Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02328-RPM-CBS
Greg Joseph Gonzales v. Officer Brett Titus, et al.

Document 68-4

Filed 12/12/2005

Page 1 of 7
Roger Willard

Page 89

Page 91

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. I would expect that they would, yes. Q. Paragraph 4 you conclude that Officer Titus deployed his police service dog without warnings. A. Yes. Q. And you do not believe, you stated, Officer Titus' official report that he warned them two times, correct? A. That is correct. Q. Okay. And you also stated in your Paragraph 4 that the use of Oscar, the police service dog in this case, was an "improper deployment of a police service dog." A. Yes. Q. And explain to me the basis for your conclusion in that regard. A. It is my opinion that Officer Titus knew or should have known that the four people who fled from that car did not match the description given of the original incident. The original incident talked about one person who had a gun, who had a bald head and tattoos, and does not mention more than one person in the original incident. Officer Titus had an opportunity to clearly see the driver of the purple car, knew or should have known that the operator of that car did not have a bald head, albeit he may have had a close haircut; that Officer Titus' information at the time he encountered that car and the four occupants on Harlan Street was that he had a traffic situation; that there
Page 90

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Have you seen the complaint in this case? A. I think I have but I -- it would have been back when I first received the case. Q. Okay. Have you reviewed the complaint, then? A. I think I have read it, but I don't recall it specifically. Q. Okay. I'm going to talk to you about what is in Paragraph 52 on Page 9. MR. BIGLER: Let's take a quick break. I want to make a copy of this claim. (Off the record at 11:33 until 11:45 a.m.) Q. (By Mr. Bigler) Let me go back to one area real quickly, the location of the 1600 block of South Zenobia. You said you looked at that on a map -A. Yes. Q. -- of that address. A. Yes. Q. And you would agree, wouldn't you, that the 1600 block of South Zenobia is on the east side of Sheridan Boulevard? A. Yes. Q. Okay. Let me show you what I've marked as Exhibit D in the case. It is two pages, I will represent to you, that is the third complaint and jury demand in this case. And if you will, please, again, ignore my handwriting on the lines
Page 92

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

were traffic violations, running a red light, driving without proper lighting equipment, exceeding the speed limit, apparently, although Titus never gives an estimation of the speed of the car, other than he believed it was excessive. That when he released his police service dog, he was not being threatened by any one of the occupants of the car; that that use of force to effect an arrest for a traffic infraction or even to detain them and investigate the stop for any other offense was outside the reasonable and prudent standard, in my opinion, for the deployment and the use of that force. Q. Can you describe any other police operations manual or K-9 policy that you believe Officer Titus violated that day? A. No. I'm -- I -- my opinion has nothing to do with the violation of the K-9 standard specifically. It has to do with the reasonable and prudent use of force under those circumstances. And my opinion would be the same if he used some other weapon besides the dog. Q. Uh-huh. Okay. I'm going to move on to another area, and that is the complaint that was filed in this case, and it is the third amended complaint that was filed in this case by Mr. DeBauche. I'm going to talk to you about what is labeled the eighth claim for relief supervisory and municipal liability claim.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and the circle on Page 1. This is the complaint that was filed by Mr. DeBauche in this case. (Exhibit D was marked for identification.) A. Okay. Q. I will give you a chance to read the eighth claim for relief I have given you a copy of and let me know when you are done. A. Okay. Okay. I have read that. Q. Are you ready to proceed, then? A. Sure. Q. If you would, Page 9, which is the first page of Exhibit D, take a look at Paragraph 52 and read along with me. Okay. It says in Paragraph 52, "The policies of the Denver Police Department, and Metro K-9 Unit, allowed for the conduct which occurred in this case." Do you see that? A. Yes. Q. Are you aware of any policies of the Denver Police Department and Metro K-9 Unit that allowed for the conduct alleged in this case? A. I'm not sure I understand the question. Q. Let me rephrase that. Are you aware of any policies adopted by the Denver Police Department or Metro K-9 Unit that allowed for Officer Titus to do what Plaintiff allege he did wrong in this case? A. I think the only way I can answer that is that there

23 (Pages 89 to 92) Stevens-Koenig Reporting 303-988-8470

Case 1:03-cv-02328-RPM-CBS
Greg Joseph Gonzales v. Officer Brett Titus, et al.

Document 68-4

Filed 12/12/2005

Page 2 of 7
Roger Willard

Page 93

Page 95

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

were no specific policies that I read that prohibited him from deploying his K-9 in this circumstance. As I recall, the policy, it recommends that a supervisor authorize the deployment of the K-9. But in the absence of a supervisor and in the absence of any other controls, that the handler has his sole discretion to deploy his K-9. So I guess my answer is, I don't know of a specific regulation that says he could not deploy his K-9 in this situation and that he was free to make that decision. Q. And, again, reading from Paragraph 52, and I'm going to ask the question again. Is there a policy that allows Officer Titus to do something in which the plaintiffs alleges are inappropriate? MR. DEBAUCHE: Objection to form. Q. (By Mr. Bigler) Do you understand the question? A. Well, I think I understand the question. I think my response is that the policy allows the handler to, on his discretion, deploy or not deploy his dog. So it allows him to do what he did in this situation. Q. Okay. And is that true for the Metro K-9 unit as well? A. I think so, yes. Q. Do you know if Metro K-9 unit has separate policies? A. I only know what was provided to me in this case. If there are policies that I have not been provided, I don't
Page 94

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. No, other than what I have been provided. Q. And have you been provided with information about unwritten or written customs and practices? A. No. Q. Okay. Bear with me one minute. I think I'm done. Looking at Paragraph 53 again, are you aware of any unlawful customs or practices in the Denver Police Department K-9 unit related to this case? MR. DEBAUCHE: Objection to form. A. No. MR. BIGLER: I have nothing further, then. Thank you. I appreciate it, Mr. Willard. MR. ZIPORIN: Can we go off the record for just a second to talk about scheduling? (Off the record at 11:52 until 11:53 a.m.) MR. ZIPORIN: Back on the record. EXAMINATION BY MR. ZIPORIN: Q. Mr. Willard, afternoon, almost. My name a Eric Ziporin. We met off the record earlier. I represent the police officer, Brett Titus, in this case. My first question to you is: What was your assignment in this case? A. My assignment was to review the information provided to me and render an opinion as to the appropriateness of the
Page 96

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

know about them. Q. So you've never researched that particular issue independently about the Metro K-9 police policies. A. To see if they had additional policies to the Denver police standard, police policy manual. Q. Correct. A. No, I have not. Q. Also looking at Paragraph 52, second line, middle of -- the middle states, and I will paraphrase it, the policies of the Denver Police Department and metro K-9 unit sanction the unlawful use of force. Do you see that? Are you aware of any Metro K-9 or Denver Police Department policies that sanction the unlawful use of force? A. My response to that question would be the same as the previous question. Q. So you can't point to any particular policy. A. No. Q. Okay. Look at Paragraph 53. And if you would, read along with me. It says, Such policies and procedures are both written and unwritten customs and practices of the K-9 unit, and were guidelines used by Officer Titus in this case. Do you see that? A. Yes. Q. Are you aware of any written or unwritten customs and practices that are referenced here?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

actions of the officer and his dog. Q. From a use-of-force perspective. A. Yes. And the appropriateness of making an arrest in those circumstances. Q. Because when I read your report, the only conclusions that I see that you have come to within the report are with regard to the use of force, correct? A. That is correct. Q. So were you, in fact, retained to provide an opinion as to whether or not the arrest was appropriate or simply the use of force during the arrest? A. The use of force during the arrest. Q. So your opinions, just so we are clear, are strictly limited to whether or not the force used during the arrest was reasonable and appropriate, correct? A. Yes. Q. Other than the current case, are there any other consultations that you are presently engaged in? A. Yes. I am consulting with Purvis Gray & Murphy, a firm in Boulder, about a death that occurred to an inmate in the Department of Corrections. Q. Is that the Lawson case? A. Pardon me? Q. Is that the Lawson case, L-a-w-s-o-n? A. No, that is not listed on there. This is a case

24 (Pages 93 to 96) Stevens-Koenig Reporting 303-988-8470

Case 1:03-cv-02328-RPM-CBS
Greg Joseph Gonzales v. Officer Brett Titus, et al.

Document 68-4

Filed 12/12/2005

Page 3 of 7
Roger Willard

Page 97

Page 99

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that I received just within the last couple of weeks. Q. And that is -- again, the firm that retained you is Purvis Gray & Murphy. A. Yes. Q. Do you know the name of the decedent or the claimant in that case? A. I do, but I'm not sure that I can -- Murillo, M-u-r-i-l-l-o. It is the last name. I don't recall the first name of the inmate. Q. Did that case involve the proper use of a police service dog? A. No. Q. Other current assignments. A. Other than what is listed. Q. Well, these aren't necessarily -- the references listed in Exhibit A aren't necessarily telling us whether or not you are currently engaged in those assignments, so I just want to make sure of these which ones you are currently engaged in. A. Okay. Let me go down the list there. Q. I think you mentioned the Oreheck case as well. A. That is an ongoing case. Q. I'm familiar with that, so we can move on. A. Starting at the top, Kearney versus Dimanna. Q. Are you currently engaged in that case?
Page 98

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

four or five or six hours that I have not billed for plus this session today that I have, obviously, not billed for. Q. In terms of the time spent and the amounts billed for the preparation of the report, would you estimate that to be roughly $2,000? A. Yes. Q. Billed out again at $125 per hour. A. Yes. Q. Mr. Willard, do you consider yourself to be an expert in any fields? A. I think I'm an expert in police policy and procedure. Q. Do you consider yourself to be an expert in the area of the use of force? A. I think so, yes. Q. What other areas of police policy and procedure do you consider yourself to be an expert? A. I think in investigative techniques, interviewing, and interrogations. Q. Any other areas? A. No, I don't think so. Q. Do you consider yourself to be an expert in the training, handling, and deployment of police service dogs? A. No. Q. When was the last date that you were actually on the
Page 100

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. No. No, I am not. That case, apparently, has been settled. Koverman versus CBI I believe has settled. I'm no longer engaged in that. The -Q. And I think just to expedite this, if you can review it to yourself and just tell me which ones you are currently engaged in. A. Okay. Okay. My understanding is that People versus Casey, Case No. 03MJ3221, is pending and that I may testify at the trial in that. I have given a deposition in Trujillo. I don't know what the status of that case is at the current time, but I -- my understanding is it is probably ongoing. And the Oreheck case is ongoing. Q. I assume you have been compensated in this case. A. In this case. Q. Correct. A. Yes. Q. Do you know how much? A. I don't recall total amount, but my hourly rate is $125 an hour in this case. Q. Do you know how many hours you have billed in this case? A. I'm thinking that it is approximately $2,000. Q. Would that $2,000 include the amounts you testified to earlier that you have yet to bill for? A. No. I have -- I think there is somewhere around

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

street as a police officer? A. As a patrol officer. Q. Sure. A. Or my last date as a sworn member of a police department? Q. When would have been the last date in any ranking capacity that you've had daily responsibility for patrolling the streets? A. Probably 1970. Q. In what capacity would you have done that? A. As a patrol deputy in the Jefferson County Sheriff's Department or a supervisor of patrol deputies. Q. In terms of the preparation of your report, was there any information that you requested that you were not provided? A. No, I don't think so. Q. It is my understanding that there was a period of time up in Thornton when the K-9 unit was shut down. Would that be an accurate statement? A. My understanding or my recollection is that the dogs were decommissioned, retired, and that there was a command staff decision at that point in time not to immediately find replacement dogs. But when you say "shut down," I don't recall that there was a command decision to do away with the K-9 program.

25 (Pages 97 to 100) Stevens-Koenig Reporting 303-988-8470

Case 1:03-cv-02328-RPM-CBS
Greg Joseph Gonzales v. Officer Brett Titus, et al.

Document 68-4

Filed 12/12/2005

Page 4 of 7
Roger Willard
Page 103

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Page 101 Q. What time frame are we talking about when either of

the two dogs were retired or decommissioned? A. In the 1980s, but I can't give you a specific year. Q. And that would have been of the two dogs that you testified to earlier. Both dogs would have been either retired or decommissioned at some point in the 1980s. A. I believe that is correct. Q. And during the remainder of your tenure with the Thornton Police Department, at any point were there additional dogs that were commissioned? A. No. Q. So of the 17 years that you were with the Thornton Police Department, at most the police department would have had a K-9 unit or dogs for ten years. A. Yes. And it probably was, to be honest with you, not the full ten years. I don't recall when in that decade that we stopped using K-9s. Q. And, again, within that less than ten-year time frame, you would not have had any sort of management oversight during the K-9 unit for that entire period of time, correct? A. I don't recall whether I spent that entire period when we had K-9s as patrol division commander or not. But I would have had direct management oversight during my assignment as patrol commander and would have had staff oversight of policy, procedure, use, deployment as a matter of
Page 102

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Thornton policy similar to the one that you expressed today, meaning your belief that the officer cannot be focusing on other tasks while directing the dog? A. I don't think the Thornton policy specifically prohibited an officer from doing two things at once as the Denver policy does not. My recollection of the Thornton K-9 policy is that it was generally the same as that of Denver and of other K-9 policies. Q. Would the Thornton K-9 policy have permitted an apprehension under the same set of facts that we are dealing with in this case? MR. DEBAUCHE: Objection to form. A. I think the best way for me to respond to that question would be to say that, while I was commander of the patrol division in Thornton and a K-9 was deployed under the exact same facts and circumstances as I see here, that there would have been sanctions. Q. (By Mr. Ziporin) That leads me to believe, then, that an apprehension under the Thornton policy would not have been permitted under the same set of facts in this case. Correct? A. I think that there would have been sanctions had a deployment occurred under exactly the same set of facts. Q. So there would have been a violation under the Thornton policy.
Page 104

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

staff review of the actions of the handling of the dogs. Q. The Thornton K-9 policy you testified about earlier, that was in place at the time that you became division commander, correct? A. That is correct. Q. And you did not, obviously, then, have any input in the creation of that policy, correct? A. Not of that policy, no. Q. Were there any changes to the policy during your tenure with the Thornton Police Department? A. I don't recall specifically but I -- I believe that there were. I -- during that period of time, the late 1980s up until I retired, virtually every policy in the police department got a very close review, staff review. There were updates, changes, and I'm sure that that included K-9 policy. I'm quite certain that there would have been some modification of that policy. Q. Sitting here today, can you pinpoint a specific change in K-9 policy in Thornton? A. No, I can't. Q. While at Thornton, did K-9 policy require direct control of the K-9 at all times? A. My recollection is not specific, but that I believe it did. Q. And is the direct control definition within that

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Not necessarily a violation under the Thornton policy. There may not have been a violation of policy specifically, but there would have been a review of the officer's decision-making and some correction to that behavior. Q. My question is specific as to policy. Can you tell me today under the same set of facts that we are dealing with, what violation of the Thornton policy would there have been? A. There would have been no more violation of the Thornton policy, as I recall, than there is violation of the Denver policy. Q. So the answer to my question would be, there would be no violation of the Thornton policy. A. I don't think so. Q. Looking at Exhibit B, which is your report, it appears to me that this was a facsimile that was sent from Fenix Investigations. A. Uh-huh. Q. Who is Fenix Investigations? A. I purchased Fenix Investigations from a retired private investigator in Boulder. And, when I did that, the fax machine that I acquired had been used by Fenix Investigations, and I am not enough of a techy to know how to go in and change Fenix Investigations to Ghillie on the fax machine.

26 (Pages 101 to 104) Stevens-Koenig Reporting 303-988-8470

Case 1:03-cv-02328-RPM-CBS
Greg Joseph Gonzales v. Officer Brett Titus, et al.

Document 68-4

Filed 12/12/2005

Page 5 of 7
Roger Willard

Page 105

Page 107

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. Fair enough. But you purchased the investigation business or did you just simply purchase this individual's fax machine? A. I purchased the business, essentially. What I purchased was some clients that were ongoing, the office space, the furniture, and that included this fax machine. Q. Who did you purchase Fenix Investigations from? A. From Steve -- I would have told you if you hadn't asked me. I don't recall the last name. Q. He is in Boulder. A. He was in Boulder. He retired and moved to Mexico. Q. Did you then change the name to Ghillie Investigation Services? A. No. Ghillie Investigation Services was my company since 2002. Q. Is there any reason, then, that Fenix Investigations is not listed on your CV? A. No. Q. Does anybody work for Fenix Investigations besides you? A. I don't work for Fenix Investigations. Q. Are there any employees of Fenix Investigations? A. No. Q. Do you have anybody that works for you as Ghillie Investigative Services?
Page 106

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. And do you know from those witness statements the position of the civilians as they witnessed the entirety of the contact? A. No. One mentions being in the son's bedroom and looking out the window. The other mentions looking out a window but doesn't identify the room that she was in. Q. Would you agree with me that it is critical to your opinion in this case that the type of contact or the type of deployment that we are dealing with here is an open-area search? A. Yes, I believe it is. Q. And do you think you have the training and expertise to define what is meant under the policy as an open search? A. No. Q. Would you defer to Officer Titus' and Sergeant Hvizdak's definition of what an open-area search is? A. I'm -- I may. I don't think that that is critical to my conclusion. Q. You just told me that it was critical to your conclusions. A. I said that deploying the dog in that area without a lead and being preoccupied with another function was critical to my opinion and that open area is simply an area that is not a building. Q. But you relied upon specific language within the
Page 108

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. No. When I say "No," I do subcontract from time to time if I need somebody to do something specific, but I don't have employees. Q. I want to talk about the civilian witness statements real quickly. Are you able to discern from the civilian witness statements whether or not each of the civilians were in a position to view the entirety of the contact that Titus had with the suspects? A. They described looking out the windows of their homes and seeing the two cars, several persons other than the police officer, and the detaining of at least two that were laying on the ground at gun point. I don't think that -- from reading those reports, I don't think that either of the witnesses could see Mr. Gonzales and the dog but could hear it. Q. And from those witness statements, are you able to determine whether or not the civilian witnesses were in a position to see the entirety of the contact to include the portion before Titus was able to get the two suspects under -in custody at gun point? A. Yes, I think so. Q. And they were able to see the entirety of that contact. A. With the exception of Mr. Gonzales when the dog impounded him.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

policy referenced in open-area searches, correct? A. I don't think the policy, as I recall, defines what an open area is. Q. But, nonetheless, within your report, you identified and specifically cited to a portion of the policy dealing with open-area searches, correct? A. Yes, in terms of control of the dog. Q. And you've testified here now today that the policy is not specifically clear on what an open-area search is, correct? A. Yes. Q. And my question to you is: Would you defer to Officer Titus' and Sergeant Hvizdak's understanding of the definition of open-area search? A. I may. Q. Do you know the specific type of training that police service dogs receive with regard to responding to voice commands when the dog is not within visual of the handler? A. No. Q. Do you have any knowledge or understanding of that type of training? A. No, not specifically. Q. From any of the records, training records that you briefly reviewed regarding Oscar, is there anything in there which led you to believe that Oscar was not appropriately

27 (Pages 105 to 108) Stevens-Koenig Reporting 303-988-8470

Case 1:03-cv-02328-RPM-CBS
Greg Joseph Gonzales v. Officer Brett Titus, et al.

Document 68-4

Filed 12/12/2005

Page 6 of 7
Roger Willard

Page 109

Page 111

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

responding to voice commands? A. No. Q. Would you have the training or expertise, from your review of those records, to know one way or the other? A. No. Q. Is it your opinion that a police service dog can only be deployed in a situation where we have one suspect and the officer can maintain complete focus on that suspect during the apprehension? A. It is my opinion that when a police service dog is deployed in an apprehension circumstance, that the handler must be in control of the behavior of that dog. Q. And correct me if I'm wrong, but my understanding of what you deemed to be control is that the police service dog must be within sight of the handler. A. No. Q. Correct? A. No. No, I didn't say that. Q. What do you mean by the fact that the dog must be in control? A. That the handler is aware of what is going on with the dog and can control the dog's behavior even if he can't see it at that point in time. Q. Well, how can the handler be aware of what the dog is doing if the handler can't see the dog?
Page 110

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Yes. Q. Let's talk about the totality of the circumstances in this case in terms of Titus' conclusions that he made about this vehicle. Would you agree with me that the vehicle was coming from the general direction of a serious crime? MR. DEBAUCHE: Asked and answered. A. Generally, yes. Q. (By Mr. Ziporin) Would you agree with me that Officer Titus witnessed an individual within a vehicle that partially met the description of somebody involved in that crime? A. To the extent that he saw a Hispanic person in a car. Q. So the answer is yes. A. Yes. Q. Would you agree with me, then, that Officer Titus witnessed this vehicle speeding and running a red light? A. Yes. Q. Would you agree with me that Officer Titus witnessed this vehicle speeding down Sheridan Boulevard? A. Yes. Q. Would you agree with me that Officer Titus, then, witnessed this vehicle run a stop sign at Warren and Depew? A. Yes.
Page 112

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. The handler would be aware of what is going on with the dog based on his knowledge of that dog, his knowledge of that dog's assignment at the time, and what he hears or what he might see during that apprehension. Q. You consider yourself to be an exert in the area of police use of force. With that expertise, are you familiar with the concept, the legal concept of taking into consideration the totality of the circumstances? A. Yes. Q. And what does that phrase mean to you? A. That means that decision-making in the use-of-force applications must include all of the officer's awareness at that point in time, visually, audibly, and experientially, that he has a grasp of what is occurring, he has a grasp of what his training and experience has taught him, that he has a grasp of the sanctions -- or not the sanctions but the restrictions of his behavior and his decision-making and the impact of legal sanctions. Q. Should an officer consider the totality of circumstances when determining whether or not probable cause exists for an arrest? A. Yes. Q. Should an officer consider the totality of the circumstances when considering whether or not reasonable suspicion may exist for a stop?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. Would you agree with me that at some point on Sheridan Boulevard Officer Titus witnessed this vehicle extinguish its headlights? A. Yes. Q. Would you agree with me that Officer Titus witnessed this vehicle driving in a reckless manner? A. Yes, I think it constitutes recklessness. Q. Would you agree with me that Officer Titus witnessed this vehicle eluding him? A. Yes. Q. Based upon the totality of -- well, let's continue. Would you agree with me, then, that upon stopping the vehicle, that Officer Titus made verbal commands to the suspects which were ignored? A. Yes. Q. Now, is it your position that based upon the totality of all of these circumstances, it was unreasonable for Officer Titus to come to the conclusion that there was reasonable suspicion to believe that they may have been involved in a felony menacing? A. I disagree with his conclusion. Q. Okay. And that is simply based upon the fact that the driver did not have a bald head. A. Or tattoos. Q. Any other reason?

28 (Pages 109 to 112) Stevens-Koenig Reporting 303-988-8470

Case 1:03-cv-02328-RPM-CBS
Greg Joseph Gonzales v. Officer Brett Titus, et al.

Document 68-4

Filed 12/12/2005

Page 7 of 7
Roger Willard

Page 113

Page 115

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. That no one in the car -- when Officer Titus saw them all exit, no one had a bald head and tattoos and that all were trying to get away from him. Q. Do you recall Officer Titus' testimony that some of these individuals were, in fact, approaching him? A. Yes. Q. Was it reasonable, based upon the totality of these circumstances, for Officer Titus to have felt threatened in this situation? A. From the description that I had, both from his report and my recollection of his deposition, was that they were fleeing; that their path was obstructed by a fence or a wall. One of the suspects cleared the obstruction, one ran in another direction out of Titus' sight, but the remaining two walked toward him without making any threats to him in any way. The only thing that they didn't do -- they were approaching a police officer who was giving them orders and the only thing they didn't do immediately was lay on the ground. Q. And it is your opinion that based upon the conduct of these two suspects who, in addition to their previous conduct of eluding him -MR. DEBAUCHE: Objection to form. A. Uh-huh.
Page 114

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

didn't know what their intentions were. It was a situation that he had encountered, I'm sure, hundreds, if not thousands of times over his career, and that he should have been alert and concerned about what he was going to be dealing with. But not threatened. Q. Is it your opinion in this case that the Denver Police Department K-9 policy was insufficient or deficient or is it your opinion in this case that Officer Titus did not follow a policy which you believe to be sound? A. No. My opinion does not address failures in the Denver Police Department K-9 policy or use-of-force policy. My opinion in this case has to do with Officer Titus' actions given what he knew at the time. Q. Do you have an opinion as to whether or not Officer Titus violated a K-9 policy? A. No, because there is nothing that specific in the policy that addresses these facts. Q. Okay. So based upon the facts as you know them and believe them, you are unaware of any violations of the policy by Officer Titus, correct? A. That is correct. Q. Okay. Do you agree with this statement: If an officer is aware that the person that he is observing has committed a criminal offense, he has a fundamental responsibility to act?
Page 116

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. (By Mr. Ziporin) -- were approaching him while he had his police service dog next to him and were ignoring his verbal commands to stop and get on the ground, that Officer Titus did not have reasonable belief to feel threatened by this conduct. MR. DEBAUCHE: Objection to form. A. My understanding is that the police dog was not on his side at that point in time. That he released the police dog when one of the three persons that he still had in view elected to flee again and ran in the opposite direction of Officer Titus. Q. (By Mr. Ziporin) Well, let me rephrase the question -A. Okay. Q. -- and I will just ask it simply. Is it your opinion that based upon the facts and situations confronting Officer Titus that it was not reasonable for him to feel threatened by the suspects? A. I think that under those circumstances that Officer Titus should have been, and I believe was, concerned about his safety but not threatened. His description of the behavior of those three individuals does not include threatening movements, threatening gestures. The concern for his safety, in my opinion, has to do with the fact that he didn't know who those people were,

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Yes. Q. Would you agree with this statement: That general police practice expects an officer will effectuate an arrest the first chance that he or she gets to do it? A. Yes. They are both familiar statements. MR. ZIPORIN: Thank you. I don't have any other questions. EXAMINATION BY MR. BRUNO: Q. Mr. Willard, I'm cleaning up, and I will jump around a bit, and I apologize for that. With respect to the associations that you are a member as itemized on Exhibit A, and particularly the National Association of Investigative Specialists, Professional Private Investigator's Association of Colorado, and the Colorado Criminal Defense Bar, would you agree with me that none of those require any certification in law enforcement? A. Yes. Q. None of those require any certification by any agency. A. That is correct. Q. Okay. It would appear that -- well, let me ask it this way: When was the last time you were a member of the International Association of Chiefs of Police, if ever? A. I was a member from about 1971 until 1997. I did

29 (Pages 113 to 116) Stevens-Koenig Reporting 303-988-8470