UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA ADAME, Surviving mother of No. 21-16031 decedent, personal representative of estate of Derek Adame, deceased; D.C. No. CLARISA ABARCA, As parent of 2:17-cv-03200- minor child, surviving daughter of GMS decedent Derek Adame, on behalf of C.A., Plaintiffs-Appellees, ORDER CERTIFYING v. QUESTION TO THE CITY OF SURPRISE, SUPREME Defendant-Appellant, COURT OF ARIZONA and SURPRISE POLICE DEPARTMENT; JOSEPH GRUVER, Officer; SHAUN MCGONIGLE, Officer, Defendants.

Filed June 14, 2022

Before: Mary H. Murguia, Chief Judge, and Susan P. Graber and Carlos T. Bea, Circuit Judges.

Order 2 ADAME V. CITY OF SURPRISE

SUMMARY *

Civil Rights/Arizona Law

The panel certified to the Supreme Court of Arizona the following questions:

1. Does A.R.S. Section 12-820.05(B) provide immunity from liability? If the latter, the Court need not answer any further questions because our court would lack jurisdiction over this interlocutory appeal. If the former, please answer the following additional questions.

2. With respect to the first sentence of subsection (B) of this statute: If a law enforcement officer causes a death by the use of “excessive force” (here, a firearm), has the law enforcement officer committed “a criminal felony” as a matter of law? If not, is a conviction of a felony required? If not, is the determination whether the law enforcement officer committed “a criminal felony” a question of fact for the jury or a question of fact only for “the court”? How does the determination whether an officer’s use of “excessive force” was “justified” or “unjustified” pursuant to A.R.S. section 13-413 affect this inquiry? Is the determination of whether the public employee’s relevant acts or omissions were “justified” or “unjustified” for the jury to make, or for the court to make? If this determination is for the court to make, for purposes of summary judgment, in

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ADAME V. CITY OF SURPRISE 3

applying A.R.S. section 12-820.05(B), is the reviewing court required to assume that the relevant acts or omissions of the public employee were “unjustified,” given A.R.S. section 13-413? 3. With respect to the second sentence of subsection (B) of this statute: Does this sentence apply only to a public employee’s operation or use of a motor vehicle? Or, if the public employee’s act takes place because another person operates or uses a motor vehicle (where, for example, a law enforcement officer fires because someone else is stealing a car or driving a car dangerously toward another person), does the public employee’s act nonetheless “aris[e] out of the operation or use of a motor vehicle”? What is the required degree of causal connection, if any, between the “acts or omissions arising out of the operation or use of a motor vehicle” and the “losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony”? 4 ADAME V. CITY OF SURPRISE

ORDER

We are asked to determine whether a police officer’s killing of the decedent, Derek Adame, arose out of Adame’s 1 “operation or use of a motor vehicle” purs