Stair v. Maricopa County (CA1 9/4/2018)

Plaintiff’s decedent, an apartment manager, was shot by a member of the Mexican Mafia when he happened to walk into an empty apartment where the shooter was hiding. The shooter was awaiting trial for multiple felonies but had taken off his ankle bracelet, gotten a sawed-off shotgun, and gone back to working with the gang. It turned out that various organs of government, mentioned below, knew all this but had done nothing about it, so his wife sued them. The trial court dismissed, concluding that there was no duty.

The Court of Appeals affirms.

Most of the opinion deals with the claim against an employee of the Legal Defender’s office — a “mitigation specialist” — who, at the request of the jailed Mexican Mafia member with whom she was having an affair, had bailed the shooter out of jail and who was helping to coordinate his mission, which was to be a gang enforcer. Plaintiff argued, and the court agrees, that the various statutes against gangs announce a public policy against them. But she only pled guilty to one of those statutes and the court says that the ones she didn’t violate can’t create a duty for her. The one she did violate prohibits promoting or furthering the “criminal objectives of a criminal street gang.” But this murder wasn’t a criminal objective of the gang since it was just a “tragic random act of violence,” not something directed against a gang enemy. So, the shooter’s job was to shoot people but the person he shot was not a person who’s job his was to shoot so the statute announces no policy against the shooting. Because the legislature wanted to protect innocents caught in the crossfire of gang hits but not innocent but intended non-gang victims of gang enforcers.

Plaintiff also argued that a duty was created by the code of ethics of something called the National Alliance of Sentencing Advocates and Mitigation Specialists. But Arizona apparently hasn’t adopted the code and the court says it creates no duty to third parties anyway. (One of the advantages of the civil practice is unfamiliarity with the pseudo-professional bureaucrats who have attached themselves like barnacles to the criminal side of the profession. Apparently mere defense lawyers can’t be trusted to advocate for sentences or know about mitigation. In fairness to the bureaucrats, though, the court mentions in passing their advantage — other than saving money on lawyers’ salaries — to the prosecutorial apparatus: the lawyers’ rules of ethics don’t apply to them.)

Plaintiff argued that Restatement (Third) §7 created a duty. So the court stayed this appeal pending the Supreme Court’s opinion in Quiroz, which “plainly reject[ed] the approach to duty represented by §7.” And the relationship between the bureaucrat and the shooter was not the type of “special relationship” — e.g., parent-child, employer-employee — to trigger liability under Restatement (Third) §41.

So much for the employee. Plaintiff argued that the Legal Defender’s office itself owed a duty based on various ERs. But no “ethical rule supports imposition of a duty of care owed by a law firm to a non-client. Moreover, the supreme court’s preamble to the Rules of Professional Conduct specifically instructs against imposition of a duty based on the rules.”

The Sheriff’s office and the Police Department were also defendants because they also knew about the shooter’s activities before the murder. Plaintiff cited Austin (1984), in which a 911 caller had warned that a particular man at a particular place might be murdered; he was, and the Supreme Court reversed a directed verdict against his estate. But no case establishes a duty “to prevent a random act of violence such as that which happened here.” The “random act” language may seem to conflate the gang-statute analysis with the Austin analysis but the court’s point is that detailed knowledge of a victim can create a duty to him but detailed knowledge of a criminal can’t create a duty to any one person.

Finally, the court affirms the trial court’s denial of leave to file a third amended complaint, on the grounds that the amendment wouldn’t have made a difference. §12-820.05 provides that government isn’t liable for its employees’ felonies unless it knew of the employee’s “propensity for that action.” Plaintiff wanted to allege that a supervisor knew of the employee’s affair with the jailed Mexican Mafia member. The court says that the statute does not establish a duty but instead carves out an exception to the rule of governmental immunity.

(Opinion: Stair v. Maricopa County)