PHOENIX -- Eight years ago, a Tucson man suspected of stealing a bottle of lotion was asphyxiated by a security guard.
Now that incident -- and the legal fight over liability -- is spilling over to the ballot.
Proposition 114 would alter two provisions of the Arizona Constitution that prohibit the Legislature from limiting the right of individuals to sue for damages. The sections would remain, but with a new exception: It would not apply to someone who is injured while engaged in a felony, attempting to commit one or even fleeing.
"If someone breaks into a home and gets shot doing it, he cannot collect in a lawsuit against the homeowner unless it's done maliciously," explained Charles Heller of the Arizona Citizens Defense League.
That was what was on the books in 2004 when Jose Howard, a private security guard for Sonoran Desert Investigations working at a Safeway store said he stopped Frank Hernandez Jr. because he stole a bottle of lotion.
According to the lawsuit, Howard restrained Hernandez by wrestling him to the floor, face down, and placing his arm around Hernandez's neck. The claim says Hernandez complained he couldn't breathe, but Howard did not release him until Hernandez was handcuffed with the assistance of two store employees.
The police report says before officers arrived, a guard saw Hernandez had stopped breathing and officials called for medical help. He was taken to Kino Community Hospital, where he was pronounced dead.
A medical examiner's report concluded he died of "asphyxia due to neck compression." He also had internal hemorrhaging and other injuries.
When his widow sued, attorneys for the security firm cited the statute that stated people are not liable if the plaintiff is harmed while attempting to commit a misdemeanor, even if the harm was due to negligence or gross negligence.
But the state Court of Appeals ruled the Arizona 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.
The case against the security company was settled out of court in 2007, with the terms made confidential.
Since the original ruling, legislators have altered the wording of the statute to address the specific flaw that the appellate court found. Now the law reads that a jury may -- but does not have to -- find a defendant innocent.
But Dave Kopp, president of the Arizona Citizens Defense League, said that new statute never has been tested against the two broader constitutional provisions guaranteeing the right to sue. So he sees Proposition 114 as a preemptive strike against future legal challenges.
At this point there is no organized opposition. But that does not mean everyone is in support.
When lawmakers voted last year to send the measure to the ballot -- a necessary step for constitutional amendments -- House Majority Leader Chad Campbell, D-Phoenix, voted "no," as did many Democrats.
"A lot of us have concerns," Campbell said.
"Obviously, I don't think anybody committing a crime should be able to sue their victim," he said. But Campbell said the broad wording could lead to situations where a crime victim could shoot a thief in the back and be entitled to civil immunity.
Kopp, however, pointed out that the ballot measure does not provide blanket immunity but only a shield from civil suits.
"You're not saying that they can't be held criminally liable for doing something wrong," he said, especially if the action cannot be justified. "That's an entirely different proposition."
The Arizona Trial Lawyers Association, whose members represent plaintiffs who sue in civil cases, also is opposed, though it is not taking an active role in trying to kill the measure. Janice Goldstein, the organization's executive director, called a constitutional change "unnecessary" to shield crime victims from lawsuits.