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

Case 1:03-cv-02328-RPM-CBS

Document 68-2

Filed 12/12/2005

Page 1 of 7

EVAN HVIZDAK September 23, 2005 Greg Gonzales v. Officer Brett Titus
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between a white fence and the south side of the building. Q. In terms of the statement, it indicates, the police service dog ran around a large tree and apprehended one of the suspects. Did Officer Titus indicate to you how he knew the dog apprehended one of the suspects? A. I believe he heard the suspect yelling, maybe screaming. Q. And do you know how long the screaming went on? A. Anywhere from 20 seconds to 40 seconds. Q. And once someone begins screaming, at what point do you release a dog from a suspect who is detained like that? What's the criteria for releasing the dog? A. Only when you can ensure that he can be taken into custody safely. Q. Let me ask: How many times can you recall a canine officer deploying a dog while attempting to arrest four different suspects alone? A. In my experience? Q. Yeah. A. Does it have to be four or multiple
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A. I would have to review them. Q. Now, the force deployed here by the police service dog was the typical bite; right? A. I don't understand the question. Q. The dog bites a suspect when they apprehend them; right? A. Yes. Q. They have no -- only one other way to detain somebody, and that's by barking at them to indicate where they are; is that accurate? A. That would be accurate. Q. That's not what the dog here did. The dog here bit Mr. Gonzales to detain him until the officer could respond? A. That's my understanding. Q. In terms of the number of bites, do you know how many bites were administered to Mr. Gonzales? A. No, I don't. Q. You had said that the screaming occurred for 20 to 40 seconds, roughly, while the officer, I assume, was occupied by the other two suspects? A. That's my understanding. Q. Do you feel that the force deployed
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suspects? Q. Four or more. A. Four on one? Q. For or more. I'm sorry. A. I haven't reviewed a deployment like that. Q. Ever? A. No. Q. Let's talk about your suggestion, which is multiple suspects. How often have you seen a canine officer deploy against multiple suspects? A. It's not unusual. Q. Do you have a guess or an average as to how often you see it per year or per month? A. I would have to review the records to give you an accurate answer. Q. And that, again, would be utilization reports at the canine unit? A. Yes. Q. Do you know how many utilization reports you reviewed for Officer Titus? A. As it relates to this case or -Q. Total. A. Every utilization report. Q. Do you know how many that was?

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against Mr. Gonzales was the least -- scratch that. It looks from your report -- and I'm going back to Exhibit 1 -- under, statement of opinions to be expressed. It's on page 4 -- it says, all use of force on the subject date to effectuate the apprehension of the plaintiff, including the use of a police service dog, was necessary under the facts and circumstances of the situation and consistent with policy. I'm summarizing here. In terms of the use of force, do you know -- you said you don't know how many bites were administered? A. No. Q. In terms of effectuating the apprehension of the plaintiff, did you feel that this was an arrest situation or an investigatory stop? A. Arrest. Q. And you reviewed the deposition of Mr. Titus before you came here today. You said just this afternoon? A. Certain portions of it only. Q. Okay. I'm going to show you what's now going to be marked 4. (Deposition Exhibit 4 was marked.) Q. These are pages 101 to 104 of the

8 (Pages 29 to 32) Richardson Reporting Service 303-830-8488

Case 1:03-cv-02328-RPM-CBS

Document 68-2

Filed 12/12/2005

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EVAN HVIZDAK September 23, 2005 Greg Gonzales v. Officer Brett Titus
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deposition that Mr. Titus gave. And if you follow, it's divided into four sections. Top right section is page 103. If you start with line 18, where I asked Mr. Titus the difference between an investigatory stop and an arrest, he indicated he understood what that was. And I asked him what he meant by detaining Mr. Gonzales with the dog, on line 6 of the next page, 104. It's right below that. He indicated by "detain," he meant investigatory stop. You've indicated that your understanding is that this was a full arrest? A. In my opinion. MR. ZIPORIN: Object to the form of the question. MR. BIGLER: I join in that objection. Q. (BY MR. DeBAUCHE) Your opinion is that this was a full arrest? A. He had reason to arrest the suspect, yes. Q. Can you indicate, in your opinion, what was the reason for Mr. Gonzales' arrest by the police service dog? A. Officer Titus believed the suspect was involved in an armed felony and was fleeing the
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himself only, in what way did he match that description? A. He had -- in Officer Titus's opinion, he was bald or had a shaved head. Q. Did he match the description of the suspect in any way other than appearing to be Hispanic, male, shaved or bald head? A. I haven't seen him. Q. Okay. And your understanding of the reason why Mr. Gonzales was subject to full arrest when the police service dog was deployed -- were there any other indications that he matched the description of that suspect on South Zenobia? A. Yes. Q. What? A. His behavior. Q. Flight? A. Yes. Q. So the fact that he fled, along with all the other suspects, provided probable cause to arrest him for felony menacing? A. I think that would increase Officer Titus's threat level and would confirm his reasonable suspicions that these were the suspects involved in that crime.
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scene of an armed felony. Q. Okay. Do you know in what way Mr. Gonzales matched the description of the suspect from the felony menacing case occurring on South Zenobia? A. In the light of the circumstances of Officer Titus? Q. Yeah. A. Yes. Q. At the time he deployed his police service dog, in what way did Mr. Gonzales match the description of the suspect from the felony menacing? A. He did. Q. How? A. He's a Hispanic male with shaved head, bald, shortly cropped hair. Q. But that's kind of three different things; right? Is it your understanding that Mr. Gonzales had a shaved head on the night he was detained by the police service dog, or a short haircut? A. It's my understanding that Officer Titus believed that these suspects were involved and matched the description of the crime on Zenobia. Q. Okay. In terms of Mr. Gonzales

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Q. Two different things. First is threat level to Officer Titus; right? A. Yes. Q. That's separate from probable cause to arrest. Do you agree? A. Yes. Q. Because threat level doesn't mean you're arresting someone for any particular felony menacing elsewhere; right? A. I understand. Q. So it's an officer safety issue. That's the first thing we talked about? A. Yes, sir. Q. Second thing was flight confirms his suspicions that these individuals are some way engaged in felony menacing? A. In a crime. Q. And the crime that Mr. Gonzales was subject to arrest for was the felony menacing. Do we have any doubt about that? A. I'd have to review the paperwork again. Q. Which paperwork would you need to review? A. I'd like to see his arrest slip or

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Case 1:03-cv-02328-RPM-CBS

Document 68-2

Filed 12/12/2005

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EVAN HVIZDAK September 23, 2005 Greg Gonzales v. Officer Brett Titus
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his arrest record for that date and see what he was actually charged with before I answer the question. Q. Okay. I'll tell you, I'll get that for you on a break, but I want to represent to you that he was not charged with felony menacing. Okay? In fact, no one here in this vehicle, that I can tell, on August 23, 2001, was charged with felony menacing. Do you disagree with that? A. No. Q. You're also aware there were four individuals in the vehicle and they all fled from the vehicle; right? A. Yes. Q. Okay. In terms of all four of those individuals -- scratch that. The description of the felony menacing suspect was Hispanic, male, bald or shaved head, and that's it. There doesn't appear to be any other description of him at the time Officer Titus was investigating. Do you agree with that? A. That's my understanding. Q. And we're talking about west Denver at 9:00 at night. Fair to say that's going to be a pretty common description that doesn't pick out a whole lot of unique individuals in west Denver; is
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A. I would say, to be more accurate, it's a consideration that he would have to deploy under Graham v. Conner. The issue is the severity of the crime in the light of existing -- what the officer perceives. (Deposition Exhibit 5 was marked.) Q. (BY MR. DeBAUCHE) I'm showing you what's now marked as Exhibit 5. Looks to be one of the statutes you reviewed in making your report. A. Um-hum -- yes. Q. This is the law of the State of Colorado regarding authorized use of force; right? A. Would you repeat the question, please. MR. DeBAUCHE: Can you read it back. (Last question read by the reporter.) A. That's my understanding, yes, it is. Q. (BY MR. DeBAUCHE) Let's look at Section 1 for just a second. It says, except as provided in subsection 2 of this section, a peace officer -Who Officer Titus obviously is; right? A. Um-hum. Q. -- is justified in using reasonable
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that right? A. I can't accurately answer that. Q. Okay. In terms of the Hispanic males that Officer Titus did come across, was there any indication, throughout the course of Officer Titus's investigation, that any of these individuals was armed? A. Would you repeat the question? Q. Sure. Let me rephrase it so it's not confusing. Officer Titus, from the time he began following the purple Neon until the time he deployed his police service dog, never saw any evidence of a weapon? A. That's my understanding. Q. And you agree that's one of the circumstances he would evaluate under Graham v. Conner or 18-1-707? MR. BRUNO: Object to the form of the question. MR. ZIPORIN: Same objection. Q. (BY MR. DeBAUCHE) You can answer. A. Repeat the question. MR. DeBAUCHE: Can you read it back. (Last question read by the reporter.)

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and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary, A, to effect an arrest. Do you agree that that's the law that applies to this situation? A. Yes. Q. Do you think there's some other section of this law that applies to this situation? A. I would have to review. Q. Okay. Well, let's go over the rest of subsection A. You don't think that -- following along with subsection A -- that Officer Titus was preventing the escape from custody of an arrested person? That doesn't apply to our situation; right? A. Does not. Q. Under B, you don't think that Officer Titus was defending himself or a third person from what he reasonably believed to be the use or imminent use of physical force? A. I disagree with that. Q. How do you disagree with that? A. I think he believed these suspects to be armed and believed these suspects to be violent. And I think it was a reasonable perception, in his mind, that they would assault or attempt to kill him.

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Case 1:03-cv-02328-RPM-CBS

Document 68-2

Filed 12/12/2005

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EVAN HVIZDAK September 23, 2005 Greg Gonzales v. Officer Brett Titus
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Q. Okay. So other than 1(a), the very first section, it's your opinion that 1(b) may also apply to this situation and that Officer Titus was defending himself from what he reasonably believed to be the imminent use of physical force while effecting or attempting to effect such an arrest or while preventing or attempting to prevent an escape? A. Yes, sir. Q. Is it your opinion that Officer Titus believed all of these suspects to be armed? MR. BRUNO: Object to the form of the question. A. I don't have that understanding. Q. (BY MR. DeBAUCHE) Okay. Is it your belief that Officer Titus believed any one of these suspects were armed? A. At least one. Q. At least one was armed. Does that mean that there is some specific fact that he knew that indicated one of these suspects was carrying a weapon? A. That was his perception. Q. Okay. Was it based on any observation of his specific to any of the four individuals that were in the vehicle?
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it's not your opinion that these four individuals were armed because they all had hands? A. It's not -- could you repeat that question. MR. DeBAUCHE: Could you just read it back. (Last question read by the reporter.) A. I still don't understand the question. Q. (BY MR. DeBAUCHE) Sure. You're not sure what kind of felony menacing occurred on South Zenobia; is that accurate? A. Yes. Q. I'll represent to you that it involved a firearm, that the report was that it involved a firearm. Do you recall that from the reports? A. Yes. Q. And I can tell you, in terms of Exhibit 3 -- if you turn to the third page. A. Still looking for Exhibit 3. Q. You don't have it? MR. BIGLER: Did you say page 3? (Discussion off the record.) Q. (BY MR. DeBAUCHE) Let me say page 2.
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A. Based on his observation? Q. Um-hum. A. No. Q. Did he make any observation of -scratch that. I've already asked you if he had made any observation of anything like a weapon on any of the four individuals he saw that night. Was there any observation he made that indicated any one of these individuals was actually carrying a weapon? A. As an observation, I would include the radio dispatcher who believed that they heard it as a felony menacing; the nature of the call was a felony menacing. Q. Did the call indicate it was a felony menacing with a gun? A. I would have to review those tapes, but it's my perception that a felony menacing involves a weapon. Q. Okay. But felony menacing can involve any object used as a deadly weapon; right? A. Yes. Q. Including your hands? A. Yes. Q. It's going to sound facetious, but

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Page 2 under "narrative." If you would read through the first few sentences of that. Does that help refresh your recollection as to what type of menacing this was? A. Yes. Q. And when you were indicating previously that these individuals were being arrested because Officer Titus believed he needed to defend himself from what he reasonably believed to be the imminent use of physical force while effecting or attempting to effect an arrest, that related to a gun, not to the use of hands or some other object. Is that accurate? MR. ZIPORIN: Object to form. A. I'd have to ask Officer Titus. In my opinion, if it were me, I would be mostly afraid of a handgun. Q. (BY MR. DeBAUCHE) I'm going to back this entire calculation up in time, okay, to the point at which Officer Titus at Sheridan and Evans sees a purple Neon with Hispanic males in it and they all have short haircuts. Could all four of those individuals have been arrested at that point, in your opinion? A. If he just sees individuals?

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Case 1:03-cv-02328-RPM-CBS

Document 68-2

Filed 12/12/2005

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EVAN HVIZDAK September 23, 2005 Greg Gonzales v. Officer Brett Titus
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Q. Um-hum. A. No. Q. So it's only the fact of flight -scratch that. I'll represent to you that Officer Titus said he saw the purple Neon turn in front of him through a red light and he was to proceed on a green light. At that point, he decided to follow the vehicle. Could he have arrested the individuals, all four, at that point? MR. BRUNO: Object to the form of the question. A. Not without a further investigation. Q. (BY MR. DeBAUCHE) Okay. What he saw was a traffic violation. Do you agree with me? A. The way you described it, yes. Q. And it was committed by the driver of the vehicle? A. Yes. Q. Officer Titus was not able to tell us in his deposition which of the individuals that got out of the car was the driver. Couldn't tell us which one was the driver at all. Do you agree with that? A. That's my understanding.
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an arrest? Q. Of the three passengers. A. After they were taken into custody. Q. You understand that's not going to square with your prior answer; right? A. Well, they have to be -- you have to detain -- and I don't mean to be facetious or obstructionist, but unless you can develop information as to dispel the fear of criminal activity afoot, based on what I've reviewed and the behavior that these people were engaged in, it's not unreasonable to think that all of the people in this car were involved and connected to the crime on Zenobia. I think that's a reasonable -- the actions that Officer Titus took were reasonable. That's the point I'm trying to get across to you. Q. In terms of the connection to Zenobia, you understand that the first observation of this vehicle is four blocks south and one block west of the location of the felony menacing? A. That's my understanding. Q. And that there was no description of a vehicle, an age, a height, a weight, a -- the presence of three other individuals at the felony menacing. You understand all those things?
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Q. So in terms of probable cause to arrest any of these individuals for felony menacing, at what point in his investigation was probable cause developed for all four? MR. ZIPORIN: Object to form. A. I would say from the point he made his first observation until the point the car came to rest. Q. (BY MR. DeBAUCHE) And what would you indicate was his first observation so I know what that point in time was? A. Of the purple Neon. Q. At the corner of Sheridan and Evans? A. Yes. Q. And you're saying probable cause was developed at that point or after? A. After that, in the sequence of events observed by Officer Titus. Q. Okay. As to the passengers, not as to the driver, at what point was probable cause developed to arrest any of the passengers? A. It was Officer Titus's intent to stop Garcia. He detained the other three individuals as well. And at what point? I guess your question is, at what point was probable cause developed to effect

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A. I have an understanding of Officer Titus's perception of the suspects and the suspect vehicle. Q. Now, I'm going to back up to what you said. You said that probable cause to arrest these individuals was developed at the time, basically, of their full arrest, if I understood your prior answer. A. After the -- after they've been detained. Whether or not you -- after they've been detained. Q. Now, do you agree with me that these -- scratch that. Do you agree with me that Mr. Gonzales was detained at the point at which the dog bit him the first time? A. No. Q. When would you say he was first detained? A. When the officer initiated his first warning for him to stop and he refused to comply with that warning to stop and continued to run. At that point, he committed a crime. Q. What was the crime he committed? A. At least at that point it would be failing to obey.

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Case 1:03-cv-02328-RPM-CBS

Document 68-2

Filed 12/12/2005

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EVAN HVIZDAK September 23, 2005 Greg Gonzales v. Officer Brett Titus
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Q. You're talking about interference with police authority? A. I think it's -- I'd have to read the statute again. My understanding, it's failure to obey a lawful order. Q. It's a municipal ordinance? A. At that point, he committed a crime. Q. Okay. And in effecting an arrest for someone who is interfering with lawful authority or failing to obey an order of a police officer, in the reasonableness of the force used, it is appropriate to deploy a dog against any individual at that point? A. That's a hypothetical. That's not what happened here. Q. It is a hypothetical. MR. ZIPORIN: Object to form, then. MR. BRUNO: Object to the form. Are you asking him to assume only those facts? MR. DeBAUCHE: Yep. A. So it's my understanding that if Officer Titus is driving down a residential street, he stops, gets out of his car, and asks someone a question, they refuse to answer his question, that person walks away, would it be reasonable for him to deploy a police dog to stop and detain that person?
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A lot of what you're asking depends on the behavior of the suspects. And you're not being accurate. Q. I'll read directly from Mr. Titus's own report. A. Whereabouts? Q. Again, middle, starts at the right-hand side. MR. BIGLER: Next page. THE DEPONENT: Yeah, sorry. Q. (BY MR. DeBAUCHE) Five pages in. Mr. Titus's own statement. Starts with the sentence, as they hit that fence, I began to order them to stop and get onto the ground. They did not comply and began to run southwest toward the rear of 2101 South Harlan Street. I again -- scratch that. A. Now I understand. Q. "I again ordered them to stop or I would send the dog. They still did not comply and continued to run. At that time, I released my police service dog." A. Yes. Q. It looks like Officer Titus orders them twice, from this report. Do you agree with that?
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Is that your question? Q. (BY MR. DeBAUCHE) No. A. I don't understand your question. Q. You said when the individual continued to run after Officer Titus gave his first -- I'll call it a command. I think you called it a warning. But from the report, the statement was, as they hit that fence, I began to order them to stop and get onto the ground. They did not comply and began to run southwest. A. Then all the suspects committed a crime at that point. Q. Okay. And the crime was something like failure to obey? A. At least, is what I said. Q. And at that point, all of those suspects were subject to arrest; right? A. Potentially, yes. Q. And at that point, the deployment of a police service dog was appropriate and reasonable, given the circumstances. Is that your opinion? A. That's not what happened. Q. I'm just asking your opinion. A. What would the suspects be doing? Standing there? I don't understand. I really don't.

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A. From this report, yes. Q. It looks like this report was generated just four hours after the incident itself? A. Yes. Q. The failure to obey those two orders, what I'm asking is: Was the deployment of a police service dog, under those circumstances, reasonable and appropriate? MR. BRUNO: Object to the form of the question. MR. ZIPORIN: Same objection. Q. (BY MR. DeBAUCHE) You can answer. A. Given all the attendant circumstances that happened on this evening, yes. Q. In terms of the attendant circumstances that we have from this evening, is it only the connection to the felony menacing case that would make the deployment of a police service dog reasonable and appropriate? A. No. Q. Is there something else beyond the felony menacing connection that makes this deployment of a police service dog reasonable and appropriate? A. Yes. Q. What?

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Case 1:03-cv-02328-RPM-CBS

Document 68-2

Filed 12/12/2005

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EVAN HVIZDAK September 23, 2005 Greg Gonzales v. Officer Brett Titus
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A. Officer Titus's observations. Q. What observations? A. The vehicle fleeing the scene. Q. Anything else? A. Their reluctance to comply with a uniformed officer. Q. Okay. So that's failure to obey, again. Anything else? A. No. It goes beyond failing to obey. Q. How so? A. Until the officer can establish the fear of any other criminal activity, he had reasonable belief to believe that these people were engaged in significant crimes. You would have to ask him, what are the crimes? It's my understanding that he believed that these people were connected to the Zenobia call. Regardless of that, his observations -- the actions he took based on his observations and the actions of these suspects were reasonable under our policies and procedures. Q. I'm going to back you up to 18-1-707. It's Exhibit 5, Section 1. Here's what I'm focusing in on. It says, except as provided in subsection 2 of this section, a peace officer is justified in
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is it your opinion Officer Titus observed this purple Neon fleeing the scene of the felony menacing? A. No. Q. It was just proximate. It was five blocks away. Would you agree with me on that? A. Yes. Q. When he sees the vehicle, it's not exhibiting any suspicious behavior before it turns at the red light. Would you agree with me? A. I disagree. Q. What suspicious behavior did Officer Titus witness before the purple Neon turned at the red light? A. The occupants. Q. They're Hispanic males, but what beyond that was suspicious? A. Their description. Q. Again, Hispanic males, close haircuts. You can find a lot of those. What else did Officer Titus see that made the appearance of the purple Neon or its occupants suspicious? A. I think that's enough. Q. And that's because of the description given of the felony menacing suspect? A. That's enough to draw his perception
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using reasonable and appropriate physical force upon another person... That's why I keep coming back to the term "reasonable and appropriate." A. Given the attendant circumstances, even after the stop, Officer Titus's actions in good faith effort were reasonable and appropriate. Q. Okay. And that's because of the three things you've mentioned so far: The failure to obey the lawful order to go to the ground, the possible connection to the felony menacing case that occurs some distance away, and the vehicle's flight from the scene? A. And it's important to note the connection with those three incidents. Q. The fact that they all occurred close in time? Is that what you mean? A. Close in time and close in proximity. Q. Okay. Let's start with fleeing the scene. When you're saying that Officer Titus witnessed this vehicle fleeing the scene, are you talking about the scene of the felony menacing or the scene at Sheridan and Evans? A. Sheridan and Evans. Q. Okay. In terms of fleeing the scene,

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to the vehicle. Q. In terms of the perception of that vehicle as opposed to any other vehicle carrying a Hispanic male with a close haircut, what about that vehicle was suspicious before it turned at the red light? Why that vehicle and not any of a hundred other vehicles carrying Hispanic males that night? A. I can't answer that. Q. Okay. You talked about the failure to obey, you talked about the connection to the felony menacing. In terms of the connection to the felony menacing, there was only one individual mentioned in the dispatch report that you reviewed; is that accurate? A. Yes. Q. And in terms of the description of that individual, it was not very complete; is that accurate? A. I think that renders to different people's opinion on how complete or how accurate it is. It's always best to have a lengthy and complete description. That wasn't available at this time. That's my understanding. It was not available. Q. The reporting female was hysterical at the time she called?

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