GPS device in Silas’ stuffed toy – and lasting until June 2, 2021, Ms. Rabin and Claimant conducted twice-weekly -- Thursdays at 10:00 AM and Saturdays at 7:00 AM 2 -- custody exchanges in the parking lot of the YMCA. During none of these exchanges did Ms. Rabin request that FPD or any other law enforcement be present for a civil standby, and at none of these exchanges were any police officers present. On February 11, 2021 Ms. Rabin allegedly found a GPS device lying in the snow on a remote forest service road outside of Kendrick Park in unincorporated Coconino County. She reported this to the Coconino County Sheriff’s Department (“CCSO”) and told the deputy who took the report that she believed that Claimant had placed the device on her car. At no time did she allege to the report-taker that she felt any fear for her safety or the safety of any other person, related to her allegedly finding this device. Thereafter, the case was transferred to FPD for investigation. On February 12, 2021, one day after Ms. Rabin allegedly found the GPS device which she reported to law enforcement , Claimant invited Ms. Rabin to dinner at his home the evening of February 14, 2021, to celebrate Silas’ birthday, which she accepted, on the grounds that Claimant would agree to waive his trespass as to his home against her. 3 On the evening of February 14, 2021 Ms. Rabin arrived at Claimant’s home alone for this dinner, and where no one else was present in Claimant’s home except for Silas and Claimant. After dinner and around 8:00 PM, Ms. Rabin left with Silas for her home. On or about March 13, 2021 Ms. Rabin sent an email to follow-up with FPD on her report regarding the GPS device she allegedly found on February 11, 2021 and which she alleged had been placed on her car by Claimant. In this email she does not allege any fear for her safety or the safety of any other person, related to her allegedly finding this device. 1 It should be noted that A.R.S. § 13-2923(D)(1)(b) explicitly-exempts the use of GPS surveillance of a minor by the minor's parent or guardian. 2 The YMCA has been closed on weekends since around April of 2020 due to the Covid-19 pandemic. 3 Silas was scheduled to be with Claimant for the late afternoon and evening of February 14, 2021. On May 12, 2021 Ms. Rabin was interviewed by Forsman by telephone regarding the February 11, 2021 report she made regarding the GPS device she allegedly found in Kendrick Park, and which she had alleged was placed on her car by Claimant. At the start of this interview Forsman read to Ms. Rabin the text of A.R.S. § 13-2921 (harassment) and A.R.S. § 13-2923 (stalking) and stated to her that in order to arrest Claimant for stalking, he would need to meet the elements of the crime. Thereafter, Ms. Rabin, for the very first time ever , stated that she feared that Claimant was going to kill her and Silas . Near the conclusion of this interview, Forsman told Ms. Rabin that he would shortly be seeking a search warrant for the GPS device, and then told Ms. Rabin not to tell claimant about the stalking investigation. At no time during or after this interview did Forsman urge Ms. Rabin to seek an Order of Protection, or to have police offices perform a civil standby during custody exchanges. Neither did Forsman notify DCS of Ms. Rabin’s alleged fear that Claimant was going to kill Silas. On June 7, 2021, nearly a month after conducting his interview with Ms. Rabin, Forsman applied for and was granted a search warrant by Division II of the Coconino Superior Court, “in connection to a stalking investigation,” related to the GPS device that Ms. Rabin alleged on February 11 was placed on her vehicle by Claimant. On June 8, 2021 shortly after filing an Emergency Motion for Temporary Orders in Division VI of the Coconino Superior Court, seeking sole legal decision-making over Silas and sole custody, 4 Claimant was approached by Forsman and Officer Chaiken of the FPD and told by Forsman that he was “under arrest for stalking.” Claimant was thereafter taken to FPD headquarters where he was interviewed by Forsman, who lately falsely stated in his report that Claimant had “admitted” to placing a GPS tracking device on Ms. Rabin’s car. No such admission by Claimant was ever made and Claimant in fact explicitly stated to Forsman that he would not be admitting to anything related to GPS devices. Thereafter, Claimant was booked into the Coconino County Jail, where for the next 98 days he was held under 23 hour/day lockdown in a single person cell. In his “probable cause” statement, Forsman explicitly asked for a high bond amount for Claimant due to the “danger” Claimant presented to Ms. Rabin. On June 16, 2021 grand jury proceedings were held before the Honorable Stacy Krueger. During these proeedings Martinet testified that “[Claimant] has [] made comments to [Silas McGhee] about buying firearms and [Ms. Rabin] said she has been threatened by [Claimant] in the past as well as her boyfriend being threatened by [Claimant] ... [Ms. Rabin] also knows [Claimant] to own firearms. She fears that [Claimant] could shoot her or take [Silas McGhee] and harm or kill him.” When a member of the grand jury asked about the alleged threats made against Ms. Rabin and her boyfriend by Claimant, and whether or not any threats of physical violence were made, Martinet replied “The reports don’t indicate physical violence. A lot of what [Ms. Rabin] discusses is [Claimant’s] threats of legal process and challenging her in court ... there is not a specific threat of harm. ” 4 This was based upon statements made to Claimant by Silas that Ms. Rabin’s boyfriend had “shoved” him to the ground, and Claimant’s belief, based upon statements made to him by Silas and photographs sent from Ms. Rabin’s phone to Claimant by Silas, and Ms. Rabin’s prior finding against her by DCS of serious neglect of Silas, that Silas was in imminent danger. Martinet was then again asked by the grand jury “And so just for clarification, [Ms. Rabin] has not alleged that [Claimant] has made threats of physical violence against her, or has that happened through your record at all?” Martinet replies “The reports I’ve reviewed, I don’t recall seeing a specific threat of violence other than the general behavior and the comments that have been through [Silas McGhee] 5 and his admission to walking about her where she lives or close to it.” 6 On September 14, 2021 Claimant posted a cash bond of $50,000.00 and was released from Coconino County Jail custody. II. LEGAL BASIS FOR CLAIM The Responsible parties, while acting in their official capacity and individual capacities and under the color of law, violated Claimant’s: 1) rights to freedom of speech under the First Amendment to the U.S. Constitution and Article 2, Section 6 of the Arizona Constitution; 2) rights to keep and bear arms under the Second Amendment of the United States Constitution and Article 2, Section 26 of the Arizona Constitution; 3) the rights to freedom from unreasonable seizures under the Fourth Amendment to the United States Constitution and Article 2, Section 8, of the Arizona Constitution; 4) rights to freedom from excessive bail under the Eighth Amendment to the United States Constitution and Article 2, Section 15 of the Arizona Constitution; and 5) rights to equal protection under the Fourteenth Amendment to the United States Constitution and Article 2, Section 13 of the Arizona Constitution. Based on the principles of vicarious liability, respondeat superior , and municipal liability, the entities and individuals listed in this Notice of Claims are liable for the conduct of their employees and their agents. Thus, the Flagstaff Police Department and Chief Musselman are responsible for the actions of Forsman and Martinet and other officers and agents acting with the authority and/or at the direction of the FPD. Additional liability is created by the entities and individuals due to their failure to adequately train and supervise their officers and agents. By authorizing, acquiescing in, employing, ratifying the actions of and/or failing to adequately train or supervise those directly involved in, and/or participating in or being deliberately indifferent to the fabrication of evidence which directly led to Claimant’s prolonged and unlawful detention, the entities and individuals to whom this Notice of Claim is addressed violated Claimant’s rights under both the United States and Arizona Constitutions. By authorizing, acquiescing in, employing, ratifying the actions of and/or failing to adequately train or supervise those directly involved in, and/or participating in or being deliberately indifferent to the restraint of Claimant’s liberty without lawful justification and without Claimant’s consent, the entities and individuals to whom this Notice of Claim is addressed subjected Claimant to false arrest/imprisonment. 5 The “general behavior” described by Martinet refers only to threats of legal action, and the “comments” to Silas McGhee that Claimant owns firearms. Neither of these activities are illegal, and are in fact constitutionally-protected under both the United States and Arizona Constitutions. 6 Martinet previously disclosed to the grand jury during this proceeding that Claimant lives only “a few blocks away” from Ms. Rabin. A. VIOLATION OF THE RIGHTS TO FREEDOM OF SPEECH UNDER THE UNITED STATES AND ARIZONA CONSTITUTIONS The filing of civil complaint or a petition with a court is First Amendment protected activity. McDonald v. Smith , 472 U.S. 479, 484, 105 S. Ct. 2787, 2791, 86 L. Ed. 2d 384, 389, 1985 U.S. LEXIS 112, *11, 53 U.S.L.W. 4789 (a lawsuit is a per se petition to government for a redress of grievances). A threat or threats of litigation 7 by and of itself cannot therefore be criminalized, either explicitly or constructively. United States v. Pendergraft , 297 F.3d 1198, 1206 (11th Cir. 2002)( “[a] threat to litigate, by itself [is not a true threat]... under our system, parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights.”); see also Watts v. United States, 394 U.S. 705 (1969)(distinguishing “true threats”). As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech. Hartman v. Moore , 547 U. S. 250, 256, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006); Crawford-El v. Britton , 523 U. S. 574, 593, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998); Mt. Healthy City Bd. of Ed. v. Doyle , 429 U. S. 274, 283-284, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977)). In order to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally-protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally- protected conduct and the retaliatory action. Herman v. Harman , 583 Fed. Appx. 33, 33, 2014 U.S. App. LEXIS 21826, *1, 2014 WL 6463388; Nieves v. Bartlett , 139 S. Ct. 1715, 1717, 204 L. Ed. 2d 1, 1, 2019 U.S. LEXIS 3557, *1, 27 Fla. L. Weekly Fed. S 847 Here Claimant engaged in constitutionally-protected conduct – threats of (additional) litigation against Ms. Rabin. He suffered a retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights – arrest, indictment, and prolonged detention in jail. And there is a causal link between the constitutionally-protected conduct and the retaliatory action – both Forsman in his probable cause statement submitted to the County Attorney after Claimant’s arrest, and Martinet in his grand jury testimony, prove this link: Claimant’s threats of legal action against Ms. Rabin, which were the only threats ever made against her by Claimant , formed the entire basis of their allegation of threats against Ms. Rabin by Claimant. This was prima facie retaliation against Claimant by Forsman and Martinet for exercising his First Amendment right. 7 A.R.S § 13-1202 sets forth the “word[s] or conduct” constituting the crime of “threatening or intimidating” as: a threat “[t]o cause physical injury to another person or serious damage to the property of another; or [t]o cause, or in reckless disregard to causing, serious public inconvenience including, but not limited to, evacuation of a building, place of assembly or transportation facility; or [t]o cause physical injury to another person or damage to the property of another in order to promote, further or assist in the interests of or to cause, induce or solicit another person to participate in a criminal street gang, a criminal syndicate or a racketeering enterprise.” Threats of legal action clearly fall outside the scope of this statute. B. VIOLATION OF THE RIGHT TO KEEP AND BEAR ARMS UNDER THE UNITED STATES AND ARIZONA CONSTITUTIONS The Second Amendment protects individual’s right to possess firearm unconnected with service in militia, and to use that arm for traditionally lawful purposes, such as self-defense within home. District of Columbia v. Heller , 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637, 21 Fla. L. Weekly Fed. S 497, 2008 U.S. LEXIS 5268 (2008). This Second Amendment right is fully applicable to states through the Fourteenth Amendment. McDonald v. City of Chicago , 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894, 22 Fla. L. Weekly Fed. S. 619, 2010 U.S. LEXIS 5523 (2010). As recognized in Heller and interpreted in the lower courts, the Second Amendment exhibits all the hallmarks of a fundamental constitutional right. It is a non-economic, individual dignity right that is considered “implicit in the concept of ordered liberty.” Washington v. Glucksberg , 521 U.S. 702 (1997). The lawful exercise of a right incorporated under the Fourteenth Amendment cannot be punished by a state. Griffin v. California , 380 U.S. 609 (1965) (comment to the jury by a prosecutor in a state criminal trial upon a defendant's failure to testify as to the matters which he can reasonably be expected to deny or explain because of facts within his knowledge or by the court that the defendant's silence under those circumstances evidences guilt, violates the Self-Incrimination Clause of the Fifth Amendment of the Federal Constitution, as made applicable to the States by the Fourteenth)(citing Malloy v. Hogan , 378 U.S. 1 (1964)). Claimant here was punished for his lawful exercise of his rights under the United States and Arizona Constitutions to keep and bear arms, in that his lawful exercise of this right was implicitly described by Martinet to the grand jury as threatening behavior to Ms. Rabin, in spite of the clear fact that: 1) Claimant was neither suspected nor accused of any unlawful or violent use of a firearm; 2) Martinet knew that the exact nature of Claimant’s threats to Ms. Rabin were strictly limited to threats of legal action against her ; and 3) Claimant had never used or threatened to use any weapon, or even made any threats of violence, against the alleged victim, and Martinet was well-aware of this fact. There was therefore no more lawful basis to mention Claimant’s lawful possession of firearms to the grand jury as “threatening behavior” directed against Ms. Rabin than there would have been to mention Claimant’s religion to the grand jury as threatening behavior against Ms. Rabin. Claimant’s lawful exercise of a right incorporated under the Fourteenth amendment, and under the Arizona Constitution, the right to keep and bear arms, was punished by the State. C. VIOLATION OF THE RIGHTS TO FREEDOM FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE UNITED STATES AND ARIZONA CONSTITUTIONS The Fourth Amendment prohibits government officials from detaining a person absent probable cause. Brendlin v. California , 551 U. S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (“A person is seized” whenever officials “restrain[ ] his freedom of movement” such that he is “not free to leave”). The general rule is that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause to believe that the individual has committed a crime. Bailey v. United States , 568 U. S. 186, 192, 568 U.S. 186, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013) There is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government. Devereaux v. Abbey , 263 F.3d 1070, 1074-1075, 2001 U.S. App. LEXIS 19674, *7-8, 2001. A police officer who fabricates evidence and forwards that evidence to a prosecutor (who then uses it against a defendant) is liable for the consequences of his misconduct. See, e.g., Stemler v. City of Florence , 126 F.3d 856, 872 (6th Cir. 1997); Ricciuti v. N.Y.C. Transit Authority , 124 F.3d 123, 130 (2d Cir. 1997); Jones, 856 F.2d at 993-94. In order to support a deliberate-fabrication-of-evidence claim, a plaintiff must, at a minimum, point to evidence that supports at least one of the following two propositions: (1) the police continued their investigation of the plaintiff despite the fact that they knew or should have known that he was innocent; or (2) the police used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information. Id. A determination of “probable cause” based on fabricated evidence therefore presents a cognizable Fourth Amendment claim even if such determination is made, or later affirmed, by a judge or grand jury. Manuel v. City of Joliet, 137 S. Ct. 911 (2017). To prove that a prosecution (or the detention accompanying it) was an unreasonable seizure, a plaintiff must show, among other things, that the state lacked probable cause for the prosecution (or detention). Dibrell v. City of Knoxville , 984 F.3d 1156, 1158, 2021 U.S. App. LEXIS 459, *1, 2021 FED App. 0008P (6th Cir.), 1, 2021 WL 69299. (noting that while a grand jury's indictment also creates a presumption that probable cause existed, this presumption can be overcome by showing that the defendant fabricated evidence or recklessly made false statements outside the grand jury ). Claimant was arrested by Flagstaff Police based upon fabricated evidence. This is obvious in that the alleged victim, in spite of her multiple prior contacts with officers investigating her stalking allegation, never once articulated any fear of Claimant, any fear for her safety, or any fear for the safety of any others, which is/are necessary for the crime of stalking. It was in fact not until she was interviewed by Forsman on May 12, 2021, where he began the interview by reading her the text of the stalking statute and explicitly informed her that she needed to allege fear for her safety in order for Claimant to be arrested , 8 that Ms. Rabin ever articulated any fear as to Claimant. Prior to this interview, the alleged victim had three separate contacts with Flagstaff Police officers related to this matter and not once had alleged, even implicitly, that she feared for her safety or anyone else’s as to Claimant. Forsman fabricated evidence: He knowingly and intentionally provided instruction to Ms. Rabin as to exactly what she needed to allege regarding her mental state during the interview in order to facilitate Claimant’s prosecution for stalking. Until the moments immediately following Forsman’s reading of the stalking statute to Ms. Rabin there was no probable cause to arrest Claimant, because Ms. Rabin had on at least three prior occasions offered statements to Flagstaff Police in this case where she failed to allege any fear as to Claimant. Forsman was well-aware of this fact, having reviewed the case file immediately prior to his telephone interview with Ms. Rabin. He also unquestionably, as a Flagstaff Police detective, knew that without being able to allege the crucial element of fear by Ms. 8 Flagstaff Police Department Policy 333 – stalking investigations – sets forth that the investigating detective’s responsibilities include “determin[ing] the victim's state of mind. This means articulating how the incident affected the victim's sense of safety, fear of physical injury to self or family members.” Nothing in this policy holds that the investigating detective should begin the interview by informing the alleged victim of exactly what he or she needs to say in order to satisfy a necessary element of the stalking statute especially in the complete absence of any previous statements made by the alleged victim as to his or her state of mind. Rabin he would not be able to obtain a search warrant for the GPS device and that the stalking case against Claimant would have to be closed because the alleged conduct by Claimant constituting the “surveillance element” of stalking had already ceased more than six months prior. Forsman’s fabricated evidence, which was used to obtain a search warrant, 9 directly led to Claimant’s arrest on June 8, 2021, and resulted in Claimant’s subsequent detention at the Coconino County Jail from the day of his arrest until September 14, 2021. This violated Claimant’s rights to be free from unreasonable seizure under the United States and Arizona Constitutions. D. VIOLATION OF THE RIGHTS TO BE FREE FROM EXCESSIVE BAIL UNDER THE UNITED STATES AND ARIZONA CONSTUTIONS The traditional right to bail before conviction permits unhampered preparation of defense, and serves to prevent infliction of punishment prior to conviction, and unless this right is preserved presumption of innocence would lose its meaning. Bail set at higher figure than amount reasonably calculated to assurance presence of the accused is “excessive” under Eighth Amendment. Stack v. Boyle , 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3, 1951 U.S. LEXIS 1368 (1951); United States v. Motlow , 10 F.2d 657, 1926 U.S. App. LEXIS 2360 (U.S. 1926) (Eighth Amendment prevents practical denial of bail by fixing amount unreasonably high). The test for excessiveness of bail is not whether defendant is financially capable of posting bond but whether amount of bail is reasonably calculated to assure defendant’s appearance at trial. United States v. Beaman , 631 F.2d 85, 1980 U.S. App. LEXIS 13789 (6th Cir. 1980). In determining bail before trial, consideration should be given to seriousness of crime charged, past record and recent action of accused. United States ex rel. Rubinstein v. Mulcahy , 155 F.2d 1002, 1946 U.S. App. LEXIS 2311 (2d Cir. 1946). Claimant here had been arrested for stalking based upon conduct which had allegedly occurred more than six months prior, where there were no threats of violence involved, where there was no physical violence involved, where he had never previously been arrested for any felony nor violent crime, and where his only past criminal convictions were for two minor misdemeanors which occurred more than twenty years prior. To hold law enforcement officers liable for excessive bail, in addition to establishing that bail was excessive, a plaintiff must also demonstrate that the officer was the proximate cause of his bail enhancement. See Galen v. County of Los Angeles , 477 F.3d 652, 663 (9th Cir. 2007). To do this, plaintiff must show that the officers prevented the judge who set bail from exercising her/his independent judgment. Id. Thus, the plaintiff would have to allege facts, which if true, show that the officers "deliberately or recklessly misled the [judge setting bail], and that his bail would not have been unconstitutionally excessive but for the officers' misrepresentations." Id. at 664. 9 Hervey v. Estes , 65 F.3d 784, 789 (9th Cir. 1995), as amended (a § 1983 plaintiff alleging that a peace improperly procured a search warrant must establish both that the officer made deliberately or recklessly false statements and that "without the dishonestly included or omitted information[] the magistrate would not have issued the warrant."); Mendocino Envtl. Ctr. v. Mendocino County , 14 F.3d 457, 463 (9th Cir. 1994). Here the deliberate misrepresentation is intrinsic in Forsman’s fabricated evidence obtained by way of Ms. Rabin, and his request in the probable cause statement for a “high” bond amount for Claimant. It is impossible for a judge setting bail to exercise independent judgement where bail is concerned when the lead detective has not only fabricated the crucial evidence upon which the case relies, but has also specifically requested a “high” bond amount. Forsman violated Claimant’s right to be from excessive bail, under the Eighth Amendment to the U.S. Constitution, and Article 2, Section 15 of the Arizona Constitution. E. VIOLATION OF THE RIGHTS TO EQUAL PROTECTION UNDER THE UNITED STATES AND ARIZONA CONSTITUTIONS By the actions described above, the entities and individuals to whom this Notice of Claim is addressed violated Claimant’ rights to freedom of speech, rights to keep and bear arms, rights to freedom from unreasonable seizure, rights to freedom from excessive bail, and ultimately violated his rights to equal protection, under both the United States and Arizona Constitutions. III. INJURIES ALLEGED BY CLAIMANT SUPPORTING AMOUNT OF CLAIM FOR DAMAGES 10 Claimant was illegally arrested on June 8, 2021 and was held in the Coconino County Jail as a maximum security inmate, where he was, for 98 days, confined alone to his cell for 23 hours-per-day. During this time: 1) he was denied treatment for his well-established neurological condition because his prescribed medication is “not on the jail’s drug formulary”; 2) his lease was terminated and he lost his home; 3) he lost thousands of dollars in lost income from employment; 4) he was repeatedly subjected to humiliating strip searches; 5) he suffered severe insomnia; 6) he suffered severe anxiety and panic attacks documented by jail staff; 7) he was unable to eat and lost approximately thirty pounds; 8) he incurred approximately $10,000.00 in legal fees; 9) he became severely depressed and to such an extent that in late August he was removed from his cell and placed on suicide watch; and 10) he was denied dental treatment by the jail for a broken tooth. In addition to his loss of freedom during this time, Claimant has suffered and continues to severely suffer, both emotionally and physically, because of the grossly-illegal conduct of the Flagstaff Police Department. He suffers from nightmares related to his ordeal, he is now fearful of police and avoids them wherever possible, he still suffers from a severe loss of appetite, he suffers anxiety, and he suffers chronic, widespread pain. None of these injuries to Claimant would have occurred but for the acts by the Flagstaff police in willfully, knowingly, and deliberately disregarding Claimant’s rights under both the United States and Arizona Constitutions. He is entitled to compensatory damages for his prolonged loss of freedom and the injuries that resulted therefore, and he is entitled to an award of punitive damages in order to punish those who ignored his rights and/or failed to properly train and supervise them. Claimant is entitled to be made whole again and he is entitled to justice. 10 See, e.g. Backus v. State , 220 Ariz. 101, 203 P.3d 499, 2009 Ariz. LEXIS 54, 553 Ariz. Adv. Rep. 42 IV. AMOUNT OF CLAIM The Responsible Parties conducted themselves in a manner in both their official and individual capacities that violated clearly established rights. Claimant asserts that the Responsible Parties’ actions have caused substantial harm that entitles him to monetary damages for the claims listed above, and payment of these claims is justly due. Claimant would also be entitled to recover punitive damages against the Responsible Parties and any other individual(s) acting in their individual capacities, for their intentional acts because their conduct was malicious or in reckless disregard of the Claimant’s clearly established rights. Claimant will therefore settle for $500,000.00 . Pursuant to A.R.S. § 12-821.01, the entities and individuals named in this letter have sixty (60) days to respond before further legal action can be instituted under Arizona state law. Sincerely, Joseph McGhee