Mason v. City of Scottsdale

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JEFFREY MASON, et al., Plaintiffs/Appellants,

v.

CITY OF SCOTTSDALE, Defendant/Appellee.

No. 1 CA-CV 24-0303
FILED 01-23-2025

Appeal from the Superior Court in Maricopa County
No. CV2018-009579
The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Tiffany & Bosco, PA, Phoenix
By William M. Fischbach III, Amy D. Sells
Counsel for Plaintiffs/Appellants

Wieneke Law Group, PLC, Tempe
By Kathleen L. Wieneke, Laura Van Buren, Tara B. Zoellner
Counsel for Defendant/Appellee
 MASON, et al. v. CITY OF SCOTTSDALE
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Maria Elena Cruz joined.

C A M P B E L L, Judge:

¶1 In this appeal we are asked to decide whether an absolute
privilege precludes a city’s liability for a gross negligence claim based on
crime-victim-designated peace officers’ statements in their own official
reports. We begrudgingly hold that an absolute privilege does apply to the
statements made by the peace officers in this case. Accordingly, we affirm
the superior court’s entry of summary judgment for the City of Scottsdale
(City) on Jeffrey Mason’s gross negligence claim.

BACKGROUND

¶2 In arrest reports, City officers wrote that when they came to
Mason’s home to investigate a fight with a neighbor, Mason pointed a gun
either at them or in their direction. Based on those statements, the State
charged Mason with aggravated assault upon the officers. Mason
ultimately pled guilty to disorderly conduct with a deadly weapon.

¶3 Mason sued the City for, inter alia, defamation and gross
negligence based on the officers’ statements describing his display of the
gun. Mason alleged that the officers’ body camera footage showed, contrary
to their statements, that the gun was always pointed towards the ground.
The City moved for summary judgment on both claims, arguing that the
statements were absolutely privileged as made by victims in a judicial
proceeding. The superior court denied summary judgment and the City’s
subsequent motion for reconsideration. The City then sought relief from
this Court by special action, noting that summary judgment was denied on
both of Mason’s claims, but directing its arguments to the defamation claim.
Addressing the defamation claim only, this court held in City of Scottsdale v.
Mikitish, 253 Ariz. 238 (App. 2022), that the City was entitled to summary
judgment because the officers’ status as putative crime victims gave them
an absolute privilege regarding their statements in their reports—
regardless of the statements’ veracity.

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¶4 On remand, the City sought reconsideration of the denial of
summary judgment on the gross negligence claim, arguing that Mikitish’s
determination of an absolute privilege meant the City prevailed on both
claims. The superior court denied the City’s motion. The next year, after a
new judge was assigned to the case, the City filed a second motion for
reconsideration advancing the same argument. The court granted that
motion and dismissed the entire case. Mason appealed.

DISCUSSION

¶5 The parties dispute whether liability for statements giving
rise to a claim of gross negligence are precluded by an absolute privilege
afforded to officer-victims. To start, we note that this issue was not decided,
either expressly or impliedly, by Mikitish because there the arguments and
disposition were limited to Mason’s defamation claim. See Mikitish, 253
Ariz. at 239, 242, ¶¶ 1, 20. Though we may look to Mikitish for guidance,
that decision neither addressed nor decided the gross negligence claim. See
Copper Hills Enters., Ltd. v. Ariz. Dep’t of Revenue, 214 Ariz. 386, 391, ¶ 15
(App. 2007) (recognizing that law of the case doctrine only precludes trial
court from reaching issues that appellate court decided expressly or by
necessary implication). We review the grant of summary judgment on
privilege grounds de novo. Ledvina v. Cerasani, 213 Ariz. 569, 570, ¶ 3 (App.
2006).

I. Victim’s Bill of Rights

¶6 We start with the Victim’s Bill of Rights (the Bill), which was
added to the Arizona Constitution through an initiative in 1990. State v.
Roscoe, 185 Ariz. 68, 70 (1996). As our supreme court explained in Roscoe:

In the election of 1990, the people of Arizona voted to
constitutionalize a much broader Victims’ Bill of Rights (the
Bill) and granted statutory implementation powers to the
legislature. Ariz. Const. art. II, § 2.1. The Bill provides victims
of crimes with several constitutional rights, including the
right “[t]o refuse an interview, deposition, or other discovery
request by the defendant, the defendant’s attorney, or other
person acting on behalf of the defendant.” Ariz. Const. art. II,
§ 2.1(A)(5). The Bill defines a victim as “a person against
whom the criminal offense has been committed ... except if the
person is in custody for an offense or is the accused.” Ariz.
Const. art. II, § 2.1(C). The Bill expressly grants to the
legislature “the authority to enact substantive and procedural

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laws to define, implement, preserve and protect the rights
guaranteed to victims by this section.” Ariz. Const. art. II,
§ 2.1(D).

Id.

¶7 From the Bill’s inception, there was a tension between the
need to hold officers accountable to the public in their role as crime
investigators and the need to protect officers as crime victims. The
legislature attempted to address this juxtaposition by adopting a statute
adding a provision to the Bill allowing officer-victims to maintain their
victim status but requiring them to submit to pretrial interviews. See id.
(describing A.R.S. § 13-4433(F) and later-adopted, corresponding
procedural rule). The legislature thereby recognized that officer-victims
wear two hats, one of which is that of a public servant charged with
investigating crimes with honesty and transparency, and that officer-
victims’ rights should reflect this reality. See State ex rel. Romley v. Hutt, 195
Ariz. 256, 261, ¶ 9 (App. 1999) (explaining that a victim’s right to refuse a
pretrial interview protects the victim’s privacy and shields him or her from
unwanted contact with the victimizer). This addition to the Bill allowed
defense counsel pretrial access to officer-victims as investigators while
maintaining all other rights conveyed to victims under the Bill.

¶8 Roscoe, however, concluded that because the Bill’s exceptions
to its definition of a “victim” do not mention officer-victims, they are
entitled to exactly the same protections under the Bill as any other crime
victims. 185 Ariz. at 71–74. Roscoe therefore held the legislature’s attempt to
harmonize officer-victims’ conflicting roles unconstitutional. See id. at 74. It
is against this backdrop that we must now consider whether officer-victims’
statements in their reports, true or not, are protected by the absolute
privilege of immunity from suit afforded to victims.

II. Absolute Privilege for Crime Victims

¶9 An absolute privilege is unconditional—“the speaker’s
motive, purpose or reasonableness in uttering a false statement do not affect
the defense.” Goldman v. Sahl, 248 Ariz. 512, 520, ¶ 17 (App. 2020) (citation
omitted). Parties to judicial proceedings generally hold an absolute
privilege to make statements related to the litigation because there is an
overriding interest in promoting fearless and complete exposure of the
information relevant to an informed disposition. Green Acres Tr. v. London, 141 Ariz. 609, 613 (1984); Sierra Madre Dev., Inc. v. Via Entrada Townhouses
Ass’n, 20 Ariz. App. 550, 552–53 (1973).

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¶10 This absolute privilege applies to crime victims’ statements to
police. Ledvina, 213 Ariz. at 572–73, ¶¶ 7, 14. In Ledvina, a case involving a
civilian victim, we explained that such statements are the first step in a
judicial proceeding and that not applying the privilege would contravene
crime detection, crime prosecution, and the protections afforded to victims
under the Bill. Id. at 570, 573–74, ¶¶ 2, 11–12, 14. Then, in Mikitish, we held,
consistent with Roscoe, that the privilege also applies to bar liability for
defamation when the putative victim is a peace officer. 253 Ariz. at 241,
¶¶ 12–13.

¶11 We are unpersuaded by Mason’s argument that the absolute
privilege protects officer-victims only from defamation claims. To be sure,
the privilege is not limitless—it does not apply to statements clearly
unrelated to the litigation, and it does not protect against criminal charges
or claims for improper litigation conduct (i.e., abuse of process, malicious
prosecution, or the wrongful institution of civil proceedings). Green Acres
Tr., 141 Ariz. at 613–14; Goldman, 248 Ariz. at 528, ¶ 53; Sierra Madre Dev.,
20 Ariz. App. at 554; Ledvina, 213 Ariz. at 575, ¶ 15. But in general, the
privilege protects against all tort claims—even intentional ones—based on
the publication of defamatory statements. See Yeung v. Maric, 224 Ariz. 499,
502, ¶ 14 (App. 2010) (noting that privilege applies to claims of false light
invasion of privacy); Linder v. Brown & Herrick, 189 Ariz. 398, 402, 406 (App.
1997) (applying privilege to preclude claim of fraud arising from allegedly
defamatory statements made by opposing counsel to court); Drummond v.
Stahl, 127 Ariz. 122, 125–26 (App. 1980) (applying privilege to preclude
claim of tortious interference with contract arising from allegedly
defamatory statements in complaint to state bar); Lewis v. Swenson, 126 Ariz.
561, 562, 565, 567 (App. 1980) (applying privilege to preclude claim of
negligence arising from opposing counsel’s failure to instruct a witness to
limit a testimonial response); see also Defense Against a Prima Facie Case
§ 14:33 (March 2024) (“The absolute litigation privilege bars derivative tort
actions and applies to all torts other than malicious prosecution, including
fraud, negligence, and negligent misrepresentation.”).

¶12 This is a logical result. When a claim is based on a defamatory
statement, how it is styled does not change its fundamental nature, and the
same reasons for applying the absolute litigation privilege exist. See Ryan v.
Napier, 245 Ariz. 54, 61, ¶ 23 (2018) (holding that plaintiffs could not “‘plead
around’ statutory provisions that apply only to intentional tort claims” by
describing as negligent an officer’s decision to intentionally inflict force);
Drummond, 127 Ariz. at 125 (holding that though prior caselaw did not
“directly involve a case of tortious interference with a contractual
relationship, the reasoning and legal principles set out have application to

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and control the disposition of this case”). Mason’s gross negligence claim
rests exclusively on the officers’ alleged false reporting. Since officer-
victims are entitled to the same protections as other crime victims, we hold
that the absolute privilege bars gross negligence liability where, as here,
that claim hinges on the officer-victims’ statements in their official written
reports.

¶13 We must so hold despite the reality that officer-victims make
those reports while fulfilling their investigative duties—and despite the
general rule that officers are liable for gross negligence when undertaking
discretionary acts, a rule that serves as a necessary check on bad-faith
conduct. See Spooner v. City of Phoenix, 246 Ariz. 119, 123–24, ¶¶ 9–10 (App.
2018).

III. Other Liabilities

¶14 We note with concern that affording greater protection to
officer-victims may incentivize officers to describe themselves as victims to
avoid liability for making exaggerated claims—or completely false
statements—in their reports. We emphasize, however, that strategically
crafted reports will remain subject to the privilege’s limits. Frivolous or
wholly irrelevant statements will not be afforded protection. Sierra Madre
Dev., 20 Ariz. App. at 554. Further, the privilege will not bar civil claims for
abusive litigation or criminal charges for false reporting. Id.; Ledvina, 213
Ariz. at 575, ¶ 15.

CONCLUSION

¶15 Constrained by binding precedent, we affirm the entry of
summary judgment for the City on Mason’s gross negligence claim.

AMY M. WOOD • Clerk of the Court
FILED: JR

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