Archive: Aug 2018

  1. Arizona Supreme Court: No such thing as negligent use of intentional force in Arizona

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    Ryan v. Napier arose out of a Pima County Sheriff’s Deputy’s intentional use of a dog in apprehending a suspect who, it turned out, was diabetic and experiencing a severe hypoglycemic event that prevented him from understanding what was happening to him and from responding to police commands.  The suspect suffered serious injuries as a result of the dog bite and sued the officer and Pima County Sheriff’s Office, alleging the officer “negligently released” the dog and that use of the dog “constituted a negligent, unjustified, and excessive use of force.”  He did not assert a battery claim or a Section 1983 civil rights claim.

    Negligence Liability

    Following a jury verdict in favor of the suspect, the County moved for a new trial on the basis that the trial court improperly instructed the jury on negligence, improperly admitted evidence of the Graham factors to assess the reasonableness of police force, and incorrectly instructed the jury on who bore the burden of proving justification under A.R.S. section 13-409.  The trial court denied the County’s motion and the defendants appealed.  In a split decision, the Arizona Court of Appeals affirmed the trial court’s rulings, concluding that the suspect could recover under negligence for the officer’s evaluation of whether to intentionally release the dog.  See McDonald v. Napier, 243 Ariz. 277 (App. 2017).

    The Arizona Supreme Court first addressed whether Arizona recognizes claims for negligent use of intentionally-inflicted force or negligent evaluation of the need to inflict force.  It held that the trial court and court of appeals erred in deciding that the defendants could be liable in negligence for the officer’s intentional release of the dog to bite the suspect. Negligent use of intentionally-inflicted force is not a cognizable claim.

    It went on to disagree with the court of appeals determination that liability for negligence could arise from an officer’s “evaluation” of a situation.  Negligence liability cannot result from a law enforcement officer’s “evaluation” of whether to intentionally use force against another person.  A negligence claim requires an act or a failure to act, and an officer’s internal evaluation about whether to use force is neither.


    If an officer’s use of force is justified under Arizona’s justification statutes, the officer is immune from civil liability.  The Court held that the justification defense does not apply to negligence actions against law enforcement officers because the reasonableness of the officer’s actions is already a party of the negligence analysis.The Court interpreted A.R.S. section 13-205 as conforming with the common law precept that, in civil cases, defendants bear the burden of proving justification by a preponderance of the envidence.  “[P]lacing the burden on law enforcement officers in civil cases to prove the [section] 13-409 justification defense aligns with the burden placed on them to prove non-statutory justification defenses.”

    The Graham Factors

    Over the defendants’ objection, the trial court permitted the suspect’s police tactics expert to testify that the Graham factors are the standard of reasonableness for purposes of the 13-409 analysis.  The Supreme Court agreed with the court of appeals dissent that the expert usurped the trial court’s role in testifying on the applicable legal standard.  “Trial courts should not permit experts to state or suggest that Graham governs application of the justification defense under section 13-409.”

  2. Kathy Wieneke recognized in 2019 Edition of the Best Lawyers in America®

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    Kathy Wieneke
    Kathleen Wieneke

    Kathy Wieneke was recently selected by her peers for inclusion in the 25th Edition of The Best Lawyers in America® for her work representing defendants in personal injury cases.

    About Kathy

    Kathy has spent over 30 years defending excessive force claims and litigating road cases, amassing extensive experience and expertise. In recognition of her accomplishments, professionalism, and legal skills, Kathy has received numerous distinctions and honors for her accomplishments over the past 31 years.

    About Best Lawyers®

    Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 87,000 industry leading lawyers are eligible to vote (from around the world), and they receive almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2019 Edition of The Best Lawyers in America©, 7.8 million votes were analyzed, which resulted in almost 60,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

  3. Case Alert: Warrantless use of hospital blood draw suppressed

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    Oswaldo Diaz was the sole occupant of a truck that crashed into a business’s entry gate.  Fire department personnel found Diaz slumped over the steering wheel, extracted him, and transported him to the hospital, where a nurse noticed the odor of alcohol on Diaz’s breath and person.  After the police were advised of these facts, and that medical personnel had drawn Diaz’s blood for medical purposes, a police officer took custody of the blood without a warrant.  The state tested the blood’s alcohol content and Diaz was charged with aggravated DUI.  The superior court denied Diaz’s motion to suppress the blood evidence and the Arizona Court of Appeals, Division One, accepted special-action jurisdiction.

    In Diaz v. Hon. Van Wie/State , the Court of Appeals analyzed Arizona’s “medical-draw exception,” which authorizes the warrantless seizure of certain blood samples drawn by private actors, A.R.S. 28-1388(E).  Noting that the statute does not trump the Fourth Amendment, and citing Arizona Supreme Court precedent in State v. Cocio, 147 Ariz. 277, 286 (1985), and State v. Nissley, 241 Ariz. 327, 331 (2017), the Court held that the medical-draw exception for seizure of blood samples requires a showing of exigent circumstances.  Exigent circumstances do not include the natural evanescence of alcohol in the bloodstream, particularly where, as here, the blood sample has already been preserved by hospital personnel.  The Court held that, absent exigent circumstances, Diaz’s blood sample must be suppressed.