Leatham v. Yearick

NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ROBERT LEATHAM and KRISTY LEATHAM; RYAN KELLEHER;

PHILIP ASIEDU-DARKWA and MORCELIA ASIEDU-DARKWA;

RUSSELL SKINNER, in his official capacity as Maricopa County Sheriff,

Petitioners,

v.

LISA YEARICK, individually and as Personal Representative of the Estate

of Edward Rudhman; LEIGHA HUBER, Respondents.

No. 1 CA-SA 24-02001

FILED 02-03-2025

Petition for Special Action from the Superior Court in Maricopa County

No. CV 2019-015407

The Honorable Christopher Whitten, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Charles E. Trullinger, Courtney R. Glynn, Sean M. Moore

Counsel for Petitioners

1 The Court exercises its discretion to adopt a caption consistent with the

new Arizona Rules of Procedure for Special Actions, effective January 1,

2025, which no longer list judges as respondents. Ariz. R.P. Spec. Act.

5(b)(2) (effective January 1, 2025).

Zwillinger Wulkan PLC, Phoenix

By Larry Wulkan, Benjamin L. Rundall, Jennifer L. Allen

Counsel for Respondent Lisa Yearick

Law Offices of J. Scott Halverson PC, Tempe

By J. Scott Halverson

Counsel for Respondent Leigha Huber

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which

Presiding Judge Maria Elena Cruz and Judge Kent E. Cattani joined.

J A C O B S, Judge:

¶1 This wrongful death lawsuit was filed by Edward Rudhman’s

widow, Lisa Yearick, and his mother, Leigha Huber (collectively “the

Survivors”). Rudhman was killed by three deputies of the Maricopa

County Sheriff’s Office (“MCSO”) responding to a 9-1-1 call concerning

Rudhman’s threat to kill himself. Defendants (“the Officers”)

unsuccessfully moved for summary judgment in the superior court,

arguing that Ninth Circuit rulings on the dismissed federal claims in this

case should bar the Survivors’ remaining state law claims. The Officers

then asked us to exercise our special action jurisdiction to review that

denial, arguing: (1) the Ninth Circuit ruling that federal qualified immunity

applied bars the Survivors from arguing Arizona’s common law of

qualified immunity does not apply; and (2) Arizona common law of

qualified immunity bars the Survivors’ suit. For the following reasons, we

accept jurisdiction but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 Because this special action comes to us from the denial of a

motion for summary judgment, we “view the facts and all reasonable

inferences therefrom in the light most favorable to the party opposing the

motion.” Southwest Auto Painting & Body Repair Inc. v. Binsfeld, 183 Ariz.

444, 445 n.1 (App. 1995).

A. Rudhman Is Fatally Shot by Deputies After a 9-1-1 Call.

¶3 On December 16, 2018, Yearick called 9-1-1 to report that

Rudhman was threatening to kill himself and their animals. Yearick also

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said Rudhman had been drinking, had a gun, and that she feared for his

life. Yearick stated she didn’t want anything to happen to Rudhman and

didn’t “want him to hurt anybody else.” During the 9-1-1 call, Rudhman

shot the gun several times. Yearick reported she was afraid and had locked

herself in her bedroom. Rudhman then came inside and broke into

Yearick’s bedroom while she was still on the phone with 9-1-1. Yearick

asked Rudhman to give her the gun. He refused. He then left the room,

and she relocked the door. Rudhman then returned to Yearick’s bedroom,

saying he would give her the gun if she agreed to shoot him. Yearick

refused to open the bedroom door.

¶4 Deputies then arrived at the home. They began to inspect the

area and set up defensive positions, including setting up two vehicles in the

driveway for cover. Deputies were informed that Rudhman had a loaded

handgun on his person. After they set up their positions, Sergeant Robert

Leatham used the public address system of his patrol vehicle to instruct

Rudhman to come out of the house without his gun. After Sergeant

Leatham made five announcements from the vehicle over the span of three

minutes, Rudhman emerged from the front door of the home. Deputies

observed Rudhman carrying a large caliber revolver in his right hand.

¶5 Rudhman began walking toward the driveway and then in

the deputies’ direction. As Rudhman approached, Sergeant Leatham gave

five more commands to Rudhman to drop the gun and to stop advancing

toward the deputies. Rudhman disregarded the commands, saying he

would not follow them. Because the Survivors are the nonmovants in the

motion for summary judgment at issue, we presume, as prior courts have,

that Rudhman held the gun at his side when approaching the deputies. See

Yearick v. Leatham, No. 22-16310, 2023 WL 5928486, at *1 (9th Cir. Sept. 12,

2023); Yearick v. County of Maricopa, No. 20-00545, 2022 WL 3721910, at *3

(D. Ariz. Aug. 19, 2022). We also agree with both courts that the record,

including body-worn camera footage, does not contradict the Survivors’

contention that Rudhman held the gun in his right hand, by his side,

swinging it lightly as he walked, and never raised or pointed the gun at

deputies. Leatham, 2023 WL 5928486, at *1 (“[W]e find that the record does

not blatantly contradict [the Survivors’] view of the facts[.]”); County of

Maricopa, 2022 WL 3721910, at *3 (resolving issue in favor of Survivors

where body camera recordings “largely support[]” Survivors’ contentions

but do not clearly show intricacies of Rudhman’s movement of the gun).

¶6 Rudhman advanced on the deputies for 24 seconds and

closed the distance between them by 40 feet. One deputy was getting

prepared to call out for the others to use less-lethal fire. Without

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communication among the deputies or specific warning to Rudhman, three

of the five deputies fired seven lethal rounds on Rudhman. Sergeant

Leatham immediately reported to dispatch that shots were fired and called

for an ambulance. Deputies then approached Rudhman and found the

revolver cocked and loaded underneath his stomach.

B. The Survivors File This Suit in the Superior Court and It Is

Removed to the District Court.

¶7 The Survivors filed this lawsuit in the superior court in

December 2019, alleging the Officers were liable under 42 U.S.C. § 1983

because the deputies’ conduct violated Rudhman’s Fourth Amendment

rights. They also claimed the Officers were liable for the wrongful death of

Rudhman under A.R.S. § 12-611 because they breached their duties to use

only necessary and reasonable force, which resulted in the death of

Rudhman. The Officers then removed the case to the United States District

Court for the District of Arizona.

C. The District Court Granted the Officers Summary

Judgment.

¶8 The Officers moved for summary judgment on all claims.

They argued that federal qualified immunity barred the Survivors’ Section

§ 1983 claim as a matter of law. They also argued that Arizona’s justification

statute, A.R.S. § 13-410, insulated them from liability for wrongful death

because their conduct was reasonable as a matter of law. The district court

agreed, granting summary judgment for the Officers on both claims.

¶9 The district court noted the only disputed fact in the case was

the manner in which Rudhman held the gun while approaching the

deputies. After reviewing the body camera recordings, the district court

presumed the gun was held at Rudhman’s side, as the Survivors argued.

Because it was unclear from the briefs, the district court presumed the

Survivors were proceeding on a theory of battery for the wrongful death

claim.

¶10 The court first analyzed the Survivors’ excessive force claim

under 42 U.S.C. § 1983. First, the court found no clearly established law

gave the Officers fair notice their conduct was unconstitutional. Second,

the court found that, even if there was such clearly established law, their

conduct was objectively reasonable. Given these findings, the district court

ruled that federal qualified immunity protected the Officers from liability.

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¶11 Next, the court analyzed whether Arizona’s justification

statute, A.R.S. § 13-410, shielded the Officers from liability for wrongful

death. Because the court found the deputies’ conduct objectively

reasonable, it found no fact issue as to whether the use of force was justified.

See A.R.S. § 13-410(C) (stating that an officer’s use of deadly force against

another is justified when the officer “reasonably believes that it is necessary

. . . [t]o defend himself or a third person from what the . . . officer reasonably

believes to be the . . . imminent use of deadly physical force[]”). It thus

entered judgment for the Officers on the wrongful death claim. Judgment

followed.

D. The Survivors Appeal the Summary Judgment for the

Officers, and the Ninth Circuit Reverses the Summary

Judgment as to the Wrongful Death Claim.

¶12 The Survivors appealed the district court’s grant of summary

judgment to the Officers on both claims. The Ninth Circuit affirmed in part

and reversed in part, remanding the case back to the district court. Leatham,

2023 WL 5928486, at *4.

¶13 First, the Ninth Circuit affirmed summary judgment on the

Section 1983 claim, agreeing that federal qualified immunity applied. Id. at

*2-3. The court applied a test, both prongs of which the Survivors had to

overcome to defeat qualified immunity: (1) that the official violated a

statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct. Leatham, 2023 WL

5928486, at *1. The Ninth Circuit held that the district court erred in finding

no violation of Rudhman’s Fourth Amendment rights. Id. at *1-2. To the

contrary, the court held “[a reasonable] jury could . . . conclude that the

[deputies’] decision to shoot Rudhman was not objectively reasonable and

that, by shooting Rudhman, the [deputies] violated his Fourth Amendment

right to be free of excessive force.” Id. at *2. The court nonetheless agreed

with the district court that the right was not clearly established when

Rudhman was shot. Id. The Ninth Circuit thus affirmed summary

judgment on the Section 1983 excessive force claim. Id.

¶14 Next, the Ninth Circuit reversed the summary judgment for

the Officers on the Survivors’ wrongful death claim. Id. at *3. The Ninth

Circuit did not address whether Arizona common law qualified immunity

applied. See id. Rather, it looked to whether Arizona’s justification statute,

A.R.S. § 13-410(C)(1), was satisfied as a matter of law. Id. Having found

that a reasonable jury could conclude the deputies’ conduct was

unreasonable, and that the justification statute only protects officers if their

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use of deadly force was reasonably necessary, the Ninth Circuit reversed

this grant of summary judgment in favor of the Officers and remanded this

claim to the district court. Id.

¶15 On remand, the district court declined to exercise

supplemental jurisdiction over the wrongful death claim and remanded the

case to the superior court. On remand, the superior court ordered the

parties to brief whether: (1) issue preclusion applied to Arizona common

law qualified immunity despite the Ninth Circuit’s finding that the

deputies’ conduct was not objectively reasonable; (2) the Arizona wrongful

death claim was substantially similar to the Section 1983 claim even though

the Ninth Circuit held a jury could find the deputies’ conduct was

unreasonable; and (3) to what degree Arizona’s justification statute, A.R.S.

§ 13-410(C), functions as an affirmative defense or as Arizona common law

qualified immunity.

E. The Officers Unsuccessfully Seek Summary Judgment in

the Superior Court, Arguing They Are Immune From Suit.

¶16 The Officers again moved for summary judgment on the state

wrongful death claim. They argued summary judgment was proper

because Quinn v. Cardenas, 256 Ariz. 77 (App. 2023) requires the superior

court to find the Ninth Circuit’s application of federal qualified immunity

issue preclusive of the application of Arizona’s qualified immunity.

¶17 The superior court denied the Officers’ motion for summary

judgment. The superior court distinguished Quinn, finding it did not

require the court to apply issue preclusion. As the superior court noted,

unlike Quinn, the Ninth Circuit had held that a jury could conclude that the

deputies’ decision to shoot Rudhman was not objectively reasonable. The

court noted that finding the Ninth Circuit’s decision issue preclusive as to

Arizona qualified immunity would lead to an “absurd result” because the

Ninth Circuit explicitly found a fact question on the issue of reasonableness.

Indeed, the Ninth Circuit decision drew a dissent lamenting that the

Officers would face a trial on the Survivors’ state law claims. The superior

court also agreed with the Survivors that under Spooner v. City of Phoenix,

246 Ariz. 119 (App. 2018), Arizona qualified immunity does not apply, and

that “the correct analysis is whether the conduct of the involved officers

was justified.”

¶18 The Officers filed this special action seeking review of

superior court’s order denying their motion for summary judgment.

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DISCUSSION

I. We Accept Special Action Jurisdiction.

¶19 The Rules of Procedure for Special Actions guide us as we

consider whether to accept jurisdiction. Ariz. R.P. Spec. Act. 12(b). That

this special action concerns immunity from suit militates in favor of

exercising our discretionary jurisdiction. Ariz. R.P. Spec. Act. 12(b)(2);

Tucson Unified Sch. Dist. v. Borek, 234 Ariz. 364, 367 ¶ 5 (App. 2014)

(“Although we normally disfavor accepting special action jurisdiction to

review the denial of a motion for summary judgment, . . . questions

concerning immunity are particularly appropriate for special action

review[.]”). Deciding this issue now also “materially advance[s] the

efficient management of the case” and concerns an issue not presented in

ordinary dispositive motion practice. Ariz. R.P. Spec. Act. 12(b)(7). We

thus exercise our discretion to accept jurisdiction.

II. The Superior Court Did Not Err By Denying the Officers’ Motion

for Summary Judgment.

¶20 The Officers contend the superior court erred by denying

their motion for summary judgment because (1) Quinn precluded the court

from finding Arizona common law qualified immunity inapplicable as to

the wrongful death claim, and (2) even without preclusion, Arizona

common law qualified immunity applies because qualified immunity is

applicable to the deputies’ intentional conduct.2

¶21 We review a superior court’s denial of summary judgment de

novo. BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 590 ¶ 8 (App. 2021)

(“[W]e may review the [denial of summary judgment] if the denial was

based on purely legal grounds.”) (cleaned up). We will reverse the denial

of summary judgment where there are no genuine disputes of material fact

and the moving party is entitled to judgment as a matter of law. See Quinn,

256 Ariz. at 83 ¶ 19 (affirming a grant of summary judgment where there is

no genuine dispute of material fact and the moving party is entitled to

judgment as a matter of law); Bernal v. Loeks, 196 Ariz. 363, 364 ¶ 6 (App.

2000) (stating the standard for reviewing the denial or grant of summary

judgment is the same as “ruling on the motion in the first instance[]”).

2 The Officers do not argue Arizona’s justification statute, A.R.S. § 13-

410(C), entitles them to summary judgment.

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A. The Superior Court Is Bound by the Ninth Circuit’s

Decision, But It Does Not Mandate Entry of Summary

Judgment for the Officers on the Wrongful Death Claim.

¶22 The Officers argue this Court’s decision in Quinn precludes

the superior court’s finding that Arizona’s common law qualified immunity

does not apply. Specifically, the Officers contend issue preclusion governs

the application of Arizona qualified immunity because the Ninth Circuit

held there was no clearly established right at the time deputies shot

Rudhman. Although we agree issue preclusion applies to the Ninth

Circuit’s decision, it does not provide the deputies with qualified immunity

from the Survivors’ wrongful death claim.

¶23 This Court has previously held that preclusion principles

apply where a federal court judgment has been entered in a case that has

been remanded back to the superior court. Quinn, 256 Ariz. at 84 ¶ 29. We

determine the preclusive effect of a prior judgment de novo. Id. at 84 ¶ 30.

¶24 We apply the preclusion law of the court that rendered the

prior judgment – here, the Ninth Circuit – but federal and Arizona law are

the same on this point. Id.; see also In re Gen. Adjudication of All Rts. to Use

Water in Gila River Sys. & Source, 212 Ariz. 64, 69 ¶ 13 (2006) (“Federal law

dictates the preclusive effect of a federal judgment.”). Thus, for the Ninth

Circuit’s decision to preclude the Survivors’ suit, the Officers must

demonstrate: “(1) the issue at stake was identical in both proceedings; (2)

the issue was actually litigated and decided in the prior proceedings [in

favor of the party invoking preclusion]; (3) there was a full and fair

opportunity to litigate the issue; and (4) the issue was necessary to decide

the merits.” Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012); see also

Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573 (1986) (stating that for

issue preclusion to apply, issue must be “actually litigated . . . , a final

judgment was entered, and the party against whom the doctrine is to be

invoked had a full and fair opportunity to litigate”).

1. The Issues Are Identical in Both Proceedings.

¶25 The Officers argue the issues underlying the Section 1983

claim and the state wrongful death claim are identical. Federal courts

consider four factors in determining whether issues are identical:

(1) [I]s there a substantial overlap between the evidence or

argument to be advanced in the second proceeding and that

advanced in the first? (2) [D]oes the new evidence or

argument involve the application of the same rule of law as

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that involved in the prior proceeding? (3) [C]ould pretrial

preparation and discovery related to the matter presented in

the first action reasonably be expected to have embraced the

matter sought to be presented in the second? (4) [H]ow closely

related are the claims involved in the two proceedings?

Howard v. City of Coos Bay, 871 F.3d 1032, 1041 (9th Cir. 2017). The factors

are not applied “mechanistically.” Id. We discuss each factor in turn.

¶26 First, the evidence and argument for both claims and the

affirmative defense raised, qualified immunity, overlap substantially. Both

arise from the same sequence of events: the conduct before and the

shooting of Rudhman, so evidence for both claims would be nearly

identical. The argument regarding the claims also overlaps: although the

claims require the Survivors to prove different elements, the defense the

Officers raise – qualified immunity – requires them to prove almost exactly

the same things in the state proceeding. See Quinn, 256 Ariz. at 85-86 ¶¶ 34-

37.

¶27 In Arizona, officers have qualified immunity “when

performing an act that inherently requires judgment or discretion.”

Spooner, 246 Ariz. at 123 ¶ 9 (cleaned up). However, Arizona’s qualified

immunity does not apply where Survivors can demonstrate one of two

things: the deputies either “knew or should have known [they were] acting

in violation of established law or acted in reckless disregard of whether

[their] activities would deprive another person of their rights.” Chamberlain

v. Mathis, 151 Ariz. 551, 558 (1986) (emphasis added) (treating these

pathways to overcome immunity disjunctively).

¶28 Federal qualified immunity, by contrast, applies unless two

factors are both present: “a plaintiff pleads facts showing (1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011) (emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). In excessive force cases, “the inquiry remains whether,

under the circumstances,” officers acted unreasonably, thus violating a

right, and if the right was clearly established, meaning officers “had fair

notice that the force employed was unlawful[.]” Boyd v. Benton County, 374

F.3d 773, 781 (9th Cir. 2004) (cleaned up).

¶29 In Quinn, we found substantial overlap among federal and

state qualified immunity where the claims were a Section 1983 claim, a state

false imprisonment claim, and a state assault claim. 256 Ariz. at 85 ¶ 34.

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We found that both federal and state qualified immunity “require analysis

of whether [the official] violated established law or unreasonably

disregarded the unlawful nature of his conduct.” Id. at 86 ¶ 37. As we held

in Quinn, the issues underlying Arizona common law qualified immunity

and federal qualified immunity substantially overlap because both analyze

whether there was a clearly established right, whether a right was violated,

and whether the deputies acted unreasonably. See id.

¶30 Second, as in Quinn, Arizona common law qualified immunity

and federal qualified immunity are identical for issue preclusion purposes.

As we recognized in Quinn, federal and state qualified immunity employ

very similar standards – “whether [the official] violated established law or

unreasonably disregarded the unlawful nature of his conduct.” Id. at 86 ¶¶

37, 39.

¶31 Third, discovery in the federal court could have been

reasonably expected to have embraced the state law claim, as the claims

arise from the same sequence of events.

¶32 Fourth, the claims are closely related. Both arise from the

same series of events. The standards for both Arizona and federal qualified

immunity mandate the Survivors prove the deputies conduct to be

reasonable and that a right be violated. Id.

¶33 Thus, as in Quinn, we find the issues underlying the claims to

be identical.

2. The Issues Were Actually Litigated in the Federal

Proceedings But Were Not All Decided in Favor of

the Officers.

¶34 We next determine if the issues underlying the state law claim

(wrongful death) and the affirmative defense raised (Arizona qualified

immunity) were actually litigated and decided by the federal courts in favor

of the Officers. The parties conducted discovery on the state law claim and

the Section 1983 claim. When the Officers moved for summary judgment

on all claims, the parties briefed federal qualified immunity as well as

Arizona’s justification statute. Because the issues underlying federal and

Arizona qualified immunity are identical, the parties actually litigated the

issues underlying the state wrongful death claim and Arizona qualified

immunity.

¶35 Despite that, the federal courts did not decide all issues

underlying the wrongful death claim and Arizona qualified immunity in

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favor of the Officers. The Ninth Circuit only affirmed the district court’s

grant of summary judgment on the Section 1983 claim, finding the

Survivors could not establish that the deputies violated clearly established

law under federal qualified immunity because they were not on notice that

Rudhman had a right to be free from lethal force under the circumstances.

But the court did not find the deputies’ conduct to be objectively reasonable,

instead finding a fact question as to reasonableness, such that a jury could

find the deputies’ conduct unreasonable. After making these findings, the

court reversed the grant of summary judgment on the Arizona wrongful

death claim and expressly declined to decide whether the deputies’ use of

force violated Arizona law.

¶36 In sum, Arizona law permits the Survivors to overcome

qualified immunity by demonstrating the deputies either (1) “knew or

should have known [they were] acting in violation of established law or [(2)]

acted in reckless disregard of whether [their] activities would deprive

another person of their rights.” Chamberlain, 151 Ariz. at 558 (emphasis

added). The Ninth Circuit actually decided the first issue – whether officers

knew or should have known they violated established law – by holding the

Officers were not on notice of Rudhman’s right to be free from lethal force

under the circumstances. But the second – whether the deputies recklessly

disregarded Rudhman’s rights – was not. The Ninth Circuit expressly

declined to decide whether the Officers’ use of force violated Arizona law.

That aspect of its decision defeats the Officers’ claim of preclusion.

3. The Parties Had a Full and Fair Opportunity to

Litigate the Issues Underlying the Claims.

¶37 The parties had a full and fair opportunity in the federal

proceeding to litigate the issues underlying the wrongful death claim and

Arizona qualified immunity. In the district court and Ninth Circuit, they

briefed their arguments under both federal qualified immunity and

Arizona’s justification statute, addressing whether the deputies violated

Rudhman’s rights and whether the deputies’ conduct was reasonable. Both

issues are central to Arizona common law qualified immunity.

4. The Issues Were Necessary to the Merits.

¶38 The issue of reasonableness was integral to the Ninth Circuit’s

resolution of the matter but was not resolved in favor of the Officers, which

is why the case was remanded to the district court and ultimately to the

superior court.

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5. The Ninth Circuit Decision Is Preclusive on the Issue

of Whether the Right Was Clearly Established, but

There Is a Question of Fact as to the Reasonableness

of the Deputies’ Conduct.

¶39 Having weighed the preclusion factors, we find that issue

preclusion applies in part. The federal litigation puts beyond question that

the Officers did not violate clearly established law in using lethal force

against Rudhman. But we recognize, as the Ninth Circuit did, that the only

disputed fact between the parties is the manner in which Rudhman held

the gun when he approached the deputies. We agree with the Ninth Circuit

that this fact is material and creates a question as to the reasonableness of

the deputies’ conduct at the time they exercised deadly force against

Rudhman. The court did not err in denying the Officers’ summary

judgment motion.

¶40 We are not departing from Quinn. The issue we determine

today was not raised in Quinn because the federal court there found the

officers’ conduct objectively reasonable. Here, the federal court left that

issue open, allowing the Survivors to argue the Officers recklessly

disregarded Rudhman’s Fourth Amendment rights. Because the Ninth

Circuit found a fact issue as to the reasonableness of the deputies’ conduct,

the Officers cannot invoke issue preclusion to determine this issue.

¶41 Section 1983 claims and state claims vindicate different rights.

See, e.g., Peterson v. Baker, 504 F.3d 1331, 1336 (11th Cir. 2007) (internal

citations omitted) (“Section 1983 must not be used as a ‘font of tort law’ to

convert state tort claims into federal causes of action.”); Davidson v. O’Lone,

752 F.2d 817, 827 (3d Cir. 1984) (explaining that “a tort committed by a state

official acting under color of state law is not, in and of itself, sufficient to

show an invasion of a person’s constitutional rights under [Section] 1983”).

Issue preclusion requires us to adhere to all decisions made in the Ninth

Circuit’s decision but it does not mandate our courts to find Arizona

qualified immunity applies whenever a federal court finds that federal

qualified immunity applies to a similar claim. See Quinn, 256 Ariz. at 84 ¶

30 (reviewing the preclusive effect of a prior judgment de novo).

¶42 If the Survivors can demonstrate the deputies recklessly

disregarded Rudhman’s rights, they can prevail, because Arizona law does

not require the Survivors to prove that a clearly established right was

violated, as federal law does. Compare Chamberlain, 151 Ariz. at 558

(framing Arizona’s qualified immunity disjunctively) with Ashcroft, 563 U.S.

at 735 (framing federal qualified immunity conjunctively).

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B. Arizona’s Common Law Qualified Immunity Does Not

Entitle the Officers to Summary Judgment on the Wrongful

Death Claim.

¶43 The Officers also argue that Arizona qualified immunity

applies as a matter of law, entitling them to summary judgment on the

wrongful death claim. We disagree.

¶44 First, the Officers contend qualified immunity applies as a

matter of law because there is no clearly established law demonstrating

Rudhman had the right to be free from lethal force, and the reckless

disregard pathway is not available for intentional uses of force. But as we

have explained, a showing of a clearly established right is not required

where the Survivors are arguing qualified immunity does not apply

because the deputies acted in reckless disregard of Rudhman’s rights. The

Officers also contend the Survivors have failed to demonstrate deputies

recklessly disregarded Rudhman’s rights.

¶45 The Officers argue plaintiffs can never overcome qualified

immunity by showing reckless disregard in cases involving intentional uses

of force. But we have previously held that reckless disregard can overcome

qualified immunity and support liability in cases involving intentional

conduct. See Chamberlain, 151 Ariz. at 558 (analyzing qualified immunity in

defamation case). It is true that Arizona law does not permit the Survivors

to bring both negligence and intentional tort claims because conduct cannot

be both negligent and intentional. See Ryan v. Napier, 245 Ariz. 54, 59-60 ¶¶

16-20 (2018). But the Response brief makes clear that the Survivors’

wrongful death claim is based on a theory of the intentional tort battery, not

negligence. Survivors are correct in stating that “[t]he test is not whether

the conduct itself was reckless but whether that conduct was done ‘with

reckless disregard’ for [Rudhman’s] rights.” Thus, Ryan does not preclude

application of Arizona qualified immunity to cases involving the

intentional use of force.

¶46 Second, the Officers argue that even if reckless disregard

could make them liable, the Survivors have failed to demonstrate the

deputies’ conduct rose to that heightened standard. The Survivors contend,

however, that the deputies had the option to use non-lethal force when

Rudhman approached them and that Rudhman had the gun at his side

when he approached the deputies. Recklessness involves the “conscious

disregard of the law or the rights of others.” Spooner, 246 Ariz. at 119 ¶ 10;

see also Badia v. City of Casa Grande, 195 Ariz. 349, 356 ¶ 27 (App. 1999)

(stating the standard is “wanton misconduct that is flagrant and evinces a

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lawless and destructive spirit[]”) (cleaned up); Miranda v. City of Casa

Grande, No. 2 CA-CV 2022-0030, 2022 WL 17970593, at *3-4 ¶¶ 12-15 (Ariz.

App. Dec. 27, 2022) (determining if “[k]nowing disregard of a suspect’s

consent or knowingly giving false testimony” amounted to the “‘conscious

disregard of the law or the rights of others’”) (quoting Spooner, 246 Ariz. at

119 ¶ 10). The Survivors have shown a question of fact exists as to whether

the deputies’ conduct amounted to “reckless disregard” of Rudhman’s

rights because a jury could conclude the deputies consciously disregarded

the law or the rights of Rudhman in deciding to use lethal force under the

circumstances. See United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195 (App.

1990) (holding that summary judgment is improper “where the evidence or

inferences would permit a jury to resolve a material issue in favor of either

party[]”).

¶47 Third, the Officers argue the superior court erred by declining

to apply qualified immunity. The Officers contend the superior court

applied the law to hold that qualified immunity only applies to immunize

simple negligence. The Officers misapprehend the superior court’s order.

The court noted that under Spooner, qualified immunity is not available for

simple negligence. But the basis for the court’s ruling was that, to the extent

the Survivors have alleged an intentional tort, whether qualified immunity

applies turns on a disputed issue of fact - the reasonableness of the deputies

conduct. Thus, the superior court did not err in applying the law.

CONCLUSION

¶48 We accept jurisdiction and deny relief.

AMY M. WOOD • Clerk of the Court

FILED: JT

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