Arizona Court of Appeals Division One Holds That Arizona’s Qualified Immunity Statute, A.R.S. § 12-820.02(A)(1), Applies when a Plaintiff Alleges That the State Failed to Properly Maintain and Communicate an Individual’s Criminal History, and Thus Failed to Retain the Individual in Custody.

On January 5, 2003, Miguel Angel Tolentino-Ortiz struck Amanda McCormick’s vehicle, killing her and injuring her passenger, Jonny Spear. In January 2002, Tolentino-Ortiz had been arrested in Cochise County. Although Tolentino-Ortiz had a lengthy criminal history, the Cochise County Superior Court placed him on unsupervised probation because it was unaware of his history due to an error in the processing of his fingerprints. In October 2002, Tolentino-Ortiz was arrested again and booked into Maricopa County Jail. Despite the fact that his arrest clearly violated the terms of his probation, jail personnel did not notify the Cochise County Probation Department. Several months later, Tolentino-Ortiz caused the vehicle collision that killed Ms. McCormick and injured Ms. Speer.

Vickie Greenwood, Ms. McCormick’s surviving parent, and Ms. Speer (“Plaintiffs”) filed suit against the State and Sherriff Joe Arpaio (“Defendants”) for negligence, arguing that they had breached a duty to properly maintain and disseminate Tolentino-Ortiz’s criminal history, communicate that history to other law enforcement agencies, or alert the Cochise County Probation Department of the probation violation. Defendants moved for summary judgment and the superior court granted their motions, ruling that they were entitled to qualified immunity under A.R.S. § 12-820.02(A)(1) and that Plaintiffs had offered no evidence of gross negligence. Plaintiffs appealed.

The Arizona Appeals Court affirmed, holding that Defendants were entitled to qualified immunity because Plaintiffs’ claims were covered by A.R.S. § 12-820.02(A)(1), which immunizes a public employee’s “failure to make an arrest or . . . retain an arrested person in custody.” The Court first explained that it narrowly construed immunity provisions, but would not construe an immunity provision so narrowly as to abrogate immunity altogether. Although it acknowledged that Plaintiffs did not explicitly allege that Defendants had failed to arrest or retain Tolentino-Ortiz, the Court found that “the essence of Plaintiffs’ allegations is that if Defendants had properly maintained and communicated Tolentino-Ortiz’s criminal history, he would have been in custody on January 5, 2003.”

In support of its holding, the Court cited Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 826 P.2d 1217 (App. 1991) and Clouse ex rel. Clouse v. State, 199 Ariz. 196, 16 P.3d 757 (2001), cases in which courts applied qualified immunity even though the plaintiffs did not specifically allege a failure to make an arrest or retain an individual in custody. The Court rejected Plaintiffs’ argument that the purpose of the qualified immunity statute is only to protect public employees when they have to make quick judgments whether to arrest or retain a person, and not for the less immediate act of keeping and transmitting records.

Judge Winthrop authored the majority opinion; Presiding Judge Brown and Judge Kessler