Court: Constable's estate can't be sued in Tucson mass shooting

PHOENIX — The surviving spouse of woman killed in a mass shooting in Tucson after an eviction effort went bad, has no legal right to sue the estate of the constable involved, the Arizona Supreme Court ruled Thursday.

The lawsuit against Deborah Martinez-Garibay, who also was shot and killed, alleged that she was grossly negligent in carrying out a 2022 eviction at an apartment complex near East Fort Lowell Road and North Dodge Boulevard, the court said in a unanimous decision. The eviction went sideways when the occupant, Gavin Lee Stansell, opened fire killing Martinez-Garibay, apartment manager Angela Fox, and bystander Elijah Miranda, before Stansell killed himself.

Arizona law recognizes that those performing judicial functions have immunity, even in cases of gross negligence, said Justice John Lopez, writing for the court.

That immunity can disappear if there is evidence of “misconduct.’’ And that, the court defined, as intentionally or otherwise failing with the court’s command to execute the warrant of eviction.

The problem here, said Lopez, is that William Fox, the apartment manager’s husband never actually alleged what the court considers misconduct, even though an autopsy of the constable showed evidence of alcohol, amphetamines, cocaine and other drugs in her system.

And all that, the justices said, leaves Fox with no legal cause of action.

Less clear is whether the decision also ends efforts to sue Pima County over whether it negligently supervised the constable.

Strictly speaking, Thursday’s ruling appears to leave in place a lower court ruling which concluded that if Martinez-Garibay is shielded by judicial immunity, then the county cannot be held liable for her acts.

But David Abney, an attorney representing William Fox, said there is precedent for suing an employer — which is what Pima County was — even if there is no legal claim against the employee. And he said there may be a basis to charge that the county was negligent in things like hiring, training, retention and supervision of the constable.

The ruling is significant because it would appear to give broad latitude for constables to act with gross negligence — and counties to shield themselves from liability for those acts — without fear of being sued.

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Under Arizona law, constables are elected officials who, along with their deputies, have some of the same legal authority as a county sheriff.

But the state Constable Ethics, Standards and Training Board — which also was sued in this case but, like the county, apparently will escape liability — said they generally work only within their own precincts. And their prime duties involve executing writs of eviction, serving orders of protection, serving civil and criminal summonses and subpoenas, and providing security to justice courts.

They are required to undergo basic training.

What’s notable is that Arizona law says that both constables and sheriff’s deputies can be sued — but only if there is “any misconduct’’ in the service of writs or paperwork.

Lopez acknowledged that statute does not define “misconduct.’’ So the justices, on their own, searched through various sources, including dictionaries, to come up with their own as it applies to constables, declaring that it means “an intentional violation of an applicable rule, standard or norm.’’

“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,’’ Lopez wrote.

The justices acknowledged that Fox, in filing suit, alleges that the constable “should have never attempted this dangerous eviction alone or with a hapless civilian tagging along.’’

But Lopez said that falls under the definition of gross negligence

“A party is grossly negligent if they know, or have reason to know, facts that would lead a reasonable perform to recognize their conduct created an unreasonable risk of bodily harm and involved a high probability of substantial harm,’’ he wrote. And he said that does not fit the definition of misconduct, the only exception to the immunity otherwise provided to constables for their actions.