The opinion
IN THE SUPREME COURT, STATE OF WYOMING
2024 WY 31
OCTOBER TERM, A.D. 2023
March 26, 2024
DEBORAH PALM-EGLE,
Appellant
(Plaintiff),
v.
S-23-0100
JON BRIGGS, individually; and WYOMING
DIVISION OF CRIMINAL
INVESTIGATION,
Appellees
(Defendants).
W.R.A.P. 11 Certified Question
from the United States District Court for the District of Wyoming
The Honorable Scott W. Skavdahl, Judge
Representing Appellant:
Gary L. Shockey, Gary L. Shockey, PC, Casper, Wyoming.
Representing Appellee:
Bridget L. Hill, Attorney General; Mark A. Klaassen, Deputy Attorney General;
Debra Hulett, Senior Assistant Attorney General. Argument by Ms. Hulett.
Before FOX, C.J., KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
BOOMGAARDEN, J., delivers the opinion of the Court; KAUTZ, J., files a dissenting
opinion in which Gray, J., joins.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of any typographical or other formal errors so that correction may be made before
final publication in the permanent volume.
BOOMGAARDEN, Justice.
[¶1] The United States District Court for the District of Wyoming certified two questions
to us regarding the duty of care owed by law enforcement officers to suspects when
conducting an investigation. We conclude, consistent with our precedent, that law
enforcement officers acting within the scope of their duties owe a common law duty to the
suspect in that investigation to investigate as reasonable peace officers of ordinary
prudence under like circumstances, and that such officers are entitled to assert qualified
immunity.
ISSUE
[¶2] We agreed to answer two certified questions pursuant to W.R.A.P. 11:
1. Does a law enforcement officer acting within the scope of
his or her duties as such owe a duty of care to the suspect(s)
in a criminal investigation to conduct that investigation in
a non-negligent manner?
2. If the answer to the first question is yes, is the law
enforcement officer entitled to assert qualified immunity
under Wyoming law?
FACTS
[¶3] When answering certified questions of law through W.R.A.P. 11, we rely upon the
facts presented by the certifying court. Miech v. Sheridan Cnty., 2002 WY 178, ¶ 2, 59
P.3d 143, 144 (Wyo. 2002) (citing Kaycee Land & Livestock v. Flahive, 2002 WY 73, ¶ 3,
46 P.3d 323, ¶ 3 (Wyo. 2002)). Our answer to certified questions is not dependent on
factfinding. Skoric v. Park Cnty. Circuit Ct., 2023 WY 59A, ¶ 3, 532 P.3d 667, 668 (Wyo.
2023); B & W Glass, Inc. v. Weather Shield Mfg., Inc., 829 P.2d 809, 812 (Wyo. 1992).
As such, we summarize the facts the federal district court provided us as context for our
analysis.
[¶4] In August 2019, Wyoming Department of Criminal Investigation Task Force
Officer John Briggs received a tip about a suspected marijuana growing operation near
Albin, Wyoming. Deborah Palm-Egle lives on that property, and she owns shares in the
company that owns the property. Officer Briggs and another law enforcement officer went
onto the property on November 1, 2019 to try to talk to someone but no one was home.
They observed a barn and a greenhouse on the property. A window on the barn was broken,
and Officer Briggs observed and photographed a green leafy substance hanging inside the
barn. Officer Briggs returned to his office and began drafting an affidavit to support a
search warrant for certain items and persons at the Palm-Egle property. He also called the
1
Wyoming Department of Agriculture to determine whether it had issued any licenses to
grow hemp in Wyoming. The agency informed Officer Briggs it had not and there was a
moratorium in effect for hemp cultivation in Wyoming. Officer Briggs then requested a
search warrant, which a circuit judge issued.
[¶5] On the morning of November 4, 2019, Officer Briggs and other law enforcement
officers executed the warrant and seized approximately 327,600 grams of plant material
from the barn. Two individuals were at the Palm-Egle property when law enforcement
arrived. During the search, one of those individuals provided two laboratory-issued
certificates of analysis, prepared for the High Altitude Hemp Company and dated
September 12, 2019, which showed that two plant samples were tested and had a Total
Delta-9 tetrahydrocannabinol (THC) level of 0.0 percent. 1 Law enforcement notified the
Wyoming Crime Lab of the two certificates and provided the certificates to Officer Briggs.
[¶6] On November 12, 2019, law enforcement sent ten samples of the seized plant
material to a lab for testing. In February 2020, the lab provided the test results to law
enforcement. Those results showed a Total Delta-9 THC level slightly more than 0.3% in
nine of the ten samples—the statutory threshold for the plant material to be considered
marijuana instead of hemp. 2 In April 2020, the State filed an information alleging four
marijuana-related offenses: three felonies and one misdemeanor. The Information was
accompanied by an affidavit of probable cause, prepared by Officer Briggs, which
identified the nine test results dated in February but did not mention the two certificates of
analysis provided to law enforcement during the search.
[¶7] A probable cause hearing occurred on August 6, 2020. The presiding circuit court
judge declined to bind over the three felony offenses, noting that Ms. Palm-Egle had been
held out as an expert in hemp, was instrumental in passing legislation legalizing hemp in
Wyoming, and that the low levels of THC in the plant material—close to 0.3 percent—
reflected an intent to produce hemp. The circuit court found no probable cause for the
intent elements of the charged offenses, declined to bind the matter over to district court,
and dismissed all counts.
[¶8] In April 2022, Ms. Palm-Egle filed a civil action in state district court against Officer
Briggs, the Department of Criminal Investigation, and several other parties. Ms. Palm-
Egle alleged violations of her constitutional rights pursuant to 42 U.S.C. § 1983, and a
1
The statement of facts provided does not state whether the property searched was owned by the High
Altitude Hemp Company.
2
Wyo. Stat. Ann. § 35-7-1063 excludes possession, use, production, processing, and testing hemp from the
Wyoming Controlled Substances Act and defines hemp as “all parts, seeds and varieties of the plant
cannabis sativa l., . . . with a trans-delta 9-tetrahydrocannabinol (THC) concentration of not more than
three-tenths of one percent (0.3%) on a dry weight basis.” See also Wyo. Stat. Ann. § 11-51-101(a)(iii)
(applying the same threshold THC concentration for hemp in the agricultural licensing statutes).
2
variety of tort claims. 3 Defendants timely removed the case to federal district court and
then moved to dismiss. The federal district court dismissed several of the claims and
parties. The remaining claims proceeded to summary judgment.
[¶9] At summary judgment, the federal district court withheld ruling on Ms. Palm-Egle’s
state law negligence claims, “finding the existence of a legal duty of law enforcement
officers to conduct criminal investigations in a non-negligent manner is both an unsettled
question of Wyoming state law and potentially dispositive of Palm-Egle’s negligence
claim.” According to the district court, this “lawsuit arises out of the events and
circumstances surrounding Briggs’ investigation” and Ms. Palm-Egle alleged several flaws
in Officer Briggs’s investigation that could amount to a breach of duty. One of the facts
presented to the district court included an admission by Officer Briggs that he “could have
investigated further and developed more evidence that [the crop] was being grown as hemp
and not as marijuana.” We are not, however, provided with the Complaint or other record
materials which may articulate the alleged negligence and Ms. Palm-Egle’s injuries. Nor
did either party supplement the record pursuant to W.R.A.P 11.
[¶10] Certification to this Court followed the summary judgment hearing, with the
certified issues raised sua sponte by the federal district court.
STANDARD OF REVIEW
[¶11] Certified questions are questions of law reviewed de novo. State v. Mares, 2014
WY 126, ¶ 10, 335 P.3d 487, 493 (Wyo. 2014) (citing Smith v. State, 2013 WY 123, ¶ 9,
311 P.3d 132, 135 (Wyo. 2013)).
Certified questions are governed by W.R.A.P. 11. When there
is no controlling precedent to a question of law, Rule 11.01
allows this Court to answer pure questions of law “‘which may
be determinative of the cause’ pending in the certifying court.”
The role of this Court in answering a certified question does
not include fact finding. Certainty of facts is not required to
answer a pure question of law.
Sinclair Wyo. Ref. Co. v. Infrassure, Ltd., 2021 WY 65, ¶ 10, 486 P.3d 990, 994 (Wyo.
2021) (citations omitted).
3
The statement of facts provided to us does not state whether the tort claims were filed through the
Wyoming Governmental Claims Act. We note that Act is the exclusive vehicle for civil remedies against
state agencies and peace officers. See generally Wyo. Stat. Ann. §§ 1-39-101 to -120 (2023). No procedural
defects related to that Act are identified in the certifying court’s statement of facts.
3
DISCUSSION
I. Law enforcement officers owe a duty of care to criminal suspects to investigate
as reasonable peace officers of ordinary prudence under like circumstances.
[¶12] The first question is posed to us as one sounding in traditional negligence, as
“potentially dispositive of Palm-Egle’s negligence claim.” To maintain a negligence claim,
a plaintiff must prove (1) the defendant had a duty of care to protect the plaintiff from
injury; (2) the defendant breached that duty; (3) the plaintiff suffered actual injury or loss;
and (4) the defendant’s breach of duty caused that injury or loss. E.g., Anderson v. Two
Dot Ranch, Inc., 2002 WY 105, ¶ 11, 49 P.3d 1011, 1014 (Wyo. 2002) (citation omitted).
Whether a duty exists is a question of law for the court to decide. Id. If there is no duty,
the claim of negligence cannot survive. Id.
[¶13] We have long held that law enforcement officers, acting within the scope of their
duties, have a common law duty to act as reasonable peace officers of ordinary prudence
under like circumstances. We reiterated this rule in the recent case of Cornella v. City of
Lander, 2022 WY 9, ¶ 27, 502 P.3d 381, 387 (Wyo. 2022). In that case, a mother found a
live bat in her son’s room and called animal control, which was a division of the city’s
police department. Id. at ¶ 3, 381 P.3d at 383. The city’s animal control officers, who
were also peace officers, collected the bat but lost it during transport and could not test it
for rabies. Id. The family was advised to get rabies vaccines as a precautionary measure,
and their resulting medical bills totaled more than $80,000. Id. at ¶¶ 4–5. The family filed
a negligence claim against the city and its animal control officers through the Wyoming
Governmental Claims Act. Id. at ¶ 1, 381 P.3d at 382. The trial court dismissed the claims
at summary judgment, but we reversed and remanded. Id. In our discussion of the trial
court’s errors related to duty in the tort of negligence, we stated:
we have long held that “peace officers acting within the scope
of their duties have a common law duty to act as reasonable
peace officers of ordinary prudence under like circumstances.”
Duncan [v. Town of Jackson], 903 P.2d [548,] 552 [(Wyo.
1995)] (applying the reasonable peace officer standard to
define the duty owed by an officer in a § 1-39-112 action
alleging negligence); see Becker [v. Mason], [2006 WY 143,]
¶¶ 12–14, 15, 145 P.3d [1268,] 1272–73 [(Wyo. 2006)] (using
the reasonable peace officer standard as the duty owed by
officers in a § 1-39-112 action alleging negligence, and
collecting cases in which we concluded that peace officers
have a duty to act reasonably under the circumstances); see
also Bassett v. Lamantia, 2018 MT 119, ¶ 30, 391 Mont. 309,
324, 417 P.3d 299, 311 (“Accordingly, Lamantia owed Bassett
a duty to exercise the care that a reasonable officer with similar
4
skill, training, and experience would under the same or similar
circumstances.”); Mancini v. City of Tacoma, 196 Wash.2d
864, ¶ 49, 479 P.3d 656, 668 ([Wash.] 2021) (“[P]olice, just
like other people, must exercise ordinary reasonable care[.]”).
Id. at ¶ 27, 502 P.3d at 387.
[¶14] We evaluated this same common law duty in the context of a law enforcement
investigation in Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992). In that case, a
law enforcement officer initiated a traffic stop after observing a burned-out headlight on a
vehicle. Id. at 113. The officer noticed a smell of alcohol during the stop but determined,
based on his observation of the driver’s hand–eye coordination, speech, and demeanor, that
no field sobriety tests were warranted. Id. Two hours later, the driver crossed the center
line of the pavement into incoming traffic and was involved in a head-on collision, resulting
in three fatalities. Id. at 114. The driver’s blood alcohol concentration was 0.13 percent.
Id. Plaintiffs brought a wrongful death action, alleging the peace officer was negligent
when he performed informal field sobriety tests but did not perform formal field sobriety
tests and then arrest the driver for driving under the influence. Id. at 114–15.
[¶15] We expressly declined the opportunity presented in Kheen to define “the nature and
extent of a peace officer’s duty to investigate” and instead resorted to “traditional tort
principles.” Id. at 115–16. Applying those traditional principles, we held “a peace officer’s
duty to investigate a potential DWUI violation during an unrelated traffic stop is dictated
by what a reasonable peace officer of ordinary prudence would do under like
circumstances.” Id. at 116. Having defined the duty, we evaluated whether that duty was
breached by evaluating both the “legal and factual realities inherent in the field of law
enforcement.” Id. at 116–17. The legal realities included the Fourth Amendment
restrictions against conducting a warrantless search without probable cause, the restriction
against investigatory detentions without reasonable suspicion, and the elements of the
applicable drunk driving offense. Id. Evaluating those legal principles in conjunction with
the facts available to the law enforcement officer at the time of the investigation, we
concluded the duty was not breached. Id. at 117–18.
[¶16] In Duncan v. Town of Jackson, we stated the same general duty in the context of an
investigation when an off-duty peace officer arrived at the scene of a truck that drove off
the road and down into an embankment. 903 P.2d 548, 550 (Wyo. 1995). The officer did
not go to the vehicle to investigate for occupants, and the next morning the driver of the
truck was found dead in the driver’s seat. Id. We again recognized the general duty of law
enforcement to act as a reasonable peace officer of ordinary prudence would act under like
circumstances. Id. at 552. We remanded the matter back to the trial court, finding the trial
court erred at summary judgment when it concluded the off-duty officer was not acting
within the scope of his duties. Id. at 554.
5
A. Fidelity to existing precedent is warranted.
[¶17] Officer Briggs invites us to evaluate whether he owed a duty during his investigation
by applying the eight-factor test 4 we apply when evaluating whether to recognize a new
duty—as a new tort entirely or a new duty based on a particular relationship. See Gates,
719 P.2d at 196 (applying this factor test to determine whether to recognize the new tort of
negligent infliction of emotional distress); Wilcox v. Security State Bank, 2023 WY 2, ¶ 39,
523 P.3d 277, 287 (Wyo. 2023) (evaluating whether to recognize a new tort of negligent
advising); Duncan v. Afton, Inc., 991 P.2d 739, 744 (Wyo. 1999) (applying the eight-factor
test to determine “whether a duty should be imposed based on a particular relationship”).
[¶18] We decline Officer Briggs’s invitation for three reasons. First, the federal district
court asked us to evaluate duty in the context of a traditional negligence claim, noting in
its certification order that our opinion would be “potentially dispositive of Palm-Egle’s
negligence claim.” Congruently, we have been reticent to recognize new duties and their
associated causes of action “without a proper record and insightful analysis of whether
conditions in Wyoming warrant a change.” Wilcox, 2023 WY 2, ¶ 49, 523 P.3d at 289
(citing Ortega v. Flaim, 902 P.2d 199, 204 (Wyo. 1995)).
[¶19] As noted, the record before us is sparse. Equally important, we consistently have
grounded the duty of law enforcement in the actionable tort of negligence, rather than
parsing, or splitting, the scope of an officer’s duties into multiple actionable negligence
claims, each with its own common law duty analysis. Cornella, 2022 WY 9, ¶ 24, 502
P.3d at 386–87 (rejecting the municipality’s argument the plaintiffs’ negligence claim must
fail because Wyoming’s Governmental Claims Act did not recognize the specific torts of
negligent transportation and negligent failure to train); Keehn, 834 P.2d at 114
(characterizing the question before us as one sounding in negligence, a traditional tort
concept, not the adoption of a new tort for negligent investigation); see Becker, 2006 WY
143, ¶¶ 13–15, 145 P.3d at 1273 (declining to limit a negligence claim to a specific duty
and concluding, under the general duty to act as a reasonably prudent peace officer, a
negligent investigation allegation could survive a motion to dismiss). Cf. Nakamoto v.
4
The eight factors are:
(1) the foreseeability of harm to the plaintiff, (2) the closeness of the
connection between the defendant’s conduct and the injury suffered, (3)
the degree of certainty that the plaintiff suffered injury, (4) the moral
blame attached to the defendant’s conduct, (5) the policy of preventing
future harm, (6) the extent of the burden upon the defendant, (7) the
consequences to the community and the court system, and (8) the
availability, cost and prevalence of insurance for the risk involved.
Natrona Cnty. v. Blake, 2003 WY 170, ¶ 6, 81 P.3d 948, 951 (Wyo. 2003) (citations omitted); Gates v.
Richardson, 719 P.2d 193, 196 (Wyo. 1986) (quoting Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334,
342 (Cal. 1976)).
6
Kawauchi, 418 P.3d 600, 616 (Haw. 2018) (stating “[a] negligent investigation claim is a
common law tort action for negligence” in a case involving private investigators). The
record and conditions presented here do not warrant any change from our usual course.
[¶20] Second, the eight-factor test applies when we evaluate whether to recognize a new
duty based on a particular relationship. E.g., Anderson, 2002 WY 105, ¶ 44, 49 P.3d at
1025; Duncan, 991 P.2d at 744. We already recognize a duty owed by law enforcement
officers to citizens. Cornella, 2022 WY 9, ¶ 27, 502 P.3d at 387; Keehn, 834 P.2d at 116–
17. Officer Briggs suggests that because Ms. Palm-Egle was a criminal suspect subject to
investigation our analysis should be different. We disagree. Accused are presumed
innocent until proven guilty. E.g., Watts v. State, 2016 WY 40, ¶ 11, 370 P.3d 104, 107
(Wyo. 2016) (discussing Martinez v. Court of Appeal of Cal., Fourth App. Dist., 528 U.S.
152, 162, 120 S. Ct. 684, 691, 145 L. Ed. 2d 597 (2000)). Moreover, as explained more
fully below, to the extent other jurisdictions have applied the public duty rule to afford
criminal suspects lesser protections, i.e., to excuse the recognized duty in the context of
criminal investigations, Wyoming has never recognized the public duty doctrine. Blake,
2003 WY 170, ¶¶ 12–15, 81 P.3d at 953–56; see infra ¶¶ 25–26.
[¶21] Finally, Officer Briggs’s foreseeability analysis, which is a central component of
the eight-factor test, is inappropriately narrow. 5 He asserts an officer’s conduct during an
investigation does not create a foreseeable risk of harm to a suspect because the charging
decision is made by a different person (the prosecutor) and other procedural safeguards
exist in the criminal justice system such as the requirement for probable cause to support
an arrest warrant or summons and the availability of a preliminary hearing once charges
are filed. This argument erroneously presumes the only alleged injury a plaintiff could
suffer as the result of an officer’s conduct during an investigation stems from an improper
charging decision or arrest. 6 Even if the record showed that to be the case here, “in deciding
whether to adopt a particular tort duty, a court’s focus must be much broader than just the
case at hand.” Borns ex rel. Gannon v. Voss, 2003 WY 74, ¶ 31, 70 P.3d 262, 273 (Wyo.
2003) (citations omitted).
[¶22] Damages resulting from an improper charging decision are just one potential result
of a negligent investigation. E.g., Dever v. Fowler, 816 P.2d 1237 (Wash. Ct. App. 1991)
(seeking damages through civil claims for malicious prosecution, civil rights violations,
and negligent investigation after being acquitted for arson); Sterling v. Commonwealth, No.
CIV.A. 00-0168B, 2000 WL 1675599, at *2 (Mass. Sup. Ct. Aug. 1, 2000) (seeking
5
Of the eight “new duty” factors, foreseeability is “the fulcrum on which duty—its existence or absence—
rests.” Wilcox, 2023 WY 2, ¶ 40, 523 P.3d at 287 (citation omitted). “Foreseeability establishes a ‘zone of
risk,’ which is to say that it forms a basis for assessing whether the conduct creates a generalized and
foreseeable risk of harming others.” Id.
6
Officer Briggs also mentions the possible loss of liberty related to an arrest and the availability of a
different tort claim for that—false arrest. This substantive argument and body of law is inapposite; Ms.
Palm-Egle was never arrested.
7
personal injury and emotional distress damages after being arrested as the wrong suspects).
Other types of injuries are also foreseeable, as reflected in the breadth of cases attempting
to assert this type of negligence claim against law enforcement officers. For example,
personal and real property might be damaged. Mancini v. City of Tacoma (Mancini III),
479 P.3d 656, 664–66 (Wash. 2021) (discussing past cases related to property damage
caused by law enforcement during execution of warrants); Onderdonk v. State, 648
N.Y.S.2d 214 (N.Y. Ct. Claims 1996) (alleging real and personal property damage after
execution of a no-knock warrant, damage to reputation, decrease in property value, and
emotional injuries). Personal injury may arise unrelated to an arrest as in Payne v. State,
No. NNH CV09 5029895 S, 2012 WL 527673, at *2 (Conn. Sup. Ct. Jan. 31, 2012)
(claiming “the actions of the police officers caused personal injuries to him before he was
able to convince them that he was not [the suspect named in a warrant]”). The alleged
injury could also include spoliation of evidence during an investigation. Han-Noggle v.
City of Albuquerque, No. A-1-CA-35989, 2019 WL 5096073 (N.M. Ct. App. Sept. 10,
2019). Indeed, some courts that bar negligent investigation claims limit that bar to claims
related to an arrest but allow negligent investigation claims outside the context of arrest to
proceed. Ferreira v. City of Binghamton, 975 F.3d 255, 275–76 (2d Cir. 2020).
[¶23] This record and the necessary consideration of cases beyond this one, Voss, 2003
WY 74, ¶ 31, 70 P.3d at 273, support our continued fidelity to existing precedent which
describes the common law duty owed by law enforcement in general, more traditional
negligence terms. Stated differently, because we do not have the benefit of the complaint
or other record materials that describe the nature of the injuries Ms. Palm-Egle asserted, or
whether her alleged injuries arose solely from the prosecutor’s charging decision as Officer
Briggs suggests, we should adhere to the workable contours of the common law duty with
which we are familiar and regularly employ—Officer Briggs had a duty to investigate as a
reasonable peace officer of ordinary prudence under like circumstances. Notably, the
circumstances inherent to the investigation of someone suspected of criminal activity will
factor into the breach of duty analysis as in Kheen. 834 P.2d at 116–18 (concluding law
enforcement did not breach this duty based on the facts available to the law enforcement
officer during the investigation and the legal principles and elements of the suspected
offense applicable to that investigation).
8
B. Precedent from other jurisdictions does not support departure from
existing Wyoming law.
[¶24] We understand other jurisdictions have declined to recognize claims for negligent
investigation of a crime. 7 Waskey v. Municipality of Anchorage, 909 P.2d 342, 344–45
(Alaska 1996) (citing other jurisdictions); Smith v. State, 324 N.W.2d 299, 300 (Iowa 1982)
(citing other jurisdictions). A careful look at that precedent, however, reflects disparate
bases that deviate from Wyoming law.
[¶25] Many of those cases are grounded in the public duty doctrine. In South Carolina,
for example, there is no duty to non-negligently investigate because law enforcement owes
its duty to the general public to identify criminal activity, not to the complaining suspect.
Turner v. Taylor, C.A. No. 7:09-cv-02858-JMC, 2011 WL 3794086, at *9 (D.S.C. Aug 25,
2011). Michigan also relies on the public duty rule to shield against negligent investigation
claims. Flones v. Dalman, 502 N.W.2d 725, 729 (Mich. Ct. App. 1993). Florida courts,
too, have “recognized that the negligent conduct of police investigations does not give rise
to a cause of action because the duty to protect citizens and enforce the law is one owed
generally to the public.” Pritchett v. City of Homestead, 855 So. 2d 1164, 1165 (Fla. Dist.
Ct. App. 2003). Montana similarly limits liability for negligence through the public duty
rule—“In most instances involving law enforcement, the alleged duty breached is the duty
to protect and preserve the peace. The public-duty doctrine applies in those cases and
provides that an officer does not owe a plaintiff a legal duty absent a special relationship.”
Bassett, 417 P.3d at 307; see also Cope v. Utah Valley State Coll., 342 P.3d 243, 253–54
(Utah 2014).
[¶26] We expressly rejected the public duty rule after examining it in some depth in Blake,
2003 WY 170, 81 P.3d 948, and in DeWald v. State, 719 P.2d 643 (Wyo. 1986). The public
duty rule was “in essence a form of sovereign immunity and viable when sovereign
immunity was the rule.” Blake, 2003 WY 170, ¶ 12, 81 P.3d at 954. The legislature has
abolished sovereign immunity in this area. “The public duty only rule, if it ever was
recognized in Wyoming, is no longer viable.” DeWald, 719 P.2d at 653. In Blake, we
affirmed the public duty rule has never been a part of Wyoming’s jurisprudence. 2003 WY
7
We also note some jurisdictions have backed away from earlier precedent that rejected a duty by law
enforcement during an investigation. See Mancini III, 479 P.3d at 664 (affirmatively recognizing a general
duty by law enforcement during investigations stating “[a]t common law, every individual owes a duty of
reasonable care to refrain from causing foreseeable harm in interactions with others. This duty applies in
the context of law enforcement and encompasses the duty to refrain from directly causing harm to another
through affirmative acts of misfeasance” (quoting Beltran-Serrano v. City of Tacoma, 442 P.3d 608 (Wash.
2019)); Ferreira, 975 F.3d at 275–76 (concluding New York’s prohibition against negligent investigation
claims is limited to claims challenging the validity of an arrest); see also Inman v. City of Whiteville, 763
S.E.2d 332, 335–36 (N. C. Ct. App. 2014) (discussing Strickland v. Univ. of N. C. at Wilmington, 712
S.E.2d 888 (N.C. 2011) and explaining “that the duty of a law enforcement officer ‘not to negligently
provide false and misleading information during a criminal investigation’ did not ‘resemble the types of
duties to the general public for which the public duty doctrine normally precludes liability’”).
9
170, ¶ 12, 81 P.3d at 953 (“We have found no precedents of this Court that specifically
adopted the public duty rule or even discuss its application in a general sense.”). Rather,
the modern trend is towards liability. Id. (quoting Schear v. Bd. of Cnty. Comm’rs of
Bernalillo Cnty., 687 P.2d 728, 731 (N.M. 1984)). “The [public duty] concept that a
governmental entity may have a duty to the public in general but no special duty to
individual citizens is no longer viable.” Soles v. State, 809 P.2d 772, 774 (Wyo. 1991).
We simply do not align with those jurisdictions that reject any law enforcement duty to
non-negligently investigate based on the public duty rule.
[¶27] Other jurisdictions widely cite California’s statute-based reasoning in Johnson v.
City of Pacifica, 4 Cal. App.3d 82, 84 Cal. Rptr. 246 (Cal. Ct. App. 1970), as a basis to
deny claims for negligent law enforcement investigation. E.g., Goldyn v. Clark Cnty., No.
2:06-CV-0950-RCJ-RJJ, 2007 WL 2592797, at *8 (D. Nev. Aug. 31, 2007); Waskey, 909
P.2d at 344–45; Smith, 324 N.W.2d at 300. Notably, however, the Johnson decision is
firmly rooted in the language of California’s governmental claims act, which expressly
extends immunity to law enforcement during investigations. Johnson, 4 Cal. App.3d at
84–86. Wyoming law enforcement officers enjoy no such immunity. To the contrary,
without exclusion, the Wyoming Government Claims Act deems governmental entities
“liable for damages resulting from tortious conduct of peace officers acting within the
scope of their duties.” Wyo. Stat. Ann. § 1-39-112; see also Wyo. Stat. Ann. § 1-39-120
(identifying one exclusion for improper seizure during civil forfeiture actions).
[¶28] Other courts rely on malicious prosecution cases to reject claims for negligent
investigation. See, e.g., Waskey, 909 P.2d at 344–45 (citing Montgomery Ward & Co. v.
Pherson, 272 P.2d 643 (Colo. 1954), and Rodriguez v. Richey, 556 F.2d 1185 (5th Cir.
1977)); Goldyn, 2007 WL 2592797, at *8 (pointing in part to Direnzio v. United States,
690 F. Supp. 1149, 1155 (D. Conn. 1988)). But malicious prosecution claims have distinct
elements, see Cates v. Eddy, 669 P.2d 912, 917 (Wyo. 1983) (stating the six elements for
malicious prosecution); Consumers Filling Station Co. v. Durante, 333 P.3d 691, 694
(Wyo. 1958) (adopting six elements for civil and criminal malicious prosecution), and do
not control here.
[¶29] Yet other jurisdictions dismiss claims for negligent investigation by conflating
common law duty and common law immunity. Jestic v. Long Island Sav. Bank, 440
N.Y.S.2d 278, 281 (N.Y. App. Div. 1981) (“[P]ublic policy has developed an immunity to
protect those who act in a reasonable manner in bringing to justice those they believe are
criminals. That immunity cannot be broken down upon a mere allegation of negligence or
even gross negligence.”); Bromund v. Holt, 129 N.W.2d 149, 152 (Wisc. 1964) (“Although
there is authority to the contrary, the same immunity is, in general, extended to the police
and other law enforcement officers acting within the scope of their duties, with the possible
exception of a situation where they themselves initiate the complaint or concoct false
evidence.”).
10
[¶30] The better approach is to treat immunity and the absence of duty as distinct legal
concepts. Dobbs et al., Law of Torts § 252 (2d ed. 2023 update) (discussing the differences
between “no duty” rules and immunities, which are often used interchangeably). As the
Florida Supreme Court aptly explained, “[u]nder traditional principles of tort law, the
absence of a duty of care between the defendant and the plaintiff results in a lack of liability,
not application of immunity from suit.” Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009)
(citing Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003)); see also State ex
rel. Dep’t of Corr. v. Watts, 2008 WY 19, ¶ 9, 177 P.3d 793, 796 (Wyo. 2008) (“[Q]ualified
immunity provides ‘an immunity from suit rather than a mere defense to liability . . . .’”
(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985))). The existence of a duty is the
first element of a negligence claim, without which an actor cannot have committed a tort.
Immunity is different; it shields the tortious actor from an action in the courts, depriving
the court of subject matter jurisdiction and barring the litigation on the merits of the tort
claim. Wallace, 3 So. 3d at 1044–45 (citations omitted).
[¶31] Recognizing distinctions as in Blake, 2003 WY 170, ¶ 12, 81 P.3d at 953 (rejecting
the public duty rule), Watts, 2008 WY 19, ¶ 9, 177 P.3d at 796 (distinguishing between
duty and immunity), and Wyo. Stat. Ann. § 1-39-112 (providing for peace officer liability
without exclusion for “tortious conduct”), and otherwise finding no compelling reason to
adopt another jurisdiction’s policy or reasoning, we answer the first question in the
affirmative and shift our focus to the question of qualified immunity.
II. Officer Briggs is entitled to assert qualified immunity.
[¶32] The second question the federal district court asks is whether Officer Briggs is
entitled to assert qualified immunity. We answer this question in the affirmative as well:
Officer Briggs may assert qualified immunity. Qualified immunity protects good actors—
allowing law enforcement to perform their duties without risk related to mistakes—but
imposes liability on those whose improper conduct falls outside the boundaries of qualified
immunity. Qualified immunity is also an important offset to the investigatory chilling
effect sometimes cited as a policy basis to bar claims for negligent investigation. 8 See,
e.g., Wimer v. State, 841 P.2d 453, 455 (Idaho App. 1992) (“We agree with the policy that
to hold investigators liable for their negligent acts would impair vigorous prosecution and
have a chilling effect on law enforcement.” (citations omitted)); Dever v. Fowler, 816 P.2d
1237, 1242 (Wash. App. 1991) (“The reason courts have refused to create a cause of action
for negligent investigation is that holding investigators liable for their negligent acts would
8
The “chilling effect” risk has been called into question in modern commentary, noting the lack of empirical
evidence and positing that the impact of recognizing a duty is merely that law enforcement hold themselves
to reasonable standards. See E. Olsen, The Tort of Negligent Investigation: Canada’s Recognition of the
Tort as a Model for Improving Compensation for the Wrongfully Convicted, 38 Wis. Int’l L. J. 617, 634–
37 (2021) (discussing the standard of care as an incentive for law enforcement to use sound practices and
standards despite the common concern of chilling investigations reflected in case law from the United
States).
11
impair vigorous prosecution and have a chilling effect upon law enforcement.” (citations
omitted)).
[¶33] Qualified immunity developed at common law and remains available through
common law even if immunity is otherwise waived under the Wyoming Governmental
Claims Act. E.g., Uinta Cnty. v. Pennington, 2012 WY 129, ¶ 13, 286 P.3d 138, 142 (Wyo.
2012) (citing Kimbley v. City of Green River, 663 P.3d 871, 883 (Wyo. 1983)). We
recognized its availability to law enforcement officers and investigators when sued for
negligent investigation in Blake v. Rupe, 651 P.2d 1096, 1107–11 (Wyo. 1982) (“We find
[qualified immunity] singularly simple and much easier to apply than the many
complexities found in the general law of torts.”), superseded on an unrelated issue in Essex
Holding, LLC v. Basic Properties, Inc., 2018 WY 111, ¶ 39, 427 P.3d 708 (Wyo. 2018).
While prosecutors have absolute immunity in making charging decisions, law enforcement
officers, including those operating as investigators, are afforded qualified immunity. Id. at
1101–06 (discussing prosecutors’ absolute immunity) and 1107–11 (discussing law
enforcement and investigators’ qualified immunity). The party claiming qualified
immunity must prove four elements: (1) the officer acted within the scope of their duties;
(2) and in good faith; (3) the acts were reasonable under the circumstances; and (4) the acts
were discretionary duties, not operational or ministerial. 9 Pennington, 2012 WY 129, ¶
14, 286 P.3d at 142; see also id. at ¶¶ 17, 20, 286 P.3d at 143, 144 (defining each element
in additional detail).
[¶34] The third element—whether the officer’s acts were reasonable under the
circumstances—is procedurally and substantively distinct from the duty analysis in the
underlying negligence claim, thus affording law enforcement officers necessary threshold
protections. We have reversed trial courts that equate the two standards. Id. at ¶¶ 27, 28,
286 P.3d at 145–46.
[¶35] Procedurally, because qualified immunity can deprive a court of subject matter
jurisdiction, it is appropriate for disposition early in a case, prior to adjudication on the
merits. See Wyoming State Hosp. v. Romine, 2021 WY 47, ¶ 8, 483 P.3d 840, 844 (Wyo.
2021); Wallace, 3 So. 3d at 1044–45 (citations omitted). Unlike the fact-intensive nature
of a breach of duty analysis in a negligence claim, the reasonableness of the officer’s
conduct must be determined by the court as a matter of law. Pennington, 2012 WY 129,
¶ 16, 286 P.3d at 143 (“Whether a public official is entitled to qualified immunity is a
question of law which the court must resolve.” (citing Layland v. Stevens, 2007 WY 188,
¶ 12, 171 P.3d 1070, 1073 (Wyo. 2007))). While qualified immunity might not be
appropriate for dismissal on a motion to dismiss, Darrar v. Bourke, 910 P.2d 572, 577
9
The standard for qualified immunity under state common law is distinct from the federal standard. Kanzler
v. Renner, 937 P.2d 1337, 1344 (Wyo. 1997). Federal qualified immunity in 42 U.S.C. § 1983 actions has
two elements and the burden of proof is to be carried by the plaintiff. E.g., Estate of Beauford v. Mesa
Cnty., 35 F.4th 1248, 1262 (10th Cir. 2022).
12
(Wyo. 1996), it is appropriate for disposition at summary judgment once facts are
sufficiently developed. Pennington, 2012 WY 129, ¶ 14, 286 P.3d at 142. As such, federal
courts appropriately recognize the discretion of the trial courts in limiting discovery
necessary for evaluating the threshold question of qualified immunity. Stonecipher v.
Valles, 759 F.3d 1134, 1148–49 (10th Cir. 2014) (recognizing the trial courts’ authority to
stay, deny, or narrowly tailor discovery upon the filing of a dispositive motion based on
qualified immunity “because qualified immunity protects against the burdens of discovery
as well as trial” (citations omitted)).
[¶36] Equally important, a ruling on qualified immunity is usually appealable. Romine,
2021 WY 47, ¶ 16, 483 P.3d at 845 (“[A] denial of summary judgment based ‘on a claim
of governmental immunity’ is appealable without the need for a writ of review.” (citation
omitted)); Campbell Cnty. Mem’l Hosp. v. Pfeifle, 2014 WY 3, ¶ 12, 317 P.3d 573, 576
(Wyo. 2014) (“The denial of a defendant’s summary judgment motion is generally not a
final appealable order. This Court recognizes an exception to that rule, however, in cases
involving the denial of a defendant’s claim of qualified immunity.” (citations omitted));
Watts, 2008 WY 19, ¶ 9, 177 P.3d at 796 (“[L]ike an absolute immunity, [qualified
immunity] is effectively lost if a case is erroneously permitted to go to trial.” (quoting Park
County v. Cooney, 845 P.2d 346, 349 (Wyo. 1992))).
[¶37] Substantively, reasonableness in the context of a qualified immunity analysis is
defined “as having the faculty of reason; rational; governed by reason; being under the
influence of reason; thinking, speaking, or acting rationally, or according to the dictates of
reason; agreeable to reason; just; rational.” Pennington, 2012 WY 129, ¶ 20, 286 P.3d at
144 (citations omitted); Blake, 651 P.2d at 1110 (citation omitted). This is a different legal
standard than the reasonable person standard determinative of the underlying negligence
claim:
In order to show that he was entitled to qualified immunity, the
Sheriff was not obligated to prove that all reasonably prudent
law enforcement officers would have acted as he did. He was
required to prove only that a reasonably prudent officer, under
the same circumstances, might have reached the same decision.
Pennington, 2012 WY 129, ¶ 21, 286 P.3d at 144 (citation omitted). Thus, an officer
establishes the reasonableness of his conduct for the purposes of qualified immunity even
in the face of disagreement by other officers of reasonable competence. Id. “Whereas
differences of opinion might create disputed questions of fact in negligence situations,
differences of opinion as to the propriety of an officer’s action have a different impact in
determining whether a public official is entitled to qualified immunity.” Id. at ¶ 16, 286
P.3d at 143.
13
[¶38] Qualified immunity serves important policy purposes—it recognizes the need to
permit public officials “to perform their official functions free from the threat of suits for
personal liability” and it protects law enforcement from the “risk of being mulcted in
damages for mistakes [they] may make in the performance of [] public duties.” Blake, 651
P.2d at 1108 (citation omitted). “Implicit in the idea that officials have some immunity—
absolute or qualified—for their acts, is a recognition that they may err. The concept of
immunity assumes this and goes on to assume that it is better to risk some error and possible
injury from such error than not to decide or act at all.” Id. (quoting Scheuer v. Rhodes, 416
U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 90 (1974)). The doctrine rests on two central rationales:
(1) an inherent unfairness in imposing liability on law enforcement doing their
discretionary work in the absence of bad faith, and (2) a recognition that such liability could
chill law enforcement activity. Id. As a “qualified” immunity, however, it imposes liability
when conduct falls outside the lines of the doctrine. See id. at 1108–09. Qualified
immunity is, therefore, the better vehicle by which to evaluate responsibility for
investigatory conduct than to reject any possibility of liability from the outset. Further, the
elements of qualified immunity and its procedural components, including the ability to seek
interlocutory appeal, serve these purposes by protecting law enforcement against
unwarranted litigation on the merits of a negligence claim.
CONCLUSION
[¶39] Law enforcement officers acting within the scope of their duties owe a common law
duty to the suspect(s) in a criminal investigation to investigate as reasonable peace officers
of ordinary prudence under like circumstances. Law enforcement officers acting within
the scope of their duties when conducting a criminal investigation are entitled to assert
qualified immunity.
14
KAUTZ, J. dissenting, in which GRAY, J., joins.
[¶40] I respectfully dissent.
[¶41] The question presented to us is “does a law enforcement officer acting within the
scope of his or her duties as such owe a duty of care to the suspect(s) in a criminal
investigation to conduct that investigation in a non-negligent manner?” (emphasis added).
Unfortunately, the majority opinion provides no analysis of whether such a duty is owed
to the suspect. Applying the analytical framework this Court consistently uses to determine
whether a duty exists, see, e.g., Gates v. Richardson, 719 P.2d 193, 196 (Wyo.
1986); Ortega v. Flaim, 902 P.2d 199, 203, 206 (Wyo. 1995); Mostert v. CBL &
Assocs.,741 P.2d 1090, 1094 (Wyo. 1987); Duncan v. Afton, Inc., 991 P.2d 739, 744 (Wyo.
1999); Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶ 44, 49 P.3d 1011, 1024 (Wyo.
2002); Natrona Cnty. v. Blake, 2003 WY 170, ¶ 6, 81 P.3d 948, 951 (Wyo. 2003), I
conclude that an investigating officer does not owe such a duty to a suspect.
[¶42] Rather than performing a duty analysis, the majority jumps to the conclusion that
an investigating officer does owe a duty of care to suspects when conducting investigations.
To reach this conclusion without analysis, the majority relies on a generic duty statement
found in cases where non-suspects claimed they benefited from a general duty of officers
to act reasonably under the circumstances. By leaping from this generic duty applied to
non-suspects to a duty owed to suspects, the majority ignores fundamental tort law which
only recognizes a duty in specific instances—applicable here in the context of the recipient
or beneficiary of that duty. The majority avoids applying our duty analysis which, I
conclude, dictates against finding a duty. By implication, the majority opinion concludes
that an investigating officer owes a duty to everyone everywhere, without regard to their
relationship to the officer or the claimed injury. And, the majority opinion effectively
recognizes a new tort in Wyoming permitting a criminal defendant to sue an investigating
officer for simple negligence because a prosecutor filed criminal charges which were later
dismissed. The majority opinion puts Wyoming in a unique position—it appears every
other state which has considered whether criminal suspects may sue an investigating officer
for negligent investigation has concluded he or she may not.
Tort Law on Duty
[¶43] “The threshold question in a negligence action is whether the defendant owed a legal
duty to the plaintiff.” 57 Am. Jur. 2d Negligence § 70 (emphasis added). This court
recognizes the basic negligence principle that duties are understood and applied only in the
context of a beneficiary or recipient of the duty. “The elements that a plaintiff must
establish to maintain a negligence action in a court of law are: (1) that the defendant owed
to the plaintiff a duty ….” Keehn v. Town of Torrington, 834 P.2d 112, 115 (Wyo. 1992)
(emphasis added). “In order to recover in any negligence action, a plaintiff must establish
that the defendant owed a duty of care to him.” Duncan v. Town of Jackson, 903 P.2d 548,
15
551 (Wyo. 1995) (emphasis added). “To establish negligence, [a plaintiff] must prove: (1)
the defendant owed the plaintiff a duty ….” Cornella v. City of Lander, 2022 WY 9, ¶ 25,
502 P.3d 381, 387 (Wyo. 2022) (emphasis added) (internal quotation marks and citations
omitted).
[¶44] In general, everyone has a basic duty to exercise reasonable care. We have
mentioned this general duty as applicable to police officers, as well as others. This basic
duty, however, only becomes a legal duty owed to a particular plaintiff when the
relationship between the defendant and the plaintiff, and public policy considerations,
indicate a legal duty should exist. 57 Am. Jur. 2d Negligence § 73. “The existence of a
duty turns on the basic nature of the relationship between the parties to the cause of action.
Thus, in determining whether a duty exists, the court should examine the relationship
between the parties.” Id., § 78. Before this case, we have not considered the relationship
between an investigating officer and a suspect to determine whether the officer owes this
duty to a suspect.
[¶45] To examine the relationship between the investigator and Ms. Palm-Egle, it is
necessary to restate the context for the question presented to us: A law enforcement officer
investigated an alleged crime and delivered his findings, along with other information, to
a prosecuting attorney. During the investigation someone, apparently on behalf of Ms.
Palm-Egle, gave the investigator information that he apparently discounted and did not
explore further. The prosecuting attorney then filed felony charges against Ms. Palm-Egle.
After a circuit court judge found no probable cause 10 to bind those felonies over to district
court, Ms. Palm-Egle sued the investigating officer, claiming he was negligent in
conducting his investigation, apparently because he did not delve further into the
information Ms. Palm-Egle’s agent provided. Although the questions certified to us do not
specifically list the damages Ms. Palm-Egle claims, it is obvious from her argument that
she claims some sort of injury resulting from facing criminal charges. 11 The U.S. District
Court submitted its duty question to us in generic terms, rather than in specific terms based
on these facts. If we were directly presented with the duty question, it likely would be “did
this investigator have a duty to follow up on evidence Ms. Palm-Egle believed was
exculpatory before he submitted his information to the prosecutor?” Ideally, the question
would have specified the damages Ms. Palm-Egle claims, because determination of
whether a duty exists always requires an evaluation of the foreseeability of those damages.
Nevertheless, it is possible to answer the more abstract question submitted by the U.S.
District Court.
10
The circuit court concluded there was no probable cause “to find that there was intent to possess …
marijuana ….” However, the crime of possession of a controlled substance is a general intent crime and
does not require specific intent to possess.
11
The majority suggests that other types of damages might result from an improper investigation, such as
property damage or personal injury. Such damages would not result from negligent investigation, but
instead from duties owed by someone taking possession of property to properly care for it, etc. Such
damages are not related to the status of the plaintiff as a suspect or the officer’s investigative actions.
16
[¶46] The majority opinion never examines the relationship between the investigator, Ms.
Palm-Egle, and the charges which were filed to determine if an investigator should owe a
duty to Ms. Palm-Egle. Instead, it relies on general duty of care statements from this Court
which mention an officer’s general duty to act reasonably. It asserts “we already recognize
a duty owed by law enforcement officers to citizens.” However, this Court has never
analyzed nor determined that every law enforcement officer owes a general duty to act
reasonably in every circumstance to every citizen or to suspects, specifically. It is not
appropriate to conclude from the cases relied on by the majority that the “duty to act as a
reasonable peace officer of ordinary prudence under like circumstances” applies beyond
the facts of those cases or applies to every potential plaintiff.
[¶47] In Cornella, ¶ 26, 502 P.3d at 387, we recognized the general duty of reasonable
care on the part of law enforcement officers. However, we stated that a duty arises when
“such a relation exists between the parties that the community will impose a legal
obligation upon one for the benefit of the other ….” Inherent in Cornella was a
consideration of the relationship between the officer and the plaintiffs and the damages
they claimed. Our conclusion in Cornella, although implied rather than specifically stated,
was that an officer who undertakes to deliver a potentially rabid bat for testing, on behalf
of the family exposed to the bat, had a duty to the family to exercise reasonable care in
doing so. The relationship between the plaintiffs and the officer, and the potential
consequences of negligently performing that task, were key to our decision. Cornella did
not consider whether the officer owed that duty to anyone else, including suspects in
criminal investigations. Cornella shows that the duty of reasonable care applies to those
specific circumstances, but it has no relationship to the facts here.
[¶48] Similarly, in Keehn, 834 P.2d at 115, we mentioned the general duty of an officer
to act reasonably. However, all our statements about duty in Keehn are dicta, as the case
was not decided on the basis of duty. Rather, we found the trial court properly granted
summary judgment in favor of the officer because there was no evidence he was negligent.
Nevertheless, when we discussed duty in Keehn, we recognized the officer’s duty was more
specific than a general reasonableness obligation, and that there were specific beneficiaries
of his duty to investigate DUI cases. We said “peace officers have a general duty to
apprehend, arrest, and remove drunk drivers from Wyoming’s roadways. This duty
emanates from Wyoming’s drunk driving law, Wyo. Stat. § 31-5-233 (June 1989). Section
31-5-233, [was] enacted for the protection of the public at large as well as for the individual
inebriate and his/her passengers.” Id. (citation omitted). Consistent with standard tort law,
we did not simply impose on the officer a general duty of reasonable care applicable to the
entire public, but rather we considered the relationship of the parties and identified the
beneficiaries of the officer’s specific duties. We must do the same in this case.
[¶49] In Duncan, 903 P.2d 548, we considered a claim by the family of a victim in a car
crash. The family claimed an officer failed to adequately investigate the scene of the crash
to determine if the victim was still in the car. Although the Court quoted Keehn stating
17
that an officer generally has a duty to act reasonably under the circumstances, that
statement was not the basis of the decision. Id. at 552. We did not consider whether such
a duty might apply to every citizen, or even to the victim of the crash. Rather, we
recognized that questions of whether the officer had a legal duty to the victim of that crash
remained unanswered and would necessarily be decided later in the trial proceedings. We
said “[g]enuine issues of material fact exist, and they include but are not limited to: . . . 3)
whether, even if [the officer] was not required to respond to the emergency, once he did
respond he owed a legal duty to [the victim] ….” Id. at 553.
Duncan did not analyze or establish that an officer owes a duty of reasonableness to every
citizen, nor did it consider whether an officer investigating a potential crime owes any
duties to a suspect. It did not discuss the relationships between an officer and every citizen,
or between an officer and a suspect, to determine if any legal duty exists. Like Cornella
and Keehn, Duncan did not determine what, if any, duties apply between an investigating
officer and a suspect.
Duty Factors
[¶50] Because this Court has never analyzed the relationship between an investigating
officer and a suspect to determine what legal duties, if any, apply between them, it is
necessary to do so here.
[¶51] In deciding “whether a duty should be imposed based on a particular relationship,”
this Court considers multiple factors: “(1) the foreseeability of harm to the plaintiff, (2)
the closeness of the connection between the defendant’s conduct and the injury suffered,
(3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to
the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the
burden upon the defendant, (7) the consequences to the community and the court system,
and (8) the availability, cost and prevalence of insurance for the risk involved.” Natrona
Cnty., ¶ 6, 81 P.3d at 951. Analysis of these factors shows a law enforcement officer acting
within the scope of his or her duties does not owe a duty of care to a suspect in a criminal
investigation to conduct the investigation in a non-negligent manner.
[¶52] The first factor, foreseeability of harm to the plaintiff, “is the most important … and
‘is the fulcrum on which duty—its existence or absence—rests.’” Wilcox v. Sec. State
Bank, 2023 WY 2, ¶ 40, 523 P.3d 277, 287 (Wyo. 2023) (citation omitted). The alleged
harm (the filing of criminal charges which are eventually dismissed) to any suspect cannot
be a foreseeable result from simple negligence on the part of the investigating officer
because the prosecutor alone makes the charging decision. See Hirsch v. State, 2006 WY
66, ¶ 11, 135 P.3d 586, 591 (Wyo. 2006) (recognizing that “[t]he prosecutor is vested with
the exclusive power to determine who to charge with a crime and with what crime to charge
them”) (alteration added) (citation omitted).
18
[¶53] In addition to the general lack of foreseeability described above, the foreseeability
requirement presents two specific problems for Ms. Palm-Egle’s claim that she was harmed
by the officer’s investigation. First, her claim requires a determination that the prosecutor
should not and would not have filed the charges had the officer conducted additional
investigation. If the prosecutor would have filed the charges in any event, Ms. Palm-Egle
cannot establish harm from the investigation. However, no one could foresee whether this
prosecutor would or should file charges, with or without any additional investigation.
Prosecutors are not required to have perfect cases before they file charges. They are not
even required to have probable cause, although lack of probable cause can quickly create
problems for their case. The decision on whether to file charges was in the exclusive
discretion of this prosecutor, based on whatever factors he found appropriate.
[¶54] A second specific foreseeability problem that disconnects the officer’s investigation
from any claimed harm by Ms. Palm-Egle is that there was no foreseeable connection
between the officer’s investigation and at least some of the charges being dismissed. The
charges were a foreseeable harm to Ms. Palm-Egle only if it was axiomatic that they would
be dismissed. If the charges were not dismissed, Ms. Palm-Egle could not claim to
wrongfully have been damaged. In this case it could not have been foreseeable that the
circuit judge would determine there was no probable cause for some of the felony charges,
nor that the circuit judge would incorrectly dismiss the possession charge based on intent.
[¶55] In sum, the kind of damages a charged suspect would claim, based on charges being
filed and then dismissed, simply are not a foreseeable result of an investigator’s negligent
actions.
[¶56] The second factor, the closeness of the connection between the defendant’s conduct
and the injury claimed, “is ‘a corollary of foreseeability,’” and “considers other
contributions to the harm.” Wilcox, ¶ 43, 523 P.3d at 288 (citations omitted). Assuming
that the filing of charges constitutes harm to a suspect, many other factors may contribute
to that action beyond the officer’s investigation. The prosecutor decides to file the charges.
At some point a judicial officer must determine whether there is probable cause to support
felony charges. There is not a close connection between an officer’s negligent
investigation and a suspect’s “damage” from facing criminal charges.
[¶57] The third factor, the degree of certainty that the plaintiff suffered injury, also weighs
against finding a peace officer has a duty to a suspect to conduct an investigation in a
“nonnegligent” manner. The suspect here apparently claims injury from the criminal
charges having been filed. In contrast to the more typical injury cases, where there is a
higher degree of certainty that injury resulted from the defendant’s actions, a suspect’s
claim for negligent investigation does not present an obvious physical injury. See, e.g.,
Becker v. Mason, 2006 WY 143, ¶¶ 1, 4, 145 P.3d 1268, 1269 (Wyo. 2006) (plaintiff sought
wrongful death damages after the decedent was killed in a motor vehicle collision with a
drunk driver the deputy sheriff failed to stop from driving); Bd. of Cnty. Comm’rs ex rel.
19
Teton Cnty. Sheriff’s Dep’t v. Bassett, 8 P.3d 1079, 1082 (Wyo. 2000) (plaintiffs sought
damages for injuries suffered in motor vehicle collision partially caused by officers’ failure
to enforce a roadblock); Duncan, 903 P.2d at 550 (plaintiff sought damages for decedent’s
wrongful death based on law enforcement’s alleged negligent motor vehicle accident
investigation); DeWald v. State, 719 P.2d 643, 645-46 (Wyo. 1986) (plaintiff sought
damages for wrongful death of decedent killed in motor vehicle collision caused by law
enforcement’s negligent high speed chase). Other potential claimed damages, such as
emotional distress or attorney fees, are not obviously the result of facing criminal charges
and have limited availability in Wyoming.
[¶58] The fourth factor, the moral blame attached to the defendant’s conduct, assesses
“whether the defendant is morally culpable before imposing liability.” Larsen v. Banner
Health Sys., 2003 WY 167, ¶ 30, 81 P.3d 196, 205 (Wyo. 2003). “Moral blame generally
results from situations in which the defendant had direct control over establishing and
ensuring proper procedures to avoid the harm caused or where the defendant is the party
best in the position to prevent the injury.” Moses Inc. v. Moses, 2022 WY 57, ¶ 39, 509
P.3d 345, 356 (Wyo. 2022) (citations omitted). As with the other factors, the prosecutor
has control over the quality of the information used as the basis for criminal charges. The
prosecutor, not the investigator, controls the filing of charges. Certainly, an officer who
damages a suspect’s property, violates constitutional rights, or causes personal injury is
morally culpable for those actions because he has primary control over his actions.
However, those are not the damages or relationships which are relevant to the question
before us. In general, the investigating officer has no control over the charges being filed
against a suspect. Even if the officer was negligent, the choice to file the charges rests
exclusively with the prosecutor.
[¶59] The fifth factor, the policy of preventing future harm, weighs against an officer’s
duty to conduct a “non-negligent” investigation of a suspect. As discussed, a peace
officer’s investigation does not cause harm to a suspect, i.e., the filing of charges and
attendant consequences. The entity with the strongest motivation and ability to prevent
harm (if it is harm) from the filing of criminal charges is the prosecuting attorney, not the
investigating officer. When a peace officer presents investigatory materials to a prosecutor,
the prosecutor has the sole responsibility to assess whether criminal charges are appropriate
or whether the law enforcement officer should conduct additional investigation. Once a
prosecutor files charges, a judicial officer reviews the charges and supporting affidavits to
make a probable-cause determination, and if that judicial officer finds probable cause, the
adversarial process commences, affording the defendant additional opportunities to
challenge the filing of charges. Our system of criminal justice already has substantial and
appropriate procedures to protect against the type of “harm” a criminal suspect would claim
as a result of facing charges.
[¶60] The sixth factor we consider in determining whether there is a legal duty, the burden
upon the defendant, considers the negative consequences to the defendant of imposing a
20
duty in a particular relationship. Recognition of a duty to conduct a “non-negligent”
investigation for the benefit of suspects will have substantial negative consequences to law
enforcement officers. It will create a new tort in Wyoming—the tort of negligent
investigation. It will invite every criminal defendant who is acquitted or has charges
dismissed after a preliminary hearing to sue police officers claiming negligent
investigation. Officers will be reluctant to investigate, especially in close cases, for fear of
being sued. Many courts have recognized that imposing on investigators a duty of care to
a suspect impairs vigorous prosecution and has a chilling effect on law enforcement. See
Lahm v. Farrington, 90 A.3d 620, 624 (N.H. 2014) (stating “police officers’ interest in
conducting criminal investigations without fear of liability for negligence … weighs
heavily against the significant interests of criminal suspects”); Smith v. State, 324 N.W.2d
299, 301 (Iowa 1982) (“to assure continued vigorous police work, those charged with that
duty [to investigate crime] should not be liable for mere negligence”); Wimer v. State, 841
P.2d 453, 455 (Idaho 1992) (“[w]e agree with the policy that to hold investigators liable
for their negligent acts would impair vigorous prosecution and have a chilling effect on
law enforcement”); Dever v. Fowler, 816 P.2d 1237, 1242 (Wash. Ct. App. 1991), as
amended 824 P.2d 1237, 1238 (Wash. Ct. App. 1992) (“The reason courts have refused to
create a cause of action for negligent investigation is that holding investigators liable for
their negligent acts would impair vigorous prosecution and have a chilling effect upon law
enforcement.”)
[¶61] The seventh factor, the consequences to the community and the court system, “has
generally been thought of as weighing the negative aspects of creating a new cause of
action.” Larsen v. Banner Health Sys., 2003 WY 167, ¶ 32, 81 P.3d 196, 205 (Wyo. 2003).
It considers the negative consequences of recognizing a duty not on the officer (sixth
factor) but on the court system and the public.
[¶62] This factor weighs heavily against a legal duty of non-negligent investigation owed
by officers to suspects. Recognition of such a duty would not only negatively impact
officers in their investigations, but it would also have significant negative consequences on
the community and the court system. This duty would invite litigation, impair vigorous
prosecution, and have a chilling effect on law enforcement. The Iowa Supreme Court
summarized this public policy consideration well: “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.” Smith, 324 N.W.2d at
301.
[¶63] An additional negative consequence to the public and the courts from recognition
of this new duty and tort is that criminal defendants will be able to circumvent the strict
requirements of a malicious prosecution claim. Until now a criminal defendant who
wished to sue an investigating officer or the prosecutor (effectively suing the state) was
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required to bring a malicious prosecution claim or a claim under 42 U.S.C. § 1983. These
claims provide appropriate avenues for recovery by a suspect who alleges to have been
improperly charged or investigated, while protecting the public’s interest in vigorous
investigation and prosecution of crimes. We recognized in Cates v. Eddy, 669 P.2d 912,
918 (Wyo. 1983), that allowing actions for malicious prosecution could have a chilling
effect on law enforcement but concluded that the heightened requirements of a malicious
prosecution claim – malice and lack of probable cause – sufficiently balanced the interest
of the public in having wrongs investigated and prosecuted against the interest of redress
for actual wrong and damage. Recognition of a duty on peace officers??? to conduct a
non-negligent investigation for the benefit of suspects abandons that balance, at the
expense of the public interest. Criminal defendants who have a charge dismissed or are
acquitted would entirely avoid well-reasoned requirements for a malicious prosecution by
claiming an officer acted “unreasonably.”
[¶64] The courts and the public will encounter practical difficulties as a result of the
majority decision—additional negatives related to the seventh factor. The first of these
difficulties results from the majority’s conclusion that police officers always owe a duty of
reasonableness to everyone, without regard to the relationship of the parties or the
foreseeability of the injury. If that is true, then an officer’s duty in investigating a crime
benefits anyone and everyone. Anyone and everyone, even those remote to the case, could
sue the officer, claiming the investigation somehow harmed them. Employers of suspects
could sue police officers, claiming a negligent investigation of an employee resulted in
criminal charges and the employer lost money due to the employee’s absence. Unpaid
creditors of a suspect could sue police officers, claiming negligence in investigation
resulted in the suspect’s failure to pay an obligation. Before this decision, claims of this
sort would be dismissed at the outset, because the relationship between the investigating
officer and the plaintiff did not create the existence of a duty owed to the plaintiff. Now,
because the majority declares an officer has a duty to everyone without regard to
relationship, the viability of remote claims like these will not be tested as a question of
duty—a matter of law—but as a factual question of causation.
[¶65] Another practical difficulty resulting from this new tort of negligent investigation is
that prosecutors will be called to court to explain their charging decisions. Juries will be
required to allocate fault between investigating officers and prosecutors for the charges
which were filed. It is difficult to imagine how a jury will be instructed to determine the
percentage of “fault,” if any, which is allocated to the investigating officer and the
percentage which is allocated to the prosecutor who could have or should have reviewed
the officer’s work more carefully. 12 Prosecutors, who should have complete discretion as
to charging decisions, will no longer enjoy that status.
12
The jury will also be required to allocate the percentage of fault applicable to the plaintiff.
22
[¶66] As we have no information about the availability of insurance to cover the tort of
negligent investigation resulting in wrongful criminal charges, we cannot consider the
eighth factor in our duty analysis.
[¶67] An analysis of the factors used to determine whether a duty applies to a particular
relationship leads to only one conclusion – Wyoming should not recognize a legal duty
owed by a law enforcement officer to suspects to conduct an investigation in a non-
negligent manner. Had the majority engaged in such an analysis, it would have reached
the same conclusion.
CONCLUSION
[¶68] I would answer “No” to the question presented to us: “Does a law enforcement
officer acting within the scope of his or her duties as such owe a duty of care to the
suspect(s) in a criminal investigation to conduct that investigation in a non-negligent
manner?”
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