qualified immunity in Arizona

2022Availability of Privilege ¶10 A defendant may “escape liability” for defamation under an absolute or qualified privilege when her speech is “in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation.” Green Acres Tr. v. London, 141 Ariz. 609, 612 (1984) (quoting Prosser, Law of Torts (4th ed. 1971) § 114, p. 776 (footnote omitted)); see also Chamberlain v. Mathis, 151 Ariz. 551, 554 (1986). ¶11 At issue here is the qualified privilege, which “is based on the social utility of protecting statemen

2022Availability of Privilege ¶10 A defendant may “escape liability” for defamation under an absolute or qualified privilege when her speech is “in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation.” Green Acres Tr. v. London, 141 Ariz. 609, 612 (1984) (quoting Prosser, Law of Torts (4th ed. 1971) § 114, p. 776 (footnote omitted)); see also Chamberlain v. Mathis, 151 Ariz. 551, 554 (1986). ¶11 At issue here is the qualified privilege, which “is based on the social utility of protecting statemen

2011But freely permitting lawsuits against government officials “can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Id.; accord Harlow, 457 U.S. at 807 , 102 S.Ct. 2727 (expressing “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority”). ¶ 14 The qualified immunity doctrine arose to “aceommodate[ ] these conflicting concerns,” Anderson, 483 U.S. at 638

2011But freely permitting lawsuits against government officials “can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Id.; accord Harlow, 457 U.S. at 807 , 102 S.Ct. 2727 (expressing “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority”). ¶ 14 The qualified immunity doctrine arose to “aceommodate[ ] these conflicting concerns,” Anderson, 483 U.S. at 638

2024Qualified immunity protects public officials from suits arising from acts done within the scope of their job functions that “inherently require[] judgment or discretion.” Spooner v. City of Phoenix, 246 Ariz. 119, 123-24, ¶ 9 (App. 2018) (quoting Chamberlain, 151 Ariz. at 555 ).

2022Availability of Privilege ¶10 A defendant may “escape liability” for defamation under an absolute or qualified privilege when her speech is “in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation.” Green Acres Tr. v. London, 141 Ariz. 609, 612 (1984) (quoting Prosser, Law of Torts (4th ed. 1971) § 114, p. 776 (footnote omitted)); see also Chamberlain v. Mathis, 151 Ariz. 551, 554 (1986). ¶11 At issue here is the qualified privilege, which “is based on the social utility of protecting statemen

2022See Burns v. Davis, 196 Ariz. 155, 160, ¶ 13 (quoting Melton v. Slonsky, 19 Ariz. App. 65, 67 (App. 1973)). 3 ABRIANI v. SLAUGHTER, et al.

2006See Burns v. Davis, 196 Ariz. 155, ¶ 35 , 993 P.2d 1119, 1128 (App.1999).

2026Consequently, the doctrine of qualified immunity “gives ample room for mistaken judgments” but is overcome when conduct is “plainly incompetent or . . . knowingly [a] violat[ion of] the law.” Spooner, 246 Ariz. at 124 , ¶ 9 (quoting State v. Donaldson, 185 Ariz. 47, 50 (App. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991))); Jennings v. Agne, 254 Ariz. 174 , 178, ¶ 15 (App. 2022) (“If immunity applies, an officer is shielded from liability unless the conduct rises to gross negligence or recklessness.”). ¶15 Here, the court reasoned that Head “provided no evidence that Defendant[s] kn

2026Consequently, the doctrine of qualified immunity “gives ample room for mistaken judgments” but is overcome when conduct is “plainly incompetent or . . . knowingly [a] violat[ion of] the law.” Spooner, 246 Ariz. at 124 , ¶ 9 (quoting State v. Donaldson, 185 Ariz. 47, 50 (App. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991))); Jennings v. Agne, 254 Ariz. 174 , 178, ¶ 15 (App. 2022) (“If immunity applies, an officer is shielded from liability unless the conduct rises to gross negligence or recklessness.”). ¶15 Here, the court reasoned that Head “provided no evidence that Defendant[s] kn

1999Melton, 19 Ariz.App. at 67 , 504 P.2d at 1290 ; see also Restatement § 594 emts. b, e (discussing the competing policies). *161 ¶ 14 In Melton , we found the competing policies best served by the qualified privilege for statements made by a volunteer witness who was neither sworn in nor subpoenaed prior to speaking at a public hearing before an administrative board.

1999Melton, 19 Ariz.App. at 67 , 504 P.2d at 1290 ; see also Restatement § 594 emts. b, e (discussing the competing policies). *161 ¶ 14 In Melton , we found the competing policies best served by the qualified privilege for statements made by a volunteer witness who was neither sworn in nor subpoenaed prior to speaking at a public hearing before an administrative board.

1991See Roscoe v. Schoolitz, 105 Ariz. 310, 314 , 464 P.2d 333, 337 (1970).

1991See Roscoe v. Schoolitz, 105 Ariz. 310, 314 , 464 P.2d 333, 337 (1970).

2011But freely permitting lawsuits against government officials “can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Id.; accord Harlow, 457 U.S. at 807 , 102 S.Ct. 2727 (expressing “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority”). ¶ 14 The qualified immunity doctrine arose to “aceommodate[ ] these conflicting concerns,” Anderson, 483 U.S. at 638

2011But freely permitting lawsuits against government officials “can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Id.; accord Harlow, 457 U.S. at 807 , 102 S.Ct. 2727 (expressing “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority”). ¶ 14 The qualified immunity doctrine arose to “aceommodate[ ] these conflicting concerns,” Anderson, 483 U.S. at 638

2026Id.; see also Spooner, 246 Ariz. at 124, ¶ 11 (in law enforcement, criminal investigations include “personal deliberation and individual professional judgment that necessarily reflect the facts of a given situation”). ¶14 Qualified immunity does not protect an official’s liability though when the government official “knew or should have known that he was acting in violation of established law or acted in reckless disregard of 4 HEAD v. MESA, et al.

2026Consequently, the doctrine of qualified immunity “gives ample room for mistaken judgments” but is overcome when conduct is “plainly incompetent or . . . knowingly [a] violat[ion of] the law.” Spooner, 246 Ariz. at 124 , ¶ 9 (quoting State v. Donaldson, 185 Ariz. 47, 50 (App. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991))); Jennings v. Agne, 254 Ariz. 174 , 178, ¶ 15 (App. 2022) (“If immunity applies, an officer is shielded from liability unless the conduct rises to gross negligence or recklessness.”). ¶15 Here, the court reasoned that Head “provided no evidence that Defendant[s] kn

2026Consequently, the doctrine of qualified immunity “gives ample room for mistaken judgments” but is overcome when conduct is “plainly incompetent or . . . knowingly [a] violat[ion of] the law.” Spooner, 246 Ariz. at 124 , ¶ 9 (quoting State v. Donaldson, 185 Ariz. 47, 50 (App. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991))); Jennings v. Agne, 254 Ariz. 174 , 178, ¶ 15 (App. 2022) (“If immunity applies, an officer is shielded from liability unless the conduct rises to gross negligence or recklessness.”). ¶15 Here, the court reasoned that Head “provided no evidence that Defendant[s] kn

2026Consequently, the doctrine of qualified immunity “gives ample room for mistaken judgments” but is overcome when conduct is “plainly incompetent or . . . knowingly [a] violat[ion of] the law.” Spooner, 246 Ariz. at 124 , ¶ 9 (quoting State v. Donaldson, 185 Ariz. 47, 50 (App. 1996) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991))); Jennings v. Agne, 254 Ariz. 174 , 178, ¶ 15 (App. 2022) (“If immunity applies, an officer is shielded from liability unless the conduct rises to gross negligence or recklessness.”). ¶15 Here, the court reasoned that Head “provided no evidence that Defendant[s] kn

2016See Gonzales v. Nat’l Broadcasting Co., Inc., 194 F.3d 29, 34 (2d Cir. 1998) ("[W]e now hold that, while nonconfidential press materials are protected by a qualified privilege, the showing needed to overcome the privilege is less demanding than the showing required where confidential materials are sought.”); Goldberg v. Amgen, Inc., 123 F.Supp.3d 9, 17 (D.D.C. 2015) ("Consequently, the showing needed to overcome a reporter's privilege when the information sought is noncon-fidential is less demanding than the showing required where confidential materials are sought.”); see also United States v.

2016Supp. 3d 9, 17 (D.D.C. 2015) (“Consequently, the showing needed to overcome a reporter’s privilege when the information sought is nonconfidential is less demanding than the showing required where confidential materials are sought.”); see also United States v. Cutler, 6 F.3d 67, 71 (2d Cir. 1993) (stating that when a party seeks confidential material, “disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources”) (emphasis added). 11

2016See Gonzales v. Nat’l Broadcasting Co., Inc., 194 F.3d 29, 34 (2d Cir. 1998) ("[W]e now hold that, while nonconfidential press materials are protected by a qualified privilege, the showing needed to overcome the privilege is less demanding than the showing required where confidential materials are sought.”); Goldberg v. Amgen, Inc., 123 F.Supp.3d 9, 17 (D.D.C. 2015) ("Consequently, the showing needed to overcome a reporter's privilege when the information sought is noncon-fidential is less demanding than the showing required where confidential materials are sought.”); see also United States v.

2016See Gonzales v. Nat’l Broadcasting Co., Inc., 194 F.3d 29, 34 (2d Cir. 1998) (“[W]e now hold that, while nonconfidential press materials are protected by a qualified privilege, the showing needed to overcome the privilege is less demanding than the showing required where confidential materials are sought.”); Goldberg v. Amgen, Inc., 123 Fed.

2015“A conditional privilege is abused and forfeited when a defendant acts with malice in fact.” Hirsch v. Cooper, 153 Ariz. 454, 458 , 737 P.2d 1092, 1096 (App.1986) (citation omitted), disapproved on other grounds by Godbehere, 162 Ariz. at 339 n. 1, 783 P.2d at 785 n. 1.

2015“A conditional privilege is abused and forfeited when a defendant acts with malice in fact.” Hirsch v. Cooper, 153 Ariz. 454, 458 , 737 P.2d 1092, 1096 (App.1986) (citation omitted), disapproved on other grounds by Godbehere, 162 Ariz. at 339 n. 1, 783 P.2d at 785 n. 1.

2015Under § 32-1451(A), regarding complaints to the AMB, “the common-law absolute privilege has been fully abrogated in favor of a qualified privilege for those acting ‘in good faith.’ ” Advanced Cardiac Specialists, 222 Ariz. at 387, ¶ 11 , 214 P.3d at 1028 .

2015Under § 32-1451(A), regarding complaints to the AMB, “the common-law absolute privilege has been fully abrogated in favor of a qualified privilege for those acting ‘in good faith.’ ” Advanced Cardiac Specialists, 222 Ariz. at 387, ¶ 11 , 214 P.3d at 1028 .

2011But freely permitting lawsuits against government officials “can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Id.; accord Harlow, 457 U.S. at 807 , 102 S.Ct. 2727 (expressing “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority”). ¶ 14 The qualified immunity doctrine arose to “aceommodate[ ] these conflicting concerns,” Anderson, 483 U.S. at 638

2011But freely permitting lawsuits against government officials “can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Id.; accord Harlow, 457 U.S. at 807 , 102 S.Ct. 2727 (expressing “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority”). ¶ 14 The qualified immunity doctrine arose to “aceommodate[ ] these conflicting concerns,” Anderson, 483 U.S. at 638

1992It is true that Harlow involved a lawsuit against federal and not state officials, but the Court has applied the same qualified immunity rules in lawsuits against state officers under § 1983 as in lawsuits against federal officers being sued under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971); see Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978) (absent congressional direction to the contrary, it is untenable to draw distinction for purposes of immunity law between lawsuits brought against state off

1992It is true that Harlow involved a lawsuit against federal and not state officials, but the Court has applied the same qualified immunity rules in lawsuits against state officers under § 1983 as in lawsuits against federal officers being sued under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971); see Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978) (absent congressional direction to the contrary, it is untenable to draw distinction for purposes of immunity law between lawsuits brought against state off

2017Contract Bridge League, 122 Ariz. 399 , 400 (App. 1979) (holding that a qualified privilege applied to statements published by bridge club members about disciplining one of the club’s members); Restatement (Second) of Torts, §§ 594-96.

2016See Aspell v. American Contract Bridge League, 122 Ariz. 399 , 400 (App. 1979) (holding that a qualified privilege applied to statements published by bridge club members about disciplining one of the 11 However, we cannot say that Shurts’ statements were reasonably related to SFS to be “of and concerning” SFS.

2016The privilege “applies to a journalist’s resource materials even in the absence of the element of confidentiality.” Id. at 1295. “[T]he absence of confidentiality may be considered in the balance of competing interests as a factor that diminishes the journalist’s, and the public’s, interest in non-disclosure.” Id. ¶26 Once the reporter invokes the privilege, “the burden shifts to the requesting party to demonstrate a sufficiently compelling need for the 3 Although the trial court found that the Media Shield Law “codified” the First Amendment protection, the statute provides independent protect

2016The privilege “applies to a journalist’s resource materials even in the absence of the element of confidentiality.” Id. at 1295. “[T]he absence of confidentiality may be considered in the balance of competing interests as a factor that diminishes the journalist’s, and the public’s, interest in non-disclosure.” Id. ¶26 Once the reporter invokes the privilege, “the burden shifts to the requesting party to demonstrate a sufficiently compelling need for the 3 Although the trial court found that the Media Shield Law “codified” the First Amendment protection, the statute provides independent protect

2016Laws, Ch. 285, § 1 (2nd Reg. Sess.) (“... therefore the government should not have the duty to do everything that might be done ...”); Walls, 170 Ariz. at 594 , 826 P.2d at 1220 (stating that the immunity statute “creates a qualified immunity for public employees and entities for certain actions); Clouse ex rel.

2016Laws, Ch. 285, § 1 (2nd Reg. Sess.) (“... therefore the government should not have the duty to do everything that might be done ...”); Walls, 170 Ariz. at 594 , 826 P.2d at 1220 (stating that the immunity statute “creates a qualified immunity for public employees and entities for certain actions); Clouse ex rel.

2016Clouse v. State, 199 Ariz. 196 , 204 ¶ 26, 16 P.3d 757, 764 (2001) (finding that the legislature acted within its constitutional limits in enacting the immunity statute, which “explicitly confers qualified ... immunity” and in deciding that it “furthers a valid public policy”). ¶ 18 Second, the sections of the Phoenix City Code that the Families cite merely articulate the general responsibilities of the police department’s director and do not impose a duty upon all members of the police department, including those of the Bureau.

2016Clouse v. State, 199 Ariz. 196 , 204 ¶ 26, 16 P.3d 757, 764 (2001) (finding that the legislature acted within its constitutional limits in enacting the immunity statute, which “explicitly confers qualified ... immunity” and in deciding that it “furthers a valid public policy”). ¶ 18 Second, the sections of the Phoenix City Code that the Families cite merely articulate the general responsibilities of the police department’s director and do not impose a duty upon all members of the police department, including those of the Bureau.

2015“A conditional privilege is abused and forfeited when a defendant acts with malice in fact.” Hirsch v. Cooper, 153 Ariz. 454, 458 , 737 P.2d 1092, 1096 (App.1986) (citation omitted), disapproved on other grounds by Godbehere, 162 Ariz. at 339 n. 1, 783 P.2d at 785 n. 1.

2015“A conditional privilege is abused and forfeited when a defendant acts with malice in fact.” Hirsch v. Cooper, 153 Ariz. 454, 458 , 737 P.2d 1092, 1096 (App.1986) (citation omitted), disapproved on other grounds by Godbehere, 162 Ariz. at 339 n. 1, 783 P.2d at 785 n. 1.

2010The defendants argue there is no clearly established right “to expect jails to actively seek to discover the medical needs of an inmate who knows of her own medical problems but conceals them.” But the United States Supreme Court has rejected such a narrow approach to defining the contours of a constitutional right, under which “an official action [would be] protected by qualified immunity unless the very action in question has previously been held unlawful.” Instead, the Court has held a right is clearly established when “in the light of pre-existing law the unlawfulness ... [is] apparent.” 1

2010The defendants argue there is no clearly established right “to expect jails to actively seek to discover the medical needs of an inmate who knows of her own medical problems but conceals them.” But the United States Supreme Court has rejected such a 10 Qualified immunity “is unavailable „. . . in an action against a municipality,‟” Pearson v. Callahan, __ U.S. __, __, 129 S. Ct. 808, 822 (2009), quoting County of Sacramento v. Lewis, 523 U.S. 833 , 841 n.5 (1998), or to officials sued in their official capacities, Brandon v. Holt, 469 U.S. 464, 472-73 (1985). 22 narrow approach to defining the

2010Qualified immunity "is unavailable '... in an action against a municipality,’ " Pearson v. Callahan, — U.S.-,-, 129 S.Ct. 808, 822 , 172 L.Ed.2d 565 (2009), quoting County of Sacramento v. Lewis, 523 U.S. 833 , 841 n. 5, 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998), or to officials sued in their official capacities, Brandon v. Holt, 469 U.S. 464, 472-73 , 105 S.Ct. 873 , 83 L.Ed.2d 878 (1985). 11 .

2010Qualified immunity "is unavailable '... in an action against a municipality,’ " Pearson v. Callahan, — U.S.-,-, 129 S.Ct. 808, 822 , 172 L.Ed.2d 565 (2009), quoting County of Sacramento v. Lewis, 523 U.S. 833 , 841 n. 5, 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998), or to officials sued in their official capacities, Brandon v. Holt, 469 U.S. 464, 472-73 , 105 S.Ct. 873 , 83 L.Ed.2d 878 (1985). 11 .

2009Co. v. Wise, 150 Ariz. 16, 17 , 721 P.2d 674, 675 (App.1986) (finding that the absence of an insurance provision expressly excluding punitive damages makes insurer liable for punitive damages); Martinez v. Cardwell, 25 Ariz.App. 253, 256-57 , 542 P.2d 1133, 1136-37 (1975) (finding that only a qualified privilege protects executive officials in the course of their duties from liability for defamation), with Long v. Mertz, 2 Ariz.App. 215, 222 , 407 P.2d 404, 411 (1965) (holding that an absolute privilege protects public officials in the course of their duties from liability for defamation).

2009Co. v. Wise, 150 Ariz. 16, 17 , 721 P.2d 674, 675 (App.1986) (finding that the absence of an insurance provision expressly excluding punitive damages makes insurer liable for punitive damages); Martinez v. Cardwell, 25 Ariz.App. 253, 256-57 , 542 P.2d 1133, 1136-37 (1975) (finding that only a qualified privilege protects executive officials in the course of their duties from liability for defamation), with Long v. Mertz, 2 Ariz.App. 215, 222 , 407 P.2d 404, 411 (1965) (holding that an absolute privilege protects public officials in the course of their duties from liability for defamation).

2009Co. v. Wise, 150 Ariz. 16, 17 , 721 P.2d 674, 675 (App.1986) (finding that the absence of an insurance provision expressly excluding punitive damages makes insurer liable for punitive damages); Martinez v. Cardwell, 25 Ariz.App. 253, 256-57 , 542 P.2d 1133, 1136-37 (1975) (finding that only a qualified privilege protects executive officials in the course of their duties from liability for defamation), with Long v. Mertz, 2 Ariz.App. 215, 222 , 407 P.2d 404, 411 (1965) (holding that an absolute privilege protects public officials in the course of their duties from liability for defamation).

2009Co. v. Wise, 150 Ariz. 16, 17 , 721 P.2d 674, 675 (App.1986) (finding that the absence of an insurance provision expressly excluding punitive damages makes insurer liable for punitive damages); Martinez v. Cardwell, 25 Ariz.App. 253, 256-57 , 542 P.2d 1133, 1136-37 (1975) (finding that only a qualified privilege protects executive officials in the course of their duties from liability for defamation), with Long v. Mertz, 2 Ariz.App. 215, 222 , 407 P.2d 404, 411 (1965) (holding that an absolute privilege protects public officials in the course of their duties from liability for defamation).