City of Phoenix v. Yarnell

P.2d 377 PHOENIX; Edgcombe; Gregory CITY OF Sechez; County, Maricopa

and Michael

Defendants-Petitioners, YARNELL, Judge

Hon. Michael A.

Superior Arizona, of the State of Court County Maricopa,

in and Re- for the

spondent, SMITH,

Michael J. Real

Party in Interest.

No. CV-94-0416-PR. Arizona,

Supreme Court of

En Banc.

Dec. granted consider

We review to the doc- qualified immunity, trine of the issue of mu- county nicipal liability, and when officials’ may represent municipal poli- actions official Const, cy. jurisdiction under We have Ariz. 5(3) 6, § art. and A.R.S. 12-120.24. We judgment granting affirm order favor City detectives. Because the and the genuine of fact record reflects issues material Jones, by Georgia & Hochuli A. Skelton concerning County’s potential liability, Staton, Lewis, Phoenix, David C. for Defen- however, appeals’ the court of we vacate Phoenix, City Gregory of dants-Petitioners directing entry opinion and its order of sum- Edgcombe, and Michael Sechez. mary judgment County. in favor of the Romley, Maricopa County At- Richard M. light We the facts in the most (former view torney by deputy Michael G. Sullivan Smith, party against favorable to whom Paulsen, county attorney) and John W. Phoe- summary judgment granted. was See Hill v. nix, Maricopa for Defendant-Petitioner Co., Ariz. Am. Ins. 182 Chubb County. Life (1995).2 especially P.2d This is Ulman, Bettini, Ely, Turley by Insana & J. plaintiff alleg true when the non-movant Phoenix, Wayne Turley, Party for Real ing a civil Gobel v. rights violation. Marico Interest Michael J. Smith. (9th pa County, F.2d Cir. 1989); see Morris v. Alabama State OPINION (5th Relations, Dept. Indus. of FELDMAN, Chief Justice. Cir.1970). arrest and Released after nine months’ (“Smith”)

incarceration, Michael J. Smith FACTS AND PROCEDURAL HISTORY brought seeking damages a tort action A, female, theories, sexually was including violation of his Victim a white various apartment early civil assaulted in Phoenix on rights under U.S.C. her 26,1991. (“City”), morning January City of Phoenix two Phoenix The assail (“detectives”), number, Department ant ATM access an Police detectives demanded her attacks, County (“County”) (collectively and her Maricopa unusual act such stole “Defendants”). purse belongings. The The trial court all of and other victim de denied summary judgment scribed her to detectives as a mus motions attacker Defendants’ old, male, years law and cular black 28-34 with fine Smith’s state tort federal claims. bushy eyebrows. petitioned ap then features and He wore Defendants pants peals by special gloves sweat-type and used for relief action.1 The court cotton accepted jurisdiction profanity. day, detectives the trial That same learned ordered person resembling description for all that a this to enter following peeking on the claims asserted under 42 been seen windows Defendants nearby apartment com Superior female tenants at a U.S.C. 1983. Phoenix v. Court, plex. sight two such (App.1994). Burglaries Ariz. followed Arizona, formerly 1. In 180 Ariz. at P.2d at 166 relief obtained writs mandamus, prohibition, added). ob- (emphasis certiorari is now The court of should Ariz.R.P.Spec.Act. by special action. tained support the have looked instead to trial court's Smith, favorably ruling, viewing'facts most appeals erroneously stated the The court non-moving Although presented party. Smith standard review: review, we declined in his court has the trial denied [W]hen disposition. our review it does not affect because defendant, we will affirm that However, clarify compelled proper we feel if under the version denial defendant's standard. facts, the defendant’s conduct violated a clearly established law. re proceed when the ings. previously complex, lived in this unsure how to Smith exculpatory and asked manager suspected layed him these information and the information, released; also shows activities. Based on this Smith addition, prosecut investigation supervisor In decided to continue focused Smith. photographic A’s identific ing A identified him in a Smith on the basis Victim Victim lineup, though physical description ation.5 even his description gave not match the she did evidence, exculpatory response day police.3 was arrested that arranged lineup with supervisor a live attempted later indicted for sexual assault of if both and Isaac to determine Victim burglary apartment. A of her

Victim and again A select While the line- Smith. later, B, being prepared, po- up participants also a white were One week Victim female, sexually sergeant purpose in that the was assaulted her home lice told Smith prove innocent. early morning by lineup a black male. Vic the was to that he was However, police ATM not tell A that tim B’s attacker also demanded her did Victim they perpetra- cards another man was the access number and stole bank and believed belongings. striking similarity property tor in her case or that her was other The fact, In apartment. the attack on Victim A led Phoenix Police found in another man’s Edgcombe although clothing to Detective to believe that both she was shown Smith’s identify any by person. crimes were committed the same see if she could of it as the during The the could detective was so convinced that he felt clothes worn assault—she compelled to check whether A was never shown Smith was still not—Victim jail, clothing. which he was. Police later arrested Isaac’s Isaac, who B’s Warren matched Victim de A could Because Victim indicated that she scription apart of her attacker.4 In Isaac’s recognize perpetrator by the voice as well as ment, police purse, the found Victim A’s sight, lineup participants repeated the state- cards, property, credit and other as well as crime, during made the such as ments property from a stolen number of other vic your gonna PIN number?” and “I’m “What’s surely tims of similar crimes. Now con you again kill bitch.” A identified Victim Isaac, Smith, vinced that and not had at Smith, saying that “he looks like the man A, police sergeant tacked a Victim Phoenix my that came into house.” Based on Victim urged deputy county attorney assigned the identification, subsequent A’s re- Smith drop charges. Smith’s case to the jail charged mained with her sexual as- office, however, county attorney’s argues lineup did sault. Smith identifi- drop charges. prior Nor did it disclose cation was tainted the Victim’s exculpatory photographic him in this information to Smith’s de identification of line- Instead, attorney. deputy up, though part fense the ease even of the identifi- and that prosecutors exemplar, conferred with other and ar cation was based on voice ranged police sergeant to meet with identifi- and visual identification tainted the voice county attorney’s complains Trial further Criminal Division cation. Smith Supervisor (“supervisor”). pros police deputy lineup was flawed because neither log clearly picture prior A ecutor’s indicates that he was Isaac’s to Victim .showed tall, Thus, description 3. Victim A described her feet he fit Victim of the attacker as six also A's hair, pounds, afro-style "nappy” with attacker. contrast, clean shaven. arrest, In at the time of his tall, ap- five Smith was feet nine inches log February deputy county In his moustache, proximately pounds, had attorney wrote: was bald slick black hair on the sides his Telephone police sergeant]. call from He [the head. says property [Victim was found in resi- A's] dence of a Warren Isaac. Isaac also fits police report Isaac is described in the as a old, male, description perpetrator in dark-complected years [Victim A's] black six build; tall, sergeant] pounds, case. wants to dismiss our [The feet one inch and thin he hair, moustache, Spoke supervisor]. afro-style average Will [the case. division had short speech. get [sergeant] today eyebrows, profane, case. and used abusive discuss lineup, nor told her that there was 885 P.2d at 166.6 On October County dropped charges against suspect. second jail. he was His Smith and released from police March until September, From late after incarcer release occurred nine months’ investigation no further conducted of Smith’s ation, eight police the last served after potential or Isaac’s in the as- involvement county attorney’s informed the office A. finger- sault on Victim Police found no probable Isaac’s arrest and involvement prints physical tying or other evidence Smith releas Only the assault on Vietim A. after A, identify any to Victim and she could not jail ing County provide Smith did the clothing type Smith’s worn her exculpatory defense Smith’s counsel with Thus, implicat- attacker. evidence reports of Isaac’s arrest. ing Smith was Vietim A’s identification. then filed an Smith action Edgcombe September, police Phoenix Detectives assigned a new lieu- Sechez, County alleging Maricopa division, Thiele, tenant in the sex Alton crime his civil were violated He to Smith’s case. learned of the Isaac 1983; tort he asserted state U.S.C. crime, similarity which to the one for in- seeking damages negligence, claims charged, general was belief distress, tentional infliction of emotional police guilty, detectives was not contract, prosecution, breach of malicious relayed and that the informa- arrest, and false Defen- imprisonment. false county attorney’s tion to the office with a all summary judgment moved for on dants charges request dropped. that the Thiele be immunity. on the basis claims of absolute meeting deputy county had a with the attor- analyzed against The trial court the claims ney police September sergeant and the on 30 alleged torts into dividing Defendants the again requested charges against and that the time frames: the initial arrest and deten two dropped. meeting, be the Smith After the tion, the detention acts occur and other prosecutor log: wrote in case his 19, 1991, February ring after when Victim Meeting [sergeant] + with his lieutenant apart property A’s was in Isaac’s discovered They A1 the requested Thiele. that detention, As to the ment. initial arrest and charges they be dismissed since believe we granted summary judgment the trial court wrong guy captain have the and them sent City the and the on the basis of for detectives Ling + + them concurs—also Det. Marco Likewise, immunity. trial court absolute the Mike Sechez both believe Defendant is the im concluded that the had absolute (sic) wrong guy—they all feel its Warren munity charging for the initial decision and Isaac____ agreed We to let defendant However, all the court found that detention. polygraph—if passed take he we may be for the acts that Defendants liable dismiss. 19, February the after 1991. Thus occurred arrest, im prosecution, malicious false false polygraph The results of the to administered rights claims rem prisonment, civil approximately after his nine months ained.7 initial arrest were Neverthe- inconclusive. less, deputy attorney moved to county each Subsequently, City charges against on dismiss Smith based civil judgment moved for on the Phoenix, City qualified Ariz. at rights grounds new evidence. claims on of of Smith, assume, concerning appeals 6. There is confusion we will in the record to county did, attorney's initially what the office was told about apparently that the results were polygraph According Phoenix, results to the the and when. City reported as inconclusive. of County, reported department 478, 885 P.2d Ariz. at at 166. prosecutor polygraph, passed although it is clear from the record summary judg 7. Following grant partial of polygraph were The Coun- results inconclusive. ment, special Defendants filed action in the ty summary judgment proceedings stated at the appeals seeking denial of review of the that, results, polygraph based on the it decided to summary judgment remaining on claims. all the However, against dismiss the case Smith. jurisdiction appeals The court of declined action, special stated that this court denied review. event, the results were In be- inconclusive. light we review favorable cause must most 13, correct 4] The court of noted immunity trial court de from appropriate motions, ly action review finding qualified special im nied immunity immunity claims to resolve munity applied to the actions taken De fendants, stage. jury possible but concluded that a issues at the earliest Ariz. 885 P.2d at of whether Defen remained (“Defendant con should acts or omissions violated Smith’s in a 1983 action dants’ section then filed a final rights. required Defendants stitutional await re special challenge action in the court of adverse order a trial court’s suit.”) summary judgment. immunity Ac ruling view the denials the issue of Court, jurisdiction, cepting that court ordered the Superior Ariz. v. (citing Henke summary judgment grant (App.1989)); see detectives, finding possible liability 524- Forsyth, 472 also v. Mitchell The court also their actions under 86 L.Ed.2d grant (1985). fact, very directed purpose County, finding no link between the type encourages this review. immunity County’s acts or omissions and a 800, 102 Fitzgerald, S.Ct. Harlow v. decisionmaking authority to (1982) final estab qual (purpose of L.Ed.2d 396 liability.8 petition for municipal lish This out immunity keep public officials ified is to review followed. court); supra 164.10 Googe, see was the If the civil violation ACTION SPECIAL JURISDICTION Defendants, special action claim stated, disapprove As have we we purpose. might fulfilled its proceeding have special appellate proceedings action to review expeditious is not goal But resolution partial summary judg trial court denials of pend- state tort claims remain served when Partnership Ft. ment. Lowell-NSS Ltd. regardless ing against the same defendants 96, 99, 962, Kelly, 166 Ariz. P.2d 965 800 immunity. appeals’ decision on of court of (1990); v. see also Alhambra School Dist. parties’ rights In of the this case resolution Court, 38, 3, n. Superior 165 Ariz. 40 796 delayed, not re- and was further liabilities (1990). 470, practice P.2d 472 n. 3 This often solved, special by the action because expeditious of frustrates resolution evidently did not find court of claims, unnecessarily appel increases both special jurisdic- appropriate accept action with late court caseload and interference trial against Defen- state claims tion over the tort judges, litigants prolonged harasses and 1, Ariz. 475 n. dants. Phoenix 180 costly appeals, provides piecemeal and rev n. 885 P.2d at 163 1. Corcoran, See ex rel. v. iew.9 State LaSota 229, (1978); 573, 575, 231 119 Ariz. DISCUSSION Jr., Googe, Qualified Immunity H. Charles Liability and § under for the A. 1983 Interlocutory Appeal: and Is the Protection the individual detectives Legal Equitable Lost when Claims are (1987). Joined?, provides: 161, Rights Act of 1871 87 164 The Civil Colum.L.Rev. summary county appellate review of denials of law strains 8. Because most case discusses liabili- municipal heading immunity ty general qualified liabili- defense. under the based on a ty, will we do the same. § summary judgment is 1983 When denied to claiming immunity, that defendant defendant case, example, two In may appeal the "insofar that order denial produced complex judgment proceedings have pretrial record whether or not the determines court, briefing argument in the trial two - ‘genuine’ of fact trial.” sets forth a issue briefings arguments separate in the oral 2159, -, -, 2151, 132 115 S.Ct. U.S. court, trips appeals, two to this and two (1995). words, In other interlocu- L.Ed.2d 238 published opinions—consuming more than three tory appropriate to if appeal determine remains years parties’ time. of the and the courts’ More- clearly the existence of a facts demonstrate over, prevail even were to if Defendants right, are whether the facts established but not matter, present be remand for trial would neces- the defendant violated sufficient to show that sary complaint. for at four least counts right. However, Supreme United Court’s States re- recent decision in Johnson v. Jones further 316 who,

Every person any under color of stat- 94 S.Ct. 40 L.Ed.2d 90 ute, ordinance, custom, regulation, (1974); or us- Mecham, C. Antieau and M. Tort age subjects, Liability state ... or causes to of Government and Em- Officers subjected, any ployees citizen of the (1990). United deprivation States ... any rights,

privileges, or immunities secured determining In whether the detec laws, Constitution and shall be liable to the tives are liable under 1983 and before law____ injured party in an action at reaching immunity, the court must first evaluate whether the officials’con “person” pub U.S.C. 1983. A includes clearly statutory duct “violate[d] established lic officials in capacity, their individual Neal (5th Cir.1972), constitutional of which a reasonable Georgia, v. 469 F.2d 446 Harlow, person municipalities, Department Monell v. would have known.” Soc. Serv., “If S.Ct. at 2738.11 the law L.Ed.2d (1978). applies established,” A different clearly test at that time was not estab lishing liability municipal liability, official may liability altogether defendant avoid detectives, and we address the through summary judgment. a dismissal on City, County accordingly. and the Id. The trial court determined that immunity applied to Defendants’ acts and 1. The individual Phoenix detec- jury omissions preclud but held that a tives summary judgment. ed Individual officials face The court reversed. Without they 1983 when commit a constitutional reaching ever the issue of the detectives’ personally tort or alleged are involved in the Phoenix, immunity, the court concluded that the detec Guy City unconstitutional act. (D.Ariz.1987); clearly F.Supp. tives did not violate estab Smith’s Hin (5th rights. City Doffer, shaw v. lished constitutional Cir.1986). government It 180 Ariz. at 885 P.2d at 168.12 is well settled that may officials be immune from claimed that because Lieutenant Thiele ulti performed mately certain conduct in their official convinced the dismiss roles, despite the Supreme charges, United States the individual detectives could have pronouncement Court’s man ... accomplished thing “[n]o and should have the same high effect, so that he is above the law.” United earlier. the detectives should be Lee, 196, 220, 240, States v. 106 U.S. 1 they S.Ct. lobby liable to Smith because did not 261, (1882). See, e.g., 27 L.Ed. 171 Pulliam vigorously. more Allen, 522, 539-40, 104 1970, v. 466 U.S. S.Ct. 1979-80, (1984). disagree We with think 80 L.Ed.2d 565 im Smith and Official munity correctly protect government court of exists to characterized the officials personal liability Contrary from for them official func detectives’ behavior. to Smith’s by securing tions early portrayal, an of dismissal detectives did what the law Rhodes, 232, required claims. See Scheuer v. 416 they promptly U.S. of them: disclosed Johnson, -U.S.-, 2151, 11. The court of stated that the test for S.Ct. 115 does qualified immunity subjective impact appeals’ contains both a not determination of objective component. City City’s liability. Although and an the detectives’ or the of 479, However, jury 180 Ariz. at 885 P.2d at 167. the trial court found that a issue remained subjective prong regarding qualified immunity, Harlow eliminated the in- 818, analysis. purely legal 457 U.S. at 102 S.Ct. at 2738. volved the matter of whether Smith’s subjective prong regard Elimination of this has facilitat detectives’ established, dispose City’s clearly ed the use of of actions were not 818-19, against public regarding claims officials. Id. at whether there was sufficient evidence 2738-39; order, Googe, supra 102 S.Ct. at see also factual issues. Thus the insofar itas relat- However, appeals’ City, because the of ed to the detectives and the was immediate- facts, inquiry subjective prong, ly proffered never reached the reviewable because Smith's true, prove clearly misstatement the test not result in a flawed even of did if do not a established analysis liability. City right. of the detectives’ Phoe constitutional See also v. Nich- of Sanderfer nix, 480, ols, 151, (1995). 180 Ariz. at 885 P.2d at 168. 62 F.3d 153 n. 2

317 conveyed persons exculpatory municipalities, evidence like are considered their Smallwood, § prosecutor. liability. view of the case to the purposes See of 1983 York, 293, Gov’t, City F.Supp. v. New 753 657 Walker v. Jefferson (2d Cir.1992) {Brady obligations 298-99 (W.D.Ky.1991). no more require than disclosure However, municipal liability can prosecutor; police not disclose di need imposed respondeat not be on the basis attorney), or rectly to the defendant his defense Monell, liability. superior 436 or vicarious denied, 961, rt. 507 113 U.S. S.Ct. ce Thus, 691, munic 98 at 2036. a S.Ct. (1993). 1387, 122 762 Even L.Ed.2d assum necessarily if its ipality liable even is ing duty that the detectives a to recom agent tort. On committed constitutional dismissal, they mend it. The fulfilled detec hand, municipality can liable the other tives, however, authority had neither the nor employee if is held to even the accountable duty to personally effectuate Smith’s re immunity v. have from See Owen contrary, prosecutor lease. On the has 622, City Independence, 445 U.S. 647-650 sole discretion determine whether con 18, 18, 1398, and n. 1413-15 and n. prosecution. tinue See A.R.S. 11- (1980) (municipality 673 has no L.Ed.2d 532(A)(1); 416, Murphy, v. Ariz. State officers); immunity for immune acts of its (1976). 418, 1110, 1112 record Miller, 1245, Haynesworth v. F.2d quite is clear that the detectives acted in a (D.C.Cir.1987) (“[T]he personal n. 227 immu professional proper manner. Conse nity city officials accorded militates quently, the detectives cannot be liable under contrary municipal liability, favor of since any injury resulting 1983 for from fact ruling leave of unconstitutional victims prosecution or manner in which was remedy.”) (citing any without conduct conducted. Owen, 1413); 651, 445 U.S. 100 S.Ct. at City’s 2. The County, N.W.2d Greene v. Polk (Iowa 1987) enjoyed by (“[I]mmunity em municipality’s If a agents have not ployee is not material as to the any deprivation caused constitutional government employer.”); see Leatherman v. statutory rights, entity itself is not Intelligence Tarrant Narcotics & Angeles liable for the conduct. Los Unit, 163, 166, 113 Coordination Heller, S.Ct. (1993), S.Ct. 122 L.Ed.2d 517 (1986). 89 L.Ed.2d 806 Because the protection (municipality’s under detectives not violate did Smith’s con encompass immunity § 1983 does not “either rights, employer, City, stitutional their qualified”); R. absolute or see Mark any injury cannot be liable to Smith Brown, Correlating Municipal Liability and agree 1983. We therefore with the Immunity Under Section Official appeals’ conclusion that as a matter (“A municipality can be Ill.L.Rev. law, neither detectives nor the officials, municipal held where entitled liable alleged liable for 1983 violation this immunity, to absolute violate the Constitu grant summary ease. The trial court should tion.”). City of Phoenix and Detec Edgcombe tives and Sechez. Although in liability vicarious is applicable municipality is for a when sued County’s liability B. The 1983 violation, municipal liability13 § 1983 direct municipal liability 1. The doctrine of municipality “alleged is if the is available municipalities through Not until 1978 have a constitutional tort ‘a were caused statement, ordinance, recognized regulation persons purposes policy or de as 1983 Monell, 658, 2018, liability. officially adopted by promulgated 436 U.S. 98 S.Ct. cision ” overruling Pape, 167, body’s v. that v. Monroe 365 U.S. 81 officers.’ St. Louis (1961). 473, Counties, 121, 915, 112, Praprotnik, 492 S.Ct. 5 L.Ed.2d 485 U.S. 108 S.Ct. Throughout opinion ysis applied County's liability, refer to al- this we direct to be emphasize though municipal liability the correct anal- we realize term is redundant. (1988) Monell, 923, County’s (quoting did not raise issue. The mo- 99 L.Ed.2d 107 2036). 690, at at It is the U.S. S.Ct. tion did not address or disclaim plaintiff’s prove liability; burden to the existence of municipal instead the basis of direct case, municipal present In such a act. erroneously pros- it focused on the individual raised the direct issue alleged qualified immunity. The ecutors’ County only policy involves statement County argued alleged qualified that their prong. prosecu- immunity necessarily frees both the County liability. The tors and the from municipal policy A can be estab court, County, the trial character- and even by single policymaker. act of a lished County’s qualified as immu- ized the motions Cincinnati, 469, Pembaur U.S. nity pleadings. in numerous This motions 1292, 1298, 89 L.Ed.2d 452 S.Ct. inquiry prosecutors’ quali- into the individual (1986) (plurality). The official must have immunity proceeded despite fied its irrele- policymaking authority final to bind the mu against the vance to the direct claim nicipality to his actions. Id. at 106 S.Ct. County despite fact the individu- that who, at 1300. A is one on the par- prosecutors al were not even named as issue, authority final relevant has the ties to the action. make a decision from several available alter 483-84, natives. Id. at at 1300. A S.Ct. prosecutors were not defen- Because municipality can be liable for the harm and the could not benefit dants by authority caused an official with this be immunity, inquiry the whole was an then’ him municipal agent’s cause the status cloaks Instead, futility. exercise Pembaur, municipality’s authority. with the summary judgment should have focused its (“If at 1299 S.Ct. municipal liability, motion on direct adopt particular decision to that course theory Be- on which it could be held liable. properly by government’s is made that action County’s failure to raise the issue cause the decisionmakers, surely repre authorized municipal liability in motions not of direct government ‘poli sents an act of affirmative only confuses the record but is central to our understood.”); commonly cy’ as that is term briefly disposition, we will address the Coun- 923; 122, 108 Praprotnik, 485 U.S. at S.Ct. ty’s pleadings. Brown, supra at 658. County’s 2. The motion for poli final Whether an official has immunity—the real issue before cymaking authority municipality to bind the question Praprotnik,

is a of state law. 108 S.Ct. at 924. Final shows, far the record So policymaking authority “to be summary judgment County’s did motion judge the case resolved the trial before In of direct not touch on jury.” Indep. submitted to the Jett v. Dallas motion, argue County did not Dist, Sch. evidence to show that there was insufficient (1989) (emphasis add L.Ed.2d 598 prosecuting policymaker decided to continue ed). judge’s decision should be based exculpato disclosing the without Isaac usages and local law and customs and state Instead, ry argued evidence. that have the force of law. Id. it was entitled qualified immuni County’s entirely on the basis of the making his decision on the prose ty allegedly enjoyed the individual qualified immunity summary judgment mo- County’s tion, response to the judge attempt to decide cutors. Smith’s the trial did not qualified immunity part motion is not a of the County’s agents had final whether County merely reply, In authority the motions record.14 its the policymaking because response also states controverting response Smith’s to that same motion to the Coun- Smith’s 14. pur- County's summary judgment, "were all made ty's which that the decisions 1992 motion for record, policies, County’s County customs and part suant to official the asserts that the by supervi- practice "pursuant approved ... made and confirmed to directions decisions were rendering Maricopa policymakers, supervisors.” policy-making sors and and the decision of appeals, in in a the court of immunity for the first time argument repeated qualified the brief, having issue alto avoided the sufficiency reply The or exis in its made motion. in its initial trial gether in the court issue evidence on the tence of appeals.17 argument to the court of County’s liability was to pertaining the direct County’s in the not an issue raised thus County’s the denied The basis for Nor did the trial court consider motion.15 summary judgment, and conse motion for decide the issue.16 appeals, the court of quently issue before the action, argument the special only In its the ques Assuming the qualified immunity. was was County presented to the court of relevant, court of should was the tion Maricopa County the actions the only whether the trial propriety of have addressed qualified im- to Attorney’s Office are entitled County’s qualified im on ruling court’s petition for munity. response to the his this munity because was motion action, again argued that special The court developed Smith on the record. issue in at issue were taken accordance of direct actions have reached the issue should not municipal policy, liability and that the Coun- a liability with a is because direct Jett, liability inappli- ty’s facts. disclaimer of vicarious is on the of law that turns 2723-24; liability. also cor- Hills cable to its direct Smith at Fountain at 109 S.Ct. Scottsdale, Ass’n, County has rectly noted under Owen the Inc. v. that Civic County 569, 575, (App. immunity 733 P.2d qualified no defense. The Ariz. 1986). case, liability present facts have finally municipal In the those addressed direct Thus, put by properly a yet in issue reply response. its to been Smith’s municipal County focused motion.18 addressed direct quali- prosecutors response argue County its individual liable Smith’s that 1983.” motion, part prosecutors City's immunity to which is also a because the individual fied record, respons- incorporates by only expla- reference all action. The were not named the 1992 motion. County’s es and statements of facts from proffer motion is for the nation we can Thus, although County's response Smith's to the County, having City’s seen the motion that the record, part a reason- 1993 motion is not judgment, summary determined that could favor that his able factual inference Smith’s is agents arguing escape by response County’s to motion also incor- County is missed were not liable. What the response porated prior his to assertions City escaped liability not of the de- because ab- dissent claims that the 1992 motion. The qualified immunity there but because tectives' good response in the record is a sence of Smith's right clearly constitutional was established deny at to review. reason Post that was violated. response in We believe the absence of the supports to so the record our conclusion remand properly addressed direct munici- 17. Smith also by position on not raised that Smith’s an issue review, petition alleging pal liability in his County, yet appeals, by on relied County's were sanctioned deci- that the acts ap- properly The court of can be considered. county attorney's supervisors sionmaking peals propriety of should not have ruled on the response County chose not file office. The summary judgment denial of the trial court’s Although this is a for review. papers. reviewing all of the without motion Ariz.R.Civ.App.P. respondent's prerogative under municipal liability in the sole mention of 23(e), nothing County's respond did failure summary judgment was a County’s motion clarify issue. purpose for the of disclaim- reference Monell ing The absence of vicarious vicarious municipal liability could 18. Even if the is correct but irrelevant because appeals, been said to have before vicariously liable not claim that the did dispute parties the actions taken whether alleged. civil for the violations policymaker. against were a final made disputed appeals held "the why the 16. This court is at a loss to understand surrounding objective reason- factual issues would move for would not the defendants’ conduct” ableness of qualified immunity. The dissent claims judgment. summary preclude granting review of “County on the moved for P.2d 180 Ariz. at onIy§ it.” 1983 claim made Post 224, 228, However, (relying Bryant, 502 Hunter v. immunity P.2d at 391. (1991)). L.Ed.2d 589 could not be relevant because appeals’ is mis- immunity. reliance on Hunter enjoy qualified The court of municipality cannot Moreover, narrowly applies placed. to the determi- City, Hunter individual de- unlike the whose sued, immunity facts when material County nation of were reason tectives whether, We must therefore determine in considered the trial court because it, the record before appeals the court of Smith failed to “link act or omission of could judge conclude that the trial erred in county policy to a maker with final deci- denying County’s motion making authority,” sion county attorney. because the could not be Id. at 885 P.2d at 173. The court of directly liable as a matter of law. Resolution appeals made this decision without Smith’s question of this must be appropri- made with response County’s to the motion in the rec- ate deference to the fact that the issue was ord. not in County’s raised motion for sum- We believe it is incorrect to direct mary judgment. entry summary judgment on issues not genuine C. Was there a issue of material raised the movant in the trial court and on regarding municipal fact direct liabili- parties which the have therefore not had an ty? opportunity present to marshal and evid especially ence.19 This is true when the Having applicable stated the framework appeals court of bases its decision on evi County’s liability, direct we must deter- sufficiency dence party’s and one of the mo whether, law, mine under state there was papers part tion are not of the record. We sufficient evidence on poli- the record that a disagree legal with the conclusion that cymaker with final decisionmaking authority only county attorney can be the final made the pursue prosecution decision to policymaker county attorney’s office. withhold evidence. Maricopa County Attorney’s office is the correctly As noted largest employs approxi the state and appeals, county attorney policy can be a mately lawyers. county attorney purposes. maker for City Phoe surely personally does not make decisions nix, 180 Ariz. at (citing at 173 being each prosecuted. case Gobel, 1207-08). 867 F.2d at The court of The United Supreme assumed without States Court explanation has re- jected county arguments attorney similar to the poli maintains final view taken Jett, cymaking by the appeals. status. The court dep labeled the a teacher uty county attorneys public sued a county princi- subordinate offi school district after his pal cials and found no evidence him allegedly on the record transferred discrimina- county attorney supervised tory concluding di reasons. After that the low- alleged standard, rected the applied civil er wrong violations. Id. courts granted The court in summary judg effect Court remanded the case to determine ment for the on an issue not policymaking raised whether final authority lay with dispute. are municipal liability When direct spirit 19. This conclusion is consistent with the issue, here, as is the Johnson, case material issues of scope interlocutory which limited the disputed preclude summary judgment fact will summary judgment review of denial of based on immunity recognized because there is no for a qualified immunity purely legal challenges, so municipality defending on a direct claim. See sufficiency that evidence determinations were Owen, 647-50, 1413-15; 445 U.S. at 100 S.Ct. at - immediately appealable final decisions. Clio, Thompson see also F.Supp. at-, Although 115 S.Ct. at 2156. John- (M.D.Ala.1991) (“Although 1080 n. 35 expressly apply interlocutory son does not identification of a municipal liability, support reviews of it adds judge, the trial this court has not discovered our conclusion. Because the court of case that commands it be answered as a final grant ordered the Indeed, summary judgment stage. matter at the linking based on insufficient evidence one,’ inquiry because this is often a ‘fact-sensitive County’s policy "conduct to a maker with final entirely appropriate it is for the court to resolve making authority," decision the determination of ultimately upon consideration of the evidence immunity should await the trial court's resolu- trial.”) (citations omitted); presented Reyn- tion of the factual issues. Avalon, Borough F.Supp. olds v. see, 174; (Dist.N.J. 1992) (if e.g., Ariz. at P.2d at Komlosi v. parties have not briefed the New York State Mental Retardation and identify on relevant local law to officials Office of (2d Disabilities, Developmental policymaking authority, with final the court can- (citations Cir.1995) summary judgment). omitted). not issue it Although sparse, un the record is principal, district school the the individual question regarding disputedly the shows that superintendent, or itself. 491 the district prosecuting charges (remand Smith’s 737, 109 the manner at 2724 neces U.S. at S.Ct. county in the up chain of command went the judge identify sary “the trial must because supervisor that a or attorney’s office and governmental bodies who those officials or continued, prosecution the dered authority for speak policymaking final Brady ma ordering without disclosure actor”) (emphasis governmental the local posture, and procedural the terial. Given added). inquiry The Court’s in Jett available, this the facts consequently few highest if or “name” have the rank ended issue of safely resolve the court cannot alleged injury. the See official did not cause supervi County’s criminal trial whether the 124-26, Praprotnik, 485 U.S. at delegated by custom the expressly or sor was (a can be the policymaker S.Ct. 925-27 at authority to im decisionmaking necessary department, or highest the official County, prohibiting liability pose on the thus decisionmaking responsibili person given the County. the of the claim dismissal issue). ty in at matters the kind Jett, at 2724. 109 S.Ct. See 491 U.S. at Supreme Praprotnik, the Court ex review in a appellate Because courts must non-moving pressly recognized par the light determination favorable to most authority policymaking rights final actions should be read who has ties and civil not have inquiry broadly, left for should fact-intensive decision See, e.g., 125, 108 summary judgment. Go judge. the at S.Ct. at ordered trial bel, at 1203. This case must be although 925.20 And Jett said that opportu provide Smith with an remanded this “the should make determination before the relevant nity and marshal to discover jury,” case this does not is submitted facts. necessarily judgment pro mean

ceedings directed to other issues. D. The dissent 737,109 S.Ct. at 2724. did not argues The dissent County’s Had the motion been directed to policymaker issue in either the trial raise the analysis municipal proper of direct liabili- disagree. appeals. We court or the court of ty, produced if no more than and Smith had not, County did Smith raised issue. now, is in record only that it arguing instead in both courts County may appropriate. have Given been employees had could not be liable because its the issues raised—and raised—in issue, course, This qualified immunity. motion, however, surprise County’s no is could not was because irrelevant that the court of found little evidence vicariously liable and therefore could be held municipal liability. But the issue liability under protected not be from direct horse. Had finding puts cart before the theory employees had Smith been on notice that the issue would be immunity. Thus the dissent’s comment that subject summary judgment proceed- [policy] properly raised the is- “Smith never may ings, produced have con- he evidence ... there and thus was sue in the trial court establishing discovery that the deci- ducted to raise issue no occasion exculpatory facts was sion not to disclose the not relevant appeals” both policymaker made with final decision- P.2d at 392. and incorrect. Post at 56(c). authority. argue policymaker making See Ariz.R.Civ.P. had occasion County’s recognize response its own to a motion based on failure qualified immunity, question but the di- at the trial court cannot be basis for rect, in the case and appellate recognition was by the court’s saved prior papers. motion See deficiency in unex- been raised when the results ante 14r-16. complaint The dissent examined the to for review.” Post at 909 P.2d at 390. pleaded conclude that “Smith never precisely ‘direct This is the criticism that should be ” liability against claim County.’ Post at appeals. directed at the court of Once we 323, 909 P.2d by at 390. As noted the dis- incorrectly discover that the court of sent, complaint part is not a of the rec- it, decided the an case on issue not before ord. We do not our base decision on a ignore this court must either the error or act so, document outside of the record. Even to correct it. The dissent chooses the first complaint the dissent’s reference to the in no course, but we believe the second better way supports appeals’ the court of decision Disagreement choice. with this court’s inter- because that court acted without the com- square affirming vention does not plaint in departing from both the record and by appellate same act taken court. the motion to reach the conclusion that the accepted jurisdic- When the court of County directly could not be liable. beyond presented tion went and the motion it, obligation before to this court has an complaint support

The dissent uses the appealed decision, intervene when the decision was appeals’ arguing made on an insufficient record. allege Smith “failed to the violation of a policy.” Post at 909 P.2d at 390. But notice-pleading

Arizona is a All state. of the DISPOSITION by cases cited the dissent for the need so procedural posture The and issues of mate- specific allegation an are cases which the preclude summary judgment. rial fact municipal defendant moved to on dismiss is entitled to a factual determination plaintiffs whether upon failure to state a claim which prosecution the decision to continue his granted. direct relief could be at Post 324 n. exculpatory Brady to withhold the material 909 P.2d at 391 n. 2. did not policymak- was made an official with final argument raise that in its It motion. based ing authority, as that term has been defined its motion Supreme the United States Court. qualified immunity. disagreement There is no real between the appeals’ opinion We vacate the court majority regarding and the the law dissent County’s and remand the issue of the direct municipal liability § 1983. The case proceedings for further consistent clearly may municipality law states that “a opinion, including with this of the dismissal directly alleged sued if it is have caused against 1983 claims the detectives and the through policy constitutional tort ‘a state- City. ment, ordinance, regulation, or decision offi- cially adopted promulgated by MOELLER, V.C.J., and CORCORAN ”

body’s Praprotnik, officers.’ ZLAKET, JJ., concur. Monell, (quoting 108 S.Ct. at 923 2036). might 98 S.Ct. at We MARTONE, Justice, dissenting. agree nothing with the dissent that rec- “of deny I petition would for review. The happened policy,” ord ties what to a here but majority present- decides issues that are not merely point. reiterates our Post at ed for review and does so on a record that added). (emphasis 909 P.2d at 392 The in- support argument. impor- will not More its sufficiency of the evidence the record on tant, analysis County’s liability policy prohibits granting summary policy under U.S.C. 1983 reduces liabili- judgment because the Coun- ty respect- I to vicarious therefore ty’s put motion would not on notice to fully dissent. marshal facts on that issue. majority grant 1. The voted to review in argues The dissent that we have B, C, issues D review. incomplete tervened a case with an record: They are as follows: majority’s opinion chiefly “the Mar discusses icopa County’s liability policy Appeals basis B. Did the Court of err find- presented ing custom. Yet issue is not the defendant entitled County.” immunity plaintiffs against claim qualified as direct Ante, 385. But Smith 909 P.2d at 1983 claim? pleaded a claim never “direct preclude conflicts in the evidence C. Do part complaint County.” immuni- (A good reason to record in this case.1

ty in this case? review.) been, it show deny Had it D. Did the conduct of the of Phoe- any claim there was never direct nix, County the its officers and/or County. alleged against the Thus there was clearly a constitutional violate established County to move for never need the so, right, and if such conduct be would had never summary judgment on a claim that by reasonably uniformly rejected compe- pleaded. What the court characterizes been tent officials? com County’s turns out to be as the failure at 3-4. Petition Review by complaint in this pletely explained the majority But the none of these decides part: provides in case. It relevant appeals’ of issues. It first affirms the court City in of resolution of the issues favor of the (Violation Rights) was of Civil

Phoenix and its detectives because there they deprivation no constitutional for which IX agree. majority’s could be liable. I But the chiefly opinion Maricopa County’s discusses realleges every allega- Plaintiff and each policy on the of or custom. Yet basis in paragraphs through I tion set forth The presented that issue is not for review. VIII, alleges: in addition and single in 17 of sentence referenced footnote participating That in the course of ante, majority the opinion, above, conduct forth one or more all set passing single para- in a reference defendants, specifically including Gregory petition in a graph 19-page which nowhere Edgcombe Michael Sechez and/or and/or majority else to alludes the issue the chooses X, through acting John Does I under color to It not surprising decide. is thus that the subjected plaintiff deprivation to of law the County response chose file the not to to rights, privileges of or immunities secured review, petition for because did not Smith by laws the United the Constitution and Maricopa to unique raise the issue that was America. Defendants knew or States of County. Maricopa County upon thus relied deprivation such should have known that filed'by response City the complained response would result the conduct County’s which included outrageous plaintiffs § of. and conduct properly claim dis- Such extreme was policy missed because of the “absence of constitutes a violation of U.S.C. Maricopa County directly proximately custom Monell.” and resulted in and Response to Petition for Review at 14 n. 7. injury damage plaintiff and set forth above. having

2. After chosen to decide the case squarely presented, on an issue not ma- Complaint in at 8. The “con- CV92-01578 jority assumptions pro- then makes about the duct set forth above” referred to state law this, history in cedural of the case. It does arrest, prosecution, false counts malicious part, incompleteness a rec- because of imprisonment, intentional infliction of false argues special majority ord on action. The distress, and breach of contract. emotional County did not move for Among paragraphs incorporated policy question and that following: motion it did make was irrelevant “to the reference was the destroyed. County supplement they of Jan. moved to which Orders and complaint and appendix include their day argument appeals. filing in On ordinarily of oral the court We refer that is would not day, majority's part that same the court denied motion the record. But as- filing alleges supplement sumption and ordered the about what that makes pick understanding up proposed supplements, of this case. their absent essential to an II judge why did not decide the issue. This is policy did not raise the issue Defendants and each of them are liable for special appeals. action in the court of agents the acts and omissions of their The issue was raised in his re- employees acting within the course and sponse special action scope employment agency of their un- appeals. said: respondeat der the superior. doctrine of Despite contrary, the assertion to the Id. at 2. petitioner claim is made plain It is thus that Smith’s 1983 claim based on vicarious against Maricopa County allege failed to actions at this ease were actions policy, violation alleged fact vicar petitioner taken in accordance with the ious respondeat under the doctrine of customs, County’s practices policies superior.2 by supervisors and were in sanctioned majority argues The County that “the County Attorney’s Office. Monell v. De- summary judgment should focused its have partment City Social Services of of municipal liability, motion on direct only York, 658, 2018, New 436 98 56 U.S. S.Ct. theory on which it could be held hable.” (1978) prohibition L.Ed.2d 611 and its Ante, 318, 909 P.2d 385. But that is not against liability applicabil- vicarious has no theory plaintiff alleged. a It is thus ity respondent’s gov- to claims where the surprise Maricopa County’s no that motion customs, entity’s practices ernmental partial summary judgment for against Smith policies are at issue. argued that it could not “be held liable since Response Special Smith’s to Petition for Ac- simply there is no vicarious under a tion at 23. § Department 1983 claim. Monell v. So- York, City cial Servs. New 436 U.S. assertion, Contrary majority’s to the so far 658, 2018, (1978).” 98 S.Ct. 56 L.Ed.2d 611 record, as we can know from the this is the Maricopa County’s Defendant Motion for Maricopa first time in the context of Coun Summary Partial Judgment Septem- dated ty’s partial judg 1993 motion for 17,1993 ber at 8. 3ment making that Smith claimed not to be response part Smith’s that against County. to motion is not vicarious case (Another seen, good exactly of the record before us. rea- But as we have that what review.) deny light alleged complaint. son to But in in his Faced with complaint, surprise theory it was no ap that the Coun- this new in the raised court ty’s reply peals, County’s reply response addressed vicarious to policy liability. County The special moved for for action briefed the summary judgment only length. Reply Support on the 1983 claim issue at of Petition explains why made it. That also Special for Action at 14-19. ” heightened pleading Angeles While there is no standard tice.’ Karim-Panahi v. Los Police 621, (1988) Dept., (quoting complaints against 839 F.2d 624 Shah v. municipalities, 1983 (9th 743, County Angeles, F.2d 747 163, Los 797 County, Leatherman v. Tarrant 507 U.S. 113 1986). complaint Cir. The here did not contain 1160, (1993), S.Ct. 122 L.Ed.2d 517 the com- allegation. such an plainant allege injury resulting must at least otherwise, party pleads Even if it were once a policy, practice. Vigo official custom or Baxter v. specifically required, more than as here re- 728, (7th County Corp., School 26 F.3d Cir. spondeat superior, opposing party is entitled 1994) (upholding the dismissal of a 1983 claim rely upon pleaded. the claim Molina v. Rich- against a school district because the claim did ardson, (9th 846, 1978) (up- Cir. "sufficiently specific allegation not contain a of a holding plaintiff’s § the dismissal of 1983 claim custom.”) policy or sought recovery "solely 'by that virtue of [the employment] city relationship’ between the The Ninth Circuit has held that "a claim of (alteration officers”) original). municipal liability under section 1983 is suffi- cient to withstand a motion to dismiss 'even if record, impossible 3. On this it is to understand nothing the claim is based on more than a bare passing the context within which Smith’s refer- allegation that the individual officers’ conduct "policy” Response ence to in his and State- custom, policy, prac- conformed to official ment of Facts was made. maternity policy. leave Owen v. complain

It is thus official erroneous 100 S.Ct. municipal liability Independence, first addressed (1980) the vote L.Ed.2d 673 involved reply appeals, its brief in the court of Praprotnik, v. court council. Louis that it avoided the issue the trial St. 99 L.Ed.2d 107 argument appeals. initial in its the court Ante, (1988), discharge of an em- 909 P.2d at As we have involved seen, ployee, any policy, and thus properly Smith never raised the issue not driven remand, id., court, F.2d judge trial claim in the trial never decid- existed. See (8th Cir.1989). issue, ed the and thus there was no occasion raise the for the majority appears base under- The it. until Smith first raised While municipal liability upon standing of Jett could have to dismiss the moved Disk, Indep. Dallas Sch. complaint for failure to a claim under state (1989), stops 105 L.Ed.2d 598 but S.Ct. 12(b)(6), Ariz.R.Civ.P., Rule or even moved majority following opinion. short of summary judgment because of ab- policymaker focuses the identification of decision, surely a policy sence of driven did acknowledging need without to connect to. it to not have It was reasonable for move up decision responded on the implements policy and is hoc. itself not ad superior alleged against claim it. majority concludes that once a trial state law whether an determines under suppose 3. But Smith’s occasional and ob- jury policymaker, gets official a the to is lique properly “policy” references raised the depriva- decide causes whether decision a pleading court. trial As the Ante, 321, n. rights. tion of constitutional party, obligation he forward come 20, 388, majority But 909 P.2d at n. 20. with there have a evidence that would been quotation part omits last it uses genuine issue of material fact trial. up the identification Jett that connects meaning There is such evidence within the policymaker policy with itself. What Ariz.R.Civ.P., 56(e), of Rule that connects rule, complete follows statement of the is any by act as “policy” with a portions underlining majority omits. purposes term is understood jury liability. for the whether [I]t is to determine deprivation their have caused the decisions majority’s summary poli- The the law of by policies at issue which affir- cy liability. it to reduces vicarious occur, matively Mo- command that it see outset, acknowledge At the I that this is a nell, U.S. at n. 98 S.Ct. at m area its difficult own admission “has by acquiescence long standing n. a or Supreme] deeply left Court [the divided.” practice custom or which constitutes Harris, 378, 385, City Canton v. operating procedure’ ‘standard the local (1989). L.Ed.2d governmental entity. difficulty trying is created to recon- (Empha- at 2724. S.Ct. seemingly contradictory A cile two edicts. added). sis municipality, corporation, like a can act Monell, through Believing But it not tie the agents. a need identifica- majority municipality policymaker policy, tion of a is not liable under 1983 under a respondeat might in this superior. the doctrine of Then concludes record case respect create to munici- when is liable? Monell instructs us look an issue fact specific language pal liability. §of But it not. at the stat- does Neither prosecutor’s log any- utory excerpt “under from the nor limitation is color of stat- ute, ordinance, custom, thing happened here regulation, usage.” or of record ties what else custom, County. usage policy, look to to a 42 U.S.C. 1983. We must therefore statute, ordinance, custom, regulation, majority’s or Thus the discussion identifica- a these lim- tion of a is irrelevant unless usage. Monell itself characterized policy policy.” as Id. 436 there is some connection to driven itations “official There is on this record. As at 2036. Monell involved an decision. none S.Ct. Appeals Court of for the the United States Circuit has said:

Seventh enough point agent

If it were particular in a

whose act was the final one

ease, liability. we have vicarious duty

Action the course of one’s particu-

basis of vicarious That bureaucracy agent apex of a

lar is the ‘final’ but does not

makes the decision ‘finality’ ‘policy.’

forge a link between Rice, (7th

Auriemma v.

Cir.1992). By point, problems associated this and this ease are manifest.

with this record deny that I voted to

It is for reason that I continue

review. It is for this reason petition

to believe that we should dismiss this having improvidently granted. Be- been majority important an fed-

cause the decides question incorrectly, on a

eral presented, in

review in which the issue is not critically in which the record is incom- case

plete, respectfully I dissent.

909 P.2d 393 Penny

Donald B. SCHOLTEN and Claudia

Webster-Scholten, Co-Trustees Trust

Webster-Scholten-Scholten 17, 1991, Plaintiffs-Ap-

dated December

pellants, PARTNERS, a California

BLACKHAWK

partnership; A. Bird and Laurie Robert wife; Bird, husband and Marlon

G.

Bird, man; Phillip T. Larson a married Larson, Kathryn H. husband and

wife; Nancy Richard F. Peterson and C.

Peterson, wife, Defen- husband

dants-Appellees.

1No. CA-CV 93-0245. Arizona, Appeals of

Court of 1, Department

Division C.

March Granting Reconsideration

Order

3,Oct. notes plored factual issues. have their decisions caused under state to determine whether the trial court determines Once issue____" Jett, deprivation can make offi- law that the officials in issue, at 2724. jury policy cial "it is for relevant

Case Details

Case Name: City of Phoenix v. Yarnell

Court Name: Arizona Supreme Court

Date Published: Dec 14, 1995

Citation: 909 P.2d 377

Docket Number: CV-94-0416-PR

Court Abbreviation: Ariz.