Ninth Circuit Asks Arizona Supreme Court to Interpret A.R.S. 12-820.05, Immunizing Public Entity for Employee’s Felony

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Adame v. City of Surprise, et al.
Ninth Circuit
June 14, 2022

In Adame v. City of Surprise, the Ninth Circuit recently asked the Arizona Supreme Court to interpret A.R.S. § 12-820.05, the statute providing that a public entity is not liable for its employee’s felony if the entity did not know of the employee’s propensity to engage in the act.

Around 1 a.m. on November 26, 2016, an officer responded to a report of a “suspicious” Nissan Sentra. The officer ran the vehicle license plate and learned it was stolen. The officer activated his lights, approached the vehicle and saw Adame asleep in the car. The officer drew his firearm, opened the passenger door, announced himself as a police officer, and ordered Adame to show his hands and keep them visible on the steering wheel. Adame initially complied while the officer waited for backup. As backup arrived, however, Adame attempted to flee by starting the vehicle’s engine. The officer leaned into the vehicle with his knee on the passenger seat and reached for Adame. At that time, Adame accelerated the vehicle and the officer then fired two shots, killing Adame instantly. The Nissan crashed into a parked truck a short distance away.

Adame’s estate filed a lawsuit alleging federal excessive force and due process violations, a state law wrongful death claim, and a racial discrimination claim. A prior appeal held the officers were entitled to summary judgment on the federal claims. The sole issue on remand was the state law wrongful death claim against the City of Surprise.

On remand, the City moved for summary judgment under A.R.S. § 12-820.05 and A.R.S. § 13-413. A.R.S. § 12-820.05 is the statute stating a public entity is not liable for losses arising out of and directly attributable to a public employee’s felony unless the public entity knew of the employee’s propensity for that action; but the statute does not apply to acts or omissions arising out of the operation or use of a motor vehicle. A.R.S. § 13-413 absolves an officer from civil liability for engaging in justified conduct. The City’s argument was that under § 13-413 it could not be liable for the officer’s acts that were justified; and even if the officer’s acts were unjustified, the City had no knowledge of any propensity by the officer to commit a felonious homicide, so A.R.S. § 12-820.05 would absolve it of liability in that circumstance.

The district court denied summary judgment, finding that at the very least a question of fact existed on whether the shooting arose in substantial part out of Adame’s operation or use of a motor vehicle.

The City filed an interlocutory appeal—an appeal from a non-final judgment. The Ninth Circuit allows such appeals in only very limited circumstances, such as when an immunity from suit might apply. In response, the Ninth Circuit certified the following questions to the Arizona Supreme Court:

  1. Does A.R.S. § 12-820.05(B) provide an immunity from suit, or a defense to liability? If the latter, the Supreme Court need not answer any further questions because the Ninth Circuit would lack jurisdiction over the City’s interlocutory appeal. If the former, the Ninth Circuit would have jurisdiction but would need the Supreme Court to answer the following questions on the merits:
  1. With respect to the first sentence of subsection (B) of this statute: If a law enforcement officer causes a death using “excessive force” (here, a firearm), has the law enforcement officer committed “a criminal felony” as a matter of law? If not, is a conviction of a felony required? If not, is the determination whether the law enforcement officer committed “a criminal felony” a question of fact for the jury or a question of fact only for “the court”? How does the determination whether an officer’s use of “excessive force” was “justified” or “unjustified” pursuant to A.R.S. § 13-413 affect this inquiry? Is the determination of whether the public employee’s relevant acts or omissions were “justified” or “unjustified” for the jury to make, or for the court to make? If this determination is for the court to make, for purposes of summary judgment, in applying A.R.S. § 12-820.05(B), is the reviewing court required to assume that the relevant acts or omissions of the public employee were “unjustified,” given A.R.S. § 13-413?
  2. With respect to the second sentence of subsection (B) of this statute: Does this sentence apply only to a public employee’s operation or use of a motor vehicle? Or, if the public employee’s act takes place because another person operates or uses a motor vehicle (where, for example, a law enforcement officer fires because someone else is stealing a car or driving a car dangerously toward another person), does the public employee’s act nonetheless “aris[e] out of the operation or use of a motor vehicle”? What is the required degree of causal connection, if any, between the “acts or omissions arising out of the operation or use of a motor vehicle” and the “losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony”?

The Arizona Supreme Court has the discretion whether to accept or decline the Certified Question. Given the importance of the questions presented, the Court is likely to accept. However, it is unclear how soon the Court will make its decision. Even if the Court accepts the Certified Question, however, a decision on the merits could take months. The Court normally recesses from July 4 through the third week in September, and the parties would be entitled to file briefs to the Court, and the Court could hear oral argument. We will continue to monitor this case, however, and provide updates as appropriate.

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