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Mon, Oct. 14

State Court of Appeals throws out Baseline Killer claim against Phoenix police

PHOENIX – Saying police have no obligation to defend specific individuals, the state Court of Appeals on Thursday threw out claims against Phoenix police by rape victims and families of those killed by the Baseline Killer.

The plaintiffs argued that the police department and its laboratory services bureau were grossly negligent by not immediately performing a whole series of tests on DNA evidence they had from an early sexual assault victim. Had those tests been done, their lawyers argued, the evidence would have led to the arrest of Mark Goudeau before he committed other crimes.

But Judge Randall Howe, writing for the unanimous court, said it appears the police followed procedures since, at the time the first sample was obtained, there was no evidence of a serial killer or rapist.

Howe also noted that one of the tests specifically requires there be a sample from a suspect for comparison. The judge said once police did have a suspect, that comparison was made and Goudeau was arrested.

The judge said, though, that the real legal flaw in the lawsuit is that the legislature has provided qualified immunity for police.

He said it would be one thing if police knew and had made a special effort to protect the specific individuals who later were killed or raped. But absent that “special relationship,’’ Howe said police owed them not specific duty to identify and arrest Goudeau, a necessary legal precursor to overcoming the immunity.

“The duty owed (by police) is not to protect each citizen within its geographical boundaries from all harms,’’ Howe wrote. “Merely establishing a police department does not make a city a general insurer of safety or liable for absolutely all harms to its citizens.’’

Goudeau was arrested and found guilty of 13 different murders, rapes and robberies that occurred between August 2005 and June 2006. He was dubbed the Baseline Killer because the crimes started along the Baseline Road corridor in Phoenix, though they later spread.

It took the statements of a survivor of one attack to provide a description of her assailant and link the murders and sexual assaults together.

About three months later police compiled a list of suspects. Police used that list to request the Department of Public safety do additional DNA testing of one sample from an earlier rape case, testing their own lab could not do.

Police arrested Goudeau the same day they got the results.

Howe said the fact the police department has a crime lab does not create a duty to conduct DNA tets on all evidence or subject the city to liability if such testing is not done immediately.

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