Free Motion in Limine - 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

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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

PLAINTIFFS' MOTION IN LIMINE NO. 13 RE: PLAINTIFF'S POSTARREST, POST-INJURY STATEMENTS

Plaintiff moves to exclude any reference to Teresa August's post-arrest and post-injury statements to the officers regarding her intention to file a civil lawsuit and name-calling. Teresa's statements are a reaction to her pain and fear resulting from the unjustifiable assault; they are not relevant to the issue of whether Defendants used excessive force, and the statements are highly prejudicial. The statements by Mrs. August, in which she told the officers she would "have their badges" and would sue Defendants, are hearsay and none of the hearsay exceptions apply. Case 2:03-cv-01892-ROS

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Prior to the Defendants dislocating her elbow, Mrs. August did not use profanity or resort to name-calling, and she was neither irrational or hysterical (EXHIBIT 1, August 18, 2004 deposition of Defendant Nicholas Lynde, 56:14-57:6). It was not until after she was

handcuffed, after her elbow was severely dislocated, that Mrs. August stated "I'll have-yourbadge," engaged in calling Defendants derogatory names, and said she intended to file a lawsuit (EXHIBIT 1, 57:24-58:18). Mrs. August's statements were her response to the trauma, the pain and fear caused by the dislocation of her right elbow and her distress at being arrested and handcuffed. The statements were not a description of events such that they would be admissible as present sense impressions or excited utterances. The statements may reflect Mrs. August's mental or emotional condition after Defendants injured her, but Mrs. August's mental or emotional condition after the violence is not relevant, as it does nothing to establish what happened leading up to or during the physical confrontation, or whether Defendants used excessive force. Moreover: [E]vidence of threats on witnesses can be highly prejudicial. Indeed, the Third Circuit has found that threats constitute a striking example of evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case. U.S. v. Thomas, 86 F.3d 647 (7th Cir. 1996) (admission of testimony regarding threats abuse of discretion) (quoting U.S. v. Guerrero, 803 F.2d 783, 785 (3rd Cir. 1986)) and Rule 403, Federal Rules of Evidence. The fundamental issue in this matter is the reasonableness of Defendants' actions and whether they used excessive force. Angry, threatening statements and name-calling by a wounded party, after the events at issue, could only serve to confuse, mislead and/or prejudice the jury.

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DATED this 3rd day of January, 2007.
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TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on January 3, 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: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:
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s/ Aly Shomar-Esparza

Case 2:03-cv-01892-ROS

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