Maria Adame v. City of Surprise

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA ADAME, Surviving mother of No. 21-16031

decedent, personal representative of

estate of Derek Adame, deceased; D.C. No.

CLARISA ABARCA, As parent of 2:17-cv-03200-

minor child, surviving daughter of GMS

decedent Derek Adame, on behalf of

C.A.,

Plaintiffs-Appellees, ORDER

CERTIFYING

v. QUESTION TO

THE

CITY OF SURPRISE, SUPREME

Defendant-Appellant, COURT OF

ARIZONA

and

SURPRISE POLICE DEPARTMENT;

JOSEPH GRUVER, Officer; SHAUN

MCGONIGLE, Officer,

Defendants.

Filed June 14, 2022

Before: Mary H. Murguia, Chief Judge, and Susan P.

Graber and Carlos T. Bea, Circuit Judges.

Order

2 ADAME V. CITY OF SURPRISE

SUMMARY *

Civil Rights/Arizona Law

The panel certified to the Supreme Court of Arizona the

following questions:

1. Does A.R.S. Section 12-820.05(B) provide

immunity from liability? If the latter, the Court need

not answer any further questions because our court

would lack jurisdiction over this interlocutory

appeal. If the former, please answer the following

additional questions.

2. With respect to the first sentence of subsection (B) of

this statute: If a law enforcement officer causes a

death by the use of “excessive force” (here, a

firearm), has the law enforcement officer committed

“a criminal felony” as a matter of law? If not, is a

conviction of a felony required? If not, is the

determination whether the law enforcement officer

committed “a criminal felony” a question of fact for

the jury or a question of fact only for “the court”?

How does the determination whether an officer’s use

of “excessive force” was “justified” or “unjustified”

pursuant to A.R.S. section 13-413 affect this inquiry?

Is the determination of whether the public

employee’s relevant acts or omissions were

“justified” or “unjustified” for the jury to make, or

for the court to make? If this determination is for the

court to make, for purposes of summary judgment, in

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ADAME V. CITY OF SURPRISE 3

applying A.R.S. section 12-820.05(B), is the

reviewing court required to assume that the relevant

acts or omissions of the public employee were

“unjustified,” given A.R.S. section 13-413?

3. With respect to the second sentence of subsection (B)

of this statute: Does this sentence apply only to a

public employee’s operation or use of a motor

vehicle? Or, if the public employee’s act takes place

because another person operates or uses a motor

vehicle (where, for example, a law enforcement

officer fires because someone else is stealing a car or

driving a car dangerously toward another person),

does the public employee’s act nonetheless “aris[e]

out of the operation or use of a motor vehicle”? What

is the required degree of causal connection, if any,

between the “acts or omissions arising out of the

operation or use of a motor vehicle” and the “losses

that arise out of and are directly attributable to an act

or omission determined by a court to be a criminal

felony”?

4 ADAME V. CITY OF SURPRISE

ORDER

We are asked to determine whether a police officer’s

killing of the decedent, Derek Adame, arose out of Adame’s 1

“operation or use of a motor vehicle” pursuant to Arizona

Revised Statutes (“A.R.S.”) section 12-820.05(B). This

central question of state law is dispositive of the instant case,

and there is no controlling precedent from the Arizona

Supreme Court. Ariz. R. Sup. Ct. 27(a). Therefore, we

respectfully certify this question of law to the Arizona

Supreme Court pursuant to Rule 27 of the Rules of the

Supreme Court of Arizona.

I. Factual Background

Around 1:00 a.m. on November 26, 2016, Officer Joseph

Gruver responded to a report of a “suspicious” Nissan

Sentra. See Adame v. Gruver, 819 F. App’x 526, 527 (9th

Cir. 2020) (“Adame I”). 2 He ran the vehicle’s license plate

number and learned that it was stolen. See id. Officer

Gruver then put on his police car’s bright “takedown” lights

and approached the vehicle. Id. at 528. Inside was Adame,

whom Officer Gruver observed “leaning over to the side” in

the driver’s seat, id., though it was determined that Adame

was likely asleep in the parked car, see id. at 530 (Schroeder,

J., dissenting); see also Adame v. City of Surprise, No. CV-

17-03200-PHX-GMS, 2019 WL 2247703, at *1 (D. Ariz.

May 24, 2019), rev’d and remanded sub nom. Adame I,

819 F. App’x 526. “Officer Gruver drew his firearm, opened

1

All references to Adame herein pertain to the decedent. Any

references to “Plaintiffs-Appellees” otherwise include Adame’s

captioned representatives.

2

We incorporate the undisputed facts contained in Adame I for

purposes of this certification order.

ADAME V. CITY OF SURPRISE 5

the passenger door, announced himself as a police officer,

and ordered Adame to show his hands and keep them visible

on the steering wheel.” Adame I, 819 F. App’x at 528.

Adame complied while Officer Gruver awaited backup. See

id.

As backup arrived, however, Adame attempted to flee,

starting the vehicle’s engine with his right hand. See id.

“Officer Gruver immediately leaned into the vehicle, placing

his left knee on the passenger seat as he reached with his left

hand for Adame.” Id. Adame nevertheless accelerated the

vehicle, after which “Officer Gruver fired two shots,” killing

Adame instantly. Id. “The Nissan crashed into a parked

truck a short distance away” after the shooting. Id.

Plaintiffs-Appellees’ first amended complaint, filed on

behalf of Adame on December 18, 2017, alleged

(1) violations of 42 U.S.C. § 1983, namely the Fourth

Amendment’s prohibition against excessive force, as well as

a Fourteenth Amendment due process violation against

Officer Gruver and the City of Surprise (the “City”), (2) a

state law wrongful death claim against the City, and (3) a

racial discrimination claim against Officer Gruver and the

City pursuant to 42 U.S.C. § 1981. By the time the

Defendants filed a motion for summary judgment, the only

remaining claims were the § 1983 excessive force and due

process claims against Officer Gruver, and the state law

wrongful death claim against the City.

The Defendants filed a motion for summary judgment on

January 11, 2019, asserting, among other things, qualified

immunity as to the excessive force and due process claims

against Officer Gruver. The district court denied Officer

Gruver’s motion for summary judgment and, in Adame I, we

reversed the district court’s order. See Adame I, 819 F.

App’x at 527. We held that Officer Gruver’s “split-second

6 ADAME V. CITY OF SURPRISE

decision to shoot Adame, even if it violated Adame’s

constitutional rights, still entitle[d] him to qualified

immunity.” Id. at 529–30. We then remanded the case to

the district court for resolution of the sole remaining claim—

the state-law wrongful death claim against the City.

On June 11, 2021, the district court again denied

summary judgment. It reasoned that “two statutes govern

and limit the scope of civil liability for harm arising out of

force employed by law enforcement officers” in this matter:

(1) A.R.S. section 13-413, under which “civil liability cannot

be imposed on a law enforcement officer for ‘engaging in

[justified] conduct,’ regardless of the theory of recovery,”

(alteration in original) (quoting Ryan v. Napier, 425 P.3d

230, 239 (Ariz. 2021)) and (2) A.R.S. section 12-820.05(B),

which provides that, “where a public employee commits a

felony, a public entity can only be liable for the act if it had

knowledge of the employee’s propensity for that action,”

Adame v. City of Surprise, No. CV-17-03200-PHX-GMS,

2021 WL 2416802, at *2 (D. Ariz. June 11, 2021), though

the “subsection does not apply to acts or omissions arising

out of the operation or use of a motor vehicle,” Ariz. Rev.

Stat. § 12-820.05(B). The district court noted that “even if

the shooting is presumed unjustified, Plaintiffs only prevail

if” Officer Gruver’s conduct did not amount to a criminal

felony, or if Officer Gruver’s “acts or omissions [arose] out

of the operation or use of a motor vehicle.” Id. (quoting

section 12-820.05(B)). The district court ultimately

concluded that “[t]here is, at the very least a genuine issue of

material fact as to whether Officer Gruver’s killing of

[Adame] arose in substantial part out of [Adame]’s

engagement of, and thus operation or use of, a motor

vehicle.” Id. at *3.

The City of Surprise timely appealed, and the district

court invited the parties to argue whether the Ninth Circuit

ADAME V. CITY OF SURPRISE 7

has jurisdiction to consider this interlocutory appeal. See

28 U.S.C. § 1291.

II. Explanation of Certification

This case presents two principal issues of first

impression: (1) whether A.R.S. section 12-820.05(B)

provides immunity from suit or a defense to liability, and

(2) whether Adame’s “operation or use of a motor vehicle”

falls within A.R.S. section 12-820.05(B)’s motor vehicle

exception.

1. We have “interlocutory appellate jurisdiction to

review” a district court’s denial of summary judgment on

state-law claims only when “under state law, the immunity

functions as an immunity from suit,” not “a mere defense to

liability.” Tuuamalemalo v. Greene, 946 F.3d 471, 476 (9th

Cir. 2019) (per curiam) (quoting Liberal v. Estrada,

632 F.3d 1064, 1074 (9th Cir. 2011); see also Liberal,

632 F.3d at 1074 (noting that the portion of an order denying

summary judgment as to state-law claims was “not an

appealable final judgment under § 1291”). “The rationale

. . . is that an interlocutory appeal is necessary to vindicate a

state entity’s entitlement to immunity from suit, which

would be lost if a case were permitted to go to trial.” Taylor

v. County of Pima, 913 F.3d 930, 934 (9th Cir. 2019). An

immunity from liability, however, “may be vindicated fully

after final judgment, so the collateral-order doctrine does not

encompass an interlocutory appeal from a denial of

immunity from liability.” Id.; see also SolarCity Corp. v.

Salt River Project Agric. Improvement & Power Dist.,

859 F.3d 720, 725 (9th Cir. 2017).

In other words, if A.R.S. section 12-820.05(B) provides

immunity from suit, a district court’s order dismissing the

action would be final for purposes of appellate review. See

8 ADAME V. CITY OF SURPRISE

P. R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 142 (1993) (explaining that, under 28 U.S.C.

§ 1291, appellate courts have jurisdiction over “final

decisions of the district courts,” not decisions which are “but

steps towards final judgment in which they will merge”

(internal quotation marks omitted)). But if the statute

provides only a defense to liability, the district court’s ruling

is not final because it may be reviewed at a later phase of the

litigation. See id.

Two District of Arizona cases have specifically held that

A.R.S. section 12-820.05(B) provides a public entity with

immunity from suit, not just from liability. See Cameron v.

Gila County, No. CV11-80-PHX-JAT, 2011 WL 2115657,

at *5 (D. Ariz. May 26, 2011) (“Because § 12-820.05(B)’s

immunity is ‘intended to protect a public entity from suit, not

just liability, it should be resolved by the court at the earliest

possible stage in the litigation.’” (quoting Al-Asadi v. City of

Phoenix, No. CV-09-47-PHX-DGC, 2010 WL 3419728,

at *6 (D. Ariz. Aug. 27, 2010))). And other courts have

suggested, without clearly stating, that section 12-820.05(B)

confers immunity from suit. See Larson v. Berumen,

187 F.3d 647 (9th Cir. 1999) (unpublished table decision)

(analyzing A.R.S. section 12-820.05(B) on appeal without

considering the current jurisdictional issue); Gallagher v.

Tucson Unified Sch. Dist., 349 P.3d 228, 231 (Ariz. Ct. App.

2015) (stating that, “[b]y its clear and unambiguous

language, § 12-820.05(B) insulates a public entity from

liability for loss caused by an employee’s felony criminal

acts,” without expressly clarifying whether the statute

confers immunity from suit rather than liability).

Arizona Revised Statutes section 12-820.05(B) is

labeled as a statute offering immunity, not a mere defense to

liability. See Ariz. Rev. Stat. § 12-820-05 (Other

Immunities). And other subsections of the statute are

ADAME V. CITY OF SURPRISE 9

similarly labeled as statutes of immunity, while at least one

specifically enumerates an affirmative defense. Compare

Ariz. Rev. Stat. §§ 12-820.01 (Absolute Immunity), and 12-

820.02 (Qualified Immunity), with § 12-820.03 (Affirmative

Defense; Resolution by Trial). Still, because this issue

involves the interpretation of an Arizona statute and the

Arizona Supreme Court has not spoken on the matter, we

certify whether A.R.S. section 12-820.05(B) provides

immunity from suit or a defense to liability.

2. Both parties agree that Arizona state courts have yet

to clarify the scope of A.R.S. section 12-820.05(B)’s motor

vehicle exception. A.R.S. section 12-820.05(B) reads:

A public entity is not liable for losses that

arise out of and are directly attributable to an

act or omission determined by a court to be a

criminal felony by a public employee unless

the public entity knew of the public

employee’s propensity for that action. This

subsection does not apply to acts or

omissions arising out of the operation or use

of a motor vehicle.

We previously recognized that Arizona courts have

interpreted the words “operation or use of a motor vehicle”

in construing insurance policies. See Larson, 187 F.3d

at 647. In those cases, an act arises out of the operation or

use of a motor vehicle when there is a causal relationship

between the injury and the ownership, maintenance, or use

of a vehicle. See, e.g., Ruiz v. Farmers Ins. Co. of Ariz.,

865 P.2d 762, 762–64 (Ariz. 1993) (holding “that the

plaintiff’s injuries [sustained in a car-to-car shooting] did not

‘arise out of the ownership, maintenance or use’ of an

uninsured vehicle” because “[w]hat injured Ruiz was how

the shotgun was used, not how the car was used”); Mazon v.

10 ADAME V. CITY OF SURPRISE

Farmers Ins. Group, 491 P.2d 455, 457 (Ariz. 1971) (“[W]e

can find no causal relationship between an injury resulting

from a stone thrown by an unknown person from an

unidentifiable vehicle, and the ownership, maintenance or

use of that vehicle.”); Benevides v. Ariz. Prop. & Cas. Ins.

Guar. Fund, 911 P.2d 616, 619 (Ariz. Ct. App. 1995)

(determining “that, for coverage to exist, an insured must be

using the car pursuant to the ‘inherent nature’ of the

vehicle[,]” which did not extend to being shot for playing the

stereo too loudly); Love v. Farmers Ins. Grp., 588 P.2d 364,

366–67 (Ariz. Ct. App. 1978) (finding that “the decedent’s

death did not arise from the ownership, maintenance or use

of the car” where “[t]wo assailants abducted the decedent,”

used his “car to take him to a remote spot in the desert,” and

beat him to death); Brenner v. Aetna Ins. Co., 445 P.2d 474,

477–78 (Ariz. Ct. App. 1968) (“[T]he fact that both the tort-

feasor and the injured party were ‘using’ the car at the time

does not make the injury one ‘arising out of the . . . use’ of

the vehicle” where the appellant was accidentally shot while

riding as a passenger in the appellee’s car); cf. Morari v.

Atlantic Mut. Fire Ins. Co., 468 P.2d 564, 567 (Ariz. 1970)

(finding that the unloading of a gun from a pickup truck was

connected to the use of the vehicle for the purposes of

automobile insurance policy because the “very purpose” of

the vehicle was to be “operated and used in hunting”).

Accordingly, in Arizona, the phrase “arising out of the

operation or use of a motor vehicle” has been construed in

the insurance context to require a causal relationship

between the use of a vehicle and any underlying harm,

thereby justifying the need for an insurance company’s

compensation for such harm. However, the Arizona

decisions cited above specifically analyzed the underlying

language of the vehicle owners’ insurance contracts to

determine whether an incident warranted coverage. See,

ADAME V. CITY OF SURPRISE 11

e.g., Benevides, 911 P.2d at 619 (“[T]he insurer spells out its

intent clearly in its policy.”). While these cases provide

persuasive guidance for interpreting the statute, they do not

necessarily provide binding guidance in this context, as they

rely on principles of contract interpretation.

It also bears mentioning that A.R.S. section 12-

820.05(B)’s motor vehicle exception has not been discussed

in cases with similar facts to the case at bar, making

certification even more helpful in understanding the

exception’s scope. See, e.g., Harris v. City of Phoenix, No.

CV-20-00078-PHX-DLR, 2021 WL 4942662, at *1

(D. Ariz. Oct. 22, 2021) (where decedent “was shot to death

by Officer Bertz on January 10, 2019 after officers ordered

him from his car and he fled,” the court agreed with the city’s

argument that “a municipality cannot be held liable for its

employee’s intentional use of force unless it actually knows

of the employee’s propensity to commit that particular act”).

The type of immunity conferred by A.R.S. section 12-

820.05(B), as well as the statute’s general scope, are

unanswered questions of state law that are dispositive in the

instant case and that implicate issues of significant

precedential and public policy importance. For these

reasons, after careful consideration, we exercise our

discretion to certify these questions to the Arizona Supreme

Court. See also Kremen v. Cohen, 325 F.3d 1035, 1037–38

(9th Cir. 2003) (listing the factors considered when

determining whether certification is appropriate).

III. Certified Questions

1. Does A.R.S. Section 12-820.05(B) provide immunity

from suit or only immunity from liability? If the latter,

the Court need not answer any further questions because

our court would lack jurisdiction over this interlocutory

12 ADAME V. CITY OF SURPRISE

appeal. If the former, please answer the following

additional questions.

2. With respect to the first sentence of subsection (B) of this

statute: If a law enforcement officer causes a death by

the use of “excessive force” (here, a firearm), has the law

enforcement officer committed “a criminal felony” as a

matter of law? If not, is a conviction of a felony

required? If not, is the determination whether the law

enforcement officer committed “a criminal felony” a

question of fact for the jury or a question of fact only for

“the court”? How does the determination whether an

officer’s use of “excessive force” was “justified” or

“unjustified” pursuant to A.R.S. section 13-413 affect

this inquiry? Is the determination of whether the public

employee’s relevant acts or omissions were “justified”

or “unjustified” for the jury to make, or for the court to

make? If this determination is for the court to make, for

purposes of summary judgment, in applying A.R.S.

section 12-820.05(B), is the reviewing court required to

assume that the relevant acts or omissions of the public

employee were “unjustified,” given A.R.S. section 13-

413?

3. With respect to the second sentence of subsection (B) of

this statute: Does this sentence apply only to a public

employee’s operation or use of a motor vehicle? Or, if

the public employee’s act takes place because another

person operates or uses a motor vehicle (where, for

example, a law enforcement officer fires because

someone else is stealing a car or driving a car

dangerously toward another person), does the public

employee’s act nonetheless “aris[e] out of the operation

or use of a motor vehicle”? What is the required degree

of causal connection, if any, between the “acts or

omissions arising out of the operation or use of a motor

ADAME V. CITY OF SURPRISE 13

vehicle” and the “losses that arise out of and are directly

attributable to an act or omission determined by a court

to be a criminal felony”?

IV. Counsel Information

The names and addresses of counsel, as required by Ariz.

R. Sup. Ct. 27(a)(3)(C), are as follows:

James M. Jellison, #012763, Jellison Law

Offices, PLLC, 36889 North Tom Darlington

Drive, Suite #B7, Box 2800, #304, Carefree,

Arizona 85377, for Defendant-Appellant

City of Surprise

Dale K. Galipo, Esq. and Eric Valenzuela,

Esq., Law Offices of Dale K. Galipo, 21800

Burbank Boulevard, Suite 310, Woodland

Hills, California 91367; and Anthony J.

Ramirez, Esq., Warnock Mackinlay Law,

PLLC, 7135 E. Camelback Road, Suite F-

240, Scottsdale, Arizona 85251, for Plaintiff-

Appellees Maria Adame, et. al.

V. Conclusion

The Clerk of Court shall forward an original and six

copies of this certification order, under official seal, to the

Arizona Supreme Court. The Clerk is also ordered to

transmit a copy of the Excerpts of Record filed in this appeal

to the Arizona Supreme Court and, if requested by the

Arizona Supreme Court, provide all or part of the district

court record not included in the Excerpts of Record. Ariz.

R. Sup. Ct. 27(a)(5).

14 ADAME V. CITY OF SURPRISE

Submission of this appeal for decision is vacated and

deferred pending the Arizona Supreme Court’s final

response to this certification order. The Clerk is directed to

administratively close this docket, pending further order.

The parties shall notify the Clerk of this court within

fourteen days of the Arizona Supreme Court’s acceptance or

rejection of certification, and again, if certification is

accepted, within fourteen days of the Arizona Supreme

Court’s issuance of a decision.

QUESTION CERTIFIED; PROCEEDINGS

STAYED.

/s/ Mary H. Murguia

Mary H. Murguia,

Chief Circuit Judge