from the Superior Court in Pima County No. C20142895 The
Honorable Catherine M. Woods, Judge
Hernandez, P.C., Tucson By Amy Hernandez Counsel for
Barbara LaWall, Pima County Attorney By Nancy J. Davis,
Deputy County Attorney, Tucson Counsel for
Judge Eckerstrom authored the opinion of the Court, in which
Judge Conlogue  concurred.
ECKERSTROM, Chief Judge.
Pima County Sheriff Mark Napier and Deputy Joseph Klein
appeal a jury verdict against them for injuries plaintiff
Brian McDonald sustained when he was bitten by a sheriffs
department K-9 police dog. Appellants argue the trial court
erred by (1) allowing the case to proceed as a negligence
action as opposed to a battery action, (2) placing the burden
of proving justification on them rather than on McDonald, (3)
allowing lay and expert witness testimony about United States
Supreme Court use-of-force case law, and (4) rejecting their
position that A.R.S. § 11-1025(B) prohibits an action
for damages for injuries inflicted by a K-9 under the
circumstances. For the reasons that follow, we affirm.
and Procedural Background
We view the evidence and all reasonable inferences therefrom
in the light most favorable to sustaining the jury verdict.
Zuluaga ex rel. Zuluaga v. Bashas', Inc., 242
Ariz. 205, ¶ 2, 394 P.3d 32, 34 (App. 2017). On November
14, 2013, around 11:30 P.M., Pima County Sheriffs Deputy
Matthew Dixon was driving south on a road in the Tucson
foothills when McDonald, driving north in the wrong lane,
nearly hit him head-on. Dixon called the incident in on his
radio, activated his emergency lights, and made a U-turn,
intending to stop the car for driving the wrong way and
nearly causing a collision.
After a brief pursuit at speeds of about thirty-five miles
per hour, the car stopped. Dixon got out and began yelling
commands to McDonald. Although Dixon could see McDonald's
driver-side front window was down, McDonald did not respond
to or comply with the commands.
An aerial video of the incident, taken from a law enforcement
airplane using heat imaging technology and later admitted
into evidence, begins around this point. A few minutes into
the stop, Deputy Klein, a K-9 handler, arrived with his dog
and took over the job of issuing commands to McDonald,
including something to the effect of "canine, talk to me
now or I will send my dog." At one point, McDonald
looked over toward where Klein and the K-9 were standing.
Then McDonald rolled up his window and drove away, continuing
along the same road.
Another deputy, who was farther north along the road,
deployed road spikes. McDonald ran over the spikes, which
punctured three of his tires. Nevertheless, the pursuit
continued at speeds of thirty-five to forty miles per hour.
Over the radio, Klein said, "If the vehicle stops, dog
will be deployed if he goes mobile."
McDonald came to a stop just south of a major intersection.
His car hopped the curb as it stopped. To the right of his
car there was a small desert area and a residential area
beyond that. About seven marked squad cars, with their
emergency lights activated, fanned out behind and to the left
of his car, and about nine uniformed deputies were on-scene.
The deputies considered this a high-risk stop, so they did
not approach the car. Klein got out with his K-9 but remained
behind his squad car, yelling more commands from there. Other
deputies had their guns drawn.
Shortly after he stopped, McDonald got out. Klein warned
McDonald to "stop or you will be bitten." The video
recording admitted at trial shows McDonald walking slowly
toward the rear of his car, reaching out and putting his hand
on the trunk of the car as if to steady himself. He continued
walking around the trunk of his car and then back up along
the passenger side, stopping about halfway up the passenger
side. As he slowly brought his hands up to rest them on top
of the car, Klein released the K-9, which ran over and bit
McDonald's leg and dragged him around on the ground. The
K-9 held the bite for thirty-eight seconds, causing serious
injuries and permanent disfigurement.
Subsequent investigation revealed that McDonald has Type 1
diabetes and at the time of the incident his blood sugar
level had been dangerously low. When the deputies arrested
him, they found glucose tabs in his sock. They also
discovered he had a gun in an ankle holster. None of the
deputies had been aware that McDonald was armed before Klein
released the K-9. There were no bulges in his clothing to
suggest that he might have had a gun, nor did McDonald reach
for the gun at any point during the incident.
McDonald sued the Pima County Sheriff  and Klein,
alleging negligence. The trial court denied defendants'
motion for summary judgment, holding that A.R.S. §
11-1025 did not bar the action, and that McDonald could
proceed under a negligence theory even though Klein had
intentionally released the K-9. The court also denied
defendants' motion in limine to preclude testimony about
Graham v. Connor, 490 U.S. 386 (1989).
The case proceeded to a jury trial. The court rejected
defendants' request for an instruction allocating the
burden of proving lack of justification to McDonald, and
instead instructed the jury that defendants had the burden of
proving justification. The jury returned a verdict of $650,
000, attributing ninety-five percent of the fault to
defendants and five percent to McDonald. After the court
denied defendants' motions for new trial or for judgment
as a matter of law, they timely appealed, and we have
jurisdiction pursuant to A.R.S. §§ 12-120.21 and
Appellants first argue that because there was no dispute that
Klein intentionally released the K-9 in order to apprehend
McDonald, the trial court erred by denying their motion for
summary judgment as to negligence. They maintain there is no
cause of action against a law enforcement officer in Arizona
for negligent use of force, and McDonald should have been
required to bring this case under an intentional tort such as
battery rather than as a negligence action.
Under Arizona law, a battery occurs where a person
"intentionally engages in an act that results in a
harmful or offensive contact with the person of
another." Duncan v. Scottsdale Med. Imaging,
Ltd., 205 Ariz. 306, ¶ 9, 70 P.3d 435, 438 (2003),
citing Restatement (Second) of Torts §§
13, 18 (1965); see also Chappell v. Wenholz, 226
Ariz. 309, ¶ 10, 247 P.3d 192, 195 (App. 2011)
("[B]attery is an intentional tort under Arizona
law."). In contrast, negligence occurs where the
defendant has breached a duty to conform to a certain
standard of care and the defendant's conduct is causally
connected to the plaintiff's actual damages. See
Gipson v. Kasey, 214 Ariz. 141, ¶ 9, 150 P.3d 228,
We begin with the proposition that, in bringing suit, it is
the plaintiff's prerogative to identify particular harms
a defendant has caused and the plaintiff is free to connect
those harms to particular theories of liability as he or she
sees fit. Quite often, that decision will have significant
substantive ramifications. See, e.g., Shetter v.
Rochelle, 2 Ariz. App. 358, 366-67, 409 P.2d 74, 82-83
(1965) (although label placed on cause of action has no
"great significance, " "theories of liability
still have substance" and whether theory of liability
against surgeon who failed to explain risk to patient
adequately was battery or negligence would affect extent of
damages for which surgeon could be liable). It is also well
established that a single incident or course of conduct may
give rise to multiple possible theories of liability.
See, e.g., Wells Fargo Bank v. Ariz. Laborers, Teamsters
& Cement Masons Local No. 395 Pension Tr. Fund, 201
Ariz. 474, ¶¶ 59-61, 38 P.3d 12, 28-29 (2002)
(breach of implied covenant of good faith and fair dealing
can lead to liability in either contract or tort depending on
Appellants cite no Arizona authority barring McDonald from
styling this case as a negligence action rather than a
battery action, and we are aware of none. Arizona case law on
the issue is admittedly limited, but in two similar cases,
negligence-based claims have at least been raised. In
Mulhern v. City of Scottsdale, plaintiffs pursued a
wrongful-death claim against the city based on the alleged
negligence of an on-duty police officer who had intentionally
shot and killed their family member. 165 Ariz. 395, 396-97,
799 P.2d 15, 16-17 (App. 1990). Their theory was that the
officer had "acted negligently in using deadly
force." Id. at 398, 799 P.2d at 18. This
wrongful-death claim was allowed to proceed all the way to a
jury verdict. Id. at 396, 799 P.2d at 16. Weekly
v. City of Mesa, 181 Ariz. 159, 888 P.2d 1346 (App.
1994), is also somewhat instructive. In that case, Weekly
refused to submit to an arrest, and then a K-9 officer
"directed the dog to attack" him. Id. at
162, 888 P.2d at 1349. Weekly sued the city and alleged,
among other claims, "negligent use of excessive
force." Id. at 161-62 & n.2, 888 P.2d at
1348-49 & n.2. Although no issues related to that claim
were before this court on appeal, neither did our opinion
suggest there was any legal barrier to a cause of action
grounded in negligence principles, even though the officer
intended to release the K-9 for the purpose of attacking
Weekly. See id.
While we acknowledge their limitations, Mulhern, and
to a lesser extent, Weekly, are nevertheless
consistent with the proposition that a plaintiff may bring an
action sounding in negligence against an appropriate public
entity where a law enforcement officer's process of
evaluating whether to use force or how much force to use fell
below the standard of care of a reasonable officer under the
circumstances and the subsequent decision to use force
resulted in damages. Today we so hold.
In support of our holding, we find persuasive a case from the
District of Columbia. In Reed v. District of
Columbia, 474 F.Supp.2d 163, 165, 174 (D.C. 2007), the
District maintained its officer had shot the decedent in
self-defense reasonably believing she had a gun.
Plaintiffs' witnesses testified the officer had shot her
while her hands were empty and held up in the air.
Id. at 165-66, 174. The District argued summary
judgment was appropriate as to the plaintiffs' negligence
claims because those claims were "indistinguishable from
their claims for assault and battery." Id. at
173. The court disagreed, determining the claims were
separate and distinct. Id. at 173-74. It held that
summary judgment for the defendants on negligence was
inappropriate because a "distinct act of negligence, a
misperception of fact, may have played a part in the
[officer's] decision to fire." Id. at 174,
quoting District of Columbia v. Chinn, 839 A.2d 701,
711 (D.C. 2003). Under the Reed plaintiffs'
theory and version of events, "a negligent act . . .
precede[d] the application of the relevant force of resort to
firearms, i.e., prior to the pulling of the trigger."
Id., quoting Chinn, 839 A.2d at 711; accord
Brown v. Ransweiler, 89 Cal.Rptr.3d 801, 817 (Ct. App.
2009) (officers have duty to use reasonable care in deciding
to use deadly force, and lack of due care can give rise to
negligence liability for intentional shooting by officer).
Here, as in Reed, McDonald's negligence claim is
distinct from a hypothetical battery claim he could have
chosen to bring. His negligence claim focuses on whether a
reasonable officer in Klein's position would have
concluded that releasing a K-9 was reasonable and appropriate
under the totality of the circumstances leading up to that
decision. See Austin v. City of Scottsdale, 140
Ariz. 579, 581-82, 684 P.2d 151, 153-54 (1984) (whether
dispatcher who did not assign emergency call as department
procedures mandated and whether department's failure to
warn decedent's family of reported threat constituted
negligence were jury questions - "the City of
Scottsdale, having opted to provide police protection, had a
duty to act as would a reasonably careful and prudent police
department in the same circumstances"). This is a
separate issue from whether Klein's subsequent
intentional act of releasing the K-9 resulted in a harmful or
offensive contact with McDonald's person-the central
question of a battery claim McDonald chose not to bring.
See Chinn, 839 A.2d at 707 (negligence theory of
liability appropriate if there is "an independent breach
of a standard of care beyond that of not using excessive
force in making an arrest, which may properly be analyzed and
considered by the jury on its own terms apart from the
intentional tort of battery and the defense of
As in Reed, there are two competing versions of
events here. Appellants argued Klein reasonably believed
releasing the K-9 was necessary for officer safety, while
McDonald maintained this belief was not reasonable under the
totality of the circumstances leading up to Klein's
decision to "pull the trigger" on the K-9. Cf.
Chinn, 839 A.2d at 711 (negligence theory appropriate
where, in at least one of multiple "alternate scenarios,
" "a distinct act of negligence, a misperception of
fact, may have played a part in the decision to fire").
Appellants cite Restatement (Second) of Torts § 282 cmt.
d (1965), which excludes from the definition of negligence
"conduct which creates liability because of the
actor's intention to invade a legally protected
interest" of another. But here, McDonald alleged that
Klein's evaluation of whether to intentionally
release the K-9 was negligent, not that he intended to invade
McDonald's legally protected interest by releasing the
canine. Another case appellants rely on, City of Miami v.
Sanders, 672 So.2d 46, 48 (Fla. Dist. Ct. App. 1996),
acknowledges this distinction as well. Although that case
holds there is no cause of action for
"'negligent' use of excessive force"
because use of excessive force is necessarily intentional,
recognizes "that a separate negligence claim based upon
a distinct act of negligence may be brought against a police
officer in conjunction with a claim for excessive use of
force." Id., citing Mazzilli v. Doud,
485 So.2d 477 (Fla. Dist. Ct. App. 1986). The trial court
correctly rejected appellants' position that the
existence of a separate potential battery claim should have
legally precluded McDonald from bringing a negligence action
based on earlier conduct.
of Proof of Justification Under A.R.S. §§ 13-409
Appellants argue the trial court erred by declining their
requested justification instruction. The proposed instruction
would have stated it was McDonald's burden to prove
Klein's use of the K-9 was not justified. The court
instead instructed the jury that it was Klein's burden to
prove the release of the K-9 was justified. As questions of
law, we review de novo the appropriate burden of proof,
Am. Pepper Supply Co. v. Fed. Ins. Co., 208 Ariz.
307, ¶ 8, 93 P.3d 507, 509 (2004), and whether jury
instructions accurately state the law, State v.
Fierro, 220 Ariz. 337, ¶ 4, 206 P.3d 786, 787 (App.
2008). We also review de novo whether justification may be
raised as a defense to a charge or claim. See State v.
Almaguer, 232 Ariz. 190, ¶ 6, 303 P.3d 84, 87 (App.
Section 13-413, A.R.S., provides: "No person in this
state shall be subject to civil liability for engaging in
conduct otherwise justified pursuant to the provisions of
this chapter." One provision in the same chapter applies
to certain uses of force in effecting an arrest. It says:
A person is justified in threatening or using physical force
against another if in making or assisting in making an arrest
or detention or in preventing or assisting in preventing the
escape after arrest or detention of that other person, such
person uses or threatens to use physical force and all of the
1. A reasonable person would believe that such force is
immediately necessary to effect the arrest or detention or
prevent the escape.
2. Such person makes known the purpose of the arrest or
detention or believes that it is otherwise known or cannot
reasonably be made known to the person to be arrested or
3. A reasonable person would believe the arrest or detention