Free Response to Motion - District Court of Arizona - Arizona

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J. Robert Tolman ­ 003864 TOLMAN, BRADSHAW & JOHNSON 1019 S. Stapley Drive Mesa, Arizona 85204 Telephone (480) 833-7527 Facsimile (480) 344-4592 Email: [email protected] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA NO. CV-04-0500-PHX-ROS MARIA CAUSTON, individually and on behalf of GIANA CAUSTON and MARINA SHEPPARD, Plaintiffs, vs. CITY OF CHANDLER, a municipal corporation; JOHN M. CARBOUN and RANDLE L. MEEKER, Defendants. Plaintiffs Maria Causton, individually and on behalf of Giana Causton and Marina PLAINTIFFS' SEPARATE STATEMENT OF FACTS IN SUPPORT OF RESPONSE TO DEFENDANT CITY OF CHANDLER'S MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

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Sheppard, through counsel undersigned, hereby submits Plaintiffs' Separate Statement of Facts in
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Support of Plaintiffs' Response to Defendant City of Chandler's Motion for Summary Judgment.
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EXHIBITS 1. 2. 3. 4. Chandler Police Department Incident Report prepared by Officer Daniel Coons Chandler Police Department Incident Report prepared by Officer Raymond Kieffer Chandler Police Department Incident Report prepared by Detective Gerald Fuller Transcript of Interview of Officer John Carboun on February 18, 2003.

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5. 6.

Transcript of Interview of Officer Randle Meeker taken on February 18, 2003. Transcript of Interview of Officer Randle Meeker taken on February 20, 2003 Diagram of scene prepared by Officer Carboun. Diagram of scene prepared by Officer Meeker. Diagram of scene with scale prepared by Chandler Police Department. Portions of deposition of Michael M. Cosgrove, Ph.D. Curriculum Vitae of Michael M. Cosgrove, Ph.D. Affidavit of Kevin Neus dated July 25, 2005. Affidavit of J. Robert Tolman dated August 31, 2005. STATEMENT OF FACTS

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1.

Pursuant to the Court's Order concerning discovery dated February 4, 2005,

discovery was stayed pending resolution of Defendant City of Chandler's Motion for Summary Judgment. Therefore, Plaintiffs have conducted no discovery in this matter. (Docket No. 32) 2. The affidavits of Officer John M. Carboun and Randle L. Meeker were prepared and

submitted during the stay and Plaintiffs have not had an opportunity to examine the witnesses concerning the statements contained in the affidavits. 3. It was Erick Causton who placed the calls to the Chandler Police Department.

However, Officers Carboun and Meeker learned the facts during the investigation and after the shooting death of Erick Causton. (Affidavits of Defendants Carboun and Meeker, Exhibits 2 and 3 to Defendants Statement of Facts). 4. Erick Causton voluntarily approached the officers at the apartment complex.

(Affidavits of Defendants Carboun and Meeker, Exhibits 2 and 3 to Defendants Statement of Facts). 5. follows: Um . . . as we get up to the office, I don't know if Meeker asked or not, it was his call so basically I was kind of just floating around and uh. . . we get another call and it says that the RP's calling again saying that either Officer Carboun described the incident in the February 18, 2003 interview as

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he stepped out, walked around but he was out here for a period of time and then went back into the apartment So we come back.. . . we don't get a key. We come back, knock on the door, knock, knock, we're waiting, nothing, no . . . no response. So we go back to the uh . . . office. And Meeker is inquiring about the key and uh . . . all of the sudden this guy shows up. He turns out to be this individual here and he makes a statement, words to the effect like uh . . . "Were you guys just knocking on my door?" or something like that. And then Meeker engages in a conversation with him and we're right outside the uh . . . the front door, uh, the office door, and uh, he asked him a question. I couldn't here what it was because I was still behind Meeker and then I swing to Meeker's side and then I'm like "Well are you . . . are you thinking about hurting yourself?" and he makes a statement, I can't remember if he said exactly "yes" or you know, "maybe", something like that, but it indicated more of a positive note that he was planning on it and I was like "Well why?" He says "Well my wife's gonna . . . my wife is planning on leaving me or in the process of leaving me", words to that effect. So I'm like "Well do you have any kids?" and he's like "Yeah, one little girl, she's two months old." So I said `Well, you know, think of how she would have to feel growing up without her dad and she has to explain to her uh . . . friends that her dad killed himself" So you know . . . you know we're talking in general and he's smiling and stuff now and he's . . . he's . . . he's being more hospitable. And then I ask him um . . . and I uh . . . you know, it's obviously, I don't know if Meeker, whatever he said, but I can just tell you what I've said. I asked him "Would you mind if we came back to your apartment um . . . to talk or whatever" and he's like "Well sure" and my intention was to come back here, I didn't want to cut him loose over there, I wanted to come back here, number one I didn't know if he'd be embarrassed talking out there in front of everybody `cause there's people all walking around um and also I kind of wanted to get a look around here if there were any suicide notes, if uh . . . there was a shrine set up or something or . . . or . . . a method he had already set up here which would obviously dictate to us what he was planning on doing. So he's like "Yeah" you know, and he's kind of smiling and stuff. (emphasis added) (See Exhibit "4") 6. Officer Meeker described the incident as follows: Fuller: Okay. And you're okay with going in there right now? Okay. As we go through, Ray's gonna go through with us `cause he's gonna be doing the scene work and what not.

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Meeker: Okay.

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Fuller.

If we see evidence or if you see something that you. think is of importance, would you point that out to us? If you would also, uh, if we see something like a casing or uh something and Ray puts a placard do you know we're just kind of going through it that way. So if you see us putting placards down as we're going through it, that's (inaudible). If you see something that you think a particular interest or should be a particular interest to us and we don't mark it, would you bring it to our attention?

Meeker: Okay. Fuller: Comfortable with that?

Meeker: Yeah.
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Kieffer: Randy, what I'm gonna do too is when I put placards down, they may change. Meeker Okay.

Kieffer: If you were ever to look at photographs or whatever, the numbers may change from where we put placards. I'm just gonna start throwing placards down and what I may. . . what I'll end up doing is going back and redoing it. Meeker: Okay. Kieffer Okay? Can we see where she's at and. . . (Inaudible). Okay, this is the uh entry into the apartment, 10-10 at 1712 hours. Okay, Randy, do you want to just kind of start from the beginning for us. . .

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Fuller:
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Meeker: Alright. Fuller. Urn, how you came to be in here.

Meeker: Well, he came and got us actually. Urn, we knocked on. the door a few times, um, no one came, we went to the office to uh try to get a phone number to call him. Um, she was looking through her file to get it and he walked in the door, "You guys knocked on the door?" And we're like "Yeah" so we went out front of the office and he started telling like asking (inaudible). He seemed like everything was fine, he's like "Yeah, everything's good" um we're like "Are you all right?" and he's like "Yeah, why,

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what's this about?" And I just started telling him that someone gave us a call and said that you might be suicidal and he's like . . . he looked at me kind of funny like "okay" and said "Yeah, I'm fine, yeah." (emphasis added) (See Exhibit "5") 7. In the second interview of Officer Meeker, he was asked by Detective Fuller "So you

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didn't have any hunch or feeling or you know that this is the guy that maybe I'm being set up for
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something or . . . " and Meeker responded "Not at all." (See Exhibit "6")
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8.
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As Erick Causton and the Officers entered the apartment, Officer Meeker noticed

that Mr. Causton had a folding knife clipped to his right front pocket and attempted to secure the knife by reaching for it (see Exhibit 3, paragraph 6, to Defendant's Statement of Facts). The
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incident was described by Officer Meeker in the interview of February 18, 2003 as follows:
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Meeker: ". . . and John said "You know what, come to the . . . come to the apartment and talk us?" And he said "If you want to." And we came in and (inaudible) as we came in the door I saw he had knife clipped to his right pocket, And as we were going in, I. . . I reached for it and um said let me hold onto that." He came in right here and I reached for it and he. . . he turned like that and (inaudible). He said "What do you want my knife for" and I said "I don't want it, I. . . I just want to hold on to it while we talk" right when I said that, he. . . he opened it like with his hands, he clicked it open like that and then I pushed him. I pushed him that way and he turned back to see who did it and I pulled my gun out and stepped this way and John stepped behind that thing. We were both standing like right here and he. . . so we were both like right here and he was standing there. Talked to him for awhile and we tell him to put the knife down, he's. . . he. . . he talked for a while and said "I'm not putting it down, why do you want it for?" "Cause when we talk to you, it's for our safety. We want. . ." I told him we don't want to hurt you so he started coming this way and uh we both start backing up and uh back . . . back to this point and I came into the . . . I came to about right here. (See Exhibit "5") 9. Dr. Cosgrove believes that entering the apartment was an inappropriate judgment

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call by the Officers and contrary to reasonable law enforcement conduct and training. (See Exhibit
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"10" pgs. 35-43 and Exhibit "11")
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10.

Dr. Cosgrove has expressed the opinion that attempting to take control of the knife

after inviting Mr. Causton into the apartment was unnecessary, unreasonable and inconsistent with customary professional police practices. He believes that it escalated the situation. He further believes that attempting to physically seize the pocket knife was a violation of not only general standards associated with police officer conduct but a constitutional violation as Officer Meeker had no reasonable belief to detain or to have any articulable suspicion that Erick Causton should be detained and no probable cause to make an arrest. (See Exhibit "10" pgs. 45-64) 11. After Erick Causton had removed the knife, Officer Carboun told him that if he

would put the knife down, the Officers would put their guns away. Carboun told Causton "Nobody wants to get hurt." Causton stated "I want you to shoot me." (emphasis added) (See Exhibit "4", pg. 4). 12. Officer Carboun stated: Carboun: Yeah, I'm right. . . I'm right about here and I see Meeker retreat back into the hall. He's standing there and he kinda looks confused as to what direction he's going to go. Well, and he comes towards me and I'm like "Hey pal" and he gets real close and I'm backed. . . I'm back here about and . . . and he's . . . he's pretty far into the kitchen at this point and I tell him, I'm like "Hey, I can't shoot you, he's the one who's supposed to shoot you" and `cause I'm trying . . . I got a feeling he wants me to kill him. And what I wanted to do is go to Meeker so I could try and get . . . get my ass out of being in here. Um . . . so then he does, he turns, and he goes to Meeker. So then I come back out here `cause I'm . . . I'm thinking of maybe making a beeline out there, out to the front door. . . (emphasis added) (See Exhibit "4" page 4) 13. During the final encounter and immediately preceding the shooting, Officer Carboun

and Officer Meeker that Erick Causton told Officer Carboun "I am not going to hurt you, but you are going to have to kill me." (emphasis added) (See Exhibit 2 and 3 to Defendants Statement of Facts). 14. In Officer Meeker's interview he stated:

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Meeker: When he... when he told John "I'm not gonna hurt you" and then John goes "I don't want to hurt you" and he said, he already said "I'm not gonna hurt you" and John said... (inaudible) he said "But you're gonna have to kill me." Something to that effect. And John goes "I don't want to, I don't want to kill you" or "I don't want to hurt you" I'm not sure what his exact words were. And I was standing like right here. (See Exhibit "5" page 9) 15. The phrase "with a menacing and sarcastic tone" as used in the affidavits of Officer

Carboun and Officer Meeker does not appear, nor is it referred to, in the initial interviews of the Officers. (See Exhibits "4", "5" and "6"). 16. Officers Carboun and Meeker had called for assistance. Officer Daniel Coons was

in route. While on his way to the apartment, he heard that the Officers were trapped inside the apartment with a subject with a knife that was blocking the door. He activated his emergency equipment and was attempting to get to the location as he had less lethal munitions with him. He could hear the Officers asking for a Tazer or and a supervisor to be sent to assist them. As he was approaching the scene, he heard an officer call out a "998" which meant an officer involved in a shooting. (emphasis added) (See Exhibit "1") 17. The first time Officer Carboun (February 18, 2003) he stated that at the time of the

shooting Erick Causton was standing. He did not state that Erick Causton was moving towards him. The relevant portion of the interview is as follows: Carboun: Yeah, he's, he's over in here now. And uh, he's got the knife back in his right hand kind of like this and he's... he's... he's looking at me like this and you know, at that point I was trying to give him every opportunity to turn around and leave. But now I'm thinking "Hey, you know what? I'm really scared `cause he's gonna.. ." I'm thinking he's gonna go ahead and try and cut me so then I am forced to use lethal force on him. So he's standing here and then I just unloaded, boom, boom. I shot like two or three times first like this and then he turned sideways... I don't want to step in his blood . . . (emphasis added) (See Exhibit "4" pg. 6)

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Officer Carboun further stated that the initial rounds did not seem to phase Causton.

Causton turned and started to walk towards Officer Meeker and Officer Carboun shot him twice in the back. In the interview, Officer Carboun stated: Carboun: He turns, he turns sideways like this and does something like this and then I... I shoot a couple more times to his side, then he turns and he might have been standing right here when he did that Then he turns and he takes two steps and right now I'm thinking that uh... Meeker's still out there. And it did not look like my rounds fazed him. It did not... I was like... I didn't see anything coming from his... his body, um, I didn't see anything, you know, when he was facing me. And then he takes, you know he takes like two steps this way and then I go to center punch him in the back because now I think he's going towards Meeker and then, then I hear a noise and then uh... (inaudible) I think he dropped to his knees, I didn't shoot him anymore after... after I center punched the twice because then I saw the shirt come out. You want to know something, maybe my second round might have been going, might have.., might have gone as he was going down. (emphasis added) (See Exhibit "4" pg. 6) 19. Office Meeker did not see the shooting. He had retreated into a bedroom. He

realized he was in a crossfire. When he heard Erick Causton say "You're gonna have to kill me" he knew the shooting would occur. He stated: Meeker: As soon as he said that, um, I. . . I knew he was gonna do it I knew he was gonna make John do it. And uh . . . he started to take a step and then it seemed like instant, like as soon as he said that, it just seemed like it started right then and... and he... as soon as... I was like right here. As soon as he took a step, I backed up one big... one big step, it seemed like, I just got out of the doorway. And as soon as I heard the first shot and then right after that, I was backing up the whole time. `Cause I didn't know which... which direction it was going... (See Exhibit "5" pg. 9) 20. There is no statement in the interviews of Officers Carboun or Meeker that Erick

Causton every pointed the knife at them, carried the knife in front of his body while directing threats to them, or moved towards them as if to use the knife on them. (See Exhibits "4", "5" and "6").

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21.

In the affidavits, Officers Carboun and Meeker state that the knife was down and

behind Erick Causton with the blade pointing upward. it (see Exhibits 2 and 3 to Defendant's Statement of Facts) 22. Officer Cosgrove has expressed the opinion that there was no reasonable basis for

the use of deadly force and that the conduct was grossly negligent, egregious, outrageous and a significant departure from reasonable law enforcement action. He specifically finds no justification for shooting Erick Causton in the back as he was moving away from Officer Carboun and in the general direction of Office Meeker. (See Exhibit "10" pp.35-38; pp. 66-94) 23. Defendants have presented the Court with no evidence as to the specific cause of

death of Erick Causton. Without discovery, it is unknown whether Erick Causton died from the early shots, the later shots, or a combination of shots. 24. Kevin Neus, a licensed process server, served copies of the Notice of Claim on

Officer Randle L. Meeker and Officer John M. Carboun by leaving copies with Kris Peralta at the City of Chandler police department on August 5, 2003. Mr. Neus was advised by Ms. Peralta that she was authorized to accept service of the Notices of Claim on behalf of the individual officers. (See Exhibit "12") 25. Defendants have not produced the Internal Affairs Investigation report or the

Shooting Review Board Report with the response to the public records request or their disclosure statement. Counsel for Plaintiffs learned of the materials through the report of Defendants' expert witness. Defendants have taken the position that the report and findings are irrelevant and nondiscoverable. Given the stay which is in place, Plaintiffs have not had an opportunity to receive and review these reports and the findings, conclusions and bases for the decisions are unknown. (See Exhibit "13")

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DATED this 31st day of August, 2005. TOLMAN, BRADSHAW & JOHNSON, LLC By_s/ J. Robert Tolman______________ J. Robert Tolman 1019 S. Stapley Drive Mesa, AZ 85204 Attorney for Plaintiff ORIGINAL of the foregoing filed with the Clerk of the Court this 31st day of August, 2005.

COPY of the foregoing delivered this 31st day of August, 2005, to: Judge Honorable Roslyn O. Silver

COPY of the foregoing mailed this 31st day of August, 2005, to:
Robert Grasso, Jr., Esq. GRASSO LAW FIRM, P.C. Jackson Plaza 4600 South Mill Avenue, Ste 125 Tempe, AZ 85282 Email: [email protected] By_s/ J. Robert Tolman______________

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