Free Other Notice - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ___________________________________ _ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFF'S SUBMITTAL RE: COURT-DETERMINED JURY INSTRUCTIONS

Plaintiff Teresa August hereby submits her position regarding the final version of jury instructions identified by the Court on January 17, 2007. Plaintiff also provides

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case law in support of her opposition to the final version of the jury instructions regarding the general intent required for excessive force claims pursuant to 42 U.S.C.
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§ 1983 and her opposition to a jury instruction on negligence as confusing and unnecessary. JURY INSTRUCTIONS DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW Page 1

Members of the jury, now that you have heard all the evidence, it is my duty to
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instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or

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dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath

promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these

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instructions or into anything the court may have said or done any suggestion as to what verdict you should return ­ that is a matter entirely up to you.

WHAT IS EVIDENCE

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The evidence from which you are to decide what the facts are consist of:
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(1) (2)

the sworn testimony of any witness; the exhibits which have been received into evidence; and

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(3)

any facts to which the lawyers have agreed or stipulated.

OPINON EVIDENCE, EXPERT WITNESSES

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You have heard testimony from persons who, because of education or experience, are permitted to state opinions and the reasons for those opinions.

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Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case.

CHARTS AND SUMMARIES IN EVIDENCE

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Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

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WHAT IS NOT EVIDENCE

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In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:

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(1)

Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they will say in their closing arguments, and at

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other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the

objection or the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. (4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

CREDIBILITY OF WITNESSES

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In deciding the facts in this case, you may have to decide which testimony to
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believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to;

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(2) (3)

the witness' memory; the witness' manner while testifying;

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(4)

the witness' interest in the outcome of the case and any bias or prejudice;

(5) (6)

whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the evidence; and

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any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

DIRECT AND CIRCUMSTANTIAL EVIDENCE
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Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence.

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It is for you to decide how much weight to give any evidence.

USE OF NOTES Page 8 Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your

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memory. You should not be overly influenced by notes.

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TWO OR MORE PARTIES ­ DIFFERENT LEGAL RIGHTS

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You should decide the case as to each defendant separately. otherwise stated, the instructions apply to all parties.

VIOLATIONS OF FEDERAL CIVIL RIGHTS ­ ELEMENTS AND BURDEN OF PROOF Page 10 NOT TO BE GIVEN

COLOR OF LAW

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The issue of whether the defendants were acting under color of law is not in dispute in this case. During the events in issue here, the defendants were all acting under color of law.

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EXCESSIVE FORCE

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On Plaintiff's claim that Defendants Griffin, Dunn, Lynde and Monson used excessive force to effect her arrest, the Plaintiff has the burden of proving each of the following elements as to each Defendant by a preponderance of the evidence:

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(1)

the acts or omissions of Defendants Griffin, Dunn, Lynde and Monson were intentional; and

(2)

The acts or omission of the Defendants Griffin, Dunn, Lynde and Monson were the cause of the deprivation of Plaintiff's rights protected by the Constitution or laws of the United States.

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[If section (1) is not omitted, include the following:] that Defendants intended to handcuff Plaintiff.

"Intentional"

means

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If you find that each of the elements on which the Plaintiff has the burden of proof has been proved, your verdict must be for the Plaintiff and against either Defendants Griffin, Dunn, Lynde and Monson, or all of them. If, on the other hand, the Plaintiff has failed to prove any of these elements as to a Defendant, your verdict should be for that Defendant.

Legal Argument: The intent required under the first element is general intent, not specific intent., i.e., it means that the Defendants intended to seize Plaintiff and the injury at issue occurred as a result of that seizure. Sturges v. Matthews, 53 F.3d 659, 661-62 (4th Cir. 1995) (issue of seizure under 4th Amendment determined whether deputy intended to strike decedent's vehicle with his patrol vehicle); Henry v. Purnell, 428 F.Supp.2d 393 (D. Mary. 2006) (intent to acquire physical control over plaintiff is crucial, intent to fire Taser and not handgun too narrow a distinction). Defendants do not claim that they did not arrest Plaintiff, nor that they exerted force in effecting the arrest. Therefore, inclusion of the element of "intent" will only invite jury

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confusion, impermissibly leading the jury to believe that Plaintiff has to prove the officers intended to hurt Plaintiff . Alternatively, if section (1) is included in the instruction, the definition of intent needs to be included. The jury will not know by the instruction proffered by the Court what "intent" means. To avoid having the jury apply an improper definition of intent,

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i.e., specific intent, the jury must be instructed on the definition of "general intent," that Defendants acted with the requisite intent if they intended to gain physical control

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over Plaintiff and it was during the act of gaining control that Defendants injured Plaintiff. Alternatively, Plaintiff requests this additional instruction: "If you find by the preponderance of the evidence that while intending to arrest Plaintiff, the act of effecting the arrest proximately caused the dislocation of Plaintiff's elbow, the injury occurred during the seizure. If on the other hand, you find that the dislocation of Plaintiff's elbow came about at another time, through an act by someone else or by Defendants when they were not acting to intentionally effect the arrest of Plaintiff, then the injury did not occur during the seizure and therefore Defendants did not deprive Plaintiff of rights protected by the Constitution or laws of the United States. Sturges v. Matthews, 53 F.3d at 663.

EXCESSIVE FORCE ­ UNREASONABLE SEIZURE ­ LAWFUL ARREST Page 13

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The Plaintiff claims the Defendants, by using excessive force in making a lawful arrest, deprived the Plaintiff of the Fourth Amendment constitutional right to be free from an unreasonable seizure. A law enforcement officer has the right to use such force as is reasonably necessary under the circumstances to make a lawful arrest. An unreasonable seizure

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occurs when a law enforcement officer uses excessive force in making a lawful arrest. In deciding whether excessive force was used, you should consider the totality of the

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circumstances at the time, including the entire sequence of events.

The

reasonableness of a particular use of force must be judged objectively from the information available at the time from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight. Whether force is reasonably necessary or excessive is measured by the force a reasonable and prudent law enforcement officer would use under the circumstances. Some of the things you may want to consider in determining whether the Defendants used excessive force are the severity of the crime at issue, whether the Plaintiff posed a reasonable threat to the safety of the officer or others, and whether the Plaintiff was actively resisting detention or attempting to escape.

Legal Argument:

Defendants are not entitled to have the sequence of

events artificially divided; the entire sequence of events, from the 9-1-1 call, culminating in the arrest and injury, should be considered. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). The inclusion of "rather than 20/20 vision of hindsight" is unnecessary and adds undue emphasis to the prejudice of Plaintiff.

STIPULATION OF FACT

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The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

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BURDEN OF PROOF ­ PREPONDERANCE OF THE EVIDENCE Page 15

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When a party has the burden of proof on any claim by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

NEGLIGENT CONDUCT

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If you find that any of the Defendants were merely negligent, you cannot hold the officers liable pursuant to 42 U.S.C. § 1983.

Legal Argument: This instruction is unnecessary and confusing to the jury, and therefore should be omitted. "Defendant is correct in noting that to state a claim under 42 U.S.C. § 1983, a Plaintiff must demonstrate more than mere negligence. [citations omitted]. However, the intent in question is the intent to commit the act, not the intent that a certain result be achieved. Therefore, [the officer's] firing of the gun

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was intentional, even if the result was not one he sought to achieve. Instructing the jury that more than negligence was required would likely confuse the jury as to the intent question. The district court thus did not err in failing to instruct the jury that mere negligence is not actionable under § 1983." Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000). In this matter, Plaintiff is alleging she was injured during her arrest, and Defendants are not denying that they intended to seize Plaintiff. They are denying that the injury occurred during the arrest, or if it did occur during the arrest,

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the force used was not excessive. The issue is not a "negligent arrest" that led to Plaintiff's injury; the act of arresting Plaintiff was an intentional act, satisfying the "intentional" requirement for a § 1983 complaint, and the inclusion of the jury instruction regarding negligence is misleading.

REASONABLENESS OF FORCE

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Not every push or shove, even if it later seems unnecessary, violated the Fourth Amendment's prohibition against the use of "excessive force." The

reasonableness of an officer's use of force must embody allowance for the fact that officers are often forced to make split second judgments in circumstances that are

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tense, uncertain, and rapidly evolving.

INSURANCE

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In reaching your verdict, you should not consider or discuss whether a party was or was not covered by insurance. Insurance or the lack of insurance has no

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bearing on whether or not a party was at fault, or the damages, if any, a party has suffered.

DAMAGES Page 19 and MEASURES OF TYPES OF DAMAGES Pages 2021 It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the Plaintiff on Plaintiff's excessive force
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claim, you must determine the Plaintiff's damages. The Plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the Plaintiff for any injury you find was caused by the Defendants. You should consider the following: The nature and extent of Plaintiff's injuries; The disability, disfigurement, and loss of enjoyment of life experienced and which with reasonable probability will be experienced in the future; The mental, physical, and emotional pain and suffering experienced and which with reasonable probability will be experienced in the future; The reasonable value of necessary medical care, treatment, and services received to the present time; The reasonable value of necessary medical care, treatment and services which with reasonable probability will be required in the future; The reasonable value of wages lost to the present time; The reasonable value of wages which with reasonable probability will be lost in the future; The reasonable value of necessary household help and services other than medical required to the present time; and The reasonable value of necessary household help and services other than medical which with reasonable probability will be required in the future.

DAMAGES ­ MITIGATION

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The Plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. The Defendants have the burden of proving by a preponderance of the evidence: (1) (2) that the Plaintiff failed to use reasonable efforts to mitigate damages; and the amount by which damages would have been mitigated.

PUNITIVE DAMAGES

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If you find for the Plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are not to compensate the Plaintiff, but

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to punish a defendant and to deter a defendant and others from committing similar acts in the future. The Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that Defendants' conduct was malicious, oppressive

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or in reckless disregard of the Plaintiff's rights.

Conduct is malicious if it is

accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of the Plaintiff's rights if, under the circumstances, it reflects complete indifference to the Plaintiff's safety and rights, or the Defendants act in the face of a perceived risk that their actions will violate the Plaintiff's rights under federal

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law.

An act or omission is oppressive if the person who performs it injures or

damages or otherwise violates the rights of the Plaintiff with unnecessary harshness

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or severity, such as by the misuse or abuse of authority or power or by the taking advantage of some weakness or disability or misfortune of the Plaintiff. If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the Defendants' conduct and the relationship of any award of punitive damages to any actual harm inflicted on the Plaintiff. You may impose punitive damages against one or more of the Defendants and not others, and may award different amounts against different Defendants. Punitive damages may be awarded even if you award Plaintiff only nominal, and not compensatory, damages.

NOMINAL DAMAGES Page 25
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The law which applies to this case authorizes an award of nominal damages. If you find for the Plaintiff but you find that the Plaintiff has failed to prove damages as defined in theses instructions, you must award nominal damages. Nominal damages may not exceed one dollar.

DUTY TO DELIBERATE

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When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

COMMUNICATION WITH THE COURT

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If it becomes necessary during your deliberations to communicate with me, you may send a note through the clerk, signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the

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jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any
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question. Remember that you are not to tell anyone ­ including me ­ how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

RETURN OF VERDICT Page 28
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A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom.

EXCITED UTTERANCE

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New Instruction Requested by Plaintiff

Certain types of hearsay statements are admissible because they bear an indication of reliability. One such statement is the excited utterance, A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. It is up to you to decide how

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much weight you give to any evidence, including an excited utterance.

DATED this 18th day of January, 2007.

TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on January 18, 2007, 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 to the following CM/ECF registrants: Daniel B. Treon: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

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Kathleen Wieneke:

Jennifer L. Holsman:
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Randall H. Warner:

By:
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s/ Aly Shomar-Esparza

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