Susan Ryan v. napier/klein

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

SUSAN E. RYAN,

AS ADMINISTRATOR OF THE ESTATE OF

BRIAN MCDONALD,

Plaintiff/Appellee,

v.

MARK NAPIER, PIMA COUNTY SHERIFF; AND JOSEPH KLEIN,

Defendants/Appellants.

No. CV-17-0325-PR

Filed August 23, 2018

Appeal from the Superior Court in Pima County

The Honorable Catherine M. Woods, Judge

No. C20142895

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division Two

243 Ariz. 277 (App. 2017)

VACATED

COUNSEL:

Barbara LaWall, Pima County Attorney, Nancy J. Davis (argued), Deputy

County Attorney, Tucson, Attorneys for Mark Napier, Pima County Sheriff,

and Joseph Klein

Amy Hernandez (argued), Dwyer Hernandez, P.C., Tucson, Attorneys for

Susan E. Ryan

Stanley G. Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson; David

L. Abney, Ahwatukee Legal Office, P.C., Phoenix, Attorneys for Amicus

Curiae Arizona Association for Justice/Arizona Trial Lawyers Association

RYAN V. NAPIER/KLEIN

Opinion of the Court

Nicholas D. Acedo, Jacob B. Lee, Struck Love Bojanowski & Acedo, PLC,

Chandler, Attorneys for Amici Curiae League of Arizona Cities and Towns,

Arizona Association of Chiefs of Police, Arizona Municipal Risk Retention

Pool, Apache County Sheriff Joe Dedman, Cochise County Sheriff Mark

Dannels, Coconino County Sheriff Jim Driscoll, Gila County Sheriff Adam

Shepherd, Graham County Sheriff Preston Allred, Greenlee County Sheriff

Tim Sumner, La Paz County Sheriff Bill Risen, Maricopa County Sheriff

Paul Penzone, Mohave County Sheriff Doug Schuster, Navajo County

Sheriff Kelly Clark, Pinal County Sheriff Mark Lamb, Santa Cruz County

Sheriff Tony Estrada, Yavapai County Sheriff Scott Mascher, Yuma County

Sheriff Leon Wilmot

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF

JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES

PELANDER, BOLICK, GOULD, and LOPEZ joined.

JUSTICE TIMMER, opinion of the Court:

¶1 The negligence claimant here recovered damages for dog-bite

injuries he received when a law enforcement officer intentionally released

a police dog against him. We today hold that plaintiffs cannot assert a

negligence claim based solely on an officer’s intentional use of physical

force. The appropriate state-law claim is for battery, and an officer asserting

the justification defense set forth in A.R.S. § 13-409 bears the burden of

proof on that issue. Plaintiffs may, however, base a negligence claim on

conduct by the officer that is independent of the intentional use of physical

force.

¶2 We also hold that at trial on such a battery claim, expert

witnesses cannot suggest to the jury that Graham v. Connor, 490 U.S. 386

(1989), which sets forth factors pertinent to 42 U.S.C. § 1983 excessive force

cases, is the legal standard for deciding the applicability of § 13-409.

Experts may explain their reliance on the factors, as appropriate, but should

not imply by mentioning their source that these factors legally control the

jury’s determination of justification.

BACKGROUND

¶3 Brian McDonald was driving in Tucson late one evening

when he swerved into the opposite lane and nearly collided with a patrol

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car driven by Pima County Sheriff’s Deputy Matthew Dixon. Activating

his siren and flashing lights, Dixon made a U-turn and pursued McDonald.

McDonald did not immediately stop, and Dixon called for assistance. Other

deputies placed traffic spikes in McDonald’s projected path, but he pulled

over before hitting them. Dixon stopped and, treating the encounter as

high-risk, shouted at McDonald to show his hands and throw out the car

keys. Although McDonald’s window was down, he did not respond.

¶4 More deputies, including Deputy Joseph Klein and his police

dog, Barry, arrived at the scene. Barry was trained to “bite and hold” on

command to assist officers in apprehending suspects. Klein assumed

command and warned McDonald he would “send [his] dog” unless

McDonald started talking. McDonald responded by rolling up his window

and driving towards the spikes with the deputies giving chase.

¶5 Pursuing, Klein announced over the police radio that if

McDonald “went mobile,” after the spikes stopped his car, Klein would

deploy Barry. McDonald’s car ran over the spikes, hopped a curb, and

stopped. McDonald staggered from the car and walked around the back

toward the passenger side while leaning on the car for support. Klein got

out of his patrol car with Barry and warned McDonald, “stop or you will

be bitten.” When McDonald reached the passenger-side door, he stopped

and put his hands on the roof of the car. According to Klein, he

intentionally released Barry the instant before McDonald placed his hands

on the top of the car. Barry bit McDonald’s leg and held onto it between

twenty-five and thirty-eight seconds until Klein ordered the dog to release.

McDonald suffered severe injuries.

¶6 Authorities later learned that McDonald had type 1 diabetes

and, at the time of the events here, was experiencing a severe hypoglycemic

event. As a result, he lacked cognitive function to understand what was

happening or respond to police commands. The state did not pursue

criminal charges against McDonald.

¶7 McDonald sued Klein and the Pima County Sheriff

(“Defendants”), alleging that Klein “negligently released” Barry and that

use of the dog “constituted a negligent, unjustified, and excessive use of

force.” McDonald’s claim against the Pima County Sheriff was based solely

on vicarious liability. (The trial court granted summary judgment against

McDonald on two additional claims, including a claim that the Pima

County Sheriff “failed to promulgate appropriate and adequate policies

and procedures.” That ruling is not at issue here.) McDonald did not assert

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claims for battery or for deprivation of rights under § 1983. Instead, as

related at oral argument before this Court, McDonald deliberately decided

to assert only a negligence claim.

¶8 Defendants moved for summary judgment, arguing that

Klein’s intentional use of force could not constitute negligence. The trial

court denied the motion two weeks before trial, ruling that McDonald could

pursue a claim for “negligent use of force” despite Klein’s intentional

decision to release Barry against McDonald. The court correctly noted that

law enforcement officers can be liable for negligent acts, see Clouse ex rel.

Clouse v. State, 199 Ariz. 196, 198 ¶ 9 (2001), but did not otherwise explain

its ruling.

¶9 At trial, the primary issues were whether Klein acted

negligently in releasing Barry and, if so, whether he was legally justified in

doing so, thereby relieving Defendants of liability pursuant to §§ 13-409,

-413. Over Defendants’ objection, the court permitted evidence of factors

identified in Graham, in the Fourth Amendment context, to assess the

reasonableness of police force. The court also instructed the jury that

Defendants bore the burden of proving that Klein’s release of Barry was

justified.

¶10 The jury found in favor of McDonald and awarded him

$617,500 in damages but found him five percent at fault. Defendants

unsuccessfully moved for a new trial, asserting that the court improperly

instructed the jury on negligence, incorrectly admitted evidence of the

Graham factors, and incorrectly instructed the jury that Defendants bore the

burden of proving justification under § 13-409.

¶11 The court of appeals affirmed in a split decision. Ryan v.

Napier, 243 Ariz. 277 (App. 2017). It declined to “decide whether Arizona

law recognizes a separate tort of negligent use of excessive force.” Id. at 282

¶ 19 n.6 (internal quotation marks omitted). Instead, the court concluded

that McDonald could recover damages under a negligence claim for

“Klein’s evaluation of whether to intentionally release [Barry],” which the

court found distinct from a battery claim based on Klein’s intentional

release of the dog. Id. at 282 ¶ 19. The court also determined that the

justification defense under §§ 13-409, -413 did not apply to negligence

claims, meaning that if Klein negligently released Barry, he was not

privileged to do so. Id. at 283 ¶ 23. Thus, it did not decide who bears the

burden of proving justification in intentional tort cases. Id. Finally, the

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court rejected Defendants’ arguments that evidence of the Graham factors

was inadmissible. Id. at 284–87 ¶¶ 27–37.

¶12 We granted review to decide whether the trial court and court

of appeals properly decided several issues of statewide importance. We

have jurisdiction pursuant to article 6, section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24.1

DISCUSSION

I. The Negligence Claim

A. Review of order denying summary judgment

¶13 Defendants argue that the trial court erred by denying their

motion for summary judgment. They assert that an intentional use of

excessive force is an intentional tort (battery) and cannot simultaneously

constitute negligence.

¶14 A denial of summary judgment is not an appealable order.

See State v. Superior Court, 140 Ariz. 365, 366 (1984). And a denial based on

disputed issues of material fact also is not reviewable on appeal from a final

judgment after trial. Cf. Desert Palm Surgical Grp., PLC v. Petta, 236 Ariz.

568, 577 ¶ 21 (App. 2015) (reasoning that permitting review “could lead to

the absurd result that one who has sustained his position after a full trial

and a more complete presentation of the evidence might nevertheless be

reversed on appeal because he had failed to prove his case more fully at the

time of the hearing of the motion for summary judgment”(quoting Navajo

Freight Lines, Inc. v. Liberty Mut. Ins., 12 Ariz. App. 424, 428 (1970))). But if

the denial was grounded on a purely legal issue that affected the final

judgment, we can review it like any other interim order. See id. ¶ 22; see also

A.R.S. § 12-2102(A) (authorizing review of “any intermediate orders

involving the merits of the action and necessarily affecting the judgment”).

¶15 McDonald does not contest that the trial court’s denial of

summary judgment was based on a legal issue that necessarily affected the

1 During the pendency of Defendants’ appeal, McDonald died from a cause

unrelated to his dog-bite injuries. Although the administrator of his estate

has substituted as the petitioner here, we refer to her as “McDonald” for

continuity.

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final judgment. The efficacy of that ruling is properly before us, and we

review it de novo. See Glazer v. State, 237 Ariz. 160, 167 ¶ 29 (2015).

B. Basis for negligence liability

¶16 Whether Arizona recognizes claims for negligent use of

intentionally inflicted force, as the trial court ruled, or negligent evaluation

of the need to inflict force, as the court of appeals concluded, turns on the

differences between negligence and intentional torts. Cf. Wells Fargo Bank

v. Ariz. Laborers, Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 483 ¶ 19 (2002)

(“Negligence . . . claims differ from the intentional tort claims on review

here; each has different elements and different requirements of proof.”).

¶17 To recover on a negligence claim, a plaintiff must prove a

duty requiring the defendant to conform to a standard of care, breach of

that duty, a causal connection between breach and injury, and resulting

damages. See Quiroz v. ALCOA Inc., 243 Ariz. 560, 563–64 ¶ 7 (2018). A

negligence claim focuses on the defendant’s conduct; intent is immaterial.

See Dan B. Dobbs et al., The Law of Torts § 31, at 77 (2d. ed. 2011) [hereinafter

Dobbs] (“[T]he emphasis is on risk as it would be perceived by a reasonable

person, not on the defendant’s purpose or on the certainty required to show

intent.”).

¶18 Intentional torts, in contrast, do not require proof of duty,

breach, or a causal connection between the breach and the injury. See

Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 314 ¶ 33 (2003); Wells

Fargo Bank, 201 Ariz. at 483–84 ¶ 20. As the name suggests, these torts are

committed by persons acting with tortious “intent.” See Intentional Tort,

Black’s Law Dictionary (10th ed. 2014). Acting with “intent” does not refer

to the act itself. Restatement (Second) of Torts § 8A cmt. a (“Restatement”);

id. § 870 cmt. b. It means that “the actor desires to cause [the] consequences

of his act, or that he believes that the consequences are substantially certain

to result from it.” Id. § 8A. Thus, as pertinent here, a battery claim requires

proof that the defendant intended to cause harmful or offensive contact

with the plaintiff. See Johnson v. Pankratz, 196 Ariz. 621, 623 ¶ 6 (App. 2000);

Restatement § 13.

¶19 The fundamental distinction between negligence and an

intentional tort is whether the consequences of the act or omission are

unintentional or intentional. This assessment by the Connecticut Supreme

Court captures our view:

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It is true, of course, that intentional tortious conduct will

ordinarily also involve one aspect of negligent conduct,

namely, that it falls below the objective standard established

by law for the protection of others against unreasonable risk

of harm. That does not mean, however, as the plaintiff’s

argument suggests, that the same conduct can reasonably be

determined to have been both intentionally and negligently

tortious. The distinguishing factor between the two is what

the negligent actor does not have in mind: either the desire to

bring about the consequences that follow or the substantial

certainty that they will occur. If he acted without either that

desire or that certainty, he was negligent; if he acted with

either that desire or that certainty, he acted intentionally.

Am. Nat’l Fire Ins. v. Schuss, 607 A.2d 418, 423 (Conn. 1992).

¶20 Based on the foregoing, we conclude that negligence and

intent are mutually exclusive grounds for liability. Cf. Transamerica Ins. v.

Meere, 143 Ariz. 351, 357 (1984) (differentiating negligence from intent and

noting that “the mere knowledge and appreciation of a risk, short of

substantial certainty, is not the equivalent of intent . . . [and] is not classed

as an intentional wrong” (quoting William Lloyd Prosser, Handbook on the

Law of Torts § 8, at 32 (4th ed. 1971))); see also Am. Nat’l Fire Ins., 607 A.2d at

422 (“It is axiomatic, in the tort lexicon, that intentional conduct and

negligent conduct, although differing only by a matter of degree are

separate and mutually exclusive.”(citation omitted)); Dobbs, supra ¶ 17, § 31

(“Any given act may be intentional or it may be negligent, but it cannot be

both. Intent and negligence are regarded as mutually exclusive grounds for

liability.”); Restatement § 282 cmt. d (“[Negligence] excludes conduct

which creates liability because of the actor’s intention to invade a legally

protected interest of the person injured or of a third person.”). It follows

that if a defendant acts with the intent to cause a harmful or offensive

touching (battery), that same act cannot constitute negligence.

¶21 We therefore disagree with the trial court that negligent use

of intentionally inflicted force is a cognizable claim. See Dobbs, supra ¶ 17,

§ 31 (“As the saying goes, there is no such thing as a negligent battery.”);

see also Duncan, 205 Ariz. at 314 ¶ 32 (noting “battery and negligence

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(malpractice) constitute separate causes of action, each protecting different

interests” (citation and internal quotation marks omitted)).2

¶22 We also disagree with the court of appeals and McDonald that

negligence liability can result from a law enforcement officer’s “evaluation”

of whether to intentionally use force against another person. A negligence

claim requires either “an act” or a failure to “act.” See Restatement § 284;

see also Coburn v. City of Tucson, 143 Ariz. 50, 52 (1984) (citing Restatement

§ 284 with approval). An “act” is “an external manifestation of the actor’s

will.” Restatement § 2. An actor’s internal evaluation about whether to use

force and the decision to do so are not “acts” and therefore cannot, by

2 Other courts are in accord with our view. See, e.g., Mooney v. Carter, 160

P.2d 390, 393 (Colo. 1945) (stating that plaintiff’s injuries from being thrown

from a running board could not stem from negligence when the defendant

intentionally applied force to her car to throw the plaintiff off); City of Miami

v. Sanders, 672 So. 2d 46, 47 (Fla. 1996) (“[A] suit for a police officer’s use of

excessive force necessarily involves the intentional tort of battery.”); Baska

v. Scherzer, 156 P.3d 617, 628 (Kan. 2007) (holding that the doctrine of

transferred intent applied and plaintiffs could not style their claim as

negligence where defendant intended to punch a third party but instead

punched plaintiff); Schumann v. McGinn, 240 N.W.2d 525, 529–30 (Minn.

1976) (stating that the excessive use of force by a law enforcement officer is

an intentional battery and distinguishing negligence); Howard v. Wilson, 62

So. 3d 955, 957 ¶ 9 (Miss. 2011) (“[T]here is no such thing as a ‘negligent

battery.’” (citation omitted)); Love v. City of Port Clinton, 524 N.E.2d 166, 168

(Ohio 1988) (“Where the essential character of an alleged tort is an

intentional, offensive touching, the statute of limitations for assault and

battery governs even if the touching is pled as an act of negligence.”);

Denton v. Arnstein, 250 P.2d 407, 415 (Or. 1952) (“An assault and battery is

not negligence.”); City of Watauga v. Gordon, 434 S.W.3d 586, 593 (Tex. 2014)

(refusing to recognize a claim for negligence where officer injured Plaintiff

while handcuffing him because “[c]laims of excessive force . . . arise out of

a battery rather than negligence, whether the excessive force was intended

or not”). But see Merman v. City of Camden, 824 F. Supp. 2d 581, 598 (D.N.J.

2010) (refusing to dismiss a claim for negligent infliction of bodily harm

caused by officers grabbing plaintiff and throwing her to the ground as “a

jury would be free to accept[] that any injuries suffered by plaintiff were

caused by the officers’ negligent use of force”); City of Birmingham v.

Thompson, 404 So. 2d 589, 590 (Ala. 1981) (agreeing that “officer using

excessive force against a prisoner [] committed a negligent tort”).

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themselves, constitute negligence. Here, Klein’s “act,” and the sole cause

of McDonald’s injuries, was Klein’s intentional release of Barry to bite and

hold McDonald. Cf. id. cmt. c (“Thus, if the actor, having pointed a pistol

at another, pulls the trigger, the act is the pulling of the trigger.”). As

previously explained, an intentional act cannot also constitute negligence.

See supra ¶¶ 19–20. In short, Klein’s internal evaluation of whether to

release Barry and his decision to do so was part and parcel of his intent to

inflict harmful or offensive contact on McDonald. Cf. Latits v. Phillips, 826

N.W.2d 190, 196 (Mich. Ct. App. 2012) (“[T]he claim that defendant failed

to appreciate that [plaintiff] did not pose a risk of harm may have some

bearing on whether defendant made the proper decision to shoot, but it

does not alter the fact that it was an intentional decision to shoot.”).

¶23 We are further persuaded because permitting negligence

liability to rest on an officer’s internal evaluation of the need for

intentionally inflicted force could permit plaintiffs to “plead around”

statutory provisions that apply only to intentional tort claims.

¶24 First, a public entity, like the Pima County Sheriff’s Office, is

immune from liability for damages caused by an employee’s felony act

unless the entity knew of the employee’s propensity to commit such acts.

See A.R.S. § 12-820.05(B); Gallagher v. Tucson Unified Sch. Dist., 237 Ariz. 254,

257 ¶ 10 (App. 2015). Similarly, the public entity is not required in that

circumstance to indemnify the employee for any liability imposed. See

A.R.S. § 41-621(L). Thus, if Klein’s intentional release of Barry on McDonald

was unjustified and consequently determined to be aggravated assault, see

A.R.S. §§ 13-1203(A), -1204(A), the Sheriff would be immune from liability,

unless he knew that Klein had a propensity to act as he did, and would not

be required to indemnify Klein. Cf. State v. Heinze, 196 Ariz. 126, 130 ¶ 18

(App. 1999) (interpreting § 41-621(L), which has language similar to § 12-

820.05(B), and concluding that a felony conviction is not a prerequisite to

the application of the felony exclusion).

¶25 Second, statutory presumptions are triggered when a law

enforcement officer intentionally uses physical force to arrest or capture a

suspect and the suspect is injured. The officer is “presumed to [have been]

acting reasonably” in using physical force. A.R.S. § 12-716(A)(1). And the

officer’s employer is “presumed to have reasonably hired and trained” its

officers to use that physical force. Id. § 12-716(A)(2).

¶26 A negligence action based on Klein’s evaluation of the need

for force avoided these provisions. But the applicability of legislatively

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mandated immunity, insurance, and evidentiary presumption provisions

should not depend on clever pleading. See Latits, 826 N.W.2d at 197 (stating

that “plaintiff cannot avoid the protections of immunity by ‘artful

pleading’” and concluding that the applicability of immunity provision

should turn on the gravamen of a claim); Britton v. City of Crawford, 803

N.W.2d 508, 518 (Neb. 2011) (concluding that immunity provision for

battery applied as “[n]o semantic recasting of events can alter the fact that

the shooting was the immediate cause of [suspect’s] death” and “[e]ven if

it is possible that negligence was a contributing factor . . . the alleged

negligence was inextricably linked to a battery”).

¶27 The two Arizona cases relied on by McDonald and the court

of appeals do not persuade us to reach a different conclusion. See Ryan, 243

Ariz. at 281 ¶ 14. Although each case involved claims for a law enforcement

officer’s negligent use of force, the viability of those claims was not at issue.

See Weekly v. City of Mesa, 181 Ariz. 159, 161 n.2 (App. 1994) (“Plaintiff also

alleged negligent use of excessive force [and three other claims]. No issues

regarding any of these other claims are before us on appeal.”); Mulhern v.

City of Scottsdale, 165 Ariz. 395, 397 (App. 1990) (listing issues on appeal,

which do not include the viability of a claim for negligent use of excessive

force).

¶28 Similarly, the viability of a negligence claim based on an

officer’s use of force was not directly at issue in other-jurisdiction cases cited

by McDonald. See Fuciarelli v. Good, No. CV-14-01078-PHX-GMS, 2016 WL

4529822, at *3–4 (D. Ariz. Aug. 30, 2016) (rejecting arguments that police are

immune from negligence claims under Arizona law and can only be held

liable for gross negligence); Bryson v. Oklahoma County, 261 P.3d 627, 631–

33 ¶¶ 8–12 (Okla. App. 2011) (granting summary judgment to County on

respondeat superior claim for detention officer’s assault, battery, and

negligence because County was not the deputy’s employer).

¶29 We are likewise unpersuaded by cases cited by the court of

appeals and McDonald permitting a negligence claim to rest on a law

enforcement officer’s evaluation of whether to intentionally use excessive

force. Two of these cases involved discrete acts of negligent conduct

preceding the use of force. See Reed v. District of Columbia, 474 F. Supp. 2d

163, 174 (D.D.C. 2007) (“So here, a distinct act of negligence, a

misperception of fact, may have played a part in the decision to fire.”

(citation and internal quotation marks omitted)); Hernandez v. City of

Pomona, 51 Cal. Rptr. 3d 846, 859–60 (Ct. App. 2006) (concluding that a

wrongful death complaint for shooting a fleeing suspect was sufficient to

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plead negligence based on officers’ pre-shooting conduct that created the

situation justifying use of excessive force), rev’d, 207 P.3d 506, 521 (Cal.

2009) (“[O]n the conceded facts here, we find no basis for a preshooting

negligence claim.”). The only conduct underlying the negligence claim here

was Klein’s intentional release of Barry against McDonald. Thus,

regardless of whether Arizona would recognize negligence claims like the

ones in Reed and Hernandez, these cases are inapposite. Cf. District of

Columbia v. Chinn, 839 A.2d 701, 711 (D.C. 2003) (“[I]f, in a case involving

the intentional use of force by police officers, a negligence count is to be

submitted to a jury, that negligence must be distinctly pled and based upon

at least one factual scenario that presents an aspect of negligence apart from

the use of excessive force itself and violative of a distinct standard of care.”).

¶30 McDonald also relies on a case from the California Court of

Appeal, which concluded that an officer’s lack of due care in deciding to

use deadly force “can give rise to negligence liability for the intentional

shooting death of a suspect.” Brown v. Ransweiler, 171 Cal. App. 4th 516,

534 (2009) (citation and internal quotation marks omitted). For the reasons

already explained, we disagree with Ransweiler.

¶31 To be clear, plaintiffs may plead a negligence claim for

conduct that is independent of the intentional use of force or plead

negligence and battery as alternate theories if the evidence supports each

theory. For example, if the evidence here also supported a finding that

Klein unintentionally dropped Barry’s leash, resulting in the attack against

McDonald, a negligence claim would have been appropriate. See Chinn, 839

A.2d at 710–11 (acknowledging that negligence and battery claims are

appropriately pled when the evidence supports “alternate scenarios”

supporting each distinct theory). It is the jury’s role (or the judge’s in a

bench trial) to establish what occurred and then apply the correct legal

theory to arrive at a verdict.

¶32 In sum, the trial court and court of appeals erred by deciding

that Defendants could be liable in negligence for Klein’s intentional release

of Barry to bite and hold McDonald. The only claim supported by the facts

here is an intentional battery, which McDonald deliberately neither pled

nor tried to the jury. We reverse the trial court’s judgment and remand for

entry of judgment in favor of Defendants on the negligence claim but

without prejudice to the filing of any appropriate and permissible post-

judgment motions.

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¶33 Because the parties and amici have fully argued the

remaining, recurring issues, we address them to provide guidance.

II. A.R.S. § 13-409

¶34 Section 13-409 provides a justification defense for law

enforcement officers who use physical force:

A person is justified in threatening or using physical

force against another if in making or assisting in making an

arrest or detention or in preventing or assisting in preventing

the escape after arrest or detention of that other person, such

person uses or threatens to use physical force and all of the

following exist:

1. A reasonable person would believe that such force

is immediately necessary to effect the arrest or detention or

prevent the escape.

2. Such person makes known the purpose of the arrest

or detention or believes that it is otherwise known or cannot

reasonably be made known to the person to be arrested or

detained.

3. A reasonable person would believe the arrest or

detention to be lawful.

If the officer’s use of force is justified under § 13-409, the officer is immune

from civil liability. See A.R.S. § 13-413. Importantly, although the use of

force can be justified at its commencement, it loses legal justification at the

point the force becomes unnecessary. See id. § 13-409(1); Chinn, 839 A.2d at

711 (acknowledging that officers lose the privilege to use physical force

when it “crosse[s] the line of permissible force”). For example, here, Klein’s

release of Barry on McDonald may have been justified at its inception but

leaving Barry “on bite” for a prolonged period could have been an

unjustified battery. Cf. Chinn, 839 A.2d at 711 (stating that a battery does

not “transmogrify into negligence” if officers mistakenly use excessive force

but the battery instead becomes unprivileged).

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A. Application in negligence cases

¶35 Defendants argue that even if the court of appeals was correct

that negligence liability can properly rest on an officer’s evaluation of

whether to use physical force, it wrongly concluded that §§ 13-409, -413

cannot apply to immunize the officer from liability. Our resolution of the

first issue moots much of this argument. We address whether the

justification defense applies in negligence cases, however, because the issue

has been fully briefed and may recur.

¶36 Civil liability cannot be imposed on a law enforcement officer

for “engaging in [justified] conduct,” regardless of the theory of recovery.

A.R.S. § 13-413. Nonetheless, as a practical matter, the § 13-409 justification

defense is either redundant or immaterial, and therefore inapplicable, in

negligence actions brought against law enforcement officers. If the claim is

based on the officer’s negligent use of force, whether he acted reasonably —

an inquiry common to both negligence and the justification defense —

forms part of the plaintiff’s burden to prove negligence. See § 13-409(1)

(listing as a requirement for justification whether a reasonable person

would have believed that force was immediately necessary to arrest or

detain a suspect); Stanley v. McCarver, 208 Ariz. 219, 224 ¶ 16 (2004) (stating

that in negligence cases, “the duty is always the same[:] to conform to the

legal standard of reasonable conduct in the light of the apparent risk”

(citation and internal quotation marks omitted)). The jury has no reason to

again consider reasonableness in the context of the justification defense, and

it could be confused if asked to do so. If the claim is based on a negligent

act preceding an intentional use of force, the justification defense would be

immaterial. See § 13-409 (authorizing the justification defense only for acts

of “threatening or using physical force against another”).

¶37 The inapplicability of the justification defense in negligence

actions is demonstrated by considering hypothetical scenarios drawn from

this case. If McDonald had asserted negligence based on evidence that

Klein unintentionally dropped Barry’s leash, and the jury found this

occurred, it then would have found that Klein either did or did not act

reasonably. If the former, the negligence claim would fail without the need

to consider the justification defense. If the latter, Klein’s unreasonable

conduct could not have been justified. In other words, the jury’s

determination that Klein acted unreasonably would preclude a finding

under § 13-409 that his conduct met that statute’s reasonableness

requirements and was therefore justified. Similarly, had McDonald

asserted that Klein was negligent in a distinct act preceding his intentional

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Opinion of the Court

release of Barry, such as failing to properly train the dog on when to release

the bite, the justification defense would not excuse this conduct. In that

scenario, the negligent act was Klein’s training and not the use of force, so

§ 13-409 would not apply.

¶38 Based on the foregoing, a trial court should not instruct a jury

on the justification defense under § 13-409 if the only claim against the law

enforcement officer is negligence. If a claim is also made for battery, the

court should instruct on the justification defense but explain that the

defense applies only to the battery claim to avoid juror confusion.

B. Burden of proof

¶39 Neither §§ 13-409 nor 13-413 specifies who bears the burden

of proving justification in civil cases. This Court has long held that

defendants in civil cases bear the burden of proving any affirmative

defense. See, e.g., Glazer, 237 Ariz. at 164 ¶ 13; Yeazell v. Copins, 98 Ariz. 109,

116 (1965); Harvey v. Aubrey, 53 Ariz. 210, 214 (1939). Conversely, before

2006, the state had the burden of proving the absence of justification beyond

a reasonable doubt in criminal cases. See State v. Hunter, 142 Ariz. 88, 89

(1984) (stating that when a defendant presents evidence of self-defense the

state must prove beyond a reasonable doubt that the conduct was not

justified); Pfeil v. Smith, 183 Ariz. 63, 65 (App. 1995) (to same effect).

Consistent with this authority, the court of appeals, before 2006, required

defendants to prove justification defenses in civil cases by a preponderance

of the evidence. See, e.g., Pfeil, 183 Ariz. at 65; Weekly, 181 Ariz. at 166 n.5.

¶40 In 2006, the legislature amended § 13-205(A) as follows (the

modified language is shown with strikeouts and italics):

A. Except as otherwise provided by law, a defendant

shall prove any affirmative defense raised by a

preponderance of the evidence, including any justification

defense under chapter 4 of this title. Justification defenses under

chapter 4 of this title are not affirmative defenses. Justification

defenses describe conduct that, if not justified, would constitute an

offense but, if justified, does not constitute criminal or wrongful

conduct. If evidence of justification pursuant to chapter 4 of this

title is presented by the defendant, the state must prove beyond a

reasonable doubt that the defendant did not act with justification.

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Opinion of the Court

See also A.R.S. § 13-205 historical and statutory notes. Defendants argue that

the amendments to § 13-205(A) require plaintiffs in civil actions to prove

the absence of justification by a preponderance of the evidence.

¶41 We interpret § 13-205 de novo. See Glazer, 237 Ariz. at 163

¶ 12. Our goal is to effectuate the legislature’s intent. Id. If § 13-205 has

only one reasonable interpretation, we will apply that interpretation

without further analysis. Id. If the statute is subject to more than one

reasonable interpretation, however, we will resolve that ambiguity by

examining other factors like “the context of the statute, the language used,

the subject matter, its historical background, its effects and consequences,

and its spirit and purpose.” Id. (citation and internal quotation marks

omitted).

¶42 Section 13-205 is ambiguous because it has two reasonable

interpretations. The statute provides that a defendant must prove any

affirmative defense by a preponderance of the evidence, but then excludes

justification defenses from the category of affirmative defenses. See also

A.R.S. § 13-103(B) (“Affirmative defense does not include any justification

defense.”). This language supports Defendants’ view that the legislature

intended to displace the common law principle that justification defenses

are affirmative defenses, which defendants bear the burden of proving in

civil cases. In contrast, the last sentence of § 13-205 explicitly places the

burden of proving justification in criminal cases on the state but is silent on

who bears the burden in civil cases. This language supports McDonald’s

view that the legislature did not intend to upend the common law

regarding the burden of proof in civil cases.

¶43 We agree with McDonald that § 13-205 did not change the

common law precept that defendants bear the burden of proving

justification in civil cases. First, nothing in the language of § 13-205 or its

legislative history suggests that the legislature intended to place the burden

on plaintiffs in civil cases to disprove justification. The statute was

amended by passage of Senate Bill 1145, which added several provisions to

our criminal code pertaining to affirmative defenses and justification

defenses. See 2006 Ariz. Sess. Laws, ch. 199 (2d Reg. Sess.). The primary

focus of SB 1145 was the addition of laws concerning self-defense and home

protection. See Ariz. State Sen. Fact Sheet for S.B. 1145, 47th Leg., 2d Reg.

Sess. (June 27, 2006). It also codified the common law principle that if a

defendant presents some evidence of justification in a criminal case, the

state bears the burden of proving a lack of justification. But there was no

mention of civil liability in Senate Bill 1145 or in its legislative history. We

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Opinion of the Court

expect that the legislature would have been explicit if it intended to change

the common law view that defendants bear the burden of proving

justification defenses in civil cases. Cf. Louis C. v. Dep’t of Child Safety, 237

Ariz. 484, 489 ¶ 22 (App. 2015) (“The legislature’s specification, in § 13-205,

of what ‘the state’ must prove, and the location of the statute in chapter 2 of

the criminal code, titled ‘General Principles of Criminal Liability,’ belie any

suggestion that the legislature intended to shift or alter the burden of proof

when a parent argues, in a dependency proceeding, that physical discipline

of a child was reasonable and justified.”).

¶44 Second, the exclusion of justification defenses from the

category of “affirmative defenses” applies only to criminal cases.

“Affirmative defenses” are defined in the criminal code as statutory

defenses “that attempt[] to excuse the criminal actions of the accused.”

A.R.S. § 13-103(A), (B). Removing justification defenses from that definition

in criminal cases does not impact the common law treatment of justification

defenses in civil cases as affirmative defenses.

¶45 Third, as pertinent here, placing the burden on law

enforcement officers in civil cases to prove the § 13-409 justification defense

aligns with the burden placed on them to prove non-statutory justification

defenses. See, e.g., Whitlock v. Boyer, 77 Ariz. 334, 338 (1954) (concluding in

a civil false arrest case that police chief had the burden to prove by a

preponderance of the evidence that he had reasonable grounds to believe

plaintiffs had committed a felony).

¶46 In sum, a defendant bears the burden of proving a

justification defense by a preponderance of the evidence in a civil case. To

do so, the defendant may use any applicable presumption set forth in

§ 12-716, which sets forth presumptions concerning crime victims and law

enforcement officers. If a presumption applies, the burden shifts to the

plaintiff to produce evidence to rebut the presumption, although the

defendant retains the burden of persuasion. See Ariz. R. Evid. 301.

III. The Graham Factors

¶47 The United States Supreme Court in Graham concluded that

§ 1983 claims for excessive use of force by law enforcement officers should

be analyzed under the Fourth Amendment’s “reasonableness” standard.

490 U.S. at 395. It explained that the standard’s “proper application

requires careful attention to the facts and circumstances of each particular

case, including [1] the severity of the crime at issue, [2] whether the suspect

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Opinion of the Court

poses an immediate threat to the safety of the officers or others, and [3]

whether he is actively resisting arrest or attempting to evade arrest by

flight” (the “Graham factors”). Id. at 396.

¶48 Over Defendants’ objection, McDonald’s police tactics expert

explained the Graham factors to the jury; noted they are based on a United

States Supreme Court case; stated they are accepted “nationwide” in the

law enforcement community as the standard for reasonableness and that

Klein was trained on them; and opined that under the Graham factors, Klein

did not act reasonably by releasing Barry on McDonald. Defendants’ expert

also testified about the Graham factors in expressing an opposing opinion.

In doing so, he provided the “legal principles” from Graham; related it is

“one of the core cases” used to teach law enforcement officers about the

“objective reasonableness standard”; and opined that Klein’s use of Barry

was appropriate under the Graham factors.

¶49 Defendants argue that the trial court violated Arizona Rules

of Evidence 702(a) and 704(a) by allowing McDonald’s expert to effectively

tell the jury it should assess “reasonableness” under § 13-409 by applying

the Graham factors and then opining that Klein violated that standard. They

contend that the expert usurped both the court’s role to instruct the jury on

the law and the jury’s role to decide the case.

¶50 Rule 702(a) permits expert testimony if “the expert’s . . .

specialized knowledge will help the trier of fact to understand the evidence

or to determine a fact in issue.” Defendants do not contest that expert

testimony concerning police training and tactics was appropriate here.

¶51 We agree with the court of appeals dissent that an expert

oversteps by testifying that Graham governs application of the justification

defense. See Ryan, 243 Ariz. at 291–92 ¶¶ 60–63 (Espinosa, J., dissenting). It

is the trial court’s role, not the expert’s, to instruct the jury on the applicable

legal standards. See Ariz. Const. art. VI, § 27 (providing that “[j]udges . . .

shall declare the law” to juries); see also Hygh v. Jacobs, 961 F.2d 359, 364 (2d

Cir. 1992) (“Whereas an expert may be uniquely qualified by experience to

assist the trier of fact, he is not qualified to compete with the judge in the

function of instructing the jury.”). Thus, McDonald’s expert’s testimony

that “Graham v. Connor and the factors therein” set forth the standard for

reasonableness “[r]egardless of the claim that’s made” was inappropriate.

Trial courts should not permit experts to state or suggest that Graham

governs application of the justification defense under § 13-409. See People v.

Brown, 245 Cal. App. 4th 140, 168 (2016) (stating expert “improperly

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Opinion of the Court

stepped outside his role as adjunct to the fact finder” by summarizing his

understanding of Graham to the jury).

¶52 The impropriety of an expert informing the jury about the

proper legal standard in the case does not prevent him from mentioning the

Graham factors. If an expert reasonably relied on the factors in forming an

opinion, he may explain them to the jury. See Ariz. R. Evid. 703; id. cmt. to

the original 1977 Rule. But the expert generally should refrain from

referring to Graham, or at least refrain from explaining that the “Graham

factors” originate from a United States Supreme Court decision, as doing so

might needlessly risk confusing jurors about the legal standard to apply

and unduly elevate the expert’s opinion. See Ariz. R. Evid. 403. For

example, McDonald’s expert could have described the Graham factors,

without referring to the Supreme Court, and then testified that law

enforcement officers typically consider them when deciding whether to

release a dog.

¶53 Lastly, although Defendants argue that McDonald’s expert

improperly told the jury how to decide the case, they did not develop this

argument beyond asserting that the expert improperly invoked Graham.

Whether an expert, like both experts here, can properly opine on whether

an officer was “justified” or “reasonable” in his conduct was not raised

before the trial court and not developed here. See Ariz. R. Evid. 704(a), cmt.

to original 1977 Rule (“An opinion is not objectionable just because it

embraces an ultimate issue” but “[s]ome opinions on ultimate issues will

be rejected as failing to meet the requirement that they assist the trier of

fact.”). We leave that issue for another day.

¶54 In sum, experts may not suggest that Graham is the legal

standard for jurors to decide whether a law enforcement officer’s conduct

was justified under § 13-409. Experts may recount their reasonable reliance

on these factors in forming opinions and inform jurors that officers are

trained on them. But experts should refrain from suggesting that the

Graham factors are legally required.

CONCLUSION

¶55 We vacate the court of appeals’ opinion. We reverse the trial

court’s judgment and remand to that court for entry of judgment in favor

of Defendants on the negligence claim. The parties may file any

appropriate and permissible post-judgment motions.

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