Spooner v. Phoenix

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

EVELYN LEE SPOONER, Plaintiff/Appellant,

v.

CITY OF PHOENIX, et al., Defendants/Appellees.

No. 1 CA-CV 17-0500

FILED 11-27-2018

Appeal from the Superior Court in Maricopa County

No. CV2012-015913

The Honorable Joshua D. Rogers, Judge

AFFIRMED

COUNSEL

Debus Kazan & Westerhausen, Ltd., Phoenix

By Tracey Westerhausen, Larry L. Debus, Gregory M. Zamora

Counsel for Plaintiff/Appellant

Burch & Cracchiolo, Phoenix

By Melissa Iyer Julian

Counsel for Defendants/Appellees

SPOONER v. PHOENIX, et al.

Opinion of the Court

OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in

which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig

joined.

J O N E S, Judge:

¶1 Evelyn Spooner appeals from a judgment entered in favor of

the City of Phoenix and Toni Brown (collectively, the City) on her civil

claims arising from a purported wrongful arrest. Spooner argues the trial

court erred by precluding her from using Brown’s grand jury testimony to

impeach Brown’s credibility at trial and directing a verdict on her simple

negligence claim. We affirm the preclusion of Brown’s grand jury

testimony and hold that a law enforcement officer is not subject to civil

liability for simple negligence arising from an investigation into criminal

activity. Accordingly, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶2 In 2009, Brown, a detective with the Phoenix Police

Department, began investigating Spooner’s financial relationship with

ninety-five-year-old Mary B. At a 2011 grand jury proceeding, Brown

testified about her investigation, and the grand jury indicted Spooner for

three counts of theft from a vulnerable adult and one count of unlawful use

of a power of attorney. The State later dismissed the criminal charges, and

Spooner then filed suit against the City asserting purported constitutional

violations, simple negligence, gross negligence, intentional infliction of

emotional distress, and malicious arrest. Spooner supported these claims

with allegations that Brown lied to the grand jury, withheld exculpatory

evidence, and failed to properly investigate Spooner’s relationship with

Mary.1

¶3 After the close of evidence in an eight-day civil jury trial, the

trial court entered judgment as a matter of law in the City’s favor on

1 Spooner also alleged the City did not properly supervise and train

its employees to prevent wrongful arrests, but she did not advance this

theory at trial.

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SPOONER v. PHOENIX, et al.

Opinion of the Court

Spooner’s claims for simple negligence, malicious arrest, and constitutional

violations. The jury then found for the City on the claims for gross

negligence and intentional infliction of emotional distress. Spooner timely

appealed the final judgment, and we have jurisdiction pursuant to Arizona

Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)2 and -2101(A)(1).

DISCUSSION

I. The Trial Court Acted Within its Discretion in Excluding Brown’s

Grand Jury Testimony for Use as Impeachment Evidence.

¶4 At oral argument on appeal, Spooner conceded that grand

jury witnesses enjoy absolute immunity for claims arising from their

testimony. See Green Acres Tr. v. London, 141 Ariz. 609, 613 (1984); see also

Rehberg v. Paulk, 566 U.S. 356, 369 (2012). She argues, however, that the trial

court deprived her of due process when it precluded her use of Brown’s

grand jury testimony for impeachment purposes at trial. The court

precluded the testimony after finding both: (1) that “allowing introduction

of the grand jury testimony . . . would effectively operate to circumvent the

absolute immunity of [a grand jury] witness,” and (2) that the probative

value of the testimony was substantially outweighed by the danger of

unfair prejudice and confusion of the issues — namely, “the appropriate

scope of the use of the grand jury testimony relative to the remaining

liability claims.”

¶5 Spooner argues that evidence of Brown’s purported false

testimony to the grand jury is relevant to Brown’s credibility, relying upon

Marshall v. Randall, 719 F.3d 113, 116-18 (2d Cir. 2013) (finding, under the

Federal Rules of Evidence, no abuse of discretion in the admission of grand

jury testimony to impeach law enforcement officers defending 42 U.S.C.

§ 1983 claims arising out of purportedly false testimony where there was

“no potential for jury confusion”). We do not reach the general issue of

admissibility, however, because we find no error in the exclusion of the

evidence under Rule 403. Even relevant evidence is subject to exclusion “if

its probative value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, [or] misleading the jury.” Ariz. R. Evid. 403.

“Because ‘probative value’ and ‘the danger of unfair prejudice’ are not

easily quantifiable factors, we accord substantial discretion to the trial court

in the Rule 403 weighing process.” Hudgins v. Sw. Airlines, Co., 221 Ariz.

472, 481, ¶ 13 (App. 2009) (citing State v. Gibson, 202 Ariz. 321, 324, ¶ 17

2 Absent material changes from the relevant date, we cite a statute’s

current version.

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SPOONER v. PHOENIX, et al.

Opinion of the Court

(2002)). The decision to preclude impeachment evidence is likewise

reviewed for an abuse of discretion. See Gasiorowski v. Hose, 182 Ariz. 376,

382 (App. 1994) (citing Selby v. Savard, 134 Ariz. 222, 227 (1982)).

¶6 The record reflects that the trial court carefully considered the

scope and purpose of absolute immunity in judicial proceedings, including

warnings from both the U.S. Supreme Court and this Court against

allowing parties to “circumvent” absolute witness immunity “by using

evidence of the witness’[s] testimony to support any . . . claim concerning

the initiation or maintenance of a prosecution.” Rehberg, 566 U.S. at 369;

accord Sobol v. Alarcon, 212 Ariz. 315, 318, ¶ 11 (App. 2006) (“[I]t is necessary

that the propriety of [a witness’s] conduct not be inquired into indirectly by

either court or jury in civil proceedings brought against them for

misconduct in their position.”) (quotation omitted). The court also

reasonably determined introduction of grand jury testimony was unfairly

prejudicial and likely to confuse the jury because it would constitute direct

evidence of purported misconduct for which the City was absolutely

immune.3 We find no abuse of discretion or due process violation here.

II. The Trial Court Properly Entered Judgment as a Matter of Law for

the City on the Simple Negligence Claim.

¶7 Spooner argues the trial court erred when it entered judgment

for the City upon Spooner’s claim for simple negligence. We review the

entry of judgment as a matter of law de novo, “viewing the evidence and

reasonable inferences in the light most favorable to the nonmoving party.”

SWC Baseline & Crismon Inv’rs, L.L.C. v. Augusta Ranch Ltd. P’ship, 228 Ariz.

271, 292, ¶ 93 (App. 2011) (citing Shoen v. Shoen, 191 Ariz. 64, 65 (App. 1997)).

We likewise review the existence and scope of qualified immunity de novo.

See Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11 (2011) (citation omitted). We will

affirm the judgment if it is correct for any reason. Walter v. Simmons, 169

Ariz. 229, 240 n.9 (App. 1991).

¶8 As a general rule, public entities and public employees are

subject to tort liability for their negligence. See Ryan v. State, 134 Ariz. 308,

309-10 (1982) (“[T]he parameters of duty owed by the state will ordinarily

be coextensive with those owed by others.”) (citing Stone v. Ariz. Highway

3 Although Spooner suggests the grand jury testimony could have

been admitted with a limiting instruction regarding its proper purpose,

rather than excluded altogether, she did not request this remedy at trial and

therefore waived her right to assert error on this basis. Cf. State v. Mott, 187

Ariz. 536, 546 (1997).

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SPOONER v. PHOENIX, et al.

Opinion of the Court

Comm’n, 93 Ariz. 384, 392 (1963)), superseded by statute on other grounds as

stated in Tucson Unified Sch. Dist. v. Owens-Corning Fiberglas Corp., 174 Ariz.

336, 339 (1993); see also Hogue v. City of Phoenix, 240 Ariz. 277, 280, ¶ 9 (App.

2016) (citing Greenwood v. State, 217 Ariz. 438, 442, ¶ 14 (App. 2008)).

Although our supreme court recognized the abolition of general sovereign

immunity in Ryan, it nonetheless “hasten[ed] to point out that certain areas

of immunity must remain.” 134 Ariz. at 309-10. Some remaining areas of

immunity are prescribed by statute within Arizona’s Governmental Tort

Claims Act, see, e.g., A.R.S. § 12-820.02, but the legislature has directed that

its statutory grant of immunity for certain acts “shall not be construed to

affect, alter or otherwise modify any other rules of tort immunity regarding

public entities and public officers as developed at common law.” See A.R.S.

§ 12-820.05(A); see also Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203, ¶ 27

(2001) (acknowledging that common law immunity principles apply in the

absence of statutory direction) (citations omitted).

¶9 Common law qualified immunity generally provides public

officials, including police officers, limited protection from liability when

“performing an act that inherently requires judgment or discretion.”4

Chamberlain v. Mathis, 151 Ariz. 551, 555, 558 (1986) (applying the Ryan

principles in concluding a state employee is protected by qualified

immunity for discretionary acts); see also Portonova v. Wilkinson, 128 Ariz.

501, 503 (1981) (“It has been recognized that in Arizona a police officer

acting within the scope of his authority has at least a conditional immunity

from civil liability.”) (citing Patterson v. City of Phoenix, 103 Ariz. 64, 70-71

(1968)); Restatement (Second) of Torts § 895D (1979) (“A public officer

acting within the general scope of his authority is not subject to tort liability

for an administrative act or omission if . . . he is [otherwise] immune

because [he is] engaged in the exercise of a discretionary function.”); id. at

cmt. h (explaining no immunity attaches to a ministerial act “carr[ied] out

[on] the orders of others or . . . [done] with little choice as to when, where,

how or under what circumstances”). This accommodation for discretionary

acts exists because “officials should not err always on the side of caution”

for fear of being sued. State v. Superior Court (Donaldson), 185 Ariz. 47, 50

4 Spooner cites Austin v. City of Scottsdale, 140 Ariz. 579 (1984);

Hutcherson v. City of Phoenix, 188 Ariz. 183 (App. 1996), reversed on other

grounds, 192 Ariz. 51 (1998); and Landeros v. City of Tucson, 171 Ariz. 474

(App. 1992), to support her argument that the City may be liable for simple

negligence. None of these cases squarely discuss whether a law

enforcement officer enjoys qualified immunity for discretionary decisions

made in the course of a criminal investigation, and we do not find them

instructive.

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SPOONER v. PHOENIX, et al.

Opinion of the Court

(App. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)); see also

Restatement (Second) of Torts § 895D cmt. b (“The basis of the immunity

has been not so much a desire to protect an erring officer as it has been a

recognition of the need of preserving independence of action without

deterrence or intimidation by the fear of personal liability and vexatious

suits.”). The doctrine thus “‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who knowingly violate

the law.’” Donaldson, 185 Ariz. at 50 (quoting Hunter, 502 U.S. at 229).

¶10 If qualified immunity applies, a public official performing a

discretionary act “within the scope of [her] public duties” may be liable

only if she “knew or should have known that [s]he was acting in violation

of established law or acted in reckless disregard of whether h[er] activities

would deprive another person of their rights.” Chamberlain, 151 Ariz. at

558; see also Grimm v. Ariz. Bd. of Pardons & Paroles, 115 Ariz. 260, 267-68

(1977) (holding that members of the Arizona Board of Pardons and Paroles

were liable “only for the grossly negligent or reckless release of a highly

dangerous prisoner” but enjoyed “freedom from suit for reasonable

decisions”). A public official’s conscious disregard of the law or the rights

of others constitutes gross negligence, see Noriega v. Town of Miami, 243 Ariz.

320, 328, ¶¶ 35-36 (App. 2017) (citations omitted), and she remains liable for

such conduct, Chamberlain, 151 Ariz. at 558. But a public official performing

a discretionary act encompassed within her public duties is shielded from

liability for simple negligence. See Chamberlain, 151 Ariz. at 558.

¶11 Criminal investigations involve the exercise of personal

deliberation and individual professional judgment that necessarily reflect

the facts of a given situation. By its very nature, investigative police work

is discretionary and appropriate for exemption from suit for simple

negligence. See Wall v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 594 (App.

1991) (acknowledging that decisions to investigate a crime or arrest a

suspect “involve a judgment by a police officer”). Moreover:

The public has a vital stake in the active investigation and

prosecution of crime. Police officers and other investigative

agents must make quick and important decisions as to the

course an investigation shall take. Their judgment will not

always be right; but to assure continued vigorous police

work, those charged with that duty should not be liable for

mere negligence.

Landeros, 171 Ariz. at 475 (quoting Smith v. State, 324 N.W.2d 299, 301 (Iowa

1982)); see also Everitt v. Gen. Elec. Co., 932 A.2d 831, 844 (N.H. 2007) (“[L]aw

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SPOONER v. PHOENIX, et al.

Opinion of the Court

enforcement by its nature is susceptible to provoking the hostilities and

hindsight second-guessing by those directly interacting with police as well

as by the citizenry at large. . . . The public simply cannot afford for those

individuals charged with securing and preserving community safety to

have their judgment shaded out of fear of subsequent lawsuits.”).

Accordingly, we conclude that public policy mandates that investigative

police work, performed in the scope of an officer’s public duty, is a

discretionary act subject to qualified immunity.

¶12 Here, Spooner alleged Brown acted either intentionally or

negligently to effectuate Spooner’s arrest without the requisite probable

cause. To the extent these actions violate clearly established law or reflect

a reckless disregard of Spooner’s rights, they are afforded no protection.

The trial court properly permitted Spooner to proceed on these claims and

properly instructed the jury that it could find in Spooner’s favor if she

proved gross negligence. But to the extent Brown’s actions reflect the

legitimate exercise of professional judgment, they are discretionary and

protected by qualified immunity. Thus, the court rightfully entered

judgment as a matter of law in the City’s favor on the claim for simple

negligence.

CONCLUSION

¶13 The judgment in favor of the City is affirmed. As the

prevailing party, the City is entitled to its costs incurred on appeal upon

compliance with ARCAP 21(b).

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