Hogue v. City of Phoenix – 7/14/2016
Arizona Court of Appeals Division One holds that police departments and their crime labs have no duty of care to investigate and apprehend offenders without delay in order to protect unknown future victims.
The Phoenix Police collected several swabs from the victim of a sexual assault. Some of the swabs were tested for DNA but the results were inconclusive. A lab supervisor chose to wait for a suspect list before performing further DNA testing. Police believed they were possibly looking for a serial rapist and later tied seven murders to the same unknown assailant who became known as the “Baseline Killer.” After compiling a suspect list, the police requested additional DNA testing on the other swabs which led to an immediate arrest. Approximately one year elapsed between the time the swabs were taken and the time that the later tests were completed.
A surviving victim and the families for the deceased victims, all of whom had been victimized after the DNA swabs were collected, sued the City of Phoenix. They argued that the city’s negligent failure to identify the attacker through DNA testing allowed the later crimes to occur. The city moved for summary judgment, arguing that it did not owe the victims any duty of care and that it had statutory immunity. The trial court granted summary judgment and the victim and families appealed.
Public entities and employees are not liable for “failure to make an arrest” under A.R.S. § 12-820.02(A)(1) unless they intended to cause injury or were grossly negligent. If the claim is in essence a failure-to-arrest claim, the qualified immunity statute applies. That immunity can only be overcome where there is gross negligence, which requires a duty arising from either a special relationship or public policy. The existence of a police lab creates no duty to perform testing immediately or to protect all citizens. Knowing that the suspect is a serial rapist also does not create a special relationship or duty to protect unknown future victims. Finally, neither the immunity statute itself nor the city code’s mandate to investigate and arrest offenders imposes a duty as a matter of public policy.
Judge Howe authored the opinion; Presiding Judge Cattani and Judge Thumma concurred.