                                    IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


               EVELYN LEE SPOONER, Plaintiff/Appellant,

                                      v.

              CITY OF PHOENIX, et al., Defendants/Appellees.

                           No. 1 CA-CV 17-0500
                            FILED 11-27-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-015913
                The Honorable Joshua D. Rogers, Judge

                                   AFFIRMED


                                   COUNSEL

Debus Kazan & Westerhausen, Ltd., Phoenix
By Tracey Westerhausen, Larry L. Debus, Gregory M. Zamora
Counsel for Plaintiff/Appellant

Burch & Cracchiolo, Phoenix
By Melissa Iyer Julian
Counsel for Defendants/Appellees
                       SPOONER v. PHOENIX, et al.
                          Opinion of the Court



                                 OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in
which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig
joined.


J O N E S, Judge:

¶1              Evelyn Spooner appeals from a judgment entered in favor of
the City of Phoenix and Toni Brown (collectively, the City) on her civil
claims arising from a purported wrongful arrest. Spooner argues the trial
court erred by precluding her from using Brown’s grand jury testimony to
impeach Brown’s credibility at trial and directing a verdict on her simple
negligence claim. We affirm the preclusion of Brown’s grand jury
testimony and hold that a law enforcement officer is not subject to civil
liability for simple negligence arising from an investigation into criminal
activity. Accordingly, we affirm the judgment.

                 FACTS AND PROCEDURAL HISTORY

¶2            In 2009, Brown, a detective with the Phoenix Police
Department, began investigating Spooner’s financial relationship with
ninety-five-year-old Mary B. At a 2011 grand jury proceeding, Brown
testified about her investigation, and the grand jury indicted Spooner for
three counts of theft from a vulnerable adult and one count of unlawful use
of a power of attorney. The State later dismissed the criminal charges, and
Spooner then filed suit against the City asserting purported constitutional
violations, simple negligence, gross negligence, intentional infliction of
emotional distress, and malicious arrest. Spooner supported these claims
with allegations that Brown lied to the grand jury, withheld exculpatory
evidence, and failed to properly investigate Spooner’s relationship with
Mary.1

¶3            After the close of evidence in an eight-day civil jury trial, the
trial court entered judgment as a matter of law in the City’s favor on


1     Spooner also alleged the City did not properly supervise and train
its employees to prevent wrongful arrests, but she did not advance this
theory at trial.



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                       SPOONER v. PHOENIX, et al.
                          Opinion of the Court

Spooner’s claims for simple negligence, malicious arrest, and constitutional
violations. The jury then found for the City on the claims for gross
negligence and intentional infliction of emotional distress. Spooner timely
appealed the final judgment, and we have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)2 and -2101(A)(1).

                               DISCUSSION

I.     The Trial Court Acted Within its Discretion in Excluding Brown’s
       Grand Jury Testimony for Use as Impeachment Evidence.

¶4             At oral argument on appeal, Spooner conceded that grand
jury witnesses enjoy absolute immunity for claims arising from their
testimony. See Green Acres Tr. v. London, 141 Ariz. 609, 613 (1984); see also
Rehberg v. Paulk, 566 U.S. 356, 369 (2012). She argues, however, that the trial
court deprived her of due process when it precluded her use of Brown’s
grand jury testimony for impeachment purposes at trial. The court
precluded the testimony after finding both: (1) that “allowing introduction
of the grand jury testimony . . . would effectively operate to circumvent the
absolute immunity of [a grand jury] witness,” and (2) that the probative
value of the testimony was substantially outweighed by the danger of
unfair prejudice and confusion of the issues — namely, “the appropriate
scope of the use of the grand jury testimony relative to the remaining
liability claims.”

¶5            Spooner argues that evidence of Brown’s purported false
testimony to the grand jury is relevant to Brown’s credibility, relying upon
Marshall v. Randall, 719 F.3d 113, 116-18 (2d Cir. 2013) (finding, under the
Federal Rules of Evidence, no abuse of discretion in the admission of grand
jury testimony to impeach law enforcement officers defending 42 U.S.C.
§ 1983 claims arising out of purportedly false testimony where there was
“no potential for jury confusion”). We do not reach the general issue of
admissibility, however, because we find no error in the exclusion of the
evidence under Rule 403. Even relevant evidence is subject to exclusion “if
its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, [or] misleading the jury.” Ariz. R. Evid. 403.
“Because ‘probative value’ and ‘the danger of unfair prejudice’ are not
easily quantifiable factors, we accord substantial discretion to the trial court
in the Rule 403 weighing process.” Hudgins v. Sw. Airlines, Co., 221 Ariz.
472, 481, ¶ 13 (App. 2009) (citing State v. Gibson, 202 Ariz. 321, 324, ¶ 17


2     Absent material changes from the relevant date, we cite a statute’s
current version.


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                        SPOONER v. PHOENIX, et al.
                           Opinion of the Court

(2002)). The decision to preclude impeachment evidence is likewise
reviewed for an abuse of discretion. See Gasiorowski v. Hose, 182 Ariz. 376,
382 (App. 1994) (citing Selby v. Savard, 134 Ariz. 222, 227 (1982)).

¶6             The record reflects that the trial court carefully considered the
scope and purpose of absolute immunity in judicial proceedings, including
warnings from both the U.S. Supreme Court and this Court against
allowing parties to “circumvent” absolute witness immunity “by using
evidence of the witness’[s] testimony to support any . . . claim concerning
the initiation or maintenance of a prosecution.” Rehberg, 566 U.S. at 369;
accord Sobol v. Alarcon, 212 Ariz. 315, 318, ¶ 11 (App. 2006) (“[I]t is necessary
that the propriety of [a witness’s] conduct not be inquired into indirectly by
either court or jury in civil proceedings brought against them for
misconduct in their position.”) (quotation omitted). The court also
reasonably determined introduction of grand jury testimony was unfairly
prejudicial and likely to confuse the jury because it would constitute direct
evidence of purported misconduct for which the City was absolutely
immune.3 We find no abuse of discretion or due process violation here.

II.    The Trial Court Properly Entered Judgment as a Matter of Law for
       the City on the Simple Negligence Claim.

¶7             Spooner argues the trial court erred when it entered judgment
for the City upon Spooner’s claim for simple negligence. We review the
entry of judgment as a matter of law de novo, “viewing the evidence and
reasonable inferences in the light most favorable to the nonmoving party.”
SWC Baseline & Crismon Inv’rs, L.L.C. v. Augusta Ranch Ltd. P’ship, 228 Ariz.
271, 292, ¶ 93 (App. 2011) (citing Shoen v. Shoen, 191 Ariz. 64, 65 (App. 1997)).
We likewise review the existence and scope of qualified immunity de novo.
See Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11 (2011) (citation omitted). We will
affirm the judgment if it is correct for any reason. Walter v. Simmons, 169
Ariz. 229, 240 n.9 (App. 1991).

¶8             As a general rule, public entities and public employees are
subject to tort liability for their negligence. See Ryan v. State, 134 Ariz. 308,
309-10 (1982) (“[T]he parameters of duty owed by the state will ordinarily
be coextensive with those owed by others.”) (citing Stone v. Ariz. Highway


3      Although Spooner suggests the grand jury testimony could have
been admitted with a limiting instruction regarding its proper purpose,
rather than excluded altogether, she did not request this remedy at trial and
therefore waived her right to assert error on this basis. Cf. State v. Mott, 187
Ariz. 536, 546 (1997).


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                        SPOONER v. PHOENIX, et al.
                           Opinion of the Court

Comm’n, 93 Ariz. 384, 392 (1963)), superseded by statute on other grounds as
stated in Tucson Unified Sch. Dist. v. Owens-Corning Fiberglas Corp., 174 Ariz.
336, 339 (1993); see also Hogue v. City of Phoenix, 240 Ariz. 277, 280, ¶ 9 (App.
2016) (citing Greenwood v. State, 217 Ariz. 438, 442, ¶ 14 (App. 2008)).
Although our supreme court recognized the abolition of general sovereign
immunity in Ryan, it nonetheless “hasten[ed] to point out that certain areas
of immunity must remain.” 134 Ariz. at 309-10. Some remaining areas of
immunity are prescribed by statute within Arizona’s Governmental Tort
Claims Act, see, e.g., A.R.S. § 12-820.02, but the legislature has directed that
its statutory grant of immunity for certain acts “shall not be construed to
affect, alter or otherwise modify any other rules of tort immunity regarding
public entities and public officers as developed at common law.” See A.R.S.
§ 12-820.05(A); see also Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203, ¶ 27
(2001) (acknowledging that common law immunity principles apply in the
absence of statutory direction) (citations omitted).

¶9              Common law qualified immunity generally provides public
officials, including police officers, limited protection from liability when
“performing an act that inherently requires judgment or discretion.”4
Chamberlain v. Mathis, 151 Ariz. 551, 555, 558 (1986) (applying the Ryan
principles in concluding a state employee is protected by qualified
immunity for discretionary acts); see also Portonova v. Wilkinson, 128 Ariz.
501, 503 (1981) (“It has been recognized that in Arizona a police officer
acting within the scope of his authority has at least a conditional immunity
from civil liability.”) (citing Patterson v. City of Phoenix, 103 Ariz. 64, 70-71
(1968)); Restatement (Second) of Torts § 895D (1979) (“A public officer
acting within the general scope of his authority is not subject to tort liability
for an administrative act or omission if . . . he is [otherwise] immune
because [he is] engaged in the exercise of a discretionary function.”); id. at
cmt. h (explaining no immunity attaches to a ministerial act “carr[ied] out
[on] the orders of others or . . . [done] with little choice as to when, where,
how or under what circumstances”). This accommodation for discretionary
acts exists because “officials should not err always on the side of caution”
for fear of being sued. State v. Superior Court (Donaldson), 185 Ariz. 47, 50

4      Spooner cites Austin v. City of Scottsdale, 140 Ariz. 579 (1984);
Hutcherson v. City of Phoenix, 188 Ariz. 183 (App. 1996), reversed on other
grounds, 192 Ariz. 51 (1998); and Landeros v. City of Tucson, 171 Ariz. 474
(App. 1992), to support her argument that the City may be liable for simple
negligence. None of these cases squarely discuss whether a law
enforcement officer enjoys qualified immunity for discretionary decisions
made in the course of a criminal investigation, and we do not find them
instructive.


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                        SPOONER v. PHOENIX, et al.
                           Opinion of the Court

(App. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)); see also
Restatement (Second) of Torts § 895D cmt. b (“The basis of the immunity
has been not so much a desire to protect an erring officer as it has been a
recognition of the need of preserving independence of action without
deterrence or intimidation by the fear of personal liability and vexatious
suits.”). The doctrine thus “‘gives ample room for mistaken judgments’ by
protecting ‘all but the plainly incompetent or those who knowingly violate
the law.’” Donaldson, 185 Ariz. at 50 (quoting Hunter, 502 U.S. at 229).

¶10             If qualified immunity applies, a public official performing a
discretionary act “within the scope of [her] public duties” may be liable
only if she “knew or should have known that [s]he was acting in violation
of established law or acted in reckless disregard of whether h[er] activities
would deprive another person of their rights.” Chamberlain, 151 Ariz. at
558; see also Grimm v. Ariz. Bd. of Pardons & Paroles, 115 Ariz. 260, 267-68
(1977) (holding that members of the Arizona Board of Pardons and Paroles
were liable “only for the grossly negligent or reckless release of a highly
dangerous prisoner” but enjoyed “freedom from suit for reasonable
decisions”). A public official’s conscious disregard of the law or the rights
of others constitutes gross negligence, see Noriega v. Town of Miami, 243 Ariz.
320, 328, ¶¶ 35-36 (App. 2017) (citations omitted), and she remains liable for
such conduct, Chamberlain, 151 Ariz. at 558. But a public official performing
a discretionary act encompassed within her public duties is shielded from
liability for simple negligence. See Chamberlain, 151 Ariz. at 558.

¶11            Criminal investigations involve the exercise of personal
deliberation and individual professional judgment that necessarily reflect
the facts of a given situation. By its very nature, investigative police work
is discretionary and appropriate for exemption from suit for simple
negligence. See Wall v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 594 (App.
1991) (acknowledging that decisions to investigate a crime or arrest a
suspect “involve a judgment by a police officer”). Moreover:

       The public has a vital stake in the active investigation and
       prosecution of crime. Police officers and other investigative
       agents must make quick and important decisions as to the
       course an investigation shall take. Their judgment will not
       always be right; but to assure continued vigorous police
       work, those charged with that duty should not be liable for
       mere negligence.

Landeros, 171 Ariz. at 475 (quoting Smith v. State, 324 N.W.2d 299, 301 (Iowa
1982)); see also Everitt v. Gen. Elec. Co., 932 A.2d 831, 844 (N.H. 2007) (“[L]aw


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                      SPOONER v. PHOENIX, et al.
                         Opinion of the Court

enforcement by its nature is susceptible to provoking the hostilities and
hindsight second-guessing by those directly interacting with police as well
as by the citizenry at large. . . . The public simply cannot afford for those
individuals charged with securing and preserving community safety to
have their judgment shaded out of fear of subsequent lawsuits.”).
Accordingly, we conclude that public policy mandates that investigative
police work, performed in the scope of an officer’s public duty, is a
discretionary act subject to qualified immunity.

¶12           Here, Spooner alleged Brown acted either intentionally or
negligently to effectuate Spooner’s arrest without the requisite probable
cause. To the extent these actions violate clearly established law or reflect
a reckless disregard of Spooner’s rights, they are afforded no protection.
The trial court properly permitted Spooner to proceed on these claims and
properly instructed the jury that it could find in Spooner’s favor if she
proved gross negligence. But to the extent Brown’s actions reflect the
legitimate exercise of professional judgment, they are discretionary and
protected by qualified immunity. Thus, the court rightfully entered
judgment as a matter of law in the City’s favor on the claim for simple
negligence.

                              CONCLUSION

¶13          The judgment in favor of the City is affirmed. As the
prevailing party, the City is entitled to its costs incurred on appeal upon
compliance with ARCAP 21(b).




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