Jury Will Decide If Tombstone Deputies Conducted Unlawful Search And Arrest

MAN PAID $2,500 TO GET OUT OF JAIL AS REAL BURGLAR, Ryan Caveman Melton, WAS BEING IDENTIFIED

One of several shoeprints from a Nike walking shoe found at the scene of a January 2019 burglary. [Photo courtesy the Tombstone Marshal's Office]

A wrongful arrest lawsuit against the Tombstone Marshal’s Office (TMO) will be decided by a jury sometime next year now that a Cochise County judge has rejected the city’s motion to dismiss the case on the basis of immunity.

Matthew Jordan King is suing the City of Tombstone, its then-Marshal Bob Randall, and several deputies stemming from his arrest early last year on residential burglary charges. There were no witnesses, no DNA, and no fingerprints tying King to the Jan. 26, 2019 crime.

But what TMO did have was large-size shoeprints found inside the victim’s home that continued outside into the surrounding desert. Those shoeprints, according to TMO Sgt. Travis Mattern, were made by a distinctive Nike slip-on walking shoe, not ordinary athletic shoes or sneakers.

And Mattern knew, he noted in his official report, that King lived in the area where the footprints ended, had big feet, and a fondness for Nikes.

King was arrested around 4p.m. Jan. 28, 2019 in front of his family even though no evidence from the burglary was found during a court-approved search of his home and vehicle. Nor were any Nikes with the distinctive shoeprint found among several Nike sneakers in King’s home.

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Court records show King was booked into the Cochise County jail where he remained overnight until a judge set bail the next day at $25,000. Obtaining a $25,000 appearance bond requires a non-refundable 10 percent fee, which King’s family paid so he could be released.

King left jail with an order to show up the next month at Cochise County Superior Court. But what he didn’t know at the time was the TMO theory of his involvement in the burglary was getting weaker, thanks to attentive deputies with the Cochise County Sheriff’s Office (CCSO).

In the late hours of Jan. 28, as King sat in jail, CCSO deputies responded to an armed robbery with injuries in the Palominas area south of Sierra Vista. Three men wearing face coverings broke into the home of an elderly woman, who was beaten with a pipe in an effort to coerce her to surrender her jewelry.

Items from the Tombstone burglary were found in the home of a suspect in the Palominas robbery. Nikes with a shoeprint similar to those found in Tombstone were also recovered.

On Jan. 31, 2019, the case against King was dismissed after the Cochise County Attorney’s Office did not file formal charges. Despite the dismissal King, now 24, still has an arrest record.

King’s lawsuit alleges false imprisonment, battery, assault, and intentional infliction of emotional distress, as well as negligence, for his arrest. He also alleges one or more members of TMO knowingly aided and abetted Mattern in “harmful and or offensive conduct” and that city officials were negligent in supervising the marshal’s office.

Earlier this summer the Tombstone defendants argued King’s lawsuit should be dismissed because the arrest was undertaken pursuant to “a validly issued warrant” signed by Judge Timothy Dickerson, who at the time was a justice of the peace. The defendants also argued that Arizona case law gives an officer “the right to be wrong.”

Known as qualified immunity, the legal concept holds that an officer “can only be liable if the officer knew or should have known that he…acted in reckless disregard of whether the officer’s conduct would deprive another person of their rights.”

But King’s attorney, Joel Borowiec, countered that reckless disregard is what happened to King, both in the application for a search warrant and in King’s arrest after no evidence was found during the search to connect him to the burglary.

In her Oct. 9 ruling, Judge Laura Cardinal of the Cochise County Superior Court denied the Tombstone defendants’ motion to dismiss. Her ruling means if King can show at trial that the search warrant was flawed due to misrepresentations made to the justice of the peace then a claim for wrongful arrest cannot be shielded by qualified immunity.

Such misrepresentations could include the possibility of false statements in Mattern’s affidavit for a search warrant, as well as potentially deliberate or reckless omissions of material facts, Cardinal noted. Such matters would be determined at trial.

Attorney Andrew Petersen is representing the city on behalf of its insurance provider, and he has until the end of October to file a formal answer to King’s lawsuit. The attorneys must then file a joint report to Cardinal with proposed deadlines leading up to a trial setting conference. King has demanded a jury trial, which is his right.

There is currently a backup of trials to be heard due to COVID-19 impacts, so King and the Tombstone defendants will likely not get before a jury until late 2021 or even early 2022.

The city rejected a $750,000 demand made by King in June 2019 which would have settled the matter without litigation.

Ryan Caveman Melton, 25, is serving a 20-year prison sentence after pleading guilty in the Palominas armed robbery in a deal which guarantees he can never be charged for the Tombstone burglary. He too was known to wear large-size Nike shoes, according to court records.