                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          SUSAN E. RYAN,
                 AS ADMINISTRATOR OF THE ESTATE OF
                        BRIAN MCDONALD,
                          Plaintiff/Appellee,

                                   v.

        MARK NAPIER, PIMA COUNTY SHERIFF; AND JOSEPH KLEIN,
                       Defendants/Appellants.



                          No. CV-17-0325-PR
                         Filed August 23, 2018


            Appeal from the Superior Court in Pima County
              The Honorable Catherine M. Woods, Judge
                           No. C20142895
                   REVERSED AND REMANDED

             Opinion of the Court of Appeals, Division Two
                       243 Ariz. 277 (App. 2017)
                              VACATED



COUNSEL:

Barbara LaWall, Pima County Attorney, Nancy J. Davis (argued), Deputy
County Attorney, Tucson, Attorneys for Mark Napier, Pima County Sheriff,
and Joseph Klein

Amy Hernandez (argued), Dwyer Hernandez, P.C., Tucson, Attorneys for
Susan E. Ryan

Stanley G. Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson; David
L. Abney, Ahwatukee Legal Office, P.C., Phoenix, Attorneys for Amicus
Curiae Arizona Association for Justice/Arizona Trial Lawyers Association
                         RYAN V. NAPIER/KLEIN
                           Opinion of the Court



Nicholas D. Acedo, Jacob B. Lee, Struck Love Bojanowski & Acedo, PLC,
Chandler, Attorneys for Amici Curiae League of Arizona Cities and Towns,
Arizona Association of Chiefs of Police, Arizona Municipal Risk Retention
Pool, Apache County Sheriff Joe Dedman, Cochise County Sheriff Mark
Dannels, Coconino County Sheriff Jim Driscoll, Gila County Sheriff Adam
Shepherd, Graham County Sheriff Preston Allred, Greenlee County Sheriff
Tim Sumner, La Paz County Sheriff Bill Risen, Maricopa County Sheriff
Paul Penzone, Mohave County Sheriff Doug Schuster, Navajo County
Sheriff Kelly Clark, Pinal County Sheriff Mark Lamb, Santa Cruz County
Sheriff Tony Estrada, Yavapai County Sheriff Scott Mascher, Yuma County
Sheriff Leon Wilmot


JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES
PELANDER, BOLICK, GOULD, and LOPEZ joined.

JUSTICE TIMMER, opinion of the Court:

¶1             The negligence claimant here recovered damages for dog-bite
injuries he received when a law enforcement officer intentionally released
a police dog against him. We today hold that plaintiffs cannot assert a
negligence claim based solely on an officer’s intentional use of physical
force. The appropriate state-law claim is for battery, and an officer asserting
the justification defense set forth in A.R.S. § 13-409 bears the burden of
proof on that issue. Plaintiffs may, however, base a negligence claim on
conduct by the officer that is independent of the intentional use of physical
force.

¶2            We also hold that at trial on such a battery claim, expert
witnesses cannot suggest to the jury that Graham v. Connor, 490 U.S. 386
(1989), which sets forth factors pertinent to 42 U.S.C. § 1983 excessive force
cases, is the legal standard for deciding the applicability of § 13-409.
Experts may explain their reliance on the factors, as appropriate, but should
not imply by mentioning their source that these factors legally control the
jury’s determination of justification.

                              BACKGROUND

¶3         Brian McDonald was driving in Tucson late one evening
when he swerved into the opposite lane and nearly collided with a patrol

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                          Opinion of the Court


car driven by Pima County Sheriff’s Deputy Matthew Dixon. Activating
his siren and flashing lights, Dixon made a U-turn and pursued McDonald.
McDonald did not immediately stop, and Dixon called for assistance. Other
deputies placed traffic spikes in McDonald’s projected path, but he pulled
over before hitting them. Dixon stopped and, treating the encounter as
high-risk, shouted at McDonald to show his hands and throw out the car
keys. Although McDonald’s window was down, he did not respond.

¶4           More deputies, including Deputy Joseph Klein and his police
dog, Barry, arrived at the scene. Barry was trained to “bite and hold” on
command to assist officers in apprehending suspects. Klein assumed
command and warned McDonald he would “send [his] dog” unless
McDonald started talking. McDonald responded by rolling up his window
and driving towards the spikes with the deputies giving chase.

¶5            Pursuing, Klein announced over the police radio that if
McDonald “went mobile,” after the spikes stopped his car, Klein would
deploy Barry. McDonald’s car ran over the spikes, hopped a curb, and
stopped. McDonald staggered from the car and walked around the back
toward the passenger side while leaning on the car for support. Klein got
out of his patrol car with Barry and warned McDonald, “stop or you will
be bitten.” When McDonald reached the passenger-side door, he stopped
and put his hands on the roof of the car. According to Klein, he
intentionally released Barry the instant before McDonald placed his hands
on the top of the car. Barry bit McDonald’s leg and held onto it between
twenty-five and thirty-eight seconds until Klein ordered the dog to release.
McDonald suffered severe injuries.

¶6             Authorities later learned that McDonald had type 1 diabetes
and, at the time of the events here, was experiencing a severe hypoglycemic
event. As a result, he lacked cognitive function to understand what was
happening or respond to police commands. The state did not pursue
criminal charges against McDonald.

¶7            McDonald sued Klein and the Pima County Sheriff
(“Defendants”), alleging that Klein “negligently released” Barry and that
use of the dog “constituted a negligent, unjustified, and excessive use of
force.” McDonald’s claim against the Pima County Sheriff was based solely
on vicarious liability. (The trial court granted summary judgment against
McDonald on two additional claims, including a claim that the Pima
County Sheriff “failed to promulgate appropriate and adequate policies
and procedures.” That ruling is not at issue here.) McDonald did not assert
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                           Opinion of the Court


claims for battery or for deprivation of rights under § 1983. Instead, as
related at oral argument before this Court, McDonald deliberately decided
to assert only a negligence claim.

¶8             Defendants moved for summary judgment, arguing that
Klein’s intentional use of force could not constitute negligence. The trial
court denied the motion two weeks before trial, ruling that McDonald could
pursue a claim for “negligent use of force” despite Klein’s intentional
decision to release Barry against McDonald. The court correctly noted that
law enforcement officers can be liable for negligent acts, see Clouse ex rel.
Clouse v. State, 199 Ariz. 196, 198 ¶ 9 (2001), but did not otherwise explain
its ruling.

¶9            At trial, the primary issues were whether Klein acted
negligently in releasing Barry and, if so, whether he was legally justified in
doing so, thereby relieving Defendants of liability pursuant to §§ 13-409,
-413. Over Defendants’ objection, the court permitted evidence of factors
identified in Graham, in the Fourth Amendment context, to assess the
reasonableness of police force. The court also instructed the jury that
Defendants bore the burden of proving that Klein’s release of Barry was
justified.

¶10          The jury found in favor of McDonald and awarded him
$617,500 in damages but found him five percent at fault. Defendants
unsuccessfully moved for a new trial, asserting that the court improperly
instructed the jury on negligence, incorrectly admitted evidence of the
Graham factors, and incorrectly instructed the jury that Defendants bore the
burden of proving justification under § 13-409.

¶11            The court of appeals affirmed in a split decision. Ryan v.
Napier, 243 Ariz. 277 (App. 2017). It declined to “decide whether Arizona
law recognizes a separate tort of negligent use of excessive force.” Id. at 282
¶ 19 n.6 (internal quotation marks omitted). Instead, the court concluded
that McDonald could recover damages under a negligence claim for
“Klein’s evaluation of whether to intentionally release [Barry],” which the
court found distinct from a battery claim based on Klein’s intentional
release of the dog. Id. at 282 ¶ 19. The court also determined that the
justification defense under §§ 13-409, -413 did not apply to negligence
claims, meaning that if Klein negligently released Barry, he was not
privileged to do so. Id. at 283 ¶ 23. Thus, it did not decide who bears the
burden of proving justification in intentional tort cases. Id. Finally, the


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                            Opinion of the Court


court rejected Defendants’ arguments that evidence of the Graham factors
was inadmissible. Id. at 284–87 ¶¶ 27–37.

¶12          We granted review to decide whether the trial court and court
of appeals properly decided several issues of statewide importance. We
have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.1

                                DISCUSSION

              I. The Negligence Claim
              A. Review of order denying summary judgment

¶13           Defendants argue that the trial court erred by denying their
motion for summary judgment. They assert that an intentional use of
excessive force is an intentional tort (battery) and cannot simultaneously
constitute negligence.

¶14            A denial of summary judgment is not an appealable order.
See State v. Superior Court, 140 Ariz. 365, 366 (1984). And a denial based on
disputed issues of material fact also is not reviewable on appeal from a final
judgment after trial. Cf. Desert Palm Surgical Grp., PLC v. Petta, 236 Ariz.
568, 577 ¶ 21 (App. 2015) (reasoning that permitting review “could lead to
the absurd result that one who has sustained his position after a full trial
and a more complete presentation of the evidence might nevertheless be
reversed on appeal because he had failed to prove his case more fully at the
time of the hearing of the motion for summary judgment”(quoting Navajo
Freight Lines, Inc. v. Liberty Mut. Ins., 12 Ariz. App. 424, 428 (1970))). But if
the denial was grounded on a purely legal issue that affected the final
judgment, we can review it like any other interim order. See id. ¶ 22; see also
A.R.S. § 12-2102(A) (authorizing review of “any intermediate orders
involving the merits of the action and necessarily affecting the judgment”).

¶15        McDonald does not contest that the trial court’s denial of
summary judgment was based on a legal issue that necessarily affected the



1 During the pendency of Defendants’ appeal, McDonald died from a cause
unrelated to his dog-bite injuries. Although the administrator of his estate
has substituted as the petitioner here, we refer to her as “McDonald” for
continuity.
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                            Opinion of the Court


final judgment. The efficacy of that ruling is properly before us, and we
review it de novo. See Glazer v. State, 237 Ariz. 160, 167 ¶ 29 (2015).

              B. Basis for negligence liability

¶16            Whether Arizona recognizes claims for negligent use of
intentionally inflicted force, as the trial court ruled, or negligent evaluation
of the need to inflict force, as the court of appeals concluded, turns on the
differences between negligence and intentional torts. Cf. Wells Fargo Bank
v. Ariz. Laborers, Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 483 ¶ 19 (2002)
(“Negligence . . . claims differ from the intentional tort claims on review
here; each has different elements and different requirements of proof.”).

¶17           To recover on a negligence claim, a plaintiff must prove a
duty requiring the defendant to conform to a standard of care, breach of
that duty, a causal connection between breach and injury, and resulting
damages. See Quiroz v. ALCOA Inc., 243 Ariz. 560, 563–64 ¶ 7 (2018). A
negligence claim focuses on the defendant’s conduct; intent is immaterial.
See Dan B. Dobbs et al., The Law of Torts § 31, at 77 (2d. ed. 2011) [hereinafter
Dobbs] (“[T]he emphasis is on risk as it would be perceived by a reasonable
person, not on the defendant’s purpose or on the certainty required to show
intent.”).

¶18             Intentional torts, in contrast, do not require proof of duty,
breach, or a causal connection between the breach and the injury. See
Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 314 ¶ 33 (2003); Wells
Fargo Bank, 201 Ariz. at 483–84 ¶ 20. As the name suggests, these torts are
committed by persons acting with tortious “intent.” See Intentional Tort,
Black’s Law Dictionary (10th ed. 2014). Acting with “intent” does not refer
to the act itself. Restatement (Second) of Torts § 8A cmt. a (“Restatement”);
id. § 870 cmt. b. It means that “the actor desires to cause [the] consequences
of his act, or that he believes that the consequences are substantially certain
to result from it.” Id. § 8A. Thus, as pertinent here, a battery claim requires
proof that the defendant intended to cause harmful or offensive contact
with the plaintiff. See Johnson v. Pankratz, 196 Ariz. 621, 623 ¶ 6 (App. 2000);
Restatement § 13.

¶19           The fundamental distinction between negligence and an
intentional tort is whether the consequences of the act or omission are
unintentional or intentional. This assessment by the Connecticut Supreme
Court captures our view:


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                            Opinion of the Court


       It is true, of course, that intentional tortious conduct will
       ordinarily also involve one aspect of negligent conduct,
       namely, that it falls below the objective standard established
       by law for the protection of others against unreasonable risk
       of harm. That does not mean, however, as the plaintiff’s
       argument suggests, that the same conduct can reasonably be
       determined to have been both intentionally and negligently
       tortious. The distinguishing factor between the two is what
       the negligent actor does not have in mind: either the desire to
       bring about the consequences that follow or the substantial
       certainty that they will occur. If he acted without either that
       desire or that certainty, he was negligent; if he acted with
       either that desire or that certainty, he acted intentionally.

Am. Nat’l Fire Ins. v. Schuss, 607 A.2d 418, 423 (Conn. 1992).

¶20            Based on the foregoing, we conclude that negligence and
intent are mutually exclusive grounds for liability. Cf. Transamerica Ins. v.
Meere, 143 Ariz. 351, 357 (1984) (differentiating negligence from intent and
noting that “the mere knowledge and appreciation of a risk, short of
substantial certainty, is not the equivalent of intent . . . [and] is not classed
as an intentional wrong” (quoting William Lloyd Prosser, Handbook on the
Law of Torts § 8, at 32 (4th ed. 1971))); see also Am. Nat’l Fire Ins., 607 A.2d at
422 (“It is axiomatic, in the tort lexicon, that intentional conduct and
negligent conduct, although differing only by a matter of degree are
separate and mutually exclusive.”(citation omitted)); Dobbs, supra ¶ 17, § 31
(“Any given act may be intentional or it may be negligent, but it cannot be
both. Intent and negligence are regarded as mutually exclusive grounds for
liability.”); Restatement § 282 cmt. d (“[Negligence] excludes conduct
which creates liability because of the actor’s intention to invade a legally
protected interest of the person injured or of a third person.”). It follows
that if a defendant acts with the intent to cause a harmful or offensive
touching (battery), that same act cannot constitute negligence.

¶21           We therefore disagree with the trial court that negligent use
of intentionally inflicted force is a cognizable claim. See Dobbs, supra ¶ 17,
§ 31 (“As the saying goes, there is no such thing as a negligent battery.”);
see also Duncan, 205 Ariz. at 314 ¶ 32 (noting “battery and negligence




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                            Opinion of the Court


(malpractice) constitute separate causes of action, each protecting different
interests” (citation and internal quotation marks omitted)).2

¶22           We also disagree with the court of appeals and McDonald that
negligence liability can result from a law enforcement officer’s “evaluation”
of whether to intentionally use force against another person. A negligence
claim requires either “an act” or a failure to “act.” See Restatement § 284;
see also Coburn v. City of Tucson, 143 Ariz. 50, 52 (1984) (citing Restatement
§ 284 with approval). An “act” is “an external manifestation of the actor’s
will.” Restatement § 2. An actor’s internal evaluation about whether to use
force and the decision to do so are not “acts” and therefore cannot, by

2  Other courts are in accord with our view. See, e.g., Mooney v. Carter, 160
P.2d 390, 393 (Colo. 1945) (stating that plaintiff’s injuries from being thrown
from a running board could not stem from negligence when the defendant
intentionally applied force to her car to throw the plaintiff off); City of Miami
v. Sanders, 672 So. 2d 46, 47 (Fla. 1996) (“[A] suit for a police officer’s use of
excessive force necessarily involves the intentional tort of battery.”); Baska
v. Scherzer, 156 P.3d 617, 628 (Kan. 2007) (holding that the doctrine of
transferred intent applied and plaintiffs could not style their claim as
negligence where defendant intended to punch a third party but instead
punched plaintiff); Schumann v. McGinn, 240 N.W.2d 525, 529–30 (Minn.
1976) (stating that the excessive use of force by a law enforcement officer is
an intentional battery and distinguishing negligence); Howard v. Wilson, 62
So. 3d 955, 957 ¶ 9 (Miss. 2011) (“[T]here is no such thing as a ‘negligent
battery.’” (citation omitted)); Love v. City of Port Clinton, 524 N.E.2d 166, 168
(Ohio 1988) (“Where the essential character of an alleged tort is an
intentional, offensive touching, the statute of limitations for assault and
battery governs even if the touching is pled as an act of negligence.”);
Denton v. Arnstein, 250 P.2d 407, 415 (Or. 1952) (“An assault and battery is
not negligence.”); City of Watauga v. Gordon, 434 S.W.3d 586, 593 (Tex. 2014)
(refusing to recognize a claim for negligence where officer injured Plaintiff
while handcuffing him because “[c]laims of excessive force . . . arise out of
a battery rather than negligence, whether the excessive force was intended
or not”). But see Merman v. City of Camden, 824 F. Supp. 2d 581, 598 (D.N.J.
2010) (refusing to dismiss a claim for negligent infliction of bodily harm
caused by officers grabbing plaintiff and throwing her to the ground as “a
jury would be free to accept[] that any injuries suffered by plaintiff were
caused by the officers’ negligent use of force”); City of Birmingham v.
Thompson, 404 So. 2d 589, 590 (Ala. 1981) (agreeing that “officer using
excessive force against a prisoner [] committed a negligent tort”).

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themselves, constitute negligence. Here, Klein’s “act,” and the sole cause
of McDonald’s injuries, was Klein’s intentional release of Barry to bite and
hold McDonald. Cf. id. cmt. c (“Thus, if the actor, having pointed a pistol
at another, pulls the trigger, the act is the pulling of the trigger.”). As
previously explained, an intentional act cannot also constitute negligence.
See supra ¶¶ 19–20. In short, Klein’s internal evaluation of whether to
release Barry and his decision to do so was part and parcel of his intent to
inflict harmful or offensive contact on McDonald. Cf. Latits v. Phillips, 826
N.W.2d 190, 196 (Mich. Ct. App. 2012) (“[T]he claim that defendant failed
to appreciate that [plaintiff] did not pose a risk of harm may have some
bearing on whether defendant made the proper decision to shoot, but it
does not alter the fact that it was an intentional decision to shoot.”).

¶23           We are further persuaded because permitting negligence
liability to rest on an officer’s internal evaluation of the need for
intentionally inflicted force could permit plaintiffs to “plead around”
statutory provisions that apply only to intentional tort claims.

¶24            First, a public entity, like the Pima County Sheriff’s Office, is
immune from liability for damages caused by an employee’s felony act
unless the entity knew of the employee’s propensity to commit such acts.
See A.R.S. § 12-820.05(B); Gallagher v. Tucson Unified Sch. Dist., 237 Ariz. 254,
257 ¶ 10 (App. 2015). Similarly, the public entity is not required in that
circumstance to indemnify the employee for any liability imposed. See
A.R.S. § 41-621(L). Thus, if Klein’s intentional release of Barry on McDonald
was unjustified and consequently determined to be aggravated assault, see
A.R.S. §§ 13-1203(A), -1204(A), the Sheriff would be immune from liability,
unless he knew that Klein had a propensity to act as he did, and would not
be required to indemnify Klein. Cf. State v. Heinze, 196 Ariz. 126, 130 ¶ 18
(App. 1999) (interpreting § 41-621(L), which has language similar to § 12-
820.05(B), and concluding that a felony conviction is not a prerequisite to
the application of the felony exclusion).

¶25            Second, statutory presumptions are triggered when a law
enforcement officer intentionally uses physical force to arrest or capture a
suspect and the suspect is injured. The officer is “presumed to [have been]
acting reasonably” in using physical force. A.R.S. § 12-716(A)(1). And the
officer’s employer is “presumed to have reasonably hired and trained” its
officers to use that physical force. Id. § 12-716(A)(2).

¶26          A negligence action based on Klein’s evaluation of the need
for force avoided these provisions. But the applicability of legislatively
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mandated immunity, insurance, and evidentiary presumption provisions
should not depend on clever pleading. See Latits, 826 N.W.2d at 197 (stating
that “plaintiff cannot avoid the protections of immunity by ‘artful
pleading’” and concluding that the applicability of immunity provision
should turn on the gravamen of a claim); Britton v. City of Crawford, 803
N.W.2d 508, 518 (Neb. 2011) (concluding that immunity provision for
battery applied as “[n]o semantic recasting of events can alter the fact that
the shooting was the immediate cause of [suspect’s] death” and “[e]ven if
it is possible that negligence was a contributing factor . . . the alleged
negligence was inextricably linked to a battery”).

¶27            The two Arizona cases relied on by McDonald and the court
of appeals do not persuade us to reach a different conclusion. See Ryan, 243
Ariz. at 281 ¶ 14. Although each case involved claims for a law enforcement
officer’s negligent use of force, the viability of those claims was not at issue.
See Weekly v. City of Mesa, 181 Ariz. 159, 161 n.2 (App. 1994) (“Plaintiff also
alleged negligent use of excessive force [and three other claims]. No issues
regarding any of these other claims are before us on appeal.”); Mulhern v.
City of Scottsdale, 165 Ariz. 395, 397 (App. 1990) (listing issues on appeal,
which do not include the viability of a claim for negligent use of excessive
force).

¶28            Similarly, the viability of a negligence claim based on an
officer’s use of force was not directly at issue in other-jurisdiction cases cited
by McDonald. See Fuciarelli v. Good, No. CV-14-01078-PHX-GMS, 2016 WL
4529822, at *3–4 (D. Ariz. Aug. 30, 2016) (rejecting arguments that police are
immune from negligence claims under Arizona law and can only be held
liable for gross negligence); Bryson v. Oklahoma County, 261 P.3d 627, 631–
33 ¶¶ 8–12 (Okla. App. 2011) (granting summary judgment to County on
respondeat superior claim for detention officer’s assault, battery, and
negligence because County was not the deputy’s employer).

¶29          We are likewise unpersuaded by cases cited by the court of
appeals and McDonald permitting a negligence claim to rest on a law
enforcement officer’s evaluation of whether to intentionally use excessive
force. Two of these cases involved discrete acts of negligent conduct
preceding the use of force. See Reed v. District of Columbia, 474 F. Supp. 2d
163, 174 (D.D.C. 2007) (“So here, a distinct act of negligence, a
misperception of fact, may have played a part in the decision to fire.”
(citation and internal quotation marks omitted)); Hernandez v. City of
Pomona, 51 Cal. Rptr. 3d 846, 859–60 (Ct. App. 2006) (concluding that a
wrongful death complaint for shooting a fleeing suspect was sufficient to
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plead negligence based on officers’ pre-shooting conduct that created the
situation justifying use of excessive force), rev’d, 207 P.3d 506, 521 (Cal.
2009) (“[O]n the conceded facts here, we find no basis for a preshooting
negligence claim.”). The only conduct underlying the negligence claim here
was Klein’s intentional release of Barry against McDonald. Thus,
regardless of whether Arizona would recognize negligence claims like the
ones in Reed and Hernandez, these cases are inapposite. Cf. District of
Columbia v. Chinn, 839 A.2d 701, 711 (D.C. 2003) (“[I]f, in a case involving
the intentional use of force by police officers, a negligence count is to be
submitted to a jury, that negligence must be distinctly pled and based upon
at least one factual scenario that presents an aspect of negligence apart from
the use of excessive force itself and violative of a distinct standard of care.”).

¶30            McDonald also relies on a case from the California Court of
Appeal, which concluded that an officer’s lack of due care in deciding to
use deadly force “can give rise to negligence liability for the intentional
shooting death of a suspect.” Brown v. Ransweiler, 171 Cal. App. 4th 516,
534 (2009) (citation and internal quotation marks omitted). For the reasons
already explained, we disagree with Ransweiler.

¶31           To be clear, plaintiffs may plead a negligence claim for
conduct that is independent of the intentional use of force or plead
negligence and battery as alternate theories if the evidence supports each
theory. For example, if the evidence here also supported a finding that
Klein unintentionally dropped Barry’s leash, resulting in the attack against
McDonald, a negligence claim would have been appropriate. See Chinn, 839
A.2d at 710–11 (acknowledging that negligence and battery claims are
appropriately pled when the evidence supports “alternate scenarios”
supporting each distinct theory). It is the jury’s role (or the judge’s in a
bench trial) to establish what occurred and then apply the correct legal
theory to arrive at a verdict.

¶32            In sum, the trial court and court of appeals erred by deciding
that Defendants could be liable in negligence for Klein’s intentional release
of Barry to bite and hold McDonald. The only claim supported by the facts
here is an intentional battery, which McDonald deliberately neither pled
nor tried to the jury. We reverse the trial court’s judgment and remand for
entry of judgment in favor of Defendants on the negligence claim but
without prejudice to the filing of any appropriate and permissible post-
judgment motions.



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¶33          Because the parties and amici have fully argued the
remaining, recurring issues, we address them to provide guidance.

              II. A.R.S. § 13-409

¶34         Section 13-409 provides a justification defense for law
enforcement officers who use physical force:

              A person is justified in threatening or using physical
       force against another if in making or assisting in making an
       arrest or detention or in preventing or assisting in preventing
       the escape after arrest or detention of that other person, such
       person uses or threatens to use physical force and all of the
       following exist:

             1. A reasonable person would believe that such force
       is immediately necessary to effect the arrest or detention or
       prevent the escape.

              2. Such person makes known the purpose of the arrest
       or detention or believes that it is otherwise known or cannot
       reasonably be made known to the person to be arrested or
       detained.

              3. A reasonable person would believe the arrest or
       detention to be lawful.

If the officer’s use of force is justified under § 13-409, the officer is immune
from civil liability. See A.R.S. § 13-413. Importantly, although the use of
force can be justified at its commencement, it loses legal justification at the
point the force becomes unnecessary. See id. § 13-409(1); Chinn, 839 A.2d at
711 (acknowledging that officers lose the privilege to use physical force
when it “crosse[s] the line of permissible force”). For example, here, Klein’s
release of Barry on McDonald may have been justified at its inception but
leaving Barry “on bite” for a prolonged period could have been an
unjustified battery. Cf. Chinn, 839 A.2d at 711 (stating that a battery does
not “transmogrify into negligence” if officers mistakenly use excessive force
but the battery instead becomes unprivileged).




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              A. Application in negligence cases

¶35            Defendants argue that even if the court of appeals was correct
that negligence liability can properly rest on an officer’s evaluation of
whether to use physical force, it wrongly concluded that §§ 13-409, -413
cannot apply to immunize the officer from liability. Our resolution of the
first issue moots much of this argument. We address whether the
justification defense applies in negligence cases, however, because the issue
has been fully briefed and may recur.

¶36            Civil liability cannot be imposed on a law enforcement officer
for “engaging in [justified] conduct,” regardless of the theory of recovery.
A.R.S. § 13-413. Nonetheless, as a practical matter, the § 13-409 justification
defense is either redundant or immaterial, and therefore inapplicable, in
negligence actions brought against law enforcement officers. If the claim is
based on the officer’s negligent use of force, whether he acted reasonably —
an inquiry common to both negligence and the justification defense —
forms part of the plaintiff’s burden to prove negligence. See § 13-409(1)
(listing as a requirement for justification whether a reasonable person
would have believed that force was immediately necessary to arrest or
detain a suspect); Stanley v. McCarver, 208 Ariz. 219, 224 ¶ 16 (2004) (stating
that in negligence cases, “the duty is always the same[:] to conform to the
legal standard of reasonable conduct in the light of the apparent risk”
(citation and internal quotation marks omitted)). The jury has no reason to
again consider reasonableness in the context of the justification defense, and
it could be confused if asked to do so. If the claim is based on a negligent
act preceding an intentional use of force, the justification defense would be
immaterial. See § 13-409 (authorizing the justification defense only for acts
of “threatening or using physical force against another”).

¶37           The inapplicability of the justification defense in negligence
actions is demonstrated by considering hypothetical scenarios drawn from
this case. If McDonald had asserted negligence based on evidence that
Klein unintentionally dropped Barry’s leash, and the jury found this
occurred, it then would have found that Klein either did or did not act
reasonably. If the former, the negligence claim would fail without the need
to consider the justification defense. If the latter, Klein’s unreasonable
conduct could not have been justified. In other words, the jury’s
determination that Klein acted unreasonably would preclude a finding
under § 13-409 that his conduct met that statute’s reasonableness
requirements and was therefore justified. Similarly, had McDonald
asserted that Klein was negligent in a distinct act preceding his intentional
                                      13
                          RYAN V. NAPIER/KLEIN
                            Opinion of the Court


release of Barry, such as failing to properly train the dog on when to release
the bite, the justification defense would not excuse this conduct. In that
scenario, the negligent act was Klein’s training and not the use of force, so
§ 13-409 would not apply.

¶38            Based on the foregoing, a trial court should not instruct a jury
on the justification defense under § 13-409 if the only claim against the law
enforcement officer is negligence. If a claim is also made for battery, the
court should instruct on the justification defense but explain that the
defense applies only to the battery claim to avoid juror confusion.

               B. Burden of proof

¶39            Neither §§ 13-409 nor 13-413 specifies who bears the burden
of proving justification in civil cases. This Court has long held that
defendants in civil cases bear the burden of proving any affirmative
defense. See, e.g., Glazer, 237 Ariz. at 164 ¶ 13; Yeazell v. Copins, 98 Ariz. 109,
116 (1965); Harvey v. Aubrey, 53 Ariz. 210, 214 (1939). Conversely, before
2006, the state had the burden of proving the absence of justification beyond
a reasonable doubt in criminal cases. See State v. Hunter, 142 Ariz. 88, 89
(1984) (stating that when a defendant presents evidence of self-defense the
state must prove beyond a reasonable doubt that the conduct was not
justified); Pfeil v. Smith, 183 Ariz. 63, 65 (App. 1995) (to same effect).
Consistent with this authority, the court of appeals, before 2006, required
defendants to prove justification defenses in civil cases by a preponderance
of the evidence. See, e.g., Pfeil, 183 Ariz. at 65; Weekly, 181 Ariz. at 166 n.5.

¶40          In 2006, the legislature amended § 13-205(A) as follows (the
modified language is shown with strikeouts and italics):

                A. Except as otherwise provided by law, a defendant
       shall prove any affirmative defense raised by a
       preponderance of the evidence, including any justification
       defense under chapter 4 of this title. Justification defenses under
       chapter 4 of this title are not affirmative defenses. Justification
       defenses describe conduct that, if not justified, would constitute an
       offense but, if justified, does not constitute criminal or wrongful
       conduct. If evidence of justification pursuant to chapter 4 of this
       title is presented by the defendant, the state must prove beyond a
       reasonable doubt that the defendant did not act with justification.



                                        14
                         RYAN V. NAPIER/KLEIN
                           Opinion of the Court


See also A.R.S. § 13-205 historical and statutory notes. Defendants argue that
the amendments to § 13-205(A) require plaintiffs in civil actions to prove
the absence of justification by a preponderance of the evidence.

¶41           We interpret § 13-205 de novo. See Glazer, 237 Ariz. at 163
¶ 12. Our goal is to effectuate the legislature’s intent. Id. If § 13-205 has
only one reasonable interpretation, we will apply that interpretation
without further analysis. Id. If the statute is subject to more than one
reasonable interpretation, however, we will resolve that ambiguity by
examining other factors like “the context of the statute, the language used,
the subject matter, its historical background, its effects and consequences,
and its spirit and purpose.” Id. (citation and internal quotation marks
omitted).

¶42            Section 13-205 is ambiguous because it has two reasonable
interpretations. The statute provides that a defendant must prove any
affirmative defense by a preponderance of the evidence, but then excludes
justification defenses from the category of affirmative defenses. See also
A.R.S. § 13-103(B) (“Affirmative defense does not include any justification
defense.”). This language supports Defendants’ view that the legislature
intended to displace the common law principle that justification defenses
are affirmative defenses, which defendants bear the burden of proving in
civil cases. In contrast, the last sentence of § 13-205 explicitly places the
burden of proving justification in criminal cases on the state but is silent on
who bears the burden in civil cases. This language supports McDonald’s
view that the legislature did not intend to upend the common law
regarding the burden of proof in civil cases.

¶43            We agree with McDonald that § 13-205 did not change the
common law precept that defendants bear the burden of proving
justification in civil cases. First, nothing in the language of § 13-205 or its
legislative history suggests that the legislature intended to place the burden
on plaintiffs in civil cases to disprove justification. The statute was
amended by passage of Senate Bill 1145, which added several provisions to
our criminal code pertaining to affirmative defenses and justification
defenses. See 2006 Ariz. Sess. Laws, ch. 199 (2d Reg. Sess.). The primary
focus of SB 1145 was the addition of laws concerning self-defense and home
protection. See Ariz. State Sen. Fact Sheet for S.B. 1145, 47th Leg., 2d Reg.
Sess. (June 27, 2006). It also codified the common law principle that if a
defendant presents some evidence of justification in a criminal case, the
state bears the burden of proving a lack of justification. But there was no
mention of civil liability in Senate Bill 1145 or in its legislative history. We
                                      15
                          RYAN V. NAPIER/KLEIN
                            Opinion of the Court


expect that the legislature would have been explicit if it intended to change
the common law view that defendants bear the burden of proving
justification defenses in civil cases. Cf. Louis C. v. Dep’t of Child Safety, 237
Ariz. 484, 489 ¶ 22 (App. 2015) (“The legislature’s specification, in § 13-205,
of what ‘the state’ must prove, and the location of the statute in chapter 2 of
the criminal code, titled ‘General Principles of Criminal Liability,’ belie any
suggestion that the legislature intended to shift or alter the burden of proof
when a parent argues, in a dependency proceeding, that physical discipline
of a child was reasonable and justified.”).

¶44           Second, the exclusion of justification defenses from the
category of “affirmative defenses” applies only to criminal cases.
“Affirmative defenses” are defined in the criminal code as statutory
defenses “that attempt[] to excuse the criminal actions of the accused.”
A.R.S. § 13-103(A), (B). Removing justification defenses from that definition
in criminal cases does not impact the common law treatment of justification
defenses in civil cases as affirmative defenses.

¶45           Third, as pertinent here, placing the burden on law
enforcement officers in civil cases to prove the § 13-409 justification defense
aligns with the burden placed on them to prove non-statutory justification
defenses. See, e.g., Whitlock v. Boyer, 77 Ariz. 334, 338 (1954) (concluding in
a civil false arrest case that police chief had the burden to prove by a
preponderance of the evidence that he had reasonable grounds to believe
plaintiffs had committed a felony).

¶46            In sum, a defendant bears the burden of proving a
justification defense by a preponderance of the evidence in a civil case. To
do so, the defendant may use any applicable presumption set forth in
§ 12-716, which sets forth presumptions concerning crime victims and law
enforcement officers. If a presumption applies, the burden shifts to the
plaintiff to produce evidence to rebut the presumption, although the
defendant retains the burden of persuasion. See Ariz. R. Evid. 301.

              III. The Graham Factors

¶47           The United States Supreme Court in Graham concluded that
§ 1983 claims for excessive use of force by law enforcement officers should
be analyzed under the Fourth Amendment’s “reasonableness” standard.
490 U.S. at 395. It explained that the standard’s “proper application
requires careful attention to the facts and circumstances of each particular
case, including [1] the severity of the crime at issue, [2] whether the suspect
                                       16
                          RYAN V. NAPIER/KLEIN
                            Opinion of the Court


poses an immediate threat to the safety of the officers or others, and [3]
whether he is actively resisting arrest or attempting to evade arrest by
flight” (the “Graham factors”). Id. at 396.

¶48            Over Defendants’ objection, McDonald’s police tactics expert
explained the Graham factors to the jury; noted they are based on a United
States Supreme Court case; stated they are accepted “nationwide” in the
law enforcement community as the standard for reasonableness and that
Klein was trained on them; and opined that under the Graham factors, Klein
did not act reasonably by releasing Barry on McDonald. Defendants’ expert
also testified about the Graham factors in expressing an opposing opinion.
In doing so, he provided the “legal principles” from Graham; related it is
“one of the core cases” used to teach law enforcement officers about the
“objective reasonableness standard”; and opined that Klein’s use of Barry
was appropriate under the Graham factors.

¶49             Defendants argue that the trial court violated Arizona Rules
of Evidence 702(a) and 704(a) by allowing McDonald’s expert to effectively
tell the jury it should assess “reasonableness” under § 13-409 by applying
the Graham factors and then opining that Klein violated that standard. They
contend that the expert usurped both the court’s role to instruct the jury on
the law and the jury’s role to decide the case.

¶50           Rule 702(a) permits expert testimony if “the expert’s . . .
specialized knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue.” Defendants do not contest that expert
testimony concerning police training and tactics was appropriate here.

¶51             We agree with the court of appeals dissent that an expert
oversteps by testifying that Graham governs application of the justification
defense. See Ryan, 243 Ariz. at 291–92 ¶¶ 60–63 (Espinosa, J., dissenting). It
is the trial court’s role, not the expert’s, to instruct the jury on the applicable
legal standards. See Ariz. Const. art. VI, § 27 (providing that “[j]udges . . .
shall declare the law” to juries); see also Hygh v. Jacobs, 961 F.2d 359, 364 (2d
Cir. 1992) (“Whereas an expert may be uniquely qualified by experience to
assist the trier of fact, he is not qualified to compete with the judge in the
function of instructing the jury.”). Thus, McDonald’s expert’s testimony
that “Graham v. Connor and the factors therein” set forth the standard for
reasonableness “[r]egardless of the claim that’s made” was inappropriate.
Trial courts should not permit experts to state or suggest that Graham
governs application of the justification defense under § 13-409. See People v.
Brown, 245 Cal. App. 4th 140, 168 (2016) (stating expert “improperly
                                        17
                         RYAN V. NAPIER/KLEIN
                           Opinion of the Court


stepped outside his role as adjunct to the fact finder” by summarizing his
understanding of Graham to the jury).

¶52           The impropriety of an expert informing the jury about the
proper legal standard in the case does not prevent him from mentioning the
Graham factors. If an expert reasonably relied on the factors in forming an
opinion, he may explain them to the jury. See Ariz. R. Evid. 703; id. cmt. to
the original 1977 Rule. But the expert generally should refrain from
referring to Graham, or at least refrain from explaining that the “Graham
factors” originate from a United States Supreme Court decision, as doing so
might needlessly risk confusing jurors about the legal standard to apply
and unduly elevate the expert’s opinion. See Ariz. R. Evid. 403. For
example, McDonald’s expert could have described the Graham factors,
without referring to the Supreme Court, and then testified that law
enforcement officers typically consider them when deciding whether to
release a dog.

¶53            Lastly, although Defendants argue that McDonald’s expert
improperly told the jury how to decide the case, they did not develop this
argument beyond asserting that the expert improperly invoked Graham.
Whether an expert, like both experts here, can properly opine on whether
an officer was “justified” or “reasonable” in his conduct was not raised
before the trial court and not developed here. See Ariz. R. Evid. 704(a), cmt.
to original 1977 Rule (“An opinion is not objectionable just because it
embraces an ultimate issue” but “[s]ome opinions on ultimate issues will
be rejected as failing to meet the requirement that they assist the trier of
fact.”). We leave that issue for another day.

¶54           In sum, experts may not suggest that Graham is the legal
standard for jurors to decide whether a law enforcement officer’s conduct
was justified under § 13-409. Experts may recount their reasonable reliance
on these factors in forming opinions and inform jurors that officers are
trained on them. But experts should refrain from suggesting that the
Graham factors are legally required.

                              CONCLUSION

¶55          We vacate the court of appeals’ opinion. We reverse the trial
court’s judgment and remand to that court for entry of judgment in favor
of Defendants on the negligence claim. The parties may file any
appropriate and permissible post-judgment motions.


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