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

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

Document 66-2

Filed 12/05/2005

Page 1 of 28

BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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the felony menacing incident itself? A. I remember it was a female had called 911 and said that somebody had a gun held to, I believe, her husband or maybe boyfriend or another male, held the gun to this person's head. And they were out -- out in front of her house, I believe. Q. And they gave the location of the house; the address? A. They did. Q. What other details came to you through the dispatch call itself? A. The suspect's description was a Hispanic male, bald head, with tattoos. Q. Okay. And where were the tattoos located on the male? A. I don't recall. I don't think they said. Q. How extensive was the vehicle description you received for the vehicle that the Hispanic male was in? A. There was no description on the vehicle. Q. Where was your location at the time of receiving the dispatch? A. I don't remember exactly. I do
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It was at that time that -- the driver, a Hispanic male, bald head, you know, looked right at me, was right in front of me. And it was at that time that I thought that was our suspect. So I had to clear traffic because I was in the easternmost lane of Sheridan, so I couldn't just jet out in case somebody was coming in the lane next to me, so I had to wait a second and got through the intersection and tried to catch up with the vehicle, who at this point had blacked out and picked up speed. Q. Let me take that a step at a time. A. Okay. Q. You saw this Neon westbound. Was it traveling on a green light, on a red light, or on a yellow? A. Red light. Q. Okay. And you were in the easternmost lane of northbound Sheridan? A. Correct. Q. So is that a turn lane? A. I don't believe so. Q. Okay. So you're in the easternmost lane of northbound Sheridan, and you see the Neon go through this red light?
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remember I was traveling northbound on Sheridan. I'm not sure how far south I was at that point. Q. But it's fair to say you were south. Were you south of Hampden? A. No. I was north of Hampden. Q. Okay. And is it fair to say you were able to arrive close to the area being reported fairly quickly? A. Yes. Q. Couple minutes? A. I would say less than that. Q. Did you know what type of vehicle you were looking for at that point? A. I did not. Q. Your attention focused on a Neon; it sounds like a purple Neon? A. I believe so, yes. Q. Why did you pay attention to that vehicle? A. As I was at the light at Evans, facing northbound, this vehicle was coming westbound on Evans. And my light had turned green, and just before I was about to go, this vehicle ran the red right in front of me at a pretty decent high rate of speed.

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A. Correct. Q. And turn in front of you? A. Correct. Q. So it turns. And you said you saw the driver look right at you, so I'm assuming you're looking left, and you see the driver two lanes over? A. No. I look at him as he's driving right in front of me. Q. So he actually crossed into the western northbound lane of Sheridan? Do you understand? You said you were in the easternmost lane of northbound Sheridan. That means there's another lane next to you? A. Correct. Q. And then there's the southbound lane? A. Correct. Q. So when he turns in front of you, I'm assuming he makes a turn to the south -A. Correct. Q. -- into that southbound lane. But you're saying he goes right in front of you? A. Yes. Q. Okay. So he actually cuts into a northbound lane? A. No.

11 (Pages 41 to 44) Richardson Reporting Service 303-830-8488

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

Document 66-2

Filed 12/05/2005

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BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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Q. No? A. No. I don't know how else I can explain it. If I'm facing north and he's going west, he has to cross my path. Q. Okay. So when you see him looking right at you, basically what you're saying is you're in the driver's seat. You're in the easternmost lane, and you see him basically -A. Drive in front of me. Q. -- perpendicular to you? A. Correct. Q. Driving right across what's going to be your path? A. Correct. Q. Do you have to slow down or stop for him to pass in front of you? A. Yeah. As he catches my eye, my light turns green, and I look, and he's blowing through the red. So before I go, yes, I'm, whoa, here he comes. Q. What about the traffic in the lane next to you also northbound on Sheridan? Did they have to stop or swerve? A. I don't remember. Q. Do you remember any traffic being there?
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A. Correct. Q. So its lights are extinguished? A. That's correct. Q. And this is what time of night? A. I'll have to look at the report. It was dark. Q. As you begin traveling southbound, are you gaining on the vehicle, or was it leaving you behind? A. No. They're leaving me behind. Q. When you say "they," how many individuals did you see in the vehicle at the time? A. I don't recall the exact number. I knew there was more than one. I don't remember if I saw anybody in the back or not, but I knew there was more than one. Q. Okay. Did your initial report describe a vehicle with more than one occupant in it? A. I don't recall. Q. Okay. Did the initial dispatch report -- scratch that. When the purple Neon drove southbound on Sheridan, more or less crossing your path, did you see any weapon at that point? A. I did not.
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A. I don't. Q. Do you remember any traffic southbound on Sheridan that had to stop, slow, or maneuver to avoid hitting the purple Neon? A. I don't remember. Q. And then you said you had to wait for traffic to clear, meaning the east and westbound lanes of Evans? A. No. It was the -- any traffic coming north or south on Sheridan. Q. Sorry. My mistake. North or south on Sheridan, you waited for that traffic to clear, and you made a U-turn? A. Correct. Q. Did you make it on Evans or make it on Sheridan? A. It would, I guess, technically -well, both. I guess I would have had to have crossed Evans to come back down Sheridan, so I would say both. Q. So a great big circle? A. Correct. Q. Got it. And then you began to travel southbound, and you said the purple Neon at that point is blacked out?

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Q. Was the driver exhibiting any behavior at that point that was suspicious? A. Shutting his lights off and accelerating would be suspicious to me. Q. Okay. But that's after you've already made the U-turn. Prior to that what you had seen was an individual who you believed had run a red light? A. Correct. Q. Is there a southbound green arrow for that intersection? A. I don't believe so, but I'm not sure. Q. And how long had your light been green at the time you saw that purple Neon entering the intersection at Evans and Sheridan? A. A second. It had just turned. Q. All right. Do you know how long the yellow light is for the east and westbound lanes on Evans? A. I don't know. Q. Okay. You pursue that vehicle southbound on Sheridan, and its lights are extinguished? A. Correct. Q. At what point are they extinguished;

12 (Pages 45 to 48) Richardson Reporting Service 303-830-8488

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

Document 66-2

Filed 12/05/2005

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BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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do you know? A. I don't recall. Q. Can you see individuals in the vehicle at that point from behind? A. I could not. Q. Okay. Did you see any -- anything being thrown from the windows or being ejected from the car? A. Nothing. Q. The vehicle goes southbound and then makes a westbound turn? A. Correct. Q. At that point you were still in pursuit. What was your speed? MR. ZIPORIN: Object to the form of the question. A. I was not in pursuit. Q. (BY MR. DeBAUCHE) What was your speed at that point? A. I don't recall. Q. Was the vehicle still leaving you behind? A. Yes. Q. Was there any other southbound traffic on that street at that time of night?
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description, what you had was a Hispanic male, bald head? A. Correct. Q. Did you have any other facts at that point to indicate the person you were pursuing was the suspect in terms of a physical description? A. No. Q. Had you seen any tattoos on the individual you were pursuing? A. No, not that I recall. Q. Did the individual match a particular age, build, complexion, or any other indicia we'd use to identify someone physically? A. No. Q. How long of a time period are we talking about for your observation of this driver? A. I'm sorry? Q. How long did you see this guy's face? A. A second or two. Q. It was basically the time period from when you notice him going through your green -- his red light until he's turned southbound in front of you? A. That's correct. Q. Okay. And other than the traffic
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A. I don't recall. Q. Do you remember if the vehicle made any maneuvers to get around other traffic southbound on that street? A. Again, I don't remember. Q. Do you remember if you had to? A. I don't. No, I don't remember. Q. At that point were your emergency lights activated? A. No. Q. But your headlights were on, I assume? A. Correct. Q. Okay. Was your audible signal on; your siren? A. No. Q. At that point did you call out for cover officers or report that you were in pursuit of the menacing suspect? A. I believe -- and I would have to look, but I believe my radio transmission was something to the effect of I'm trying to catch up to a vehicle that matched the suspect's description. Q. Now, let's talk about that for just a second because in terms of matching the suspect's

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infraction at that intersection, were you aware of any facts, as you pursued this individual southbound on Sheridan, to justify his arrest? MR. ZIPORIN: Object to the form. You can answer. A. I'm sorry. Repeat that. Q. (BY MR. DeBAUCHE) Sure. Outside of what we've already talked about, were you aware of any other facts, as you pursued this vehicle south on Sheridan, to justify his arrest? MR. ZIPORIN: Object to form. You can answer. A. I don't know if I can. I'm not -I'm not getting it. Sorry. Q. (BY MR. DeBAUCHE) Okay. That's okay. I'm just asking if there's anything else you knew at that point that you haven't already told me. A. No. Q. All right. The vehicle turns right, heads westbound. A. Um-hum. Q. As it's heading westbound, I assume you're trying to track him and catch up? A. Correct. Q. Do you make the same right-hand turn?

13 (Pages 49 to 52) Richardson Reporting Service 303-830-8488

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

Document 66-2

Filed 12/05/2005

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BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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A. I do, yes. Q. At the point you make that turn -same kind of series of questions: When you observe the vehicle, is it leaving you behind still? A. It is. Q. As you're observing the vehicle, are you witnessing things being ejected out of the windows or witnessing any other suspicious behavior by the occupants? A. The vehicle is now at such a high rate of speed -- there's pretty significant dips in the road. He runs the stop sign again at a high rate of speed at -- I believe it was Depew Street. And at Depew, again, I believe there's a pretty significant dip, that the car is shooting sparks from underneath it. Again, at that point, with the dog in the back and I'm not going to risk getting T-boned, I'm doing much slower of a speed, just trying to maintain a visual. Q. Okay. At that point are you aware, through radio transmissions, of where other officers are located, you know, near you? A. I don't recall. Q. Okay. You continue to pursue the
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stop, such as your public address system on the vehicle, any horns, any blinking of your headlights, anything like that? A. No. I was never close enough to activate. Q. Okay. So describe your course as you continue westbound until you come to a stop on Harlan. Where do you drive? A. I believe I just stayed on Warren to Harlan and then turned northbound. Q. How did you know that the vehicle had gone northbound on Harlan? A. I stopped at Harlan, and I could see the brake lights at the end of -- at the dead end. Harlan dead-ends right there. Q. Okay. At that point do you know if you had called out for cover officers or other cars to come to the area? A. I'm not sure what time frame the radio traffic came through. I'm not sure. Q. At that point were you aware or had you discovered any new or additional facts beyond what we've already talked about? A. Not at that point, no. Q. As you turn northbound onto Harlan,
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vehicle, and it's not stopping, I'm assuming? MR. ZIPORIN: Object to form. You can answer. A. I'm not pursuing. Q. (BY MR. DeBAUCHE) Okay. You're following -A. Correct. Q. -- this vehicle as it goes westbound? And it appears from your report that the first time you activate your overhead lights is when you pull into the dead end on Harlan? A. That's correct. Q. Same thing with the siren. Is your audible signal off the entire time you are following this vehicle? A. Correct. Q. In terms of lighting on your vehicle, then, is it fair to say the only lighting on your vehicle throughout this following of the purple Neon are your headlights, turn signals, brake lights; ordinary operating lights? A. Correct. Q. At any point during your following of the purple Neon until it stops at Harlan, do you use any other signals to the vehicle to pull over and

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what did you see that vehicle do other than the brake lights obviously coming on? A. Skid to a stop and the occupants bailed out. Q. How far away were you when you saw the vehicle skid to a stop? A. Rough estimate, maybe midway down the block. So half a block. MR. DeBAUCHE: Okay. Hang on a second. MR. BRUNO: If the end of the block is a convenient place to stop, can we stop? MR. DeBAUCHE: Yeah, sure. (Recess taken from 9:11 to 9:29 a.m.) Q. (BY MR. DeBAUCHE) Why don't we go back to Harlan. As you pull northbound, were you aware that that street was a dead end? In other words, was there a sign or something that told you, like prior experience, that you were traveling into a dead end? A. One of the officers came on the radio -- I don't know who it was -- and said, that dead-ends there. So at that point I knew. Q. Okay. And at the point at which you pull onto northbound Harlan, do you know where your

14 (Pages 53 to 56) Richardson Reporting Service 303-830-8488

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

Document 66-2

Filed 12/05/2005

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BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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cover officers are and how far behind you they are? A. I have no idea. Q. Okay. So no one had said they're on their way to assist or anything like that? A. I believe there were cars coming on the radio, saying they were going to cover, but how far off they were, I did not know. Q. Okay. In terms of the radio traffic, had anyone else at that point identified any other suspects to the felony menacing from Zenobia Street? A. I don't recall. I don't think so. Q. Okay. All right. So when you see the vehicle come to a stop, you said it skidded. Does that mean you heard the skid or you saw it sliding to a stop? A. Yeah. I'm assuming -- it did look like that's what it was doing, the way I could see the taillights. I'm assuming it did just, again, by the look of it, by the taillights raising and sliding, if you will. Q. Okay. So you saw the taillights kind of move up and the suspension loading forward, then? A. Correct. Q. Okay. You saw that, and then you said you saw everyone leave the vehicle. Describe
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a -- I believe it to be a 6-foot wood fence. And that fence kind of jogs in a northwest direction. And that attaches to -- or bucks up to, again, I believe, a 6-foot concrete brick wall that looks like it belongs to a homeowner there at the corner. So that had blocked their path. MR. DeBAUCHE: Okay. Let me go ahead and mark one of these as 1. (Deposition Exhibit 1 was marked.) (Discussion off the record.) Q. (BY MR. DeBAUCHE) I'm showing you what I think is the appearance of the street from a satellite image of 2101 South Harlan and the houses kind of around it. And I should probably grab you a marker because we're going to want to mark on this quite a bit. I've got multiple copies, so don't be afraid to kind of scribble all over it. I'll grab you a black marker. That might be better than a highlighter. (Discussion off the record.) Q. (BY MR. DeBAUCHE) Taking a look at that, can you start with this map -- we'll call this map 1 -- and draw the two vehicles in the street where they each come to rest. First the vehicle you were following, the purple Neon.
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for me exactly what you saw in terms of people leaving the vehicle. A. My -- from what I could tell, it appeared that all four doors opened and four occupants exited the vehicle. Q. When you saw the four occupants leave the vehicle, what directions did each occupant travel? A. They all traveled in the north or northwest direction. Q. Okay. Meaning the individuals from the passenger side actually went around the vehicle to go to the west? A. Correct. More to the north. Q. So north and west. So they would go off at an angle, basically off the corner of the car where the driver was located? A. That's correct. Q. Pointing in that direction. Describe what you saw as you pull in behind that vehicle in terms of obstacles to their exiting the area. Is there anything to the east or the north preventing them from going those directions? A. At the end of the cul de sac there's

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A. Okay. It's going to be kind of rough here. Q. Okay. A. (Drawing.) Q. Okay. If you can just mark the purple Neon with an X for me. A. In the red? Q. Yeah, in the red. A. (Deponent complies.) Q. And then your vehicle with an O. A. (Deponent complies.) Q. Now, describe the scene. We're seeing this from the top, but describe the scene when you come to a stop as you look around. You said there's a 6-foot wooden fence. Kind of point on the map where that is. A. It should be right along the end of the street right here. Q. Okay. It looks like you park your vehicle in front of a driveway. A. I believe so. Q. And the other vehicle is parked basically in front of you, kind of right at the apex of that dead end? A. Yeah. Now that I look at this, I was

15 (Pages 57 to 60) Richardson Reporting Service 303-830-8488

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

Document 66-2

Filed 12/05/2005

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BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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not at that driveway. I would think the vehicle was closer to the driveway. It's hard to do on this picture. But yeah, the vehicles are too far north, so do you want me to change that or move it? MR. DeBAUCHE: Yeah. Let me make this 2. (Deposition Exhibit 2 was marked.) A. Because I was not -- I think the suspect vehicle would have been back by the driveway more, and I was back south a little bit. Q. Let me give you what I can tell you is another copy of that same map, and let's do this again here. A. Sorry. Q. No problem. A. Again, this is rough estimates here. Q. Okay. Now, in terms of what you see, you described the fence. As you exit your vehicle, what's to the east that would block their travel? A. Well, the fence -- if memory serves, I believe the fence runs the whole length here, so east would be the fence. I'm not sure about openings or anything along this way. Q. All four individuals, did they go in roughly the same location to the west or northwest?
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in this area? A. No. Q. Okay. Then let me just continue to ask the questions that I do have. As your vehicle comes to a stop, you said that the individuals are all fleeing from the vehicle. A. Correct. Q. And they're all going roughly in the same direction? A. That's correct. Q. Do you try to use your public address system at that point to tell them to stop, show me your hands, et cetera? A. No. Q. So you exit your vehicle immediately? A. Not exactly exit. Half in, half out. I'm using my door as cover. Q. So you've got, I assume, your weapon out? A. Correct. Q. And by "weapon," I mean your firearm. A. That's correct. Q. You've got that out and pointed at them?
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A. Yes. Q. Or do they scatter? A. All the same. Q. Okay. When you exit your vehicle, can you take that red pen and just draw Xs for where each -- where you see each of the individuals at that point. A. When they exit the vehicle? Q. Well, sorry. As you exit your vehicle, where do you see them at that point? A. They're somewhere in this location, kind of where the -- where the wood fence meets the brick fence. One of the suspects actually made it over the brick fence. Q. Okay. I'm going to hazard a guess here. You've now placed all -- well, three Xs in this corner where the wood fence meets a brick wall or fence or some kind of obstacle. A. Yes. Q. I'm pointing on the map to what I think is a wooden fence between two houses. A. Okay. Q. And I'm going to point you to a tree that's at the corner of the house. Do you think it's fair to say that the individuals may have been over

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A. Yes. Q. And then what do you tell them? A. Stop, show me your hands, get down on the ground, don't move, I'm going to send the dog. Numerous commands to that effect. Q. And all the while you're saying those things they are still proceeding northbound? A. No. They're actually standing in that corner, kind of meandering, I guess is the best way to describe it. Q. Okay. So they're all standing in that corner? A. Right. Q. Okay. So you tell them those things. What do they do, that you remember? A. After two or three warnings, get on the ground, with my weapon pointed, they begin to walk towards me. Q. Okay. What's the distance that we're talking about from where they're standing in that little corner there to your vehicle and the door? A. This is going to be rough, but I would say anywhere from 50 to 75 feet. Q. Okay. So kind of a distance. And how well lit is that corner where they're standing?

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BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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A. I don't recall. I know there was some ambient light. I think there was a streetlight up here, but they were illuminated by my headlights as well. Q. Okay. Can you just make a square for where you think the ambient light was located. A. I think there's a light maybe here. Q. Okay. So on Exhibit 2 you've kind of drawn a streetlight. You said your headlights were operating. The purple Neon did not have its headlights on at that point? A. Not that I remember, correct. Q. And were there any lights from any of the houses to the west of where the vehicles were located? A. I believe it was pretty dark to the west. There was no porch lights. Yeah, there was no light to the west at all, that I remember. Q. Can you take the black marker and draw the brick wall or fence, whatever you remember. Just kind of locate that in the photograph. A. Gosh. If this is where -- boy. I knew it bucks up to the house, and I'm assuming this is a brick wall here, but I don't know why I can't see it over here. So I'm going to assume maybe
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that's why they were ordered numerous times to show their hands, because I couldn't see all six hands. Q. Yeah, but there's four guys, right? A. Three. One went over the fence. Q. Oh, which fence did he go over? A. The brick. Q. All right. And the other three -let me back up because I didn't understand. The 6-foot wooden fence runs along the end of that dead end, right? A. Correct. Q. We already talked about that. The black line that you've drawn in for the brick wall or fence, whatever that was, how tall was that? A. I believe it was 6 foot. There's a decorative block on the top. I think the total to get over it was probably 6 foot. Q. So one guy makes it. The other three, did they even try to get over that obstacle? A. No. Q. They just stop? A. They just stop. Q. Okay. And they turn around and walk back towards you? A. Correct.
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somewhere over here. Q. Okay. You give them the various commands, and then these individuals begin to walk straight south towards you? A. Correct. Q. Okay. A. Not straight. I guess it would technically be a little bit to the west to get around the car. Q. Okay. So they move to the west of their vehicle? A. South and west. Q. Okay. And how close do they approach you? A. They're getting pretty close. I would say they're closing the distance, whatever that distance was, between 50 to 75 feet. Q. Were all the individuals together at that point? A. Correct. Q. Were any of them displaying anything suspicious in any of their hands? A. I couldn't see all of their hands. You know, they weren't walking parallel to each other. So there was one of them in back. And again,

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Q. They make it all the way back to the driveway of the house there with the fences? A. I'm sorry. Q. They make it back to the driveway and their vehicle? A. They're actually walking, like I said, in a southwest direction just to the west of their vehicle. So they're about here. Q. And at that point you're not able to see all of their hands. What happens next? A. At that point they all decide to run towards me. Q. Towards you? A. Towards me. Q. Okay. So -A. Two of them decide to run towards me. The third that was in the back decides to run west -southwest between this large tree and the corner of this house. Q. Okay. So just make some dashed lines for the path that each of these individuals take. A. Okay. (Deponent complies.) Q. Now, the third individual that runs behind -- scratch that -- that goes behind that tree, is he running or walking?

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A. He's running. Yeah, he's moving out. Q. Okay. And you see him move behind that tree? A. Correct. Q. Do you see him come out from behind the tree after that? A. I don't. Q. Okay. So he's behind the tree, period? A. Correct. Q. The other two individuals, they run towards you, and what happens to each of them? A. They run just a few feet and then stop while the third continues to run. This is all simultaneous. Q. Sure. A. At that point as they get closer, I'm losing my position of cover, and it was at that point that I deployed my service dog. Q. Okay. Where was the dog up to that point? A. In the back of the car in his kennel. Q. And how did you deploy the police service dog at that point? What did you have to do? A. Gave him his command to go out.
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seat? A. Correct. Q. Got it. So the dog's been waiting there while you're giving these commands? A. Yes. Q. And you give the dog the command to go? A. Correct. Q. Okay. Is it in German or is it in some other language? A. German. Q. And the dog goes, I assume, right around you? A. Correct. Q. The two individuals that are closest to you, would you agree with me that according to the dog's training, they pose the greatest threat? MR. BRUNO: At what point in time? A. Yeah. Q. (BY MR. DeBAUCHE) Right when he leaves the vehicle. You've got two individuals approaching you, and they pose the greatest threat according to the way the dog is trained? A. No. I can't -- I don't know what the dog would perceive as the greatest threat, training
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Q. So the kennel is not locked or closed? A. No. There's a sliding gate, and it was open. And he basically sits here, and that's where he was sitting as I was standing out in a position of cover behind my door. So he's just waiting, barking. Q. So how does the dog have to exit the vehicle? What does he have to move through to get outside? A. He comes out that gate, which was opened, steps on my seat, the driver's seat, and then out the door. Q. Okay. So I'm not that familiar with police vehicles. So there's a gate between the front and back seat? A. Correct. Q. In your canine vehicle there's no back seat, then; it's just kind of a kennel? A. Yes. It's a stainless steel kennel. Q. Okay. And the gate is already opened. In other words, it's kept open all the time? A. Yes. Q. So when you opened the door to your vehicle, the dog can exit right through the front

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or not. You know, you'd be asking me to answer for the dog. So I don't know what he would perceive as the greatest threat. Q. Okay. At that point you've got two individuals, you said, that were running towards you, and you were losing your cover? A. Correct. Q. When you tell the dog to go, do you give the dog any commands or any indication of where you want him to go? A. He already had target ID. When I'm yelling at a bad guy, he knows who I'm yelling at. And once they start to approach, there's nobody else out there, so he knew who the suspects were. Q. Yeah. See, that was my prior question, was how was the dog to perceive the two individuals coming towards you? And I asked if he would perceive them as the greatest threat. Do you think you indicated in some other way which individual the dog was to pursue? A. No. Q. The two individuals that are approaching you, as you lose your cover and you order your dog to go, where does the dog go? A. As he exits the vehicle, the two

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parties that were coming towards me stop as the third continues to run. So my dog went after the person -the third suspect that was running. Q. Okay. And at the time, were you addressing your orders to stop to the two individuals approaching you? A. All of them. All three of them. Q. Okay. And the two individuals don't stop until the dog is actually out of the vehicle and they can see the dog? A. I'm not sure exactly what moment. When they all began to run, it was the third person in back that I would say, in my opinion, initiated the run. Once the two in the front maybe saw him take off, and they thought it about and then stopped. So they didn't run very far. I don't know why, but that's what they did. They all kind of took off together, and then the two of them stopped, and the third one kept going. Q. Okay. So the dog takes off after the individual that goes behind the tree? A. Correct. Q. Which path does the dog take now? If you can, take your pen again and make a series of dashed lines for the path of the dog.
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A. Correct. Q. What commands were they not complying with? A. Getting on the ground. Q. So they're standing up when you've told them to get down on the ground? A. Initially they're even walking towards me, and I'm even taking a step back from my door. Get down, get down, get down. Then they finally stop and get down on the ground, but again, after several seconds. Q. Okay. Let's go back to what you said about the commands given and the dog's understanding of the commands given. You said you were giving the commands to all of the individuals in front of you before you let the dog out? A. Correct. Q. When you let the dog out you gave him a German command that basically meant go? A. Correct. Q. Does that command mean anything else to the dog? Is it trained to respond to that command in any other way? A. No. That's just his "go out" command.
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A. I believe he went this way. Q. Okay. So the dog basically goes around the north side of the tree? A. Correct. Q. Okay. So you can't see the dog at that point? A. Correct. Q. What's the distance between your position and the dog when he goes around the tree? A. Maybe 30 feet, 40 feet. Q. And the two individuals that are now stopped in front of you, what are they doing while the dog runs past them? A. They continue to walk towards me until they get to this grass on the grassy area. I'm ordering them get down, get down on the ground. They're not complying. Eventually they get down on the ground, but it takes me several seconds and numerous warnings with my weapon pointed at them. I have no more cover because they've already -- they're there. They're right on top of my position, if you will. And I just keep telling them, get down, get down, get on the ground. Q. And you've indicated they're not complying with your commands?

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Q. Okay. So the dog perceives the "go out" command and leaves your vehicle and has three different targets to choose from; is that accurate? A. Correct, yes. Q. And two targets are close to you and walking towards you, and it sounds like they're not obeying your commands -A. Correct. Q. -- at all? A. Correct. Q. Okay. And the dog ignores the two that are closest to you? A. Correct. Q. Is the dog trained to ignore individuals in their position, approaching you? MR. ZIPORIN: Object to the form of the question. A. No. He's not trained in any particular way when it comes to -- well, let me think how to -Q. (BY MR. DeBAUCHE) Let me try to break it down a little bit. A. Okay. Q. Is the dog trained to confront multiple suspects?

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A. Yes. Q. In that training -- first of all, how is that training conducted? A. Part of the PSP certification, the initial certification that Oscar had completed, one of the exercises is what we call defensive handler. I believe that's what it's called. It's something close to that. And it's where three suspects are contacted by the officer with his police service dog. As he's patting down the three suspects, one of the suspects will either attempt to flee or attack the officer. It's that aggressive movement that the dog is trained -- or even not so much trained as it is a natural reaction to either protect the handler or apprehend the fleeing suspect. And that's part of the certification that he had went through. Q. Okay. And that was in '99? A. Correct. Q. And was that also part of the National Police Canine Association training and certification? A. That exercise is not, no. Q. Do you recall, after the PSP certification, how many times the dog was trained on
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Q. They just hadn't done anything aggressive towards you? A. That's correct. Well -- can I take that back? MR. ZIPORIN: Yes, you can. Q. (BY MR. DeBAUCHE) If you want to qualify it, go ahead. A. Yeah. When I say they hadn't done anything aggressive towards me, walking towards an armed police officer with his gun out I think is aggressive. So I think they were acting very aggressive. Q. But that circumstance wasn't enough to overcome the dog's training regarding the fleeing individual behind them? A. I would agree with that, yes. Q. So in terms of the dog's training, did he perform as you would expect from his training? A. Wonderfully, yes. Q. Okay. So at that point when the dog disappears behind the tree to the north and you have the other two individuals not complying with you, you're focused on the two individuals, I'm assuming? A. Correct. Q. And eventually those two individuals
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that particular presentation of multiple targets? A. I would strictly be guessing. I have no idea how many times I had practiced or worked on that. Q. Okay. But you think you did? A. Oh, yes. Q. And you think you did more than once? A. Correct. Q. And it would be in your training records how many times you did it? A. I would hope -- yeah. I would think so. Q. So in terms of the dog's training on a multiple-type situation, the dog is trained to pick the one either fleeing or being aggressive towards you? A. Correct. Q. And in the case we're talking about, the dog chose, I guess, the individual that was fleeing to the west? A. Correct. Q. Okay. But you'd agree with me that the two individuals closest to you posed the greatest threat to your safety? A. In my opinion, yes.

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go down to the ground? A. Yes. Q. You don't have to use any force or any other physical contact with them to get them to go to the ground? A. No. Q. Once they're on the ground, you're able to arrest both of them? A. No. Q. What happens? A. I, at that point, moved to -- around the south end of that tree so I can see all three of the suspects at once. Q. Okay. (Deposition Exhibit 3 was marked.) Q. I'm going to give you 3 now. A. Okay. Q. I want you to take the black marker and draw Xs at that point in time when you have two individuals on the ground, one individual behind the tree with the dog, and then yourself. Just take the black marker and do Xs for each of them and Os for yourself and the dog. A. (Deponent complies.) Now, at what point again?

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Q. As you have the two individuals on the ground. And you're the only one moving at that point, as far as we know? A. Yes. Q. So give me a diagram of when you're next able to see the third individual and your dog. What's your position? A. Third individual is just west of the tree. Q. Okay. A. And I moved somewhere around there (indicating). Q. Okay. And you're able to see everybody at that point? A. Correct. Q. What were you able to hear? Once the two individuals are on the ground, what do you hear from behind the tree? A. The suspect number 3 was screaming to get the dog off him. Q. Okay. When did that screaming begin in relation to the travel of the dog? A. I don't recall. Q. Okay. But you heard the screaming? A. Yes.
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Q. You had that light, and you're shining it back in that corner to see? A. Yes. Q. Is there any other illumination back there? A. No. Q. So you don't remember a yard light coming on from the motion back there? A. I don't. Q. Okay. What do you see when you're able to look around the tree with your flashlight? A. At that point my dog is engaging the suspect by a bite to the leg. Q. Which leg? A. I don't remember. Q. Okay. Was the suspect on his stomach or on his back? A. I believe he was sitting up, so I believe he was on his butt. Q. Okay. And the dog is biting a leg? A. Correct. Q. Okay. But what's the suspect doing when you first see him, other than sitting? A. He has the dog by the head, around the ears, trying to pull the dog off.
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Q. You moved to a position then where you can see the third individual? A. Correct. Q. Does the screaming continue the whole time you're moving? A. Yes. Q. Do you give any commands to the dog at that point? A. No. Q. So you moved to this new position, and it's -- you said before that it was pretty dark back there? A. Correct. Q. Do you have your flashlight with you? A. I do. Q. What's your flashlight? A. I'm sorry? Q. What flashlight do you carry? A. A mini MAG. Q. The little double A one that's about 3 inches long? A. This one. Streamlight Stinger. Q. Got it. So that's a high-power light, carries lithium batteries, et cetera? A. Yes.

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Q. Okay. Because the dog is actively biting that first leg? A. Correct. Q. At that point is the suspect injured anywhere else other than the dog bite? A. I couldn't tell at that point. I know he was later, but at that point I couldn't tell. Q. So the dog is biting that leg. Is the dog repeatedly adjusting the grip, or does the dog have a full bite on that leg? A. Again, I don't recall at that particular point. I know he stays on that leg until he's released. But as far as adjusting, with the suspect's movement, yeah, it was hard to tell. Q. Okay. That bite on that leg, if the suspect's sitting down, is it fair to say that bite would have to come from the front of the leg? A. I don't recall. I'm not sure. Q. Now, at that point in time if we just freeze everything exactly like the diagram shows, you've got two individuals who are just on the ground, not cuffed, not detained in any way? A. Correct. Q. Are your cover officers there at that point?

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A. No. Q. So you're alone behind this dark tree with your flashlight and your dog? A. Correct. Q. Are the other two individuals compliant and laying on the ground? A. Yes. Q. What do you do once you see that the dog has this individual on the ground? A. At that point I'm ordering -- I'm still talking to the two out there. "Stay on the ground. Don't get up." I'm also yelling to the suspect that the dog is engaging to let go of his head and I'll release the dog. Let go of his head and I'll release the dog. At that point the suspect actually complies, and the screaming stops, and I release the dog. Q. How do you release the dog? A. Give him his release command. And he releases the bite. And at that point I move up to the dog, leash him up, and pull him back. So again, I just stay there until cover shows up. Q. Where was your leash located prior to that?
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at a watch for 30 seconds. But I would say less than 30 seconds. Q. Okay. MR. BRUNO: When you use the term "release," are you saying release out of the car or release the bite? MR. DeBAUCHE: Release out of the car and then -A. And then release from the bite. Yeah, less than 30 seconds. Q. (BY MR. DeBAUCHE) Because you know you had written 30 to 45 seconds in your report? A. Right. Q. And you think now it was much shorter than that? A. Yes. Q. In terms of the bite marks on that third suspect, I think I can represent to you there were three different marks on his legs, three different points of contact. A. Okay. I haven't seen -- I didn't see him after -- I have no idea, to be honest with you. Q. Let me see if I can pick these out. I'll make photocopies in just a bit. So I'm showing you 179, 146, and 185.
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A. Around my waist. Q. So you keep it with you? A. Yes. It's always just the standard one right there. Q. You give the dog the command to release after the suspect releases the dog's head? A. Correct. Q. Do you give the command once or more than once? A. I don't recall. I would say less than three. I maybe said it twice. Q. Okay. So you said that command at least twice? A. Yes. Q. And again, in German? A. Yes. Q. Okay. And the dog eventually releases from the bite and does not bite the suspect after that? A. Correct. Q. Okay. How much time goes by from the time you release the dog until the dog releases its bite? A. I would say -- I know I had written this before, and I think I was way high after looking

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They're all Bates-stamped. In terms of those photographs, I'll refer you to 146 because it's a good baseline photograph of the injuries after they're healed, but it shows roughly the locations for each. In terms of your dog's bite when you witnessed the dog engaged with this individual, which bite do you think he had inflicted at that point? A. I would guess -- and it's strictly a guess -- it was one of the upper thigh bites, if I remember correctly. Q. And that's while the suspect, Mr. Gonzales, was sitting on the ground? A. Correct. Q. In the 30 seconds or so that the dog was engaging Mr. Gonzales, can you tell me how long it took the dog to reach Mr. Gonzales's position? MR. ZIPORIN: Object to the form. A. I'm not sure when he actually engaged him, so it would be tough to answer that. I don't know what happened, how many seconds behind the tree. Q. (BY MR. DeBAUCHE) Okay. Let's just flip it the other way. Out of the 30 to 45 seconds that the dog was engaging Mr. Gonzales, how long did you hear screaming?

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BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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MR. ZIPORIN: Object to the form. A. Again, rough estimate, there was only maybe 15 seconds of screaming. Q. (BY MR. DeBAUCHE) When you first came into view of Mr. Gonzales behind the tree with the dog engaged on his leg, was Mr. Gonzales still screaming at that point? A. Yes. Q. And then from that point on, how long does the dog engage Mr. Gonzales? How long is he still on him? A. I'm sorry. After I see -Q. Yeah. After you come around the corner and you can see behind the tree with your flashlight, how long is the dog still on Mr. Gonzales from that point? A. A few seconds. Q. Okay. So it just takes a few seconds of -- you said Mr. Gonzales releases the dog's head and you release the dog from the bite? A. Yeah. Once I can see the suspect's hands, then the dog's released. I know there's no weapon, so I can release. Q. Well, you could see the suspect's hands, you said, because they were holding the dog's
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behind the tree when he's out of your sight? What can you do to control him? A. At that point? Q. Yeah. Once he's behind the tree and out of your sight until you next see him with the flashlight, what control mechanisms do you have left? A. I'm not sure how to answer that. I don't -- he was doing what he was supposed to do, so there was no control -- he was doing what I wanted him to do, so in that aspect I'm -- in my opinion, if he's doing what he's trained and supposed to do, then that's what he should be doing. Q. But in terms of voice commands -scratch that. He was off leash for the time he was engaging Mr. Gonzales? A. That's correct. Q. He was off leash as soon as he left the vehicle, it sounds like? A. Correct. Q. Okay. And you'd agree that off-leash situations are treated somewhat differently than on-leash situations, right? A. Yes. Q. Okay. And same type of question:
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head? A. Correct. Q. So you weren't waiting to see the suspect's hands. You were waiting for the suspect to let go of the dog's head, I thought you said? A. Correct. Yes. Q. And in terms of the wounds that we see in these photographs, are they consistent with what you'd expect from the dog biting as he's trained to do? A. I would be guessing, because I don't know what happened behind that tree, whether or not the suspect kicked him, fought with him, tried to dodge him. I have no idea. Q. Okay. So in terms of what occurs once the dog goes behind the tree, you're not able to say with any certainty what the dog is doing to Mr. Gonzales until you next see the dog behind the tree with your flashlight? A. That's correct. Q. In terms of your control of the dog behind the tree for that same time period, what control mechanisms did you have at that point? A. Clear that up for me. I'm sorry. Q. In what way would you control the dog

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When a police service dog is outside of your direct sight, it's a different situation than when the dog is just merely off leash and in your sight? A. Correct. Q. How much training had this dog had on being out of your sight but within, say, voice control? A. I would be guessing. I wouldn't know where to start as far as hours, days, modules. I don't know. Q. Okay. In terms of the dog's training to release a bite, are they trained ideally to release after one command or two or up to three? A. They're trained off of one command. Sometimes it takes two. Q. Okay. In terms of a dog engaging a suspect out of your sight, how long is the dog trained to keep a bite on a suspect? In other words, is he just on that bite until you release him? A. That's correct. Q. Can you describe how big Oscar is? A. Today? Q. Actually, back at the time of this incident. A. He's kind of fat and retired now.

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He was anywhere from 83 to 88 pounds. It just depends. Q. By the time you came around the edge of the tree with your flashlight and your gun drawn, other than the screaming from Mr. Gonzales, had you heard Mr. Gonzales say anything else? A. Not that I recall. Q. Okay. Let's talk about what you knew at that point in time. You hadn't seen any firearms or weapons displayed by any of these individuals at that point, right? A. Correct. Q. One individual had gone over the fence, and we can assume at that point he's gone? A. I didn't assume that at all. Q. Two individuals had come towards you, and they were laying on the ground at that point? A. Correct. Q. Which of the four individuals exited from the driver's side door? A. I don't recall. I didn't know who the driver was at that point. Q. Do you know which of the individuals went over the wall, where they had been sitting in the car?
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on? Why did you think that they could, any of them, potentially be armed? A. We are taught that from day one in the academy. Until somebody is patted down and secured of no weapons, they all are armed. Q. Because you were taught that's important as a legal distinction, right? A. Yes. Q. If someone is armed -- until you get to that point where they're patted down and it's clear is not carrying a weapon, it means you have to treat them as if they're a threat to your own personal safety? A. Correct. Q. Now, Mr. Gonzales had never made any aggressive move towards you at all, it sounds like. A. No. He did. Q. He had? Towards you? A. Yes. Q. What had he done towards you? A. Disobeying my orders and walking towards me to take away my position of cover was an aggressive move, in my opinion. Q. Let me refer back to 2. We've got 3 kind of on top there. On 2, I thought he had run to
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A. I did not. Q. In terms of Mr. Gonzales, he was the -- well, I'll ask you: Was he the smallest of the four people you were confronting? A. I don't recall that either. Q. Okay. Of the three individuals that were left, that hadn't jumped over the wall and that had begun walking southwest, when they were illuminated by your headlights and by the ambient lighting in that corner, can you describe with any certainty which of them had a bald head? A. I could not. Not at this point. Q. Could you tell which of them were Hispanic? A. At that particular moment, no. I was too afraid to make those types of mental notes. I just knew three men were coming at me. Q. In terms of the individual that ran behind the tree, did he match the description of your felony menacing suspect in any way? A. Looking back now, I don't recall. Just from the pictures, I don't even remember what he looks like. Again, at that particular moment they were all suspects. They were all armed, in my head. Q. Okay. What was that judgment based

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the west towards the tree. A. Correct. Q. And then from behind the tree, it sounds like he's the one that had the cover? A. Exactly. Q. He couldn't have done anything to you. MR. BRUNO: Excuse me. What was the question? Q. (BY MR. DeBAUCHE) That he's the one that had cover at that point, and he could not have done anything to you. A. He actually had the better position of cover, so if he did have a weapon and it became a firefight, he had a far superior position on me. So yes, you're absolutely right. He had a better position of cover. Q. Okay. And you never saw him display anything like a weapon at any point, it sounds like? A. That's correct. Q. And at this point today when you're testifying, you're not sure that he fit any part of the description of the Hispanic male you were actually looking for? A. That's correct.

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Q. And the facts that you knew of when you released the dog to run after a suspect did not include anything about any other individuals around any of these houses in this neighborhood, right? MR. ZIPORIN: Object to the form. A. Yeah. You lost me on that. Q. (BY MR. DeBAUCHE) Okay. When you released the dog, you knew nothing else about the surrounding area, including whether or not any other individuals were out in the open? A. I didn't see anybody. Q. But you said, before, it was dark? A. Correct. Q. At least in that corner by that house on South Harlan? A. Correct. Q. Okay. In terms of your commands -and I'm going to back up to the point at which you're outside your vehicle, behind your door, using it as cover. Your commands to the individuals, as you remember them, do you remember them clearly so that you can tell us verbatim what you said or you're remembering them generally? A. Very close. I remember them very close. It's the same orders that I've probably given
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knew about the identity of the felony menacing suspect. A. Yes. Q. And the physical description that you had. A. Correct. Q. Now, the individual that you saw driving, we've talked about what you're able to tell us about his physical description. A. Yes. Q. And you never saw the driver brandish any kind of weapon or object in either of his hands? A. Correct. Q. Okay. But you thought, at the point you were following these individuals in this purple Neon, that the driver was the person who had been involved in the menacing? A. Correct. Q. Okay. And the menacing occurred at the 1600 block of South Zenobia? A. South Zenobia. Q. Is that west or east of the point at which you saw the purple Neon? A. East. One block east. Q. Okay.
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a hundred times, so they're always very similar. Q. Okay. And what do you typically do? What do you typically say? A. Show me your hands. Very first thing. Get down on the ground. Then at that point, depending on what their movements are, then -- if they're moving, then you would again tell them to "stay where you are, stop, show your hands, or I'm going to send the dog." Q. Now, at that point is it fair to say the only person out of the four you had seen who had violated the law was the driver, right? A. I'm sorry. At what point? Q. At the point at which you exit your vehicle and begin to order people to do things, the only person who had broken a law at that point was the driver? A. Before I gave the order? Q. Um-hum. A. Before I gave the order, yes. Q. And the law that he had broken at that point was basically the red light violation? A. In my head he had just pointed a gun at another man's head. That's who I was chasing. Q. Okay. Well, we talked about what you

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A. Four blocks. Sorry. Q. Four blocks east? A. Well, no. It's one block east and four blocks north. Q. So I'm trying to understand exactly what you're saying. So what you're saying is when you saw the driver of this purple Neon drive in front of you at the stoplight, at that point you thought you had enough to arrest that individual for the menacing? A. I had enough to contact the individual for the menacing. Q. Okay. And then you followed the individual, without activating your lights, in an attempt to contact the individual? A. That's correct. Q. If you had activated your lights and your siren while you were behind that vehicle and if the vehicle continued to move, it could have been a felony menacing, right -- I'm sorry -- felony eluding? A. It could have been, yes. Q. Okay. A. But that would have not fallen under our chase policy, so I couldn't have gotten there.

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Q. All right. So you followed the vehicle until it stopped, with the intent to contact the driver of the vehicle? A. Correct. Q. At the point at which you stopped your vehicle at South Harlan behind this purple Neon and the other three individuals -- not the driver, but the other three individuals left the vehicle, did you think you had facts sufficient to justify their arrest? A. When they disobeyed my order, yes. Q. Okay. Just before you gave the orders at the side of your car once your door was opened, did you think you had facts sufficient to justify the arrest of the driver? A. Say that one more time. I'm sorry. Q. Sure. When you come to a stop at South Harlan and you get out of your vehicle and begin to give orders, just before you give those orders, you knew the driver had operated a motor vehicle without headlights? A. Correct. Q. Possibly had sped or driven carelessly? A. Definitely.
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of the street. That's what you've said before. So they weren't committing any new offense in front of you? A. Correct. Q. And then you begin to give them orders so you can contact them, right? A. Well, even at that point I felt I had enough to detain them. Q. Okay. A. They were involved or at least with a felony menacing suspect. Whether or not they had any part of it, I had enough to at least detain them and find out. Q. Does that mean you thought you could detain them as possible witnesses or conspirators or complicitors in some way with the felony menacing? A. As other suspects, yes. Q. And by "detain," describe exactly what you mean. Because you understand the difference between an investigatory stop and a full arrest -A. Right. Q. -- and a consentual encounter? A. Right. Q. This wasn't a consentual encounter, obviously?
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Q. And had committed the red light violation back on Sheridan and Evans? A. Correct. Q. So traffic violations, basically? A. Yes. Q. Did you think that individual could be arrested at that point; the driver? A. Yes. Q. Okay. Now, the passengers at that point hadn't committed any offense in your presence, right? MR. ZIPORIN: Object to form. A. Depending on when. Q. (BY MR. DeBAUCHE) Well, at the point at which you're about to start giving orders to them, those three passengers hadn't committed any offense in your presence? A. Correct. Q. Those three passengers, as far as you knew, didn't fit the description of the suspect you were looking for in the menacing case? A. I don't recall which ones had what hairstyles. Q. As you begin to give the individuals orders, they're all standing more or less at the end

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A. Q. A. Q. A. Q. you mean? A.

Obviously. So it was either investigatory? Yes. Or it was a full arrest? Right. By "detain," which of those two did

Investigatory. MR. ZIPORIN: I'm going to object to the form. Are you talking about the driver, or are you talking about the others? MR. DeBAUCHE: All three of the guys standing at the end of this dead end. Q. (BY MR. DeBAUCHE) I don't know which of the three would be considered the driver under our scenario. A. At that point I didn't recall. Q. Okay. So in terms of the paths each of these four individuals took from the vehicle, can you describe the path that each of them took from the vehicle to the corner? A. I could not. Q. And in terms of which of the two we're talking about, when you say "detain," you're talking about an investigatory stop --

26 (Pages 101 to 104) Richardson Reporting Service 303-830-8488

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

Document 66-2

Filed 12/05/2005

Page 17 of 28

BRETT TITUS September 19, 2005 Greg Gonzales v. Officer Brett Titus
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A. Yes. Q. -- only? Okay. I want to make sure I covered this, but I think you've answered it before for me. When the three individuals are in your headlights, you're able to view them from what you said was 50 to 75 feet away? A. It's a pretty rough estimate. I'd have to see it again and measure it. But yeah. From memory, yes. Q. Okay. You were not able to tell if any of these individuals matched the description of your suspect? A. Right now I don't recall. At that time, yes. Yes. One of them matched the description because I -- when he drove in front of my car, I clearly saw him, and he matched the description. So as I sit here today, I don't remember. But then, yes, one of them matched the description. Q. Okay. Of the three individuals that stopped at that wall and fence in the corner where they meet, of those three individuals, did any of them match the description of the person you were looking for?
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Q. (BY MR. DeBAUCHE) The two individuals that were walking towards you on Harlan after you'd given them commands to stop and get on the ground, they were obvious threats to your safety, right? A. Yes. Q. The individual who fled to the west, in what way was he a threat to your safety? A. Once he's out of my sight and flanking me, if you will, he's a bigger danger than the other two. The other two I could clearly see. They had no position of cover. The third was taking up a position of cover behind a tree. I have no idea where he's at or where he's going. So to me, in my opinion, the third was more of a threat than the two. They were all a threat, but I was more concerned about where is he going and why is he running over behind that tree? Q. When he was running in front of you and plainly in view of your headlights, wasn't it fairly obvious he was roughly 14 years old? A. No. Q. Not at all? A. As scared as I was, they could have all been 6-8, 300 pounds. 14-year-olds carry and
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A. Again, that, I don't recall. Q. Okay. Describe -- in terms of the use-of-force