The court holds that the police aren’t liable to future victims for not finding a criminal.
Various victims of the Baseline Killer sued Phoenix, arguing that if the police had analyzed DNA samples sooner he could have been caught before he committed the crimes in question. The trial court consolidated the claims and granted Phoenix summary judgment. Plaintiffs appealed.
The Court of Appeals affirms. The statute (12-820.02(A)(1)) requires intent or gross negligence in cases of “failure to make an arrest.” The court concludes that there can’t be gross negligence because there is no duty of care, either on “special relationship” or public policy grounds.
A police department is not a “general insurer of safety” and owes no duty to individuals unless it “endeavor[s] to provide specific protection to a particular person.” The city did not have a specific relationship with the victims sufficient to create a duty because it did not know who they would be. “Merely investigating a crime, without any specific endeavor to provide specific protection . . . does not create a duty to a victim’s family.”
Plaintiffs argued that the legislature expressed a public policy that there is a duty by passing the statute limiting liability for it. They raised this for the first time on appeal. The court first announces that it need not consider the argument, then considers it. It says that the argument “flip[s] the analysis on its head” because the statute was meant to create immunity, not duty.
Well, regardless of what you think about letting civil lawyers second-guess police detectives, that last is heavy-handed. It does not “flip the analysis” to point out – as both a matter of logic and of statutory construction – that if the legislature passes a law about something then it has found that there is something to pass a law about. An “immunity statute” (the court calls it that) immunizes against something. It either creates a limited right or limits a pre-existing right. It is possible to read the opinion as meaning that the statute applies only to the particular-person cases; it would have been better, if that’s what it meant, to say so rather than to accuse people of the heinous offense of “flipping.”
Arizona Appellate Blog 