Gabriel Garibay v. Hon. johnson/fox

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

GABRIEL GARIBAY; DEBORAH MARTINEZ-GARIBAY; AND PIMA COUNTY,
Petitioners,

v.

HON. KELLIE JOHNSON, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,

and

WILLIAM FOX, THE SURVIVING SPOUSE OF ANGELA FOX, DECEASED,
INDIVIDUALLY AND ON BEHALF OF ALL THOSE ENTITLED BY LAW TO
RECOVER FOR THE DEATH OF ANGELA FOX,
Real Party in Interest,

No. CV-24-0091-PR
Filed March 13, 2025

Appeal from the Superior Court in Pima County
The Honorable Kellie L. Johnson, Judge
No. C20231936
REVERSED AND REMANDED

Opinion of the Court of Appeals, Division Two
257 Ariz. 118 (App. 2024)
VACATED IN PART

COUNSEL:

Andrew J. Petersen (argued), Humphrey & Petersen, P.C., Tucson,
Attorneys for Gabriel Garibay, Deborah Martinez-Garibay, and Pima
County
 GARIBAY V. HON. JOHNSON/FOX
Opinion of the Court

David L. Abney, Ahwatukee Legal Office, P.C., Phoenix; Robert Grabb,
Grabb & Durando, PC, Tucson; John J. Kastner, Jr. (argued), Marco B.
Mercaldo, Carlo D. Mercaldo, Mercaldo Law Firm, Tucson; and Thomas A.
Zlaket, Thomas A. Zlaket, P.L.L.C., Tucson, Attorneys for William Fox

VICE CHIEF JUSTICE LOPEZ authored the Opinion of the Court, in which
JUSTICES BOLICK, BEENE, MONTGOMERY, KING, and JUDGE
PETERSON * joined. CHIEF JUSTICE TIMMER concurred in the result.

VICE CHIEF JUSTICE LOPEZ, Opinion of the Court:

¶1 We consider whether the common law doctrine of judicial
immunity shields constables from liability under A.R.S. § 11-449 for “any
misconduct in the service or execution” of a writ of restitution.

¶2 We hold that § 11-449 limits rather than abrogates judicial
immunity. Thus, a constable who engages in “any misconduct” in the
service or execution of a writ is subject to liability. “Misconduct” is an
intentional violation of an applicable rule, standard, or norm. Within the
meaning of the statute, “misconduct” involves a constable’s willful or
intentional failure to follow a court directive, law, or rule—here, execution
of a writ of restitution. Thus, “misconduct” arises from a constable’s failure
to carry out a particular court directive, law, or rule, rather than mere
negligence or gross negligence in the manner of its execution.

BACKGROUND

¶3 On August 25, 2022, Constable Deborah Martinez-Garibay
(“Garibay”)—less than six months into her tenure as a
constable—attempted to serve a writ of restitution issued by a justice court
on a tenant in an apartment complex in Tucson. The tenant was being

∗
Due to the retirement of Justice Robert Brutinel, pursuant to article 6,
section 3 of the Arizona Constitution, Judge Michael D. Peterson, Presiding
Judge of the Graham County Superior Court, was designated to sit in this
matter.
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Opinion of the Court

evicted for threatening a resident with a gun and disturbing the peace.
Garibay enlisted the apartment manager, Angela Fox (“Angela”), to
accompany her while she served the writ. At the tenant’s apartment door,
Garibay knocked for several minutes, identified herself as a constable,
announced her intent to serve the writ, and warned the tenant she would
call the police if he did not open the door. The tenant fatally shot Garibay,
Angela, and a visitor in an adjoining apartment before taking his own life.

¶4 Angela’s surviving spouse, William Fox (“Fox”), filed a
wrongful death action against Garibay’s surviving spouse, as well as Pima
County and the Arizona Constable Ethics, Standards and Training Board
(“CESTB”). 1 As relevant here, Fox’s suit against Garibay’s spouse alleged
that Garibay was negligent and grossly negligent in failing “to protect and
avoid exposing [Angela] . . . and the general public to harm” while serving
the writ of restitution. Fox also alleged that Garibay “had cocaine, alcohol
and other illicit substances in her system” while executing the writ. 2

¶5 Garibay’s spouse moved for judgment on the pleadings,
arguing that Garibay, as a constable, enjoyed judicial immunity and owed
no duty to Angela because constables are officers of the court. The superior
court denied the motion.

¶6 Garibay’s spouse filed a special action petition in the court of
appeals, contending that Garibay, as a constable, was entitled to judicial
immunity and owed no duty to Angela. The court accepted special action
jurisdiction. In an opinion, the court held that Garibay was judicially
immune from liability because, even if her actions were alleged to be
negligent or grossly negligent, they did not constitute “misconduct” under
§ 11-449. Garibay v. Johnson, 257 Ariz. 118, 127 ¶ 26 (App. 2024). The court
therefore reversed the superior court’s denial of judicial immunity but did
not consider whether Garibay owed a duty of care to Angela. Id. ¶¶ 27–28.

1 Fox’s suit against Pima County and CESTB alleging vicarious liability
under respondeat superior and negligent hiring, training, and supervision
is not before us.
2 The toxicology report on Garibay was positive for five substances above

the reporting limit, including an Ethanol level of 19 mg / dL, a Blood
Alcohol Concentration of 0.019 g / 100 mL, an Amphetamine level of 34
ng / mL, a Benzoylecgonine level of 210 ng / mL, and a Cocaine level of 50
ng / mL.
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Opinion of the Court

¶7 We granted review because whether the common law
doctrine of judicial immunity shields constables from liability under
§ 11-449 is an issue of first impression, statewide importance, and likely to
recur. We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution.

DISCUSSION

¶8 To determine whether Garibay is subject to liability under
§ 11-449 for “any misconduct in the service or execution” of the writ of
restitution, we must answer the following questions: (1) does common law
judicial immunity apply to a constable; (2) if so, does § 11-449 abrogate or
limit common law judicial immunity; and (3) if judicial immunity does not
shield Garibay from § 11-449’s application, did Fox’s complaint allege that
Garibay committed “misconduct” within the statute’s meaning?

¶9 A party is entitled to judgment on the pleadings when a
“complaint fails to state a claim for relief.” Giles v. Hill Lewis Marce, 195
Ariz. 358, 359 ¶ 2 (App. 1999). When we review a motion for judgment on
the pleadings, we accept the complaint’s factual allegations as true, but
review the trial court’s legal conclusions de novo. Shaw v. CTVT Motors,
Inc., 232 Ariz. 30, 31 ¶ 8 (App. 2013), as amended (Mar. 29, 2013). We review
issues of statutory construction de novo. Planned Parenthood Ariz., Inc. v.
Mayes, 257 Ariz. 137, 142 ¶ 13 (2024).

I.

¶10 We begin our analysis with the threshold question of whether
Garibay, as a constable, is subject to common law judicial immunity. The
court of appeals held that constables enjoy judicial immunity, reasoning
that when constables execute writs they engage in a judicial function
“closely tied to the judicial decision to issue the writ in the first place.”
Garibay, 257 Ariz. at 125 ¶ 15. We agree.

¶11 Constables are borne of a legislative act and their duties are
codified in statute. See A.R.S. § 22-131. As relevant here, § 22-131(A)
requires constables to attend courts and execute, serve, and return all
processes, warrants, and notices as directed by a justice of the peace or

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Opinion of the Court

competent authority. Clark v. Campbell, 219 Ariz. 66, 71 ¶ 18 (App. 2008).
Moreover, courts may exercise control over constables and discipline them
for non-performance of their judicial duties. Id. at 72 ¶ 21.

¶12 The common law doctrine of judicial immunity exists to
ensure judges perform their work with independence and without fear of
consequences. Burk v. State, 215 Ariz. 6, 9 ¶ 7 (App. 2007). But our courts
have recognized that, to advance the independence and efficacy of the
judiciary, judicial immunity should extend to court officers and others who
perform functions intimately related to the judicial process. See id. ¶ 8.

¶13 Our courts have extended absolute judicial immunity to an
array of court officers, employees, and agents who “assist the court in the
judicial process.” Acevedo v. Pima Cnty. Adult Prob. Dep’t, 142 Ariz. 319, 322
(1984); see also Burk, 215 Ariz. at 9 ¶ 8 (recognizing application of judicial
immunity to “guardians ad litem, court-appointed psychologists, and
probation officers”); Yamamoto v. Santa Cruz Cnty. Bd. of Supervisors, 124
Ariz. 538, 540 (App. 1979) (extending absolute immunity to a court clerk
following a court’s order).

¶14 We have emphasized that, although many employees work
with and within the judicial system, judicial immunity only applies where
these duties are essential to the judicial process. For example, in Acevedo,
parents sued the Pima County Adult Probation Department for negligent
supervision of a probationer who, despite a probation condition prohibiting
contact with minors, was permitted to reside with young children and
injured them. 142 Ariz. at 320. We recognized that probation officers are
entitled to “absolute protection from suit for actions which are necessary”
in preparing and submitting presentence reports to the court and enforcing
court-imposed conditions of probation. Id. at 322. However, we clarified
that not “all the activities of a probation officer in supervising a probationer
are entitled to immunity.” Id. Many probation officer duties are
administrative or supervisory and, thus, are “not part of the judicial
function.” Id. We held that “[a] probation officer cannot assert for
immunity unless the officer is acting pursuant to or in aid of the directions
of the court.” Id. Thus, the probation officer was not immune from the
parents’ suit because he permitted the probationer to reside with minor
children in violation of the court’s specific direction prohibiting contact
with minors. Id. The exception to judicial immunity in Acevedo proves the
rule.

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Opinion of the Court

¶15 In Adams v. State, 185 Ariz. 440, 441–43 (App. 1995), the court
of appeals, applying the principles established in Acevedo, considered
whether Department of Economic Security (“DES”) adoption caseworkers
enjoyed judicial immunity from suit by adopted children. The children
alleged that their DES-approved adoptive parents molested them as a result
of the caseworkers’ negligent pre-adoption investigation and
post-placement supervision. Adams, 185 Ariz. at 442. The court held that
the caseworkers were not immune from suit for their investigative and
supervisory actions because “their routine and statutorily-required
investigative and supervisory functions were [not] conducted as an integral
part of the judicial process.” Id. at 446.

¶16 We distill from our jurisprudence the principle that common
law judicial immunity applies to court officers, employees, and agents who
“assist the court in the judicial process” by carrying out court orders or
otherwise serving an integral part of the judicial process. Acevedo, 142 Ariz.
at 322; Adams, 185 Ariz. at 445–46. Persons otherwise covered by judicial
immunity, however, forfeit immunity if they act contrary to a court’s
directive. Acevedo, 142 Ariz. at 322. In executing writs, constables both
assist the court in the judicial process and serve an integral part of the
judicial process if they act consistent with a court’s directive. 3 Thus,
constables act as officers of the court and are entitled to judicial immunity
when they execute court orders, including writs of restitution, § 22-131(A),
as directed by the court. See Clark, 219 Ariz. at 72 ¶ 21; cf. State ex rel.
Andrews v. Superior Court, 39 Ariz. 242, 248–49 (1931) (holding that a sheriff
acts as an officer of the court when carrying out certain statutory duties of
the office). As a constable, Garibay was entitled to common law judicial
immunity when executing a writ of restitution.

3 Statutory immunity for constables may also exist pursuant to A.R.S.
§ 41-621(K), which shields state officials from personal liability for “an
injury or damage resulting from an act or omission in a public official
capacity where the act or omission was the result of the exercise of the
discretion vested in the officer, agent or employee and if the exercise of the
discretion was done in good faith without wanton disregard of statutory
duties.” However, because neither party raised this argument, we do not
address that statute. See Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 406
n.9 (1995) (“We do not ordinarily consider issues not raised in the trial court
or court of appeals.”).
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Opinion of the Court

II.

¶17 We next consider whether § 11-449 abrogates or limits
Garibay’s immunity. Fox argues that the “Arizona Legislature itself
abolished any common-law or other judicial immunity in one specific area
through § 11-449’s plain words.”

¶18 Section 11-449, titled “Liability relating to writs, levies or
sales,” provides:

If a sheriff neglects to make due return of a writ or paper
delivered to him to be served or executed, or is guilty of any
misconduct in the service or execution thereof, he is liable to
the party aggrieved for damages sustained, and, in addition,
for a penalty of two hundred dollars.

(Emphasis added.) Although § 11-449 refers only to “sheriffs,” the statute
also applies to constables. See § 22-131(D) (“The provisions of law relating
to sheriffs, as far as applicable, shall govern the powers, duties and
liabilities of constables.”).

¶19 Fox is correct that, under Arizona law, statutes may abrogate
or limit the common law. See A.R.S. § 1-201 (declaring that the common
law applies “only so far as it is consistent with . . . the laws of this state”);
see also Zambrano v. M & RC II LLC, 254 Ariz. 53, 65 ¶ 43 (2022) (noting that
common law rules only apply when legislative guidance is lacking).
However, “if the common law is to be changed or abrogated by statute, the
legislature must do so expressly or by necessary implication.” Pleak v.
Entrada Prop. Owners’ Ass’n, 207 Ariz. 418, 422 ¶ 12 (2004). “Absent a clear
manifestation of legislative intent to abrogate the common law, we interpret
statutes with ‘every intendment in favor of consistency with the common
law.’” Id. (quoting In re Thelen’s Est., 9 Ariz. App. 157, 160–61 (1969)); see
also § 1-201 (adopting the common law to the extent it is “not repugnant to
or inconsistent with the Constitution of the United States or the constitution
or laws of this state”).

¶20 Here, § 11-449 evinces no legislative intent to abrogate judicial
immunity or, as Fox contends, to “abolish[] any common-law or other
judicial immunity in one specific area.” In fact, the statute does not mention
judicial immunity at all. There is no textual support for Fox’s claim that the

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Opinion of the Court

legislature intended the statute to abolish “any” judicial immunity in these
circumstances.

¶21 Section 11-449, however, limits the scope of judicial immunity
in specific circumstances. As relevant here, the statute imposes liability on
constables who are “guilty of any misconduct in the service or execution”
of a writ. To the extent constables may have been immune from suit under
the common law for misconduct in the service or execution of a writ, the
legislature has eliminated such immunity. 4 Thus, Garibay is not immune
from Fox’s suit if she was “guilty of any misconduct” in the service or
execution of the writ of restitution.

III.

¶22 Although as a constable Garibay is entitled to judicial
immunity, § 11-449 eliminates such immunity if she is “guilty of any
misconduct” in the service or execution of the writ of restitution. Thus, this
case turns on the meaning of “misconduct” in § 11-449.

A.

¶23 We begin with the text when interpreting a statute. Franklin
v. CSAA Gen. Ins. Co., 255 Ariz. 409, 411 ¶ 8 (2023). “We interpret statutory
language in view of the entire text, considering the context and related
statutes on the same subject.” Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11
(2019). If a statute’s text is plain and unambiguous, it controls unless it
results in an absurdity or a constitutional violation. 4QTKIDZ, LLC v. HNT
Holdings, LLC, 253 Ariz. 382, 385 ¶ 5 (2022). However, “[i]f the statutory

4 Fox argues that § 11-449’s “specific liability” “defeats any general
statutory immunity” the legislature codified in A.R.S. § 12-820.01(A), which
immunizes a “public entity” from liability for actions and omissions of its
employes in the exercise of a judicial function. Invoking the principle that
a specific statute prevails over a general one, Morton v. Mancari, 417 U.S.
535, 550–51 (1974), Fox submits that §§ 11-449 and 12-820.01(A) can be
harmonized to maintain “general judicial immunity for most judicial
functions [in the latter], with the exception in this case of special liability [in
the former].” Assuming, without deciding, that § 12-820.01(A) applies to
constables as “public entities,” we agree. Therefore, we need not address
§ 12-820.01(A).
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Opinion of the Court

language is ambiguous—if ‘it can reasonably be read in two ways’—we
may use alternative methods of statutory construction, including
examining the rule’s historical background, its spirit and purpose, and the
effects and consequences of competing interpretations.” Planned Parenthood
Ariz., Inc., 257 Ariz. at 142 ¶ 17 (quoting State v. Salazar-Mercado, 234 Ariz.
590, 592 ¶ 5 (2014)).

¶24 Section 11-449 does not define “misconduct.” Absent a
statutory definition, we may consider dictionaries and written publications
to discern the word’s common meaning and usage, respectively, at the time
the legislature enacted the statute. Matthews v. Indus. Comm’n, 254 Ariz. 157,
163 ¶ 33 (2022); see also In re Drummond, 257 Ariz. 15, 18 ¶ 7 (2024). The
legislature first adopted the language that now appears as § 11-449 in 1901;
it was readopted as a statute in 1913. See Ariz. Civ. Code, §§ 1089, 1090
(1901); Ariz. Civ. Code, §§ 2542, 2543 (1913). Therefore, we determine the
common meaning of “misconduct” as that term was understood when first
adopted in 1901. Matthews, 254 Ariz. at 165 ¶ 40 (“When a subsequent
enactment imports unchanged earlier language, it imports the original
meaning as well.”); see also Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 323 (2012) (“[W]hen a statute uses the very
same terminology as an earlier statute, especially in the very same
field, . . . it is reasonable to believe that the terminology bears a consistent
meaning. One might even say that the body of law of which a statute forms
a part—especially if that body has been codified—is part of the statute’s
context.”).

1.

¶25 We begin by examining contemporaneous dictionary
definitions. The Century Dictionary defines “misconduct” as “[w]rong
conduct; misbehavior” and “[m]ismanagement.” Misconduct, The Century
Dictionary: An Encyclopedic Lexicon of the English Language (1897). Fox
relies on several dictionary definitions that align with this general
construction of “misconduct,” but his sources fall outside the relevant time
period. Although ordinary dictionary definitions are inconclusive, they
establish that the ordinary meaning of “misconduct” embodies
wrongdoing.

¶26 Fox also overlooks two legal dictionaries from the relevant
time period that refine the meaning of “misconduct” and define “wrong

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Opinion of the Court

conduct,” “misbehavior,” and “mismanagement.” First, Judicial and
Statutory Definitions of Words and Phrases (“First Judicial”) defines
“misconduct” as:

[I]mplies a wrongful intention, and not a mere error of
judgment . . . . In usual parlance, misconduct means a
transgression of some established and definite rule of action,
where no discretion is left, except what necessity may
demand; and carelessness, negligence, and unskillfulness are
transgressions of some established, but indefinite, rule of
action, where some discretion is necessarily left to the actor.
Misconduct is a violation of definite law; carelessness, an
abuse of discretion under an indefinite law. Misconduct is a
forbidden act; carelessness, a forbidden quality of an act, and
is necessarily indefinite.

Misconduct, Judicial and Statutory Definitions of Words and Phrases (1904).
Thus, First Judicial’s definition juxtaposes the concept of misconduct with
negligence, explaining that misconduct embodies wrongful intent rather
than mere error.

¶27 Second, Black’s Law Dictionary aligns with First Judicial’s
definition of “misconduct”:

Any unlawful conduct on the part of a person concerned in
the administration of justice which is prejudicial to the rights
of parties or to the right determination of the cause . . . . The
term is also used to express a dereliction from duty, injurious
to another, on the part of one employed in a professional
capacity, as an attorney at law, . . . or a public officer.

Misconduct, Black’s Law Dictionary (2d. ed. 1910). Read together, First
Judicial and Black’s Law suggest the plain meaning of “misconduct” as an
intentional violation of an applicable rule, standard, or norm. Relevant
here, they denote “a dereliction from duty . . . on the part of . . . a public
officer.” Id.

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Opinion of the Court

2.

¶28 We next consider corpus linguistics to aid our understanding
of the common usage of “misconduct” when the legislature enacted the
statute. Corpus linguistics is a helpful tool in determining a word’s
common usage. See Matthews, 254 Ariz. at 163 ¶ 33. It is performed on “a
massive database that enables date-specific searches for the possible,
common, and most common uses of words or phrases as they were used in
newspapers, books, magazines, and other popular publications.” Id.
Corpus linguistics research is helpful to ascertain a term’s ordinary
meaning “because the human brain understands words not in isolation but
in their broader semantic (and pragmatic) context, [and] we may often miss
the import of a given . . . term if we just separately look up its component
words in the dictionary.” Thomas R. Lee & James C. Phillips, Data-Driven
Originalism, 167 U. Pa. L. Rev. 261, 283 (2019).

¶29 A search of the Corpus of Historical American English for
“misconduct” as used between 1900 and 1919 yields seventy-six results.
Search of “Misconduct” from 1900–1919, Corpus of Hist. Am. Eng.,
https://www.english-corpora.org/coha/?c=coha&q=122908439 (last
visited Mar. 3, 2025). Of these seventy-six results, sixty-two refer to
intentionally wrongful acts serious enough to justify consequences or
removal from a position. Id. Notably, only one entry used “misconduct”
interchangeably with “negligence,” while thirteen sources used
“misconduct” indiscernibly. Thus, the prevailing common usage of
“misconduct” during the relevant period connotes intentional rather than
negligent conduct.

¶30 Our corpus review is consistent with our linguistic
analysis—”misconduct” refers to intentional violations of an applicable
rule, standard, or norm. Dictionary definitions and corpus linguistics
entries demonstrate the objective—clear duty or rule violation—and the
subjective—intentional—components of “misconduct” as the word was
commonly understood and used when the legislature adopted it.

3.

¶31 Our jurisprudence interpreting “misconduct” at the time the
legislature first codified the term is also consistent with our dictionary and
corpus linguistics analyses. In Mooney v. Broadway, 2 Ariz. 107, 113 (1886),

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Opinion of the Court

a sheriff prematurely released property levied under a writ. We held that
the sheriff committed “misconduct,” even though the sheriff did not
intentionally neglect his duty. Mooney, 2 Ariz. at 113. We reject any
implication, however, that Mooney can be read to expand “misconduct” to
include negligence. The “misconduct” in Mooney refers to the sheriff’s
failure to carry out the writ’s terms. Id.

¶32 In Stiles v. W. Union Telegraphic Co., 2 Ariz. 308, 311 (1887), the
appellant sued for damages resulting from a delay in delivering a
telegraphic message. We held the telegraph company liable for damages
for failing to timely deliver the message and characterized the company’s
conduct as “gross negligence and palpable misconduct.” Stiles, 2 Ariz.
at 312. As in Mooney, the telegraph company’s misconduct in Stiles arose
from its intentional violation of a duty. The Court’s allusion to “gross
negligence” does not alter its fundamental point that the company’s
misconduct arose from the failure to meet its obligation to its customer.

¶33 Mooney and Stiles confirm our definition of “misconduct.” In
those cases, we characterized the intentional violation of a duty—whether
to properly carry out a writ or to timely deliver a telegram—as
“misconduct.” See Mooney, 2 Ariz. at 113; see also Stiles, 2 Ariz. at 312. We
have also acknowledged that sheriffs are liable for violations of clearly
established duties when executing writs. See Fid. & Deposit Co. of Md. v.
McFadden, 47 Ariz. 116, 120 (1936) (“[I]t was the duty of the sheriff to feed
and properly care for the cattle [under the writ because] . . . public policy
would not permit him to contract against liability for his personal
negligence in caring for and feeding the cattle while in his actual
possession.”); Schuster v. Merrill, 56 Ariz. 114, 119 (1940) (stating that a
sheriff violates his statutory duty to serve all process regular on its face
where lack of authority for issuance of the process is “apparent on its face”).

¶34 We therefore hold that “misconduct” in § 11-449 means an
intentional violation of an applicable rule, standard, or norm. Here, the
relevant applicable rules, standards, and norms that pertain to constables
involve implementing a court directive, law, or rule. See Clark, 219 Ariz.
at 71 ¶ 18. Consequently, under the statute, “misconduct” involves a
constable’s willful or intentional failure to carry out a court directive, law,
or rule, rather than negligence in the manner of discharging such duties.

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B.

¶35 We now must determine whether Fox’s complaint alleges
Garibay engaged in “misconduct,” within the meaning of § 11-449, in
executing the writ of restitution resulting in Angela’s death.

¶36 Fox’s complaint alleges that “[t]he wrongful death of Angela
Fox occurred due to the negligence and/or gross negligence of
Defendants,” which includes Garibay. Specifically, he alleges that Garibay
acted with negligence and/or gross negligence by inviting Angela to
accompany her to execute the writ because Garibay knew that the tenant
“was evicted for threatening a resident with a gun and disturbing the
peace.” Fox argues “[Garibay] should have never attempted this dangerous
eviction alone or with a hapless civilian tagging along.” On appeal, Fox
argues that Garibay’s acts involved “misconduct” because they
“constituted improper conduct, mismanagement, wrong conduct, ill
behavior, misbehavior, bad behavior, bad conduct.”

¶37 We first address Fox’s negligence claim. Although Fox
initially argued that ordinary negligence always constitutes “misconduct”
under § 11-449, he abandoned this claim at oral argument. We commend
Fox for this concession. Negligence entails breach of a duty to conform to
a standard of care, which causes injury and damages. See Ryan v. Napier, 245 Ariz. 54, 59 ¶ 17 (2018) (“A negligence claim focuses on the defendant’s
conduct; intent is immaterial.”). Under this standard, it is not necessary to
show “misconduct” to prove negligence.

¶38 We now turn to Fox’s gross negligence claim. We have
acknowledged that defining “negligence” and “gross negligence” “is, at
best, inexact.” Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 535 ¶ 20
n.4 (2003). Inexactitude aside, our courts recognize that gross negligence
differs from ordinary negligence. See, e.g., Kemp v. Pinal County, 13 Ariz.
App. 121, 124–25 (1970) (noting that “[a] person can be very negligent and
still not be guilty of gross negligence”). A party is grossly negligent if they
know, or have reason to know, facts that would lead a reasonable person to
recognize their conduct created an unreasonable risk of bodily harm and
involved a high probability of substantial harm. Noriega v. Town of Miami,
243 Ariz. 320, 328 ¶ 35 (App. 2017); see also Gross Negligence, Black’s Law
Dictionary (12th ed. 2024) (“Gross negligence is traditionally said to be the
omission of even such diligence as habitually careless and inattentive

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people do actually exercise in avoiding danger to their own person or
property.”). Thus, gross negligence requires a level of disregard beyond
ordinary inattention but less than conscious indifference. Noriega, 243 Ariz.
at 328 ¶ 36. Gross negligence does not encompass intentional malfeasance.

¶39 An illustration brings the distinction between gross
negligence and misconduct into sharper relief. Gross negligence is playing
with matches near a dry forest with a burn ban in effect: reckless,
irresponsible, without regard for others, and with a high probability of
substantial harm. Misconduct, on the other hand, is the intentional act of
lighting a match with the purpose of causing a wildfire. This distinction
matters. Gross negligence embodies extreme carelessness, but it falls short
of the deliberate wrongdoing required for “misconduct.”

¶40 We concur in the court of appeals’ holding that mere
allegations of negligence and gross negligence do not allege “misconduct”
under § 11-449. Garibay, 257 Ariz. at 127 ¶ 26. Fox’s allegations arise from
Garibay’s manner of executing a writ, a court directive she was required to
follow. There is no allegation that Garibay failed, intentionally or
otherwise, to comply with the court’s command to execute the writ—the
applicable rule, standard, or norm. Because Fox merely alleged that
Garibay was negligent or grossly negligent in carrying out the court’s order,
he has not alleged that she engaged in “misconduct” under § 11-449. Thus,
Fox’s complaint fails to state a claim for relief because judicial immunity
shields Garibay from suit on the allegations asserted in his complaint.

CONCLUSION

¶41 The legislature, in § 11-449, limited constables’ judicial
immunity, as relevant here, if a constable “is guilty of any misconduct” in
the service or execution of a writ. The statute’s effect on a constable’s
judicial immunity does not create liability for gross negligence in the service
or execution of a writ. If the legislature intended to curtail constables’
immunity in that manner, it would have done so. See A.R.S.
§ 12-820.02(A)(1) (adopting qualified immunity to protect officials from
liability for ordinary negligence but not for gross negligence or intentional
misconduct); Clouse ex rel. Clouse v. State, 199 Ariz. 196, 207 ¶ 42 (2001); see
also Spooner v. City of Phoenix, 246 Ariz. 119, 124 ¶ 10 (App. 2018).

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 GARIBAY V. HON. JOHNSON/FOX
Opinion of the Court

¶42 We therefore vacate ¶¶ 11–26 of the court of appeals’
decision, 5 reverse the trial court’s ruling, and remand to the trial court for
further proceedings consistent with this Opinion.

5 Because we did not grant review on the issue of legislative immunity, we
express no opinion on ¶¶ 6–10 of the court of appeals’ opinion.
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 GARIBAY V. HON. JOHNSON/FOX
Chief Justice Timmer Concurring in the Result

TIMMER, C.J., concurring in the result.

¶43 I join the majority opinion and agree with its holding. I write
separately to pump the brakes on embracing corpus linguistics as a reliable
aid in statutory and constitutional interpretation. See supra ¶¶ 28–30.

¶44 In Matthews v. Indus. Comm’n, 254 Ariz. 157, 163 ¶ 33 (2022),
this Court relied on corpus linguistics without the benefit of adversarial
testing from the parties. See Peter Henderson et al., Corpus Enigmas and
Contradictory Linguistics: Tensions Between Empirical Semantic Meaning and
Judicial Interpretation, 25 Minn. J.L. Sci. & Tech. 127, 151 n.87 (2024)
(hereafter, “Henderson”) (including Matthews among the cases that have
initiated and conducted a corpus linguistics analysis without party input).
In my partial concurrence and dissent, I rejected use of corpus linguistics
without further vetting. See Matthews, 254 Ariz. at 168 ¶ 58 (Timmer, V.C.J.,
concurring in part and dissenting in part) (lamenting the lack of sufficient
information corpus linguistics and pointing out that the database used in
that case “does not reflect oral usage” of words). This case presents the
second time we have used corpus linguistics, and for the second time we
are doing so without input and adversarial testing from the parties. In my
view, this is short-sighted and may present problems in future cases.

¶45 To be clear, I am not opposed to corpus linguistics. Like any
appellate judge, my eyes light up at the prospect of using an empirical,
scientific tool to help identify textual meaning. But caution is warranted.
Some scholars enthusiastically embrace corpus linguistics for use in
interpreting legal texts, albeit with caveats. See Thomas R. Lee & Stephen
C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788, 851–58 (2018).
Others warn that using corpus linguistics “may sub silentio clash with
express jurisprudential commitments.” Henderson, supra ¶ 44, at 127; see
also Marshall v. PricewaterhouseCoopers, LLP, 539 P.3d 766, 780 n.1 (Or. 2023)
(James, J., dissenting) (opining that corpus linguistics is “problematic on
many levels, including suffering from the limitations and biases of those
who compile the corpus, manipulation through the choice of database, and
potentially overly suggestive results due to the construction of the search
terms and methods”). That gets my attention. Thus, in my view, we should
not rely on corpus linguistics before receiving input and scrutiny from
parties; ensuring ourselves that the database searched is a reliable tool for
identifying ordinary meaning of words; and adopting a research and

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 GARIBAY V. HON. JOHNSON/FOX
Chief Justice Timmer Concurring in the Result

interpretive methodology that ensures we use the tool with an appropriate
degree of precision.

¶46 This special concurrence is not the place to thoroughly
analyze if and how corpus linguistics should be used to interpret legal texts.
I am not an expert in linguistics, and I am unwilling to engage in scientific
research without input from parties affected by the results. See State v.
Rasabout, 356 P.3d 1258, 1264–66 ¶¶ 16–21 (Utah 2015) (criticizing sua
sponte corpus linguistics research as unfair to parties and outside judicial
expertise). Instead, I urge parties in future cases to examine the utility of
corpus linguistics and advise this Court about if and how corpus linguistics
should be used. This analysis may become particularly imperative as
corpus linguistics interacts with artificial intelligence. See Henderson, supra
¶ 44, at 132 (warning that problems with corpus linguistics are likely to
increase with the corresponding use of large language models “as meaning
can include the arbitrary references of annotators or model creators”).

¶47 From my cursory review of writings on legal corpus
linguistics—and there are an untold number—several issues deserve
consideration. There are likely more. I have plugged the questions that
immediately come to mind into two broad categories.

¶48 First, parties should identify whether a database or mix of
databases can be reliably used to identify the ordinary meaning of words
used in legal texts. In doing so, parties should consider criticisms that
databases “rely on foreign law to give meaning to U.S. constitutional or
statutory provisions,” which courts generally eschew; “offer subjective or
strategic forms of legislative history” that do not reflect the ordinary
meaning of the words used in text; and “represent[] elite rhetoric, not
ordinary original public meaning.” See id. at 131–32, 153 (emphasis
removed).

¶49 Second, parties should identify the appropriate methodology
for searching a database and interpreting the results. For example, what
role does context play in the analysis? See Anya Bernstein, Legal Corpus
Linguistics and the Half-Empirical Attitude, 106 Cornell L. Rev. 1397, 1429
(2021) (“Legal corpus linguistics, with its obsessive focus on single words
used in unconnected situations, to the exclusion of larger and more relevant
contexts, encourages legal interpreters to neglect the real import of their
decisions.”). Should inquiries solely focus on use of words in a legal

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 GARIBAY V. HON. JOHNSON/FOX
Chief Justice Timmer Concurring in the Result

context? See id. at 1417 (“One key thing legal corpus linguistic inquiry tends
to neglect is the legal context of legal language.” (emphasis in original)). Are
there any fallacies to avoid in using corpus linguistics? See Kevin P. Tobia,
Testing Ordinary Meaning, 134 Harv. L. Rev. 726, 735 (2020) (explaining the
“nonappearance fallacy,” which falsely “claim[s] that absence of a usage
from a large corpus indicates that the usage is not part of the ordinary
meaning”); see also Tammy Gales & Lawrence M. Solan, Revisiting a Classic
Problem in Statutory Interpretation: Is a Minister a Laborer?, 36 Ga. St. U. L.
Rev. 491, 500 (2020) (pointing out that the blue pitta, a bird of Asia, does not
appear in the Corpus of Contemporary American English, but that does not
make it any less a bird).

¶50 Corpus linguistics’ promise of scientific objectivity is
undeniably seductive. But it is the proverbial black box: I can see what goes
in and what comes out, but I cannot see inside. And until “what’s inside”
is sufficiently probed by parties with a stake in the outcome, perhaps with
the assistance of expert linguists, I believe the Court should rely exclusively
on time-tested methods of statutory and constitutional interpretation.
Here, dictionaries that were curated by lexicographers and caselaw support
the plain meaning of “misconduct” identified by the majority. I think the
analysis should stop there. For now, I continue to believe that we should
not treat corpus linguistics as a settled part of our interpretive toolkit but
instead view it as an intriguing possible tool and invite adversarial testing of
that tool. With these thoughts in mind, and with respect to my colleagues,
I concur in the opinion.

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