Noriega v. Town of Miami, 776 Ariz. Adv. Rep. 24 (App. Div. II, October 26, 2017) (J. Vasquez)
WHILE POLICE HAVE QUALIFIED IMMUNITY FOR FAILING TO ARREST SOMEONE WHERE POLICE KNOW OF THREAT TO HARM A SPECIFIC INDIVIDUAL AND STATE TO THAT POTENTIAL VICTIM THAT THEY CAN ARREST THE PERPETRATOR A SPECIAL RELATIONSHIP MAY BE CREATED TO SUPPORT A GROSS NEGLIGENCE CLAIM

Henry Moreno approached a neighbor and claimed plaintiff was practicing witchcraft and had raped Moreno's 81 year old mother. He further threatened to kill plaintiff while patting his shirt as if he had a gun.  Later Moreno went to the Miami  police station making the same claims against plaintiff but behaving irrationally, sweating, scratching and allowing his pants to drop to the floor. The police chief thought he was on drugs and sent him home to write down his claims and bring the writing back in.  Later the police chief spoke to plaintiff where he learned of the threat to kill plaintiff. The chief then allegedly stated, "now I can arrest him." Moreno returned to the police station twice more making similar claims but the chief did not arrest him. Ultimately he did in fact shoot plaintiff in the head. Thereafter the police chief was heard to say, "Off the record, I knew he was going to shoot him."

Plaintiff survived the shooting and sued the City of Miami alleging negligence and gross negligence on behalf of the police chief; Specifically, that the police were negligent in their investigation and in fulfilling their duty to protect him. The City was given summary judgment by the trial court based upon qualified immunity under A.R.S. §12-820.02(A)(1). The court likewise found no special relationship between the plaintiff and defendant to support the gross negligence claim and determined there were no facts presented to support intentional or gross conduct in any event.  The Arizona Court of Appeals affirmed in part, reversed in part and remanded.

A.R.S. §12-820.02(A)(1) in essence states the police are immune from suit for failing to arrest someone unless the failure was the result of intentional or gross negligence. In analyzing the factual support for plaintiff's claims the court held that the attempt to take the claim outside the qualified immunity statute by alleging the theory was negligent investigation and failure to protect, failed. Plaintiff's theory and factual basis to support it in truth pointed to defendant's failure to arrest. The legislative purpose behind the statute must be recognized.

On this latter theory of gross negligence the court found a jury could indeed conclude the police chief was grossly negligent. First the court found that when the police learn of a specific threat and tell the potential victim they will take care of it a special relationship is created supporting a duty to the potential victim separate from the general obligation to protect the public at large.  While plaintiff's assertion that the chief, after learning of Moreno's threat to kill plaintiff, said, "now I can arrest him" was denied by the chief, a question of fact for the jury was created. If the jury were to find the chief indeed made this statement the special relationship necessary to create the duty would exist.

A party is grossly or wantonly negligent if he
acts or fails to act when he knows or has reason to
know facts which would lead a reasonable person to
realize that his conduct not only creates an
unreasonable risk of bodily harm to others but also
involves a high probability that substantial harm will
result.

Here the court found sufficient facts alleged by plaintiff that if proven  to a jury's satisfaction could support a finding of gross negligence.