Security guards and others who kill or injure criminals they subdue are not entitled to immunity from being sued by the survivors of their victims, the Arizona Court of Appeals ruled Friday.
In a unanimous decision, the three-judge panel voided a state law that says people can’t sue if they’re injured while committing or attempting to commit a crime. That law provides immunity even if the person who caused the injury was grossly negligent.
But Judge Joseph Howard, writing for the court, said the state constitution clearly spells out that judges and juries have the sole power in civil lawsuits to determine if the actions of victims that result in injury or death are their own fault. And that, he said, voids the law.
Friday’s ruling, unless overturned, paves the way for Lorna Hernandez, widow of Frank Hernandez Jr., to sue Jose Howard, the security guard on duty at a Tucson Safeway store whose actions she said resulted in her husband’s death.
According to a police report, Howard stopped Hernandez, saying he had stolen a bottle of lotion.
His widow’s attorney said that Howard restrained Hernandez by wrestling him to the floor, face down, and placing his arm around Hernandez’s neck.
The lawsuit says that while Hernandez complained he could not breathe, Howard did not release him until, with the assistance of two Safeway employees, Hernandez was handcuffed.
The police report says that before they arrived, a guard saw that Hernandez had stopped breathing and officials called for medical help. He was taken to Kino Community Hospital, where he was pronounced dead on arrival.
A medical examiner’s report concluded he died of “asphyxia due to neck compression.’’
Attorneys for the guard, his employer and the store sought to have the lawsuit tossed, citing the law that prohibits those who are committing crimes from filing suit if they are injured.
But Judge Howard said there is a higher law: The state constitution specifically says the question of whether someone contributed to his or her own death or injury is a question of fact — one that has to be decided by a jury.