Leatham v. Yearick

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT LEATHAM and KRISTY LEATHAM; RYAN KELLEHER;
PHILIP ASIEDU-DARKWA and MORCELIA ASIEDU-DARKWA;
RUSSELL SKINNER, in his official capacity as Maricopa County Sheriff,
Petitioners,

v.

LISA YEARICK, individually and as Personal Representative of the Estate
of Edward Rudhman; LEIGHA HUBER, Respondents.

No. 1 CA-SA 24-02001
FILED 02-03-2025

Petition for Special Action from the Superior Court in Maricopa County
No. CV 2019-015407
The Honorable Christopher Whitten, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Charles E. Trullinger, Courtney R. Glynn, Sean M. Moore
Counsel for Petitioners

1 The Court exercises its discretion to adopt a caption consistent with the

new Arizona Rules of Procedure for Special Actions, effective January 1,
2025, which no longer list judges as respondents. Ariz. R.P. Spec. Act.
5(b)(2) (effective January 1, 2025).
Zwillinger Wulkan PLC, Phoenix
By Larry Wulkan, Benjamin L. Rundall, Jennifer L. Allen
Counsel for Respondent Lisa Yearick

Law Offices of J. Scott Halverson PC, Tempe
By J. Scott Halverson
Counsel for Respondent Leigha Huber

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Kent E. Cattani joined.

J A C O B S, Judge:

¶1 This wrongful death lawsuit was filed by Edward Rudhman’s
widow, Lisa Yearick, and his mother, Leigha Huber (collectively “the
Survivors”). Rudhman was killed by three deputies of the Maricopa
County Sheriff’s Office (“MCSO”) responding to a 9-1-1 call concerning
Rudhman’s threat to kill himself. Defendants (“the Officers”)
unsuccessfully moved for summary judgment in the superior court,
arguing that Ninth Circuit rulings on the dismissed federal claims in this
case should bar the Survivors’ remaining state law claims. The Officers
then asked us to exercise our special action jurisdiction to review that
denial, arguing: (1) the Ninth Circuit ruling that federal qualified immunity
applied bars the Survivors from arguing Arizona’s common law of
qualified immunity does not apply; and (2) Arizona common law of
qualified immunity bars the Survivors’ suit. For the following reasons, we
accept jurisdiction but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 Because this special action comes to us from the denial of a
motion for summary judgment, we “view the facts and all reasonable
inferences therefrom in the light most favorable to the party opposing the
motion.” Southwest Auto Painting & Body Repair Inc. v. Binsfeld, 183 Ariz.
444, 445 n.1 (App. 1995).

A. Rudhman Is Fatally Shot by Deputies After a 9-1-1 Call.

¶3 On December 16, 2018, Yearick called 9-1-1 to report that
Rudhman was threatening to kill himself and their animals. Yearick also

2
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

said Rudhman had been drinking, had a gun, and that she feared for his
life. Yearick stated she didn’t want anything to happen to Rudhman and
didn’t “want him to hurt anybody else.” During the 9-1-1 call, Rudhman
shot the gun several times. Yearick reported she was afraid and had locked
herself in her bedroom. Rudhman then came inside and broke into
Yearick’s bedroom while she was still on the phone with 9-1-1. Yearick
asked Rudhman to give her the gun. He refused. He then left the room,
and she relocked the door. Rudhman then returned to Yearick’s bedroom,
saying he would give her the gun if she agreed to shoot him. Yearick
refused to open the bedroom door.

¶4 Deputies then arrived at the home. They began to inspect the
area and set up defensive positions, including setting up two vehicles in the
driveway for cover. Deputies were informed that Rudhman had a loaded
handgun on his person. After they set up their positions, Sergeant Robert
Leatham used the public address system of his patrol vehicle to instruct
Rudhman to come out of the house without his gun. After Sergeant
Leatham made five announcements from the vehicle over the span of three
minutes, Rudhman emerged from the front door of the home. Deputies
observed Rudhman carrying a large caliber revolver in his right hand.

¶5 Rudhman began walking toward the driveway and then in
the deputies’ direction. As Rudhman approached, Sergeant Leatham gave
five more commands to Rudhman to drop the gun and to stop advancing
toward the deputies. Rudhman disregarded the commands, saying he
would not follow them. Because the Survivors are the nonmovants in the
motion for summary judgment at issue, we presume, as prior courts have,
that Rudhman held the gun at his side when approaching the deputies. See
Yearick v. Leatham, No. 22-16310, 2023 WL 5928486, at *1 (9th Cir. Sept. 12,
2023); Yearick v. County of Maricopa, No. 20-00545, 2022 WL 3721910, at *3
(D. Ariz. Aug. 19, 2022). We also agree with both courts that the record,
including body-worn camera footage, does not contradict the Survivors’
contention that Rudhman held the gun in his right hand, by his side,
swinging it lightly as he walked, and never raised or pointed the gun at
deputies. Leatham, 2023 WL 5928486, at *1 (“[W]e find that the record does
not blatantly contradict [the Survivors’] view of the facts[.]”); County of
Maricopa, 2022 WL 3721910, at *3 (resolving issue in favor of Survivors
where body camera recordings “largely support[]” Survivors’ contentions
but do not clearly show intricacies of Rudhman’s movement of the gun).

¶6 Rudhman advanced on the deputies for 24 seconds and
closed the distance between them by 40 feet. One deputy was getting
prepared to call out for the others to use less-lethal fire. Without

3
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

communication among the deputies or specific warning to Rudhman, three
of the five deputies fired seven lethal rounds on Rudhman. Sergeant
Leatham immediately reported to dispatch that shots were fired and called
for an ambulance. Deputies then approached Rudhman and found the
revolver cocked and loaded underneath his stomach.

B. The Survivors File This Suit in the Superior Court and It Is
Removed to the District Court.

¶7 The Survivors filed this lawsuit in the superior court in
December 2019, alleging the Officers were liable under 42 U.S.C. § 1983
because the deputies’ conduct violated Rudhman’s Fourth Amendment
rights. They also claimed the Officers were liable for the wrongful death of
Rudhman under A.R.S. § 12-611 because they breached their duties to use
only necessary and reasonable force, which resulted in the death of
Rudhman. The Officers then removed the case to the United States District
Court for the District of Arizona.

C. The District Court Granted the Officers Summary
Judgment.

¶8 The Officers moved for summary judgment on all claims.
They argued that federal qualified immunity barred the Survivors’ Section
§ 1983 claim as a matter of law. They also argued that Arizona’s justification
statute, A.R.S. § 13-410, insulated them from liability for wrongful death
because their conduct was reasonable as a matter of law. The district court
agreed, granting summary judgment for the Officers on both claims.

¶9 The district court noted the only disputed fact in the case was
the manner in which Rudhman held the gun while approaching the
deputies. After reviewing the body camera recordings, the district court
presumed the gun was held at Rudhman’s side, as the Survivors argued.
Because it was unclear from the briefs, the district court presumed the
Survivors were proceeding on a theory of battery for the wrongful death
claim.

¶10 The court first analyzed the Survivors’ excessive force claim
under 42 U.S.C. § 1983. First, the court found no clearly established law
gave the Officers fair notice their conduct was unconstitutional. Second,
the court found that, even if there was such clearly established law, their
conduct was objectively reasonable. Given these findings, the district court
ruled that federal qualified immunity protected the Officers from liability.

4
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

¶11 Next, the court analyzed whether Arizona’s justification
statute, A.R.S. § 13-410, shielded the Officers from liability for wrongful
death. Because the court found the deputies’ conduct objectively
reasonable, it found no fact issue as to whether the use of force was justified.
See A.R.S. § 13-410(C) (stating that an officer’s use of deadly force against
another is justified when the officer “reasonably believes that it is necessary
. . . [t]o defend himself or a third person from what the . . . officer reasonably
believes to be the . . . imminent use of deadly physical force[]”). It thus
entered judgment for the Officers on the wrongful death claim. Judgment
followed.

D. The Survivors Appeal the Summary Judgment for the
Officers, and the Ninth Circuit Reverses the Summary
Judgment as to the Wrongful Death Claim.

¶12 The Survivors appealed the district court’s grant of summary
judgment to the Officers on both claims. The Ninth Circuit affirmed in part
and reversed in part, remanding the case back to the district court. Leatham,
2023 WL 5928486, at *4.

¶13 First, the Ninth Circuit affirmed summary judgment on the
Section 1983 claim, agreeing that federal qualified immunity applied. Id. at
*2-3. The court applied a test, both prongs of which the Survivors had to
overcome to defeat qualified immunity: (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct. Leatham, 2023 WL
5928486, at *1. The Ninth Circuit held that the district court erred in finding
no violation of Rudhman’s Fourth Amendment rights. Id. at *1-2. To the
contrary, the court held “[a reasonable] jury could . . . conclude that the
[deputies’] decision to shoot Rudhman was not objectively reasonable and
that, by shooting Rudhman, the [deputies] violated his Fourth Amendment
right to be free of excessive force.” Id. at *2. The court nonetheless agreed
with the district court that the right was not clearly established when
Rudhman was shot. Id. The Ninth Circuit thus affirmed summary
judgment on the Section 1983 excessive force claim. Id.

¶14 Next, the Ninth Circuit reversed the summary judgment for
the Officers on the Survivors’ wrongful death claim. Id. at *3. The Ninth
Circuit did not address whether Arizona common law qualified immunity
applied. See id. Rather, it looked to whether Arizona’s justification statute,
A.R.S. § 13-410(C)(1), was satisfied as a matter of law. Id. Having found
that a reasonable jury could conclude the deputies’ conduct was
unreasonable, and that the justification statute only protects officers if their

5
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

use of deadly force was reasonably necessary, the Ninth Circuit reversed
this grant of summary judgment in favor of the Officers and remanded this
claim to the district court. Id.

¶15 On remand, the district court declined to exercise
supplemental jurisdiction over the wrongful death claim and remanded the
case to the superior court. On remand, the superior court ordered the
parties to brief whether: (1) issue preclusion applied to Arizona common
law qualified immunity despite the Ninth Circuit’s finding that the
deputies’ conduct was not objectively reasonable; (2) the Arizona wrongful
death claim was substantially similar to the Section 1983 claim even though
the Ninth Circuit held a jury could find the deputies’ conduct was
unreasonable; and (3) to what degree Arizona’s justification statute, A.R.S.
§ 13-410(C), functions as an affirmative defense or as Arizona common law
qualified immunity.

E. The Officers Unsuccessfully Seek Summary Judgment in
the Superior Court, Arguing They Are Immune From Suit.

¶16 The Officers again moved for summary judgment on the state
wrongful death claim. They argued summary judgment was proper
because Quinn v. Cardenas, 256 Ariz. 77 (App. 2023) requires the superior
court to find the Ninth Circuit’s application of federal qualified immunity
issue preclusive of the application of Arizona’s qualified immunity.

¶17 The superior court denied the Officers’ motion for summary
judgment. The superior court distinguished Quinn, finding it did not
require the court to apply issue preclusion. As the superior court noted,
unlike Quinn, the Ninth Circuit had held that a jury could conclude that the
deputies’ decision to shoot Rudhman was not objectively reasonable. The
court noted that finding the Ninth Circuit’s decision issue preclusive as to
Arizona qualified immunity would lead to an “absurd result” because the
Ninth Circuit explicitly found a fact question on the issue of reasonableness.
Indeed, the Ninth Circuit decision drew a dissent lamenting that the
Officers would face a trial on the Survivors’ state law claims. The superior
court also agreed with the Survivors that under Spooner v. City of Phoenix,
246 Ariz. 119 (App. 2018), Arizona qualified immunity does not apply, and
that “the correct analysis is whether the conduct of the involved officers
was justified.”

¶18 The Officers filed this special action seeking review of
superior court’s order denying their motion for summary judgment.

6
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

DISCUSSION

I. We Accept Special Action Jurisdiction.

¶19 The Rules of Procedure for Special Actions guide us as we
consider whether to accept jurisdiction. Ariz. R.P. Spec. Act. 12(b). That
this special action concerns immunity from suit militates in favor of
exercising our discretionary jurisdiction. Ariz. R.P. Spec. Act. 12(b)(2);
Tucson Unified Sch. Dist. v. Borek, 234 Ariz. 364, 367 ¶ 5 (App. 2014)
(“Although we normally disfavor accepting special action jurisdiction to
review the denial of a motion for summary judgment, . . . questions
concerning immunity are particularly appropriate for special action
review[.]”). Deciding this issue now also “materially advance[s] the
efficient management of the case” and concerns an issue not presented in
ordinary dispositive motion practice. Ariz. R.P. Spec. Act. 12(b)(7). We
thus exercise our discretion to accept jurisdiction.

II. The Superior Court Did Not Err By Denying the Officers’ Motion
for Summary Judgment.

¶20 The Officers contend the superior court erred by denying
their motion for summary judgment because (1) Quinn precluded the court
from finding Arizona common law qualified immunity inapplicable as to
the wrongful death claim, and (2) even without preclusion, Arizona
common law qualified immunity applies because qualified immunity is
applicable to the deputies’ intentional conduct.2

¶21 We review a superior court’s denial of summary judgment de
novo. BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 590 ¶ 8 (App. 2021)
(“[W]e may review the [denial of summary judgment] if the denial was
based on purely legal grounds.”) (cleaned up). We will reverse the denial
of summary judgment where there are no genuine disputes of material fact
and the moving party is entitled to judgment as a matter of law. See Quinn,
256 Ariz. at 83 ¶ 19 (affirming a grant of summary judgment where there is
no genuine dispute of material fact and the moving party is entitled to
judgment as a matter of law); Bernal v. Loeks, 196 Ariz. 363, 364 ¶ 6 (App.
2000) (stating the standard for reviewing the denial or grant of summary
judgment is the same as “ruling on the motion in the first instance[]”).

2 The Officers do not argue Arizona’s justification statute, A.R.S. § 13-

410(C), entitles them to summary judgment.

7
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

A. The Superior Court Is Bound by the Ninth Circuit’s
Decision, But It Does Not Mandate Entry of Summary
Judgment for the Officers on the Wrongful Death Claim.

¶22 The Officers argue this Court’s decision in Quinn precludes
the superior court’s finding that Arizona’s common law qualified immunity
does not apply. Specifically, the Officers contend issue preclusion governs
the application of Arizona qualified immunity because the Ninth Circuit
held there was no clearly established right at the time deputies shot
Rudhman. Although we agree issue preclusion applies to the Ninth
Circuit’s decision, it does not provide the deputies with qualified immunity
from the Survivors’ wrongful death claim.

¶23 This Court has previously held that preclusion principles
apply where a federal court judgment has been entered in a case that has
been remanded back to the superior court. Quinn, 256 Ariz. at 84 ¶ 29. We
determine the preclusive effect of a prior judgment de novo. Id. at 84 ¶ 30.

¶24 We apply the preclusion law of the court that rendered the
prior judgment – here, the Ninth Circuit – but federal and Arizona law are
the same on this point. Id.; see also In re Gen. Adjudication of All Rts. to Use
Water in Gila River Sys. & Source, 212 Ariz. 64, 69 ¶ 13 (2006) (“Federal law
dictates the preclusive effect of a federal judgment.”). Thus, for the Ninth
Circuit’s decision to preclude the Survivors’ suit, the Officers must
demonstrate: “(1) the issue at stake was identical in both proceedings; (2)
the issue was actually litigated and decided in the prior proceedings [in
favor of the party invoking preclusion]; (3) there was a full and fair
opportunity to litigate the issue; and (4) the issue was necessary to decide
the merits.” Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012); see also
Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573 (1986) (stating that for
issue preclusion to apply, issue must be “actually litigated . . . , a final
judgment was entered, and the party against whom the doctrine is to be
invoked had a full and fair opportunity to litigate”).

1. The Issues Are Identical in Both Proceedings.

¶25 The Officers argue the issues underlying the Section 1983
claim and the state wrongful death claim are identical. Federal courts
consider four factors in determining whether issues are identical:

(1) [I]s there a substantial overlap between the evidence or
argument to be advanced in the second proceeding and that
advanced in the first? (2) [D]oes the new evidence or
argument involve the application of the same rule of law as

8
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

that involved in the prior proceeding? (3) [C]ould pretrial
preparation and discovery related to the matter presented in
the first action reasonably be expected to have embraced the
matter sought to be presented in the second? (4) [H]ow closely
related are the claims involved in the two proceedings?

Howard v. City of Coos Bay, 871 F.3d 1032, 1041 (9th Cir. 2017). The factors
are not applied “mechanistically.” Id. We discuss each factor in turn.

¶26 First, the evidence and argument for both claims and the
affirmative defense raised, qualified immunity, overlap substantially. Both
arise from the same sequence of events: the conduct before and the
shooting of Rudhman, so evidence for both claims would be nearly
identical. The argument regarding the claims also overlaps: although the
claims require the Survivors to prove different elements, the defense the
Officers raise – qualified immunity – requires them to prove almost exactly
the same things in the state proceeding. See Quinn, 256 Ariz. at 85-86 ¶¶ 34-
37.

¶27 In Arizona, officers have qualified immunity “when
performing an act that inherently requires judgment or discretion.”
Spooner, 246 Ariz. at 123 ¶ 9 (cleaned up). However, Arizona’s qualified
immunity does not apply where Survivors can demonstrate one of two
things: the deputies either “knew or should have known [they were] acting
in violation of established law or acted in reckless disregard of whether
[their] activities would deprive another person of their rights.” Chamberlain
v. Mathis, 151 Ariz. 551, 558 (1986) (emphasis added) (treating these
pathways to overcome immunity disjunctively).

¶28 Federal qualified immunity, by contrast, applies unless two
factors are both present: “a plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). In excessive force cases, “the inquiry remains whether,
under the circumstances,” officers acted unreasonably, thus violating a
right, and if the right was clearly established, meaning officers “had fair
notice that the force employed was unlawful[.]” Boyd v. Benton County, 374
F.3d 773, 781 (9th Cir. 2004) (cleaned up).

¶29 In Quinn, we found substantial overlap among federal and
state qualified immunity where the claims were a Section 1983 claim, a state
false imprisonment claim, and a state assault claim. 256 Ariz. at 85 ¶ 34.

9
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

We found that both federal and state qualified immunity “require analysis
of whether [the official] violated established law or unreasonably
disregarded the unlawful nature of his conduct.” Id. at 86 ¶ 37. As we held
in Quinn, the issues underlying Arizona common law qualified immunity
and federal qualified immunity substantially overlap because both analyze
whether there was a clearly established right, whether a right was violated,
and whether the deputies acted unreasonably. See id.

¶30 Second, as in Quinn, Arizona common law qualified immunity
and federal qualified immunity are identical for issue preclusion purposes.
As we recognized in Quinn, federal and state qualified immunity employ
very similar standards – “whether [the official] violated established law or
unreasonably disregarded the unlawful nature of his conduct.” Id. at 86 ¶¶
37, 39.

¶31 Third, discovery in the federal court could have been
reasonably expected to have embraced the state law claim, as the claims
arise from the same sequence of events.

¶32 Fourth, the claims are closely related. Both arise from the
same series of events. The standards for both Arizona and federal qualified
immunity mandate the Survivors prove the deputies conduct to be
reasonable and that a right be violated. Id.

¶33 Thus, as in Quinn, we find the issues underlying the claims to
be identical.

2. The Issues Were Actually Litigated in the Federal
Proceedings But Were Not All Decided in Favor of
the Officers.

¶34 We next determine if the issues underlying the state law claim
(wrongful death) and the affirmative defense raised (Arizona qualified
immunity) were actually litigated and decided by the federal courts in favor
of the Officers. The parties conducted discovery on the state law claim and
the Section 1983 claim. When the Officers moved for summary judgment
on all claims, the parties briefed federal qualified immunity as well as
Arizona’s justification statute. Because the issues underlying federal and
Arizona qualified immunity are identical, the parties actually litigated the
issues underlying the state wrongful death claim and Arizona qualified
immunity.

¶35 Despite that, the federal courts did not decide all issues
underlying the wrongful death claim and Arizona qualified immunity in

10
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

favor of the Officers. The Ninth Circuit only affirmed the district court’s
grant of summary judgment on the Section 1983 claim, finding the
Survivors could not establish that the deputies violated clearly established
law under federal qualified immunity because they were not on notice that
Rudhman had a right to be free from lethal force under the circumstances.
But the court did not find the deputies’ conduct to be objectively reasonable,
instead finding a fact question as to reasonableness, such that a jury could
find the deputies’ conduct unreasonable. After making these findings, the
court reversed the grant of summary judgment on the Arizona wrongful
death claim and expressly declined to decide whether the deputies’ use of
force violated Arizona law.

¶36 In sum, Arizona law permits the Survivors to overcome
qualified immunity by demonstrating the deputies either (1) “knew or
should have known [they were] acting in violation of established law or [(2)]
acted in reckless disregard of whether [their] activities would deprive
another person of their rights.” Chamberlain, 151 Ariz. at 558 (emphasis
added). The Ninth Circuit actually decided the first issue – whether officers
knew or should have known they violated established law – by holding the
Officers were not on notice of Rudhman’s right to be free from lethal force
under the circumstances. But the second – whether the deputies recklessly
disregarded Rudhman’s rights – was not. The Ninth Circuit expressly
declined to decide whether the Officers’ use of force violated Arizona law.
That aspect of its decision defeats the Officers’ claim of preclusion.

3. The Parties Had a Full and Fair Opportunity to
Litigate the Issues Underlying the Claims.

¶37 The parties had a full and fair opportunity in the federal
proceeding to litigate the issues underlying the wrongful death claim and
Arizona qualified immunity. In the district court and Ninth Circuit, they
briefed their arguments under both federal qualified immunity and
Arizona’s justification statute, addressing whether the deputies violated
Rudhman’s rights and whether the deputies’ conduct was reasonable. Both
issues are central to Arizona common law qualified immunity.

4. The Issues Were Necessary to the Merits.

¶38 The issue of reasonableness was integral to the Ninth Circuit’s
resolution of the matter but was not resolved in favor of the Officers, which
is why the case was remanded to the district court and ultimately to the
superior court.

11
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

5. The Ninth Circuit Decision Is Preclusive on the Issue
of Whether the Right Was Clearly Established, but
There Is a Question of Fact as to the Reasonableness
of the Deputies’ Conduct.

¶39 Having weighed the preclusion factors, we find that issue
preclusion applies in part. The federal litigation puts beyond question that
the Officers did not violate clearly established law in using lethal force
against Rudhman. But we recognize, as the Ninth Circuit did, that the only
disputed fact between the parties is the manner in which Rudhman held
the gun when he approached the deputies. We agree with the Ninth Circuit
that this fact is material and creates a question as to the reasonableness of
the deputies’ conduct at the time they exercised deadly force against
Rudhman. The court did not err in denying the Officers’ summary
judgment motion.

¶40 We are not departing from Quinn. The issue we determine
today was not raised in Quinn because the federal court there found the
officers’ conduct objectively reasonable. Here, the federal court left that
issue open, allowing the Survivors to argue the Officers recklessly
disregarded Rudhman’s Fourth Amendment rights. Because the Ninth
Circuit found a fact issue as to the reasonableness of the deputies’ conduct,
the Officers cannot invoke issue preclusion to determine this issue.

¶41 Section 1983 claims and state claims vindicate different rights.
See, e.g., Peterson v. Baker, 504 F.3d 1331, 1336 (11th Cir. 2007) (internal
citations omitted) (“Section 1983 must not be used as a ‘font of tort law’ to
convert state tort claims into federal causes of action.”); Davidson v. O’Lone,
752 F.2d 817, 827 (3d Cir. 1984) (explaining that “a tort committed by a state
official acting under color of state law is not, in and of itself, sufficient to
show an invasion of a person’s constitutional rights under [Section] 1983”).
Issue preclusion requires us to adhere to all decisions made in the Ninth
Circuit’s decision but it does not mandate our courts to find Arizona
qualified immunity applies whenever a federal court finds that federal
qualified immunity applies to a similar claim. See Quinn, 256 Ariz. at 84 ¶
30 (reviewing the preclusive effect of a prior judgment de novo).

¶42 If the Survivors can demonstrate the deputies recklessly
disregarded Rudhman’s rights, they can prevail, because Arizona law does
not require the Survivors to prove that a clearly established right was
violated, as federal law does. Compare Chamberlain, 151 Ariz. at 558
(framing Arizona’s qualified immunity disjunctively) with Ashcroft, 563 U.S.
at 735 (framing federal qualified immunity conjunctively).

12
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

B. Arizona’s Common Law Qualified Immunity Does Not
Entitle the Officers to Summary Judgment on the Wrongful
Death Claim.

¶43 The Officers also argue that Arizona qualified immunity
applies as a matter of law, entitling them to summary judgment on the
wrongful death claim. We disagree.

¶44 First, the Officers contend qualified immunity applies as a
matter of law because there is no clearly established law demonstrating
Rudhman had the right to be free from lethal force, and the reckless
disregard pathway is not available for intentional uses of force. But as we
have explained, a showing of a clearly established right is not required
where the Survivors are arguing qualified immunity does not apply
because the deputies acted in reckless disregard of Rudhman’s rights. The
Officers also contend the Survivors have failed to demonstrate deputies
recklessly disregarded Rudhman’s rights.

¶45 The Officers argue plaintiffs can never overcome qualified
immunity by showing reckless disregard in cases involving intentional uses
of force. But we have previously held that reckless disregard can overcome
qualified immunity and support liability in cases involving intentional
conduct. See Chamberlain, 151 Ariz. at 558 (analyzing qualified immunity in
defamation case). It is true that Arizona law does not permit the Survivors
to bring both negligence and intentional tort claims because conduct cannot
be both negligent and intentional. See Ryan v. Napier, 245 Ariz. 54, 59-60 ¶¶
16-20 (2018). But the Response brief makes clear that the Survivors’
wrongful death claim is based on a theory of the intentional tort battery, not
negligence. Survivors are correct in stating that “[t]he test is not whether
the conduct itself was reckless but whether that conduct was done ‘with
reckless disregard’ for [Rudhman’s] rights.” Thus, Ryan does not preclude
application of Arizona qualified immunity to cases involving the
intentional use of force.

¶46 Second, the Officers argue that even if reckless disregard
could make them liable, the Survivors have failed to demonstrate the
deputies’ conduct rose to that heightened standard. The Survivors contend,
however, that the deputies had the option to use non-lethal force when
Rudhman approached them and that Rudhman had the gun at his side
when he approached the deputies. Recklessness involves the “conscious
disregard of the law or the rights of others.” Spooner, 246 Ariz. at 119 ¶ 10;
see also Badia v. City of Casa Grande, 195 Ariz. 349, 356 ¶ 27 (App. 1999)
(stating the standard is “wanton misconduct that is flagrant and evinces a

13
 LEATHAM et al. v. YEARICK et al.
Decision of the Court

lawless and destructive spirit[]”) (cleaned up); Miranda v. City of Casa
Grande, No. 2 CA-CV 2022-0030, 2022 WL 17970593, at *3-4 ¶¶ 12-15 (Ariz.
App. Dec. 27, 2022) (determining if “[k]nowing disregard of a suspect’s
consent or knowingly giving false testimony” amounted to the “‘conscious
disregard of the law or the rights of others’”) (quoting Spooner, 246 Ariz. at
119 ¶ 10). The Survivors have shown a question of fact exists as to whether
the deputies’ conduct amounted to “reckless disregard” of Rudhman’s
rights because a jury could conclude the deputies consciously disregarded
the law or the rights of Rudhman in deciding to use lethal force under the
circumstances. See United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195 (App.
1990) (holding that summary judgment is improper “where the evidence or
inferences would permit a jury to resolve a material issue in favor of either
party[]”).

¶47 Third, the Officers argue the superior court erred by declining
to apply qualified immunity. The Officers contend the superior court
applied the law to hold that qualified immunity only applies to immunize
simple negligence. The Officers misapprehend the superior court’s order.
The court noted that under Spooner, qualified immunity is not available for
simple negligence. But the basis for the court’s ruling was that, to the extent
the Survivors have alleged an intentional tort, whether qualified immunity
applies turns on a disputed issue of fact - the reasonableness of the deputies
conduct. Thus, the superior court did not err in applying the law.

CONCLUSION

¶48 We accept jurisdiction and deny relief.

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

14