Free Response - District Court of Arizona - Arizona

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 26 27 28

Robert Grasso, Jr. ­ Bar No. 015087 G RASSO L AW F IRM, P.C.
Jackson Plaza

4600 South Mill Avenue, Suite 125 Tempe, Arizona 85282 Telephone (480) 730-5553 Facsimile (480) 730-2810 Email: [email protected] Attorneys for Defendants

I N T HE U NITED S TATES D ISTRICT C OURT I N A ND F OR T HE D ISTRICT O F A RIZONA M ARIA C AUSTON, individually and on behalf ) of G IANA C AUSTON and M ARINA S HEPPARD, ) ) Plaintiffs, ) ) vs. ) ) C ITY O F C HANDLER, a municipal corporation; ) J OHN M. C ARBOUN and JANE D OE C ARBOUN, ) his wife; R ANDLE L. M EEKER and JANE D OE ) M EEKER, his wife; and JOHN D OES I-V, ) ) Defendants. ) _____________________________________ ) Case No. CV-04-0500-PHX-ROS D EFENDANTS' R ESPONSE A ND O BJECTIONS T O P LAINTIFFS' S EPARATE S TATEMENT O F F ACTS ­ A ND ­ M OTION T O S TRIKE S PECIFIC P ORTIONS T HEREOF

Defendants City of Chandler, John M. Carboun, and Randle L. Meeker (Defendants), by and through undersigned counsel, hereby submit their Response and Objections to Plaintiffs' Separate Statement of Facts and Motion to Strike Specific Portions Thereof. This Response and corresponding Motion to Strike are supported by the accompanying Memorandum of Points and Authorities, the exhibits referenced herein, and the entire record before the Court. R ESPECTFULLY S UBMITTED this 30th day of September, 2005. G RASSO L AW F IRM, P.C.

By

s/ Robert Grasso, Jr. Robert Grasso, Jr.
Jackson Plaza

4600 South Mill Avenue, Suite 125 Tempe, Arizona 85282 Attorneys for Defendants Case 2:04-cv-00500-ROS Document 59 Filed 09/30/2005 Page 1 of 10

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 26 27 28 I.

M EMORANDUM O F P OINTS A ND A UTHORITIES I NTRODUCTION As the Court knows, Rule 56 requires a plaintiff to come forward with sufficient evidence from which a fact finder at trial could rule in plaintiff's favor. See First National Bank of Arizona v. Cities Serv Co., 391 U.S. 253, 289 (1968) (stating that "[w]hat Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him"); Anderson v. Liberty Lobby, Inc., 477 U.S. 252, 259 (1986) (stating that "[t]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party"). Furthermore, only genuine disputes ­ where the evidence is such that a reasonable jury could return a verdict for the non-moving party ­ "over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (holding that the non-moving party must offer specific evidence from which a reasonable jury could return a verdict in its favor). II. R ESPONSE A ND O BJECTION T O P LAINTIFFS' S EPARATE S TATEMENT O F F ACTS, A ND M OTION T O S TRIKE S PECIFIC P ORTIONS T HEREOF Defendants' response will correspond to the paragraph numbers set forth in Plaintiffs' Separate Statement of Facts ("PSOF"). Defendants respectfully request that the Court strike and/or otherwise disregard the objectionable assertions offered by Plaintiffs. 1. Objection and move to strike. These assertions are nothing more than

immaterial assertions of counsel ­ insufficient to defeat Defendants' Motion for Summary Judgment. Discovery in this case was stayed pursuant to a stipulation of the parties. See Stipulation filed 01/25/05 (Docket No. 31) and Order filed 02/04/05 (Docket No. 32). Moreover, Plaintiffs' assertion that they have conducted no discovery is false. The parties

Case 2:04-cv-00500-ROS

Document 59

-2Filed 09/30/2005

Page 2 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

have exchanged documents/records and expert reports were exchanged pursuant to the Court's prior orders. 2. Objection and move to strike. These assertions are nothing more than

immaterial assertions of counsel ­ insufficient to defeat Defendants' Motion for Summary Judgment As set forth above, discovery in this case was stayed pursuant to a stipulation of the parties. See Stipulation filed 01/25/05 (Docket No. 31) and Order filed 02/04/05 (Docket No. 32). Moreover, Plaintiffs' assertion that they have conducted no discovery is false. The parties have exchanged documents/records and expert reports were exchanged pursuant to the Court's prior orders. 3. Although the assertion is undisputed, it does not raise a "genuine dispute" over

facts that might affect the outcome of the suit under the governing law. See general law set forth in Section I above. 4. Although the assertion is undisputed, it does not raise a "genuine dispute" over

facts that might affect the outcome of the suit under the governing law. See general law set forth Section I above. 5. As a general matter, Defendants do not object to the Court's consideration of

the transcribed interviews. However, Defendants object, and move to strike, the conclusory assertions and characterizations of the interviews by Plaintiffs' counsel. See general law set forth Section I above. Plaintiffs' counsel refers to a portion of the interview, and the

20 statements of the interview must be viewed in the context of the questions posed to the 21 officer. 22 6. 23 24 25 26 27 28 the transcribed interviews. However, Defendants object, and move to strike, the conclusory assertions and characterizations of the interviews by Plaintiffs' counsel. See general law set forth Section I above. Plaintiffs' counsel refers to a portion of the interview, and the statements of the interview must be viewed in the context of the questions posed to the officer. -3Filed 09/30/2005 As a general matter, Defendants do not object to the Court's consideration of

Case 2:04-cv-00500-ROS

Document 59

Page 3 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

7.

As a general matter, Defendants do not object to the Court's consideration of

the transcribed interviews. However, Defendants object, and move to strike, the conclusory assertions and characterizations of the interviews by Plaintiffs' counsel. See general law set forth Section I above. Plaintiffs' counsel refers to a portion of the interview, and the statements of the interview must be viewed in the context of the questions posed to the officer. 8. As a general matter, Defendants do not object to the Court's consideration of

the transcribed interviews. However, Defendants object, and move to strike, the conclusory assertions and characterizations of the interviews by Plaintiffs' counsel. See general law set forth Section I above. Plaintiffs' counsel refers to a portion of the interview, and the statements of the interview must be viewed in the context of the questions posed to the officer. 9. Objection and move to strike. The assertions set forth in this paragraph are not

entirely consistent with Dr. Cosgrove's testimony. When discussing the decision to go back to the apartment, Dr. Cosgrove testified: "What I said here was Officer Meeker stated he asked Mr. Causton if he would like to go back to his apartment and talk. I'm not comfortable saying it's not a standard to do that." See Deposition of Michael Cosgrove (attached as Exhibit 10 to PSOF), at p. 40, lines 8-12. Dr. Cosgrove did say that he thought it was not a good decision, but then clarified that the action was not a violation of a national standard.

20 Id., at p. 42, lines 3-6. He went on to note that he thought "it was a judgement issue." Id., 21 at p. 42, lines 6-7. As set forth in more detail in Defendants' Reply in Support of Their 22 Motion for Summary Judgment, filed concurrently herewith, Plaintiffs must show a violation 23 24 25 26 27 28 -4Filed 09/30/2005 of their Fourteenth Amendment (substantive due process) rights. In other words, Plaintiffs must meet the Fourteenth Amendment's "shock the conscious" standard. Accordingly, because this assertion does not meet the standards outlined in Section I above, this assertion is insufficient to defeat summary judgment.

Case 2:04-cv-00500-ROS

Document 59

Page 4 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

10.

Objection and move to strike. Again, Plaintiffs read far too much into Dr.

Cosgrove's testimony. Dr. Cosgrove acknowledged that, in certain circumstances, it may be a good move to separate a suicidal person from a weapon. See Deposition of Michael Cosgrove (attached as Exhibit 10 to PSOF), at pp. 54-56. Moreover, this assertion pertains to an alleged violation of Mr. Causton's rights ­ and Plaintiffs have no standing to assert a violation of Mr. Causton's rights. Plaintiffs concede that violations of Mr. Causton's rights are personal rights which may not be vicariously asserted. See Plaintiffs' Response (Docket No. 53), at p. 5, line 27 through p. 6, line 2. In any event, because these assertions do not meet the standards outlined in Section I above, they are insufficient to defeat summary judgment. 11. Although the assertion is undisputed, it does not raise a "genuine dispute" over

facts that might affect the outcome of the suit under the governing law. See general law set forth in Section I above. 12. As a general matter, Defendants do not object to the Court's consideration of

the transcribed interviews. However, Defendants object, and move to strike, the conclusory assertions and characterizations of the interviews by Plaintiffs' counsel. See general law set forth Section I above. Plaintiffs' counsel refers to a portion of the interview, and the statements of the interview must be viewed in the context of the questions posed to the officer.

20 13. 21 the transcribed interviews. However, Defendants object, and move to strike, the conclusory 22 assertions and characterizations of the interviews by Plaintiffs' counsel. See general law set 23 24 25 26 27 28 forth Section I above. Plaintiffs' counsel refers to a portion of the interview, and the statements of the interview must be viewed in the context of the questions posed to the officer. 14. As a general matter, Defendants do not object to the Court's consideration of As a general matter, Defendants do not object to the Court's consideration of

the transcribed interviews. However, Defendants object, and move to strike, the conclusory -5Filed 09/30/2005

Case 2:04-cv-00500-ROS

Document 59

Page 5 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

assertions and characterizations of the interviews by Plaintiffs' counsel. See general law set forth Section I above. Plaintiffs' counsel refers to a portion of the interview, and the statements of the interview must be viewed in the context of the questions posed to the officer. 15. Objection and move to strike. This factual assertion is nothing more than an

argument of counsel ­ not admissible evidence. See general law set forth Section I above. Moreover, the fact that the officers were not asked about how Mr. Causton said something during their interviews does not mean that what they stated in their sworn Affidavits is somehow untrue. 16. Undisputed. If anything, the assertions set forth in this paragraph support

Defendants' Motion for Summary Judgment. These assertions demonstrate that the officers were trapped and had called for assistance. Again, these assertions highlight that Plaintiffs cannot possibly show that the officers' conduct was "so egregious, so outrageous that it may fairly be said to shock the contemporary conscience." See County of Sacramento v. Lewis, 523 U.S. 833, 848 n. 8 (1998). 17. Objection and move to strike. Although Defendants do not object to the

Court's consideration of the transcribed interviews, Defendants object and move to strike the argument of counsel ­ Plaintiffs' counsel's characterization of the interview. See general law set forth Section I above. As before, Plaintiffs' counsel takes the statement out of context.

20 In addition, Plaintiffs' counsel omits reference to Officer Meeker's statement in his February 21 18, 2003 interview that Mr. Causton was in motion toward Officer Carboun immediately 22 before the shooting. See 02/18/03 Transcript of Interview of Randle Meeker (attached as 23 24 25 26 27 28 -6Filed 09/30/2005 Exhibit 5 to PSOF), at p. 9, lines 40-46. Officer Carboun's statement concerning "standing here" was a descriptive term related to Mr. Causton's location in the kitchen. Officer Carboun's Affidavit clarifies this point. See Affidavit of John M. Carboun (attached as Exhibit 2 to Defendants' Separate Statement of Facts ("SOF") (Docket No. 50), at ¶ 15.

Case 2:04-cv-00500-ROS

Document 59

Page 6 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

18.

Objection and move to strike. Although Defendants do not object to the

Court's consideration of the transcribed interviews, Defendants object and move to strike the argument of counsel ­ Plaintiffs' counsel's characterization of the interview. See general law set forth Section I above. As before, Plaintiffs take the statements out of context. Officer Carboun's Affidavit clarifies this point. See Affidavit of John M. Carboun (attached as Exhibit 2 to SOF, at ¶ 15. 19. As a general matter, Defendants do not object to the Court's consideration of

the transcribed interviews. However, Defendants object, and move to strike, the conclusory assertions and characterizations of the interviews by Plaintiffs' counsel. See general law set forth Section I above. Plaintiffs' counsel refers to a portion of the interview, and the statements of the interview must be viewed in the context of the questions posed to the officer. Moreover, and if anything, this portion of Officer Meeker's interview further confirms that Mr. Causton was moving toward Officer Carboun at the time he was shot. 20. Objection and move to strike. This factual assertion is nothing more than an

argument of counsel ­ not admissible evidence. See general law set forth Section I above. The fact that the officers were not asked during their interviews about how Mr. Causton pointed the knife, carried the knife, and movements toward them during their entire encounter with Mr. Causton does not mean that what they stated in their sworn Affidavits is somehow untrue.

20 21. 21 argument of counsel ­ not admissible evidence. See general law set forth Section I above. 22 Moreover, Plaintiffs misstate the officers' Affidavits. In their Affidavits, the officers 23 24 25 26 27 28 described Mr. Causton "clutch[ing] the knife with the blade pointed upward and angled forward, his arm angled back and above his waist." See Affidavit of Officer Carboun (attached as Exhibit 2 to SOF), at ¶ 7, and Affidavit of Randle Meeker (attached as Exhibit 3 to SOF), at ¶ 7. The officers further state once Mr. Causton re-entered the apartment, he "advanced . . . in a more aggressive manner than he had previously exhibited." See Affidavit -7Filed 09/30/2005 Objection and move to strike. This factual assertion is nothing more than an

Case 2:04-cv-00500-ROS

Document 59

Page 7 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

of Officer Carboun (attached as Exhibit 2 to SOF), at ¶ 13, and Affidavit of Randle Meeker (attached as Exhibit 3 to SOF), at ¶ 13. In his Affidavit, Officer Carboun described Mr. Causton's actions with the knife immediately before the shooting: "Mr. Causton was turning his body from a sideways position to a forward position, with his right hand (holding the knife) moving forward in a swinging motion." See Affidavit of Officer Carboun (attached as Exhibit 2 to SOF), at ¶ 15. 22. Objection and move to strike. To begin with, Plaintiffs again read far too much

into (and even embellish a bit) Dr. Cosgrove's testimony. In any event, the assertions set forth in this paragraph are conclusory ­ insufficient to defeat summary judgment. Far Out Productions v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001). Moreover, the Ninth Circuit has made clear that, even for summary judgment purposes, "the fact that an expert disagrees with [an] officer's actions does not render the officer's actions unreasonable." Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002). In fact, the Ninth Circuit has found that its precedent "prevent[s] a plaintiff from avoiding summary judgment by simply producing an expert's report that an officer's conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless." Id. "Rather, the court must decide as a matter of law whether a reasonable officer could have believed his conduct was justified." Id. (internal citations omitted); see also McRae v. Tena, 914 F.Supp. 363, 367 (D. Ariz. 1996). 23. Objection and move to strike. This factual assertion is nothing more than an

20 argument of counsel ­ not admissible evidence. See general law set forth Section I above. 21 Indeed, Plaintiffs seem to forgot that they have the burden of proving the cause of Mr. 22 Causton's death ­ not Defendants. In any event, it is undisputed that Mr. Causton died as a 23 24 25 26 27 28 -8Filed 09/30/2005 result of his gunshot wounds. In light of the circumstances of this case (i.e., an aggressive advance on a police officer and the fact that Mr. Causton was within five feet of the officer at the time he was shot), and the law (deadly force may be used if the officer reasonably believes that he is faced with a suspect who poses a threat of serious physical harm to the

Case 2:04-cv-00500-ROS

Document 59

Page 8 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

officer or others), the issue is the use of deadly force in the first instance ­ not which shot killed Mr. Causton. 24. Objection and move to strike. The assertion concerning Ms. Peralta's ability

to accept service of the officers is based on inadmissible hearsay. Moreover, the assertion is irrelevant. The Arizona Rules of Civil Procedure do not authorize serving an individual at the individual's regular place of business. Ariz.R.Civ.P. 4.1(d). Plaintiffs have offered no evidence to support their belief that a receptionist at the Chandler Police Department equates "to an agent authorized by appointment or by law to receive service of process." 25. Objection and move to strike. These assertions are nothing more than

argument of counsel ­ not admissible evidence. See general law set forth Section I above. As set forth above, discovery in this case was stayed pursuant to a stipulation of the parties. See Stipulation filed 01/25/05 (Docket No. 31) and Order filed 02/04/05 (Docket No. 32). Before the stay, the parties exchanged documents/records and expert reports pursuant to the Court's prior orders. Plaintiffs have always been aware of the internal affairs investigation. Indeed, the result of that investigation (Officer Carboun was exonerated) forms the very basis for their "ratification theory" under Monell, and is used by their expert to support that claim. Because the result of that investigation is undisputed, and Plaintiffs maintain that the result itself is sufficient to support their "ratification theory," the reports of that investigation are immaterial to the issues presented by Defendants' Motion.

20 R ESPECTFULLY S UBMITTED this 30th day of September, 2005. 21 G RASSO L AW F IRM, P.C. 22 23 24 25 26 27 28 -9Filed 09/30/2005 By s/ Robert Grasso, Jr. Robert Grasso, Jr.
Jackson Plaza

4600 South Mill Avenue, Suite 125 Tempe, Arizona 85282 Attorneys for Defendants

Case 2:04-cv-00500-ROS

Document 59

Page 9 of 10

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 26 27 28

C ERTIFICATE O F S ERVICE: I hereby certify that on September 30, 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: J. Robert Tolman, Esq. T OLMAN, B RADSHAW & J OHNSON, L.L.C. 1019 South Stapley Drive Mesa, Arizona 85204 Email: [email protected] Attorneys for Plaintiffs By s/ Robert Grasso, Jr.

Case 2:04-cv-00500-ROS

Document 59

- 10 Filed 09/30/2005

Page 10 of 10