Maria Adame v. City of Surprise

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ADAME, Surviving mother of No. 21-16031
decedent, personal representative of
estate of Derek Adame, deceased; D.C. No.
CLARISA ABARCA, As parent of 2:17-cv-03200-
minor child, surviving daughter of GMS
decedent Derek Adame, on behalf of
C.A.,
Plaintiffs-Appellees, ORDER
CERTIFYING
v. QUESTION TO
THE
CITY OF SURPRISE, SUPREME
Defendant-Appellant, COURT OF
ARIZONA
and
SURPRISE POLICE DEPARTMENT;
JOSEPH GRUVER, Officer; SHAUN
MCGONIGLE, Officer,
Defendants.
Filed June 14, 2022
Before: Mary H. Murguia, Chief Judge, and Susan P.
Graber and Carlos T. Bea, Circuit Judges.
Order
2 ADAME V. CITY OF SURPRISE
SUMMARY *
Civil Rights/Arizona Law
The panel certified to the Supreme Court of Arizona the
following questions:
1. Does A.R.S. Section 12-820.05(B) provide
immunity from liability? If the latter, the Court need
not answer any further questions because our court
would lack jurisdiction over this interlocutory
appeal. If the former, please answer the following
additional questions.
2. With respect to the first sentence of subsection (B) of
this statute: If a law enforcement officer causes a
death by the use of “excessive force” (here, a
firearm), has the law enforcement officer committed
“a criminal felony” as a matter of law? If not, is a
conviction of a felony required? If not, is the
determination whether the law enforcement officer
committed “a criminal felony” a question of fact for
the jury or a question of fact only for “the court”?
How does the determination whether an officer’s use
of “excessive force” was “justified” or “unjustified”
pursuant to A.R.S. section 13-413 affect this inquiry?
Is the determination of whether the public
employee’s relevant acts or omissions were
“justified” or “unjustified” for the jury to make, or
for the court to make? If this determination is for the
court to make, for purposes of summary judgment, in
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ADAME V. CITY OF SURPRISE 3
applying A.R.S. section 12-820.05(B), is the
reviewing court required to assume that the relevant
acts or omissions of the public employee were
“unjustified,” given A.R.S. section 13-413?
3. With respect to the second sentence of subsection (B)
of this statute: Does this sentence apply only to a
public employee’s operation or use of a motor
vehicle? Or, if the public employee’s act takes place
because another person operates or uses a motor
vehicle (where, for example, a law enforcement
officer fires because someone else is stealing a car or
driving a car dangerously toward another person),
does the public employee’s act nonetheless “aris[e]
out of the operation or use of a motor vehicle”? What
is the required degree of causal connection, if any,
between the “acts or omissions arising out of the
operation or use of a motor vehicle” and the “losses
that arise out of and are directly attributable to an act
or omission determined by a court to be a criminal
felony”?
4 ADAME V. CITY OF SURPRISE
ORDER
We are asked to determine whether a police officer’s
killing of the decedent, Derek Adame, arose out of Adame’s 1
“operation or use of a motor vehicle” pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-820.05(B). This
central question of state law is dispositive of the instant case,
and there is no controlling precedent from the Arizona
Supreme Court. Ariz. R. Sup. Ct. 27(a). Therefore, we
respectfully certify this question of law to the Arizona
Supreme Court pursuant to Rule 27 of the Rules of the
Supreme Court of Arizona.
I. Factual Background
Around 1:00 a.m. on November 26, 2016, Officer Joseph
Gruver responded to a report of a “suspicious” Nissan
Sentra. See Adame v. Gruver, 819 F. App’x 526, 527 (9th
Cir. 2020) (“Adame I”). 2 He ran the vehicle’s license plate
number and learned that it was stolen. See id. Officer
Gruver then put on his police car’s bright “takedown” lights
and approached the vehicle. Id. at 528. Inside was Adame,
whom Officer Gruver observed “leaning over to the side” in
the driver’s seat, id., though it was determined that Adame
was likely asleep in the parked car, see id. at 530 (Schroeder,
J., dissenting); see also Adame v. City of Surprise, No. CV-
17-03200-PHX-GMS, 2019 WL 2247703, at *1 (D. Ariz.
May 24, 2019), rev’d and remanded sub nom. Adame I,
819 F. App’x 526. “Officer Gruver drew his firearm, opened
1
All references to Adame herein pertain to the decedent. Any
references to “Plaintiffs-Appellees” otherwise include Adame’s
captioned representatives.
2
We incorporate the undisputed facts contained in Adame I for
purposes of this certification order.
ADAME V. CITY OF SURPRISE 5
the passenger door, announced himself as a police officer,
and ordered Adame to show his hands and keep them visible
on the steering wheel.” Adame I, 819 F. App’x at 528.
Adame complied while Officer Gruver awaited backup. See
id.As backup arrived, however, Adame attempted to flee,
starting the vehicle’s engine with his right hand. See id.“Officer Gruver immediately leaned into the vehicle, placing
his left knee on the passenger seat as he reached with his left
hand for Adame.” Id. Adame nevertheless accelerated the
vehicle, after which “Officer Gruver fired two shots,” killing
Adame instantly. Id. “The Nissan crashed into a parked
truck a short distance away” after the shooting. Id.Plaintiffs-Appellees’ first amended complaint, filed on
behalf of Adame on December 18, 2017, alleged
(1) violations of 42 U.S.C. § 1983, namely the Fourth
Amendment’s prohibition against excessive force, as well as
a Fourteenth Amendment due process violation against
Officer Gruver and the City of Surprise (the “City”), (2) a
state law wrongful death claim against the City, and (3) a
racial discrimination claim against Officer Gruver and the
City pursuant to 42 U.S.C. § 1981. By the time the
Defendants filed a motion for summary judgment, the only
remaining claims were the § 1983 excessive force and due
process claims against Officer Gruver, and the state law
wrongful death claim against the City.
The Defendants filed a motion for summary judgment on
January 11, 2019, asserting, among other things, qualified
immunity as to the excessive force and due process claims
against Officer Gruver. The district court denied Officer
Gruver’s motion for summary judgment and, in Adame I, we
reversed the district court’s order. See Adame I, 819 F.
App’x at 527. We held that Officer Gruver’s “split-second
6 ADAME V. CITY OF SURPRISE
decision to shoot Adame, even if it violated Adame’s
constitutional rights, still entitle[d] him to qualified
immunity.” Id. at 529–30. We then remanded the case to
the district court for resolution of the sole remaining claim—
the state-law wrongful death claim against the City.
On June 11, 2021, the district court again denied
summary judgment. It reasoned that “two statutes govern
and limit the scope of civil liability for harm arising out of
force employed by law enforcement officers” in this matter:
(1) A.R.S. section 13-413, under which “civil liability cannot
be imposed on a law enforcement officer for ‘engaging in
[justified] conduct,’ regardless of the theory of recovery,”
(alteration in original) (quoting Ryan v. Napier, 425 P.3d
230, 239 (Ariz. 2021)) and (2) A.R.S. section 12-820.05(B),
which provides that, “where a public employee commits a
felony, a public entity can only be liable for the act if it had
knowledge of the employee’s propensity for that action,”
Adame v. City of Surprise, No. CV-17-03200-PHX-GMS,
2021 WL 2416802, at *2 (D. Ariz. June 11, 2021), though
the “subsection does not apply to acts or omissions arising
out of the operation or use of a motor vehicle,” Ariz. Rev.
Stat. § 12-820.05(B). The district court noted that “even if
the shooting is presumed unjustified, Plaintiffs only prevail
if” Officer Gruver’s conduct did not amount to a criminal
felony, or if Officer Gruver’s “acts or omissions [arose] out
of the operation or use of a motor vehicle.” Id. (quoting
section 12-820.05(B)). The district court ultimately
concluded that “[t]here is, at the very least a genuine issue of
material fact as to whether Officer Gruver’s killing of
[Adame] arose in substantial part out of [Adame]’s
engagement of, and thus operation or use of, a motor
vehicle.” Id. at *3.
The City of Surprise timely appealed, and the district
court invited the parties to argue whether the Ninth Circuit
ADAME V. CITY OF SURPRISE 7
has jurisdiction to consider this interlocutory appeal. See
28 U.S.C. § 1291.
II. Explanation of Certification
This case presents two principal issues of first
impression: (1) whether A.R.S. section 12-820.05(B)
provides immunity from suit or a defense to liability, and
(2) whether Adame’s “operation or use of a motor vehicle”
falls within A.R.S. section 12-820.05(B)’s motor vehicle
exception.
1. We have “interlocutory appellate jurisdiction to
review” a district court’s denial of summary judgment on
state-law claims only when “under state law, the immunity
functions as an immunity from suit,” not “a mere defense to
liability.” Tuuamalemalo v. Greene, 946 F.3d 471, 476 (9th
Cir. 2019) (per curiam) (quoting Liberal v. Estrada,
632 F.3d 1064, 1074 (9th Cir. 2011); see also Liberal,
632 F.3d at 1074 (noting that the portion of an order denying
summary judgment as to state-law claims was “not an
appealable final judgment under § 1291”). “The rationale
. . . is that an interlocutory appeal is necessary to vindicate a
state entity’s entitlement to immunity from suit, which
would be lost if a case were permitted to go to trial.” Taylor
v. County of Pima, 913 F.3d 930, 934 (9th Cir. 2019). An
immunity from liability, however, “may be vindicated fully
after final judgment, so the collateral-order doctrine does not
encompass an interlocutory appeal from a denial of
immunity from liability.” Id.; see also SolarCity Corp. v.
Salt River Project Agric. Improvement & Power Dist.,
859 F.3d 720, 725 (9th Cir. 2017).
In other words, if A.R.S. section 12-820.05(B) provides
immunity from suit, a district court’s order dismissing the
action would be final for purposes of appellate review. See
8 ADAME V. CITY OF SURPRISE
P. R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 142 (1993) (explaining that, under 28 U.S.C.
§ 1291, appellate courts have jurisdiction over “final
decisions of the district courts,” not decisions which are “but
steps towards final judgment in which they will merge”
(internal quotation marks omitted)). But if the statute
provides only a defense to liability, the district court’s ruling
is not final because it may be reviewed at a later phase of the
litigation. See id.Two District of Arizona cases have specifically held that
A.R.S. section 12-820.05(B) provides a public entity with
immunity from suit, not just from liability. See Cameron v.
Gila County, No. CV11-80-PHX-JAT, 2011 WL 2115657,
at *5 (D. Ariz. May 26, 2011) (“Because § 12-820.05(B)’s
immunity is ‘intended to protect a public entity from suit, not
just liability, it should be resolved by the court at the earliest
possible stage in the litigation.’” (quoting Al-Asadi v. City of
Phoenix, No. CV-09-47-PHX-DGC, 2010 WL 3419728,
at *6 (D. Ariz. Aug. 27, 2010))). And other courts have
suggested, without clearly stating, that section 12-820.05(B)
confers immunity from suit. See Larson v. Berumen,
187 F.3d 647 (9th Cir. 1999) (unpublished table decision)
(analyzing A.R.S. section 12-820.05(B) on appeal without
considering the current jurisdictional issue); Gallagher v.
Tucson Unified Sch. Dist., 349 P.3d 228, 231 (Ariz. Ct. App.
2015) (stating that, “[b]y its clear and unambiguous
language, § 12-820.05(B) insulates a public entity from
liability for loss caused by an employee’s felony criminal
acts,” without expressly clarifying whether the statute
confers immunity from suit rather than liability).
Arizona Revised Statutes section 12-820.05(B) is
labeled as a statute offering immunity, not a mere defense to
liability. See Ariz. Rev. Stat. § 12-820-05 (Other
Immunities). And other subsections of the statute are
ADAME V. CITY OF SURPRISE 9
similarly labeled as statutes of immunity, while at least one
specifically enumerates an affirmative defense. Compare
Ariz. Rev. Stat. §§ 12-820.01 (Absolute Immunity), and 12-
820.02 (Qualified Immunity), with § 12-820.03 (Affirmative
Defense; Resolution by Trial). Still, because this issue
involves the interpretation of an Arizona statute and the
Arizona Supreme Court has not spoken on the matter, we
certify whether A.R.S. section 12-820.05(B) provides
immunity from suit or a defense to liability.
2. Both parties agree that Arizona state courts have yet
to clarify the scope of A.R.S. section 12-820.05(B)’s motor
vehicle exception. A.R.S. section 12-820.05(B) reads:
A public entity is not liable for losses that
arise out of and are directly attributable to an
act or omission determined by a court to be a
criminal felony by a public employee unless
the public entity knew of the public
employee’s propensity for that action. This
subsection does not apply to acts or
omissions arising out of the operation or use
of a motor vehicle.
We previously recognized that Arizona courts have
interpreted the words “operation or use of a motor vehicle”
in construing insurance policies. See Larson, 187 F.3d
at 647. In those cases, an act arises out of the operation or
use of a motor vehicle when there is a causal relationship
between the injury and the ownership, maintenance, or use
of a vehicle. See, e.g., Ruiz v. Farmers Ins. Co. of Ariz.,
865 P.2d 762, 762–64 (Ariz. 1993) (holding “that the
plaintiff’s injuries [sustained in a car-to-car shooting] did not
‘arise out of the ownership, maintenance or use’ of an
uninsured vehicle” because “[w]hat injured Ruiz was how
the shotgun was used, not how the car was used”); Mazon v.
10 ADAME V. CITY OF SURPRISE
Farmers Ins. Group, 491 P.2d 455, 457 (Ariz. 1971) (“[W]e
can find no causal relationship between an injury resulting
from a stone thrown by an unknown person from an
unidentifiable vehicle, and the ownership, maintenance or
use of that vehicle.”); Benevides v. Ariz. Prop. & Cas. Ins.
Guar. Fund, 911 P.2d 616, 619 (Ariz. Ct. App. 1995)
(determining “that, for coverage to exist, an insured must be
using the car pursuant to the ‘inherent nature’ of the
vehicle[,]” which did not extend to being shot for playing the
stereo too loudly); Love v. Farmers Ins. Grp., 588 P.2d 364,
366–67 (Ariz. Ct. App. 1978) (finding that “the decedent’s
death did not arise from the ownership, maintenance or use
of the car” where “[t]wo assailants abducted the decedent,”
used his “car to take him to a remote spot in the desert,” and
beat him to death); Brenner v. Aetna Ins. Co., 445 P.2d 474,
477–78 (Ariz. Ct. App. 1968) (“[T]he fact that both the tort-
feasor and the injured party were ‘using’ the car at the time
does not make the injury one ‘arising out of the . . . use’ of
the vehicle” where the appellant was accidentally shot while
riding as a passenger in the appellee’s car); cf. Morari v.
Atlantic Mut. Fire Ins. Co., 468 P.2d 564, 567 (Ariz. 1970)
(finding that the unloading of a gun from a pickup truck was
connected to the use of the vehicle for the purposes of
automobile insurance policy because the “very purpose” of
the vehicle was to be “operated and used in hunting”).
Accordingly, in Arizona, the phrase “arising out of the
operation or use of a motor vehicle” has been construed in
the insurance context to require a causal relationship
between the use of a vehicle and any underlying harm,
thereby justifying the need for an insurance company’s
compensation for such harm. However, the Arizona
decisions cited above specifically analyzed the underlying
language of the vehicle owners’ insurance contracts to
determine whether an incident warranted coverage. See,
ADAME V. CITY OF SURPRISE 11
e.g., Benevides, 911 P.2d at 619 (“[T]he insurer spells out its
intent clearly in its policy.”). While these cases provide
persuasive guidance for interpreting the statute, they do not
necessarily provide binding guidance in this context, as they
rely on principles of contract interpretation.
It also bears mentioning that A.R.S. section 12-
820.05(B)’s motor vehicle exception has not been discussed
in cases with similar facts to the case at bar, making
certification even more helpful in understanding the
exception’s scope. See, e.g., Harris v. City of Phoenix, No.
CV-20-00078-PHX-DLR, 2021 WL 4942662, at *1
(D. Ariz. Oct. 22, 2021) (where decedent “was shot to death
by Officer Bertz on January 10, 2019 after officers ordered
him from his car and he fled,” the court agreed with the city’s
argument that “a municipality cannot be held liable for its
employee’s intentional use of force unless it actually knows
of the employee’s propensity to commit that particular act”).
The type of immunity conferred by A.R.S. section 12-
820.05(B), as well as the statute’s general scope, are
unanswered questions of state law that are dispositive in the
instant case and that implicate issues of significant
precedential and public policy importance. For these
reasons, after careful consideration, we exercise our
discretion to certify these questions to the Arizona Supreme
Court. See also Kremen v. Cohen, 325 F.3d 1035, 1037–38
(9th Cir. 2003) (listing the factors considered when
determining whether certification is appropriate).
III. Certified Questions
1. Does A.R.S. Section 12-820.05(B) provide immunity
from suit or only immunity from liability? If the latter,
the Court need not answer any further questions because
our court would lack jurisdiction over this interlocutory
12 ADAME V. CITY OF SURPRISE
appeal. If the former, please answer the following
additional questions.
2. With respect to the first sentence of subsection (B) of this
statute: If a law enforcement officer causes a death by
the use of “excessive force” (here, a firearm), has the law
enforcement officer committed “a criminal felony” as a
matter of law? If not, is a conviction of a felony
required? If not, is the determination whether the law
enforcement officer committed “a criminal felony” a
question of fact for the jury or a question of fact only for
“the court”? How does the determination whether an
officer’s use of “excessive force” was “justified” or
“unjustified” pursuant to A.R.S. section 13-413 affect
this inquiry? Is the determination of whether the public
employee’s relevant acts or omissions were “justified”
or “unjustified” for the jury to make, or for the court to
make? If this determination is for the court to make, for
purposes of summary judgment, in applying A.R.S.
section 12-820.05(B), is the reviewing court required to
assume that the relevant acts or omissions of the public
employee were “unjustified,” given A.R.S. section 13-
413?
3. With respect to the second sentence of subsection (B) of
this statute: Does this sentence apply only to a public
employee’s operation or use of a motor vehicle? Or, if
the public employee’s act takes place because another
person operates or uses a motor vehicle (where, for
example, a law enforcement officer fires because
someone else is stealing a car or driving a car
dangerously toward another person), does the public
employee’s act nonetheless “aris[e] out of the operation
or use of a motor vehicle”? What is the required degree
of causal connection, if any, between the “acts or
omissions arising out of the operation or use of a motor
ADAME V. CITY OF SURPRISE 13
vehicle” and the “losses that arise out of and are directly
attributable to an act or omission determined by a court
to be a criminal felony”?
IV. Counsel Information
The names and addresses of counsel, as required by Ariz.
R. Sup. Ct. 27(a)(3)(C), are as follows:
James M. Jellison, #012763, Jellison Law
Offices, PLLC, 36889 North Tom Darlington
Drive, Suite #B7, Box 2800, #304, Carefree,
Arizona 85377, for Defendant-Appellant
City of Surprise
Dale K. Galipo, Esq. and Eric Valenzuela,
Esq., Law Offices of Dale K. Galipo, 21800
Burbank Boulevard, Suite 310, Woodland
Hills, California 91367; and Anthony J.
Ramirez, Esq., Warnock Mackinlay Law,
PLLC, 7135 E. Camelback Road, Suite F-
240, Scottsdale, Arizona 85251, for Plaintiff-
Appellees Maria Adame, et. al.
V. Conclusion
The Clerk of Court shall forward an original and six
copies of this certification order, under official seal, to the
Arizona Supreme Court. The Clerk is also ordered to
transmit a copy of the Excerpts of Record filed in this appeal
to the Arizona Supreme Court and, if requested by the
Arizona Supreme Court, provide all or part of the district
court record not included in the Excerpts of Record. Ariz.
R. Sup. Ct. 27(a)(5).
14 ADAME V. CITY OF SURPRISE
Submission of this appeal for decision is vacated and
deferred pending the Arizona Supreme Court’s final
response to this certification order. The Clerk is directed to
administratively close this docket, pending further order.
The parties shall notify the Clerk of this court within
fourteen days of the Arizona Supreme Court’s acceptance or
rejection of certification, and again, if certification is
accepted, within fourteen days of the Arizona Supreme
Court’s issuance of a decision.
QUESTION CERTIFIED; PROCEEDINGS
STAYED.
/s/ Mary H. Murguia
Mary H. Murguia,
Chief Circuit Judge