A Phoenix Cop Might Go to Jail for Sexual Assault, but State Law Protects the Police Department From Fault

Jane was certain the police officer was about to hurt or kill her. She sat handcuffed and sobbing in the back of his patrol car in a corner of a dark Walgreens parking lot in the middle of a hot night in June.

Phoenix Police Officer Timothy Morris isn't particularly tall, about 5-foot-9, but as he stood by the open back door — his arm casually placed above the door frame, his belt buckle and gun level with her face — it felt to Jane that he towered over her.

Jane has long black hair and dark eyes inherited from her Vietnamese parents. She's 23, but her casual posture and tomboy style make her appear younger. She has a full-time job in sales, is in a committed two-year relationship with her girlfriend, Brooke, and with the exception of a 2011 DUI charge, is an upstanding citizen.

Both Jane's and Brooke's names have been changed to protect their identities, but all the details they've told New Times about the night Morris had Jane in his custody are backed up by police reports and court documents.

Earlier that evening, the two of them had been approached by an officer in Scottsdale who thought their parked car looked suspicious. When he ran their names through his computer system, he discovered there was a warrant for Jane's arrest because she had failed to pay some of her DUI fines.

Because the DUI fines were owed to Phoenix, the Scottsdale officer arrested her and turned her over to Morris, who was supposed to take her to jail.

But video surveillance footage from the Walgreens parking lot shows he kept her in his custody for 39 minutes, during which time, she says, he sexually assaulted her.

Morris began by asking Jane about her sex life and sexual history: Was she a virgin? Had she ever had sex with a man? What about anal sex?

She says she was terrified and crying and told him something she rarely tells people: She was molested as a child. "She was hoping she would not be forced to have sex with the officer," the police report states.

Jane later told police that she finally asked Morris what he wanted because he wouldn't stop asking her uncomfortable questions. He didn't answer, just continued to stare at her.

"I asked him if he wanted a hand job or a blow job because I was afraid he was going to hurt me or rape me," Jane says.

She pauses for a moment and adds, "I thought I had no choice . . . I didn't think he was going to let me go."

"No, I want the whole caboodle. I want it all," she remembers him saying.

Jane was still in the backseat crying when Morris leaned down to remove the handcuffs. He recuffed her wrists in front of her body and made her get out of the car to perform oral sex.

Afterward, she spit Morris' semen on the ground and wiped her mouth with her shirt. He told her to get back in the car because he was taking her home.

En route, he "told her to say the computer was down if anyone asks her why she was not taken to jail," according to the police report.

He parked in front of her house a little after 4 a.m. and uncuffed her.

"Maybe I'll see you around," she remembers him saying as he watched her walk to her front door.

Jane's girlfriend, Brooke, was sitting in the living room with the couple's other roommate, Corey Weiss, when Jane got home. Moments after walking in the front door, Jane started crying and told them what had happened with Morris.

They reported the incident a few hours later, and Morris, who is 42 and married with children, didn't deny Jane's charge.

He was arrested the following evening. According to the police report, he admitted freely that "[oral sex] was performed on him by [Jane] while she was handcuffed and in his custody" in exchange for not booking her into jail, though he says the act was consensual.

(Both Morris' criminal lawyer, Jonathan Warshaw, and the Maricopa County Attorney's Office, which represents the state in the criminal trial, declined to comment.)

Morris is in jail awaiting trial for multiple non-bondable felony charges, and Jane's lawyer believes that given the facts of the case, it's more than likely he'll be convicted.But that's in criminal court.

While Jane can take solace in the fact that the state likely will punish Morris and that he'll almost certainly never work as a police officer again, that's about all she'll get for her pain and suffering.

She can sue Morris and possibly get a small sum of money, but she can't sue the Phoenix Police Department and win, thanks to a little-known Arizona statute that shields public entities from the felonious acts of their employees.

It's a 1984 law civil attorneys interviewed by New Times call "backwards" and "terribly unjust."

The specific statute falls under the larger category of what are called sovereign or public immunity laws — essentially the rules and regulations spelling out when the government or any public entity can be sued.

Every state has slightly different immunity laws, and were Jane living somewhere else — say, California — there's a good chance a judge would hear her case against the Phoenix Police Department.

"Whenever people are in a position of power, some percentage will take advantage of that." — Jamal Allen

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But in Arizona, ARS 12-820.05B states: "A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony by a public employee unless the public entity knew of the public employee's propensity for that action."

To be clear, if Morris were to be convicted of a misdemeanor or simply never indicted at all, this statute would not get in the way of Jane's suing the police department.

But the wording is clear: If a public employee commits a felony, the employer, because it's a government entity, is not liable.

"The statute is a travesty because so long as your conduct is so egregious that it ends in a felony conviction, the public entity who hired you is protected from the consequences," says Michael Manning, a local attorney who has made a career out of suing the Maricopa County Sheriff's Office in wrongful death suits.

(Manning represented New Times and its former owners in a 2007 civil rights case against Sheriff Joe Arpaio and the MCSO.)

He is able to sue the MCSO because the individual officers are never indicted on felony charges, so the law doesn't apply — it's the same reason the families of Michelle Cusseaux and Rumain Brisbon, both of whom were fatally shot by Phoenix Police Officers in 2014, are able to sue the city and police department.

"It's truly an absurd statute," Manning says.

Defenders of the law disagree.

"I get how the law can seem fair if the employee had a squeaky-clean record free of any warning signs," says Andrew Becke, a Prescott-based lawyer who specializes in Arizona's sovereign immunity laws. But not only is that frequently not the case in these sorts of situations, he adds, this line of reasoning misses the true reason the statute is problematic.

Regardless of an employee's past behavior, the main issue many have with the law has to do with its wording: A public entity is not liable "unless the public entity knew of the public employee's propensity for that action."

Arizona courts consistently have interpreted the word "knew" in this statute to mean absolute knowledge — as opposed to constructed knowledge, which is what an employer reasonably could have known.

In Jane's case, for the Phoenix Police Department to be held liable, it would have had to have known with absolute certainty that Morris was likely to sexually assault a young woman in his custody — something Jane's lawyer, Jamal Allen, says might be nearly impossible to prove.

The problems that arise with Arizona's immunity laws don't necessarily affect other states — consider New Hampshire, where immunity is given only if the act in question was discretionary, made within the scope of official duties, and not wanton or reckless.

According to the American Civil Liberties Union and multiple victims rights groups with which New Times consulted, this is not a national problem.

Absolute knowledge is the highest burden of proof in the U.S. legal system, and unless this aspect of the law is changed, victims like Jane stand little chance of ever getting a judge to hear their cases, let alone getting restitution.

The concept of sovereign immunity, frequently known as rex non potest peccare, or "the king can do no wrong," goes way back in European history. Historians are unsure exactly when the legal concept developed, but it's generally believed to have originated sometime between the end of the Middle Ages and the rise of the nation state, a time when European kings widely claimed their legitimacy and right to rule were derived directly from God.

In a 1953 article for the Louisiana Law Review, professor George W. Pugh wrote that the theory of sovereign immunity likely began with the idea that the king himself could do no wrong — if it was God's will that a particular leader should rule, it flowed logically that whatever the king declared had God's approval — and then somewhere along the way, it developed into the more modern concept that the state (and its myriad institutions) also was infallible.

The U.S. imported the concept of sovereign immunity from the British, and there are both federal and state laws that address when a person legitimately can sue a government entity. Over time, as states grappled with the concept and consequences — namely, the financial costs — of government liability, they developed their own unique immunity laws.

Becke, the Prescott lawyer and expert on Arizona's immunity laws, explains that in 1920, the state's Supreme Court took up a case in which a construction worker claimed the state was liable for injuries he received on the job because those injuries were the direct consequence of another state employee's negligence.

In its ruling, the court acknowledged that "the facts of the case arouse a feeling of great sympathy upon our part for the plaintiff" but that the state's immunity "is well settled . . . except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment."

Thus, the court upheld a legal precedent it openly declared was unfair and continued to do so in the coming decades, even when neighboring states were moving in the opposite direction.

California overturned its harsh sovereign immunity law in 1961, after the state's Supreme Court heard a case in which a state hospital employee exacerbated a patient's hip injury and the state tried to get the case thrown out by claiming it was immune from any civil liability.

"After a re-evaluation of the rule of governmental immunity from tort liability, we have concluded that it must be discarded as mistaken and unjust," the judges wrote.

In a 1957 case, the Colorado Supreme Court effectively ended the state's immunity laws, writing: "In Colorado, 'sovereign immunity' may be a proper subject for discussion by students of mythology but finds no haven or refuge in this Court . . . The rights of a citizen remain the same whether they collide with an individual or the government."

Becke explains that by the following year, 1958, "The Arizona Supreme Court itself seemed to be struggling with the unjust consequences of sovereign immunity" and ended up radically changing the law in 1963.

"We are of the opinion that when the reason for a certain rule no longer exists, the rule itself should be abandoned," the justices wrote.

During the next decade and a half, the Arizona Supreme Court made a few minor tweaks to the law, but by 1982, many judges were troubled by the lack of uniform rules for when a public entity is or is not liable in a case.

The court appealed to the state Legislature to help draft new public immunity laws, and the governor appointed a commission to look into it.

The commission's report essentially was a pre-written piece of legislation that was handed over to a sympathetic elected official to introduce on the floor.

In 1984, a relatively new Republican state senator from Tucson, John Mawhinney, introduced the bill, and it was signed into law later that year.

Over a breakfast of blueberry pancakes in an IHOP just outside Tucson, the retired legislator thumbs through a photocopy of the bill he introduced.

"I was a law-and-order kind of guy," he says, which is probably why "someone from the Bar Association or state legal department came to me with the draft legislation."

Mawhinney says he doesn't regret introducing the law because in most cases it seems to work. He adds, however, it never occurred to him that a situation like Jane's could arise.

He puts down the photocopy, takes a sip of coffee, and pauses.

"You know what the most important law is, though?" he says. "The law of unintended consequences."

On June 25, Jane and Brooke were asleep when their roommate, Corey Weiss, called and said he was ready for them to pick him up at the Scottsdale bar where he worked. Weiss' driver's license had been suspended and Brooke had agreed earlier in the day to get him when his shift was over.

Not expecting to get out of the car — let alone be pulled over by police — neither woman changed out of her pajamas.

Brooke drove Weiss' car, arriving in Scottsdale around 3 a.m. Weiss wasn't answering his phone, so they pulled the car into a Chase Bank parking lot to figure out what to do. Jane says they were in the lot for a minute or two when a Scottsdale police officer, Joseph Raimo, approached the vehicle.

According to the police report, Raimo thought a car in a bank parking lot in the middle of the night was suspicious.

The women explained the situation, but Raimo said he wanted to run their information anyway. That's when he discovered the warrant for Jane's arrest.

Jane says she started crying as Raimo handcuffed her; she was wearing pajama shorts, a cutoff T-shirt, and flip-flops. She says he wouldn't let her grab a pair of sweatpants she'd seen in the back of Weiss' car.

"Don't worry, baby," Brooke called out to her as the officer placed her in the back of his car. "I'll pick you up in the morning."

The Scottsdale officer arranged to meet Morris in the Walgreens parking lot at 56th Street and Thomas Road. According to the police report, the "prisoner exchange" occurred at 3:29 a.m.

Minutes later, Jane and Morris were alone. With Jane in the back of the car, video surveillance footage shows that Morris moved the vehicle to a more secluded spot in the parking lot, got out of the car, and walked around the vehicle to open Jane's door.

Jane says Morris just stared at her for a few seconds, and she started crying again.

"Usually I let people go if they have information for me," he told her — information about drug deals, drug houses, or other criminal activity, he added — "but I'm guessing you don't have anything like that to offer me?"

"No, I don't have anything for you. I'm sorry," she replied between sobs.

Jane assumes the Scottsdale officer told Morris that she and Brooke were a lesbian couple because he began asking her about her girlfriend and her sexual past.

She says she had a feeling "where he was going with this" and asked him whether he wanted a hand job or a blow job, afraid of what would happen if she didn't "give him something." Morris then undid her handcuffs and refastened them in front of her body.

According to the police report, "she began to rub his genitals over his clothing with her hands," but after about a minute of rubbing, he told her to get out of the car and go to the other side of the vehicle. Morris confirmed this account after he was arrested, and the police report says that he "asked that they move to the passenger side of the vehicle to get away from the Walgreens cameras."

After Morris finished, he told her to get back in the car because he was going to take her home.

Jane says Morris was chatty during the ride. He asked her where she worked and mentioned more than once that she lived in the neighborhood he patrolled regularly — a comment she understood to mean that she'd better not tell anyone what had just happened.

By the time Jane walked into her apartment, it was just after 4:15 a.m., and Brooke says she and Weiss, whom she finally reached after Jane had been arrested, were shocked to see her. She was, after all, supposed to be in jail.

Jane told them what Morris had done, and Weiss suggested they call his father, a retired Glendale police officer.

When Weiss' dad arrived at the house, Jane told him she wasn't sure that she wanted to report the assault. "I was scared because I know cops protect their own," she says.

But after talking with Weiss' dad, a man she says she's known for years and trusts, she agreed to report Morris' behavior.

Officer Timothy Morris joined the Phoenix Police Department in 2008. During the seven years he spent on the force, the department is "not aware" of him doing anything "remotely related to his ultimate offense," police spokesman Sergeant Jonathan Howard says.

In fact, Howard adds, the only infraction on his record is "an out-of-policy traffic collision and failure to wear a seatbelt in the same incident in August of 2014."

Morris resigned from the force immediately after admitting that Jane had performed oral sex on him in the Walgreens parking lot, so no internal investigation into his actions or past was undertaken.

He has no criminal record and, according to Howard, "was not previously employed by law enforcement" prior to joining the Phoenix police force. "I do not have [the name of] his previous employer," he says, "but I believe his most recent previous work was as a plumber."

Most of the court documents pertaining to his upcoming criminal trial are sealed, but those that are public show that police searched his duty bag after his arrest and "found driver's licenses, identification cards, license plates, and personal property for more than 20 individuals with whom [he] had police contact. The property had never been properly documented, impounded, or returned to the rightful owners. The police also found various official police documents that were never properly filed."

The state says this evidence disproves "any suggestion by the defense that [Morris] was a police officer who followed the rules."

Court documents also show that police found condoms inside Morris' work locker and that Morris' wife said they didn't use condoms during sex. The state says this "illustrates that [Morris] was prepared to have sexual contact with women other than his wife" and "rebuts any claims of 'lack of specific intent' . . . and 'good character.'"

The defense says the condoms are "wholly unrelated to the case" and that Morris said he and his wife used them "at various times."

It's difficult to say whether anything in Morris' past indicates he had a propensity toward questionable behavior or whether the police department should have known he'd act inappropriately, but the problem is, Jane's lawyer says, because of the way the law is written, simply arguing that the department had no idea Morris would do this should be enough to get Jane's case dismissed in civil court during summary judgment.

"It's an interesting feature of the law that most people don't know about, [and] it's an immunity that is truly an affront to the public interest and public safety," attorney Michael Manning says.

Manning says the statute never comes up when he represents clients suing the MCSO because the MCSO always clears the offending agent of wrongdoing.

"It's very rare for a police or law enforcement department to charge one of its own with a crime because there is a culture of self-preservation and mutual protection within these agencies," he says.

And without a felony charge against the government employee, the statute doesn't apply and the government entity can be sued. (The county usually ends up paying the MCSO's restitution charges, so there's no financial incentive for the agency to charge its officers, he explains.)

Manning says the status quo is completely unfair to victims, and he describes his experience with one of Arizona's most famous officer-involved shootings to illustrate the point.

On October 5, 2010, Phoenix police Officers Richard Chrisman and Sergio Virgillo responded to a domestic violence call placed by Elvira Fernandez, who said that her son, Daniel Frank Rodriguez, was acting violent.

Court documents show she told the two officers that all she wanted them to do was get her son to leave the property, but according to Virgillo, Chrisman ended up escalating the situation and shooting both Rodriguez and the family dog at point-blank range.

Chrisman was fired from the police department and charged with aggravated assault, second-degree murder, and animal cruelty. He took a plea bargain to reduce the murder charge to manslaughter, but he was convicted of a felonious assault charge, meaning the Phoenix Police Department could argue in a civil suit that it wasn't liable.

The story of Chrisman is one of the better-known stories about excessive use of force in recent Arizona history, Manning says, but few are aware of the injustices of the civil trial that happened after his criminal conviction.

"Chrisman had a bad history of excessive use of force and misconduct with the police department," he explains. He once "planted drug paraphernalia on a mentally ill woman during a field training exercise," court documents show.

But none of this mattered because the Phoenix Police Department "cited this statute and said it gave them complete immunity against his conduct," Manning says.

Critics point out that in a totally backward way, the law actually ends up providing an incentive for police departments, schools, or other government entities to skimp on background checks and not monitor their employees, and they point to the case Tucson v. Gallagher as evidence.

In 2014, Arizona's immunity law essentially rewarded Tucson's public school system for failing to do a deep background check on one of its behavioral health aides, Michael Corum, who was convicted of taking pornographic photos of a special needs student.

In the civil case that followed, the child's parents tried to work around the immunity statute by pointing out that had the school done better research, it would have discovered that the teacher was fired from an earlier job for inappropriately touching another person in his care, but a panel of three judges sided with the defense.

The case, they said, came down to what the school absolutely knew, not what it reasonably should have known.

Jane met with Jamal Allen, a civil lawyer specializing in personal injury and criminal defense, the day after the assault.

Allen remembers being struck by how scared she looked. "She was shaking and so concerned that [Morris] was going to come after her," he says. He agreed to take on the case even though he knew about the immunity statute.

"I'm doing it because I believe [the statute] is wrong . . . and because it causes me concern that a law of this nature is even within Arizona statutes," he says. "Other states have not inoculated their police departments for such egregious offenses and it's time for Arizona to reconsider [its immunity statute]."

So why is this law still on the books?

Andrew Becke, the expert on Arizona's immunity laws, says he can't say for sure, but he suspects it has a lot to do with the character of the state: "It makes sense to me in a fiscally conservative state like Arizona that the government would try to protect itself from liability and lawsuits as much as possible. Lawsuits cost the state, and ultimately the taxpayers, money."

Though perhaps most important, he adds, there's simply never been a coordinated effort to change the law because it just doesn't come up that often.

Cases like Jane's — or like the cases Daniel Rodriguez's family tried to bring against the Phoenix Police Department and that the Gallagher family tried to bring against Tucson's school board — turn out to be rare.

Allen and Jane say they know what they're up against, but they hope to create enough momentum to get the wording of Arizona's immunity law changed.

"Whenever people are in a position of power, some percentage will take advantage of that," Allen says, which is exactly why he believes changing the burden of proof in the statute would help level the playing field.

"Even proving constructive knowledge is difficult," he says. "But at least it would give victims like Jane a fighting chance."

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Miriam is a staff writer at Phoenix New Times.
Contact: Miriam Wasser