Gonzales v. City of Tucson
| Decision Date | 27 November 1979 |
| Docket Number | CA-CIV,No. 2,2 |
| Parties | Henry GONZALES and Hortensia Gonzales, husband and wife, Plaintiffs/Appellants, v. The CITY OF TUCSON, a municipal corporation; Carl Lewis and Benita Lewis, husband and wife; Francisco Vasquez and Irma Vasquez, husband and wife; and Jeri Carter, Defendants/Appellees. 3264. |
| Court | Arizona Court of Appeals |
This was a suit for personal injuries from a gunshot wound inflicted by a City of Tucson policeman. The jury returned a defense verdict.
In the early morning hours of December 30, 1976, Henry Gonzales, who was in an intoxicated condition, decided to clean his pistol. When Mr. Gonzales accidentally shot himself, his wife and child called for assistance from the police who put out a call that there was a person inside the residence who had shot himself. Responding to the call were Officers Carl Lewis, Francisco Vasquez and Jeri Carter. When they arrived at the residence Mr. Gonzales' wife and child were outside. However, the officers did not speak with them and entered the house where they encountered Mr. Gonzales in the living area. He had a pistol in his possession and was pointing it at one of the officers or in the officers' direction. Officers Lewis and Vasquez told Mr. Gonzales to put the weapon down. Mr. Gonzales did not comply but instead went down the hall. Officer Vasquez had, in the meantime, drawn his weapon and was pointing it at Mr. Gonzales. He could see him go down the hall. Officer Lewis, however, could not see Mr. Gonzales and apparently thinking that Mr. Gonzales was about to shoot Officer Vasquez, fired through the wall, hitting and seriously injuring Mr. Gonzales.
Pursuant to the "Police Department Rules and Procedures Manual" a special board of inquiry was designated by the Tucson Chief of Police. Rule 5.15 of the department rules states:
The board of inquiry appointed by the chief of police made a written report which included, inter alia, the following conclusions:
"3. That all three officers used poor procedure by entering the residence without knocking or identifying theirselves (sic) verbally and by not having prior information on who all might be inside and what the surrounding circumstances were.
5. That Officer Lewis fired two rounds through the wall, violating Rules and Procedures 1/5.00, without knowing who all or what was on the other side of the wall.
The Board believes that at the point of initial contact by the officers with Mr. Gonzales when he was threatening them they were in jeopardy, but after Mr. Gonzales backed down the hall out of the officer's immediate vision, the degree of jeopardy was reduced at that time, and the officers had the opportunity to explore other means for disarming Mr. Gonzales. The Board does not feel that lives were in immediate and certain danger when Lewis fired through the wall. We feel that shooting blindly through a wall could have had disastrous results."
The board recommended that Officer Lewis be given a three-day suspension for violation of the rules and procedures by firing blindly through a wall apparently without regard to the possible consequences to others who might have been in the rooms. The Chief of Police, William Gilkinson, wrote the following on the report of the board of inquiry: "I concur with the findings of the Board." Officer Lewis was suspended.
Appellants urged below and contend now that the results and recommendations of the Board of Review were admissible as admissions of a party opponent. Even assuming, without deciding, that the statements were admissible, they would have been admissible only against the city. Bristol v. Moser, 55 Ariz. 185, 191, 99 P.2d 706, 709 (1940). 1 The city's liability was based upon the doctrine of respondeat superior and there was no independent theory of negligence against the city. Where both the master and the servant are joined as defendants and the claim against the master is based solely upon the doctrine of respondeat superior, a verdict...
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