Qualified Immunity in Arizona: How It Affects Police Misconduct

Imagine a situation in which a driver is headed the wrong way on Arizona’s Interstate 17 Freeway. Multiple witnesses call law enforcement to report the wrong-way driver, but before police can find and stop him, he covers more than 20 miles before colliding head-on with another vehicle. The collision results in multiple deaths.

A surviving relative sues the state of Arizona’s Department of Public Safety, arguing that but for police dispatcher negligence in failing to alert police to the wrong-way driver in a timely way, the fatal accident would not have happened.

The court throws the lawsuit out of court. The surviving relative receives no compensation.

This is a real-life example of how Arizona’s statutory immunity laws, often described as qualified immunity, apply in a law-enforcement context. The case was Harianto v. Arizona, decided in 2020 by the Arizona Court of Appeals.

Although qualified immunity often acts as a legal liability shield for police officers and other law enforcement personnel, it is not an absolute defense for them. In this post we at Plattner Verderame personal injury attorneys cover what qualified immunity is in Arizona and how it applies to law enforcement personnel and agencies.

If after reading this blog post you have any questions about whether qualified immunity applies to a police officer’s conduct, or if you have been involved in an accident causing you personal injury or property damage, call us today or contact us online to speak with an experienced Arizona personal injury attorney.

How does Arizona law define qualified immunity?

Under Arizona law, statutory (often called ‘qualified’) immunity generally protects public employees, including law enforcement personnel, from liability in specified circumstances.

There are two exceptions to this liability shield:

1. The public employee acted intending to cause injury, or
2. The public employee was grossly negligent in causing harm.

Arizona Revised Statutes (ARS) Section 12-820.02 provides statutory immunity to public employees in specified circumstances unless they act intentionally or with gross negligence. This law identifies several specific situations protecting public employees from being liable for negligence. For our purposes in this blog post, here are some that commonly arise in law-enforcement-related cases:

• Failing to make an arrest or failing to retain an arrested person in custody.
• When an escaping or escaped prisoner, or a youth committed to the department of juvenile corrections, causes injury.
• An injury that results from the probation, community supervision or discharge of a prisoner or a youth committed to the department of juvenile correction, from the terms and conditions of the prisoner’s or youth’s probation or community supervision or from the revocation of the prisoner’s or youth’s probation, community supervision or conditional release under the jurisdiction of the superior court.
• An injury caused by a prisoner to any other prisoner, or an injury caused by a youth committed to the department of juvenile corrections to any other committed youth.
• An injury to the driver of a motor vehicle that is attributable to the violation by the driver of section 28-693, 28-1381 or 28-1382.
• The failure to detain a juvenile taken into temporary custody or arrested for a criminal offense or delinquent or incorrigible act in the appropriate detention facility, jail or lockup described in section 8-305.
• An injury caused by a peace officer if the injury was caused by any act or omission while rendering emergency care at the scene of an emergency occurrence.

What are the reasons for police qualified immunity?

There are two main reasons that supporters or police qualified immunity rely on to justify this defense to liability.

The need to avoid frivolous lawsuits against the government

The doctrine of qualified immunity strikes a balance between the need to allow public officials and employees to do their jobs without having to worry about frivolous lawsuits and the need to hold those same officials and employees accountable when their conduct is clearly wrongful.

The legal standard of intentional or gross negligence purposefully makes it harder to sue a public entity or employee without making it impossible like a standard of blanket immunity would.

The example of Harianto v. Arizona above is a good example of how this legal standard works. Could law enforcement have done a better job of stopping the wrong way driver before the accident occurred? Possibly. But could the plaintiff in that case show that law enforcement acted in a way that was grossly negligent in the lead up to the crash? No. Therefore, qualified immunity applied, and no legal recovery was possible because gross negligence could not be shown.

No qualified immunity defense can jeopardize police officer and public safety

Proponents of qualified immunity claim that if police officers can be easily sued for their decisions, this can have the following negative consequences:

• An officer in an emergency may hesitate to act out of concern for possible liability, possibly jeopardizing the safety or even the life of the officer or others.
• If police officers can be readily sued for the decisions they make and their actions or inaction, this can make it harder to recruit and retain individuals willing to serve as police.
• The combination of the two points above can lead to reduced public safety.

What is intentional conduct?

The key to overcoming qualified immunity as a defense is to establish that the police officer acted intentionally or in a way that was grossly negligent.

Conduct is intentional if it is willful or purposeful in nature. Generally, intentional conduct means that a police officer’s objective is to cause an intended result or to engage in a particular activity.

What is grossly negligent conduct?

In the context of qualified immunity grossly negligent conduct can mean “willful or wanton conduct, which is action or inaction with reckless indifference to the result or the rights or safety of others. A person is recklessly indifferent if he or she knows, or a reasonable person in his or her position ought to know that his action or inaction creates an unreasonable risk of harm, and the risk is so great that it is highly probable that harm will result.” (DeVries v. State, 211 P.3d 1185, 221 Ariz. 201 (Ariz. Ct. App. 2009))

Distinguish qualified immunity from absolute immunity in Arizona

Under ARS 12-820.01, Arizona law recognizes absolute immunity in legal actions involving judicial or legislative functions, or the determination of fundamental governmental policy. For our purposes in this blog post, absolute immunity does not apply to police officer actions.

What other kinds of immunity might apply to police in Arizona?

Arizona has some other immunity laws in addition to ARS 12-820.02, some of which can have a bearing on police qualified immunity claims. These include:

10. ARS 12-820.04: This statute immunizes public entities, and generally limits punitive damages against public employees acting within the scope of employment.

• ARS 12-820.05 immunizes a public entity from liability for any criminal acts perpetrated by a public employee, unless the public entity knew of the public employee’s propensity for that action.
  • This immunity does not apply to acts or omissions arising out of the operation of a motor vehicle or certain sexual offense situations.
  • A public entity is also immunized from liability for injuries caused by the act or omission of a public officer (including a police officer) who renders emergency care at a public place or at the scene of an emergency, except in cases of gross negligence.
• ARS 12-821: This law shortens the statute of limitations against public entities and their employees from two years to one year, in addition to the requirement of a formal “Notice of Claim” that must be served upon the public entity within 180 days of the occurrence under ARS 12-821.01.

Qualified immunity under federal interpretations

Arizona qualified immunity law is statutory. Federal immunity law that applies to accusations of police misconduct is based on U.S. Supreme Court decisions. Taken together, these decisions have created a two-part test to determine if an officer’s conduct qualifies for immunity from prosecution:

1. Did the officer’s conduct violate a constitutional right?
2. Was that constitutional right clearly established at the time of the alleged violation?

For example, in the 2018 U.S. Supreme Court case of Kisela v. Hughes, in which the plaintiff sued a Tucson, Arizona police officer under federal law based on unreasonable use of force in a police shooting incident that injured the plaintiff. The Court held that in this case it was not obvious enough under the circumstances involved that a competent police officer would have known that discharging his firearm would violate the plaintiff’s rights under the Fourth Amendment to the U.S. Constitution.

The Court reasoned that “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct,” and that an “existing precedent must have placed the statutory or constitutional question beyond debate.”

So, when federal qualified immunity is in question, even if an officer’s conduct was unconstitutional the officer may still be immune if no prior case with factually similar circumstances has already ruled such conduct unlawful.

What does it require to sue a police officer for misconduct in Arizona?

Qualified immunity is a legal doctrine that the Arizona legislature carefully considered before codifying it into law beginning in the 1980s. Qualified police immunity also has roots in U.S. Supreme Court decisions.

Although police do not enjoy absolute immunity for their decisions and their actions, plaintiffs suing police officers or law enforcement agencies for misconduct have a formidable burden of persuasion to meet to overcome qualified immunity, and this is by design.

Holding a police officer accountable for intentional wrongdoing or grossly negligent conduct requires a detailed investigation of the facts of the incident and a thorough understanding of how these legal standards apply to them. It can also require a firm grounding in concepts of your rights under the U.S. Constitution and how the U.S. Supreme Court interprets them.

At Plattner Verderame, our Arizona personal injury lawyers represent clients who have personal injury claims against government entities and personnel. If you believe you have been the victim of police misconduct in Arizona by any municipal police officer, county sheriff or sheriff’s deputy, or state police officer, then call us today to speak with an experienced plaintiff’s claims attorney and to schedule a free consultation at our Phoenix or Tempe offices.

You can also use our online contact form to reach us.

Remember, in any action against a public entity like a police department or a police officer, you have only 180 days to file a Notice of Claim to preserve your legal rights in a state law claim. Do not delay. Call us or contact us online today.