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

Posted Aug 24, 2018

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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.”

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