Free Response to Motion - 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

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION IN LIMINE RE: MARK AUGUST

Plaintiff Teresa August responds that Defendants' Motion in Limine re: Mark August
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should be denied because the events unfolding after the arrest of Plaintiff are part of the
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same continuum of action by the parties and witnesses, are admissible under res gestae, and are admissible as evidence of Defendants' beliefs, motives and intent. I. FACTUAL BACKGROUND

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Mrs. August called 9-1-1 on June 10, 2002 when she could not control the behavior of
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her troubled, 17-year-old grandson, Sam Hickey.

Defendants arrived and began their

investigation, separately interviewing Sam and Mrs. August. Communications between Mrs. August and Defendants deteriorated, and Mrs. August told Officer Lynde to leave immediately after she voluntarily let him into her home. Instead of leaving, Officer Lynde radioed for backup, the rest of the defendants essentially lost control of themselves at the scene, stormed into Mrs. August's house without a warrant and arrested her, and in so doing dislocated her elbow. Amazingly, the officers claim to not have realized that Mrs. August had suffered a grossly dislocated elbow. They were just doing their jobs as cool and detached

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professionals.
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Except that when Mark August arrived at his mother's house (to an

outrageous scene - his 68-year-old mother handcuffed and bent over a police car with her elbow jutting askew) and attempted to investigate the situation, it was Officer Dunn (the officer most likely to have actually torqued Mrs. August's arm) who lost control again and jumped on Mr. August and arrested him. After witnessing the dispute between his grandmother and cousin, the arrival of the police and the attack on his grandmother, Dakotah August, Mrs. August's 9-year-old grandson, called his father, Mark August. Mr. August arrived within minutes of the violent arrest of his mother, approached Sam Hickey to find out from his emotionally disturbed

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nephew what Sam had done to precipitate the events. Before he could determine what was
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going on, Defendants arrested and handcuffed Mr. August. II. LEGAL ANALYSIS A. The Events Witnessed by Mr. August are Admissible as Res Gestae.

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The federal courts recognize res gestae, the admissibility of evidence of other crimes
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or bad acts that are part of the events at issue, that help tell the complete story, or help explain motive or intent: One of the accepted bases for the admissibility of evidence of other crimes arises when such evidence furnishes part of the context of the crime or is necessary to a full presentation of the case, or is so intimately connected with and explanatory of the crime charged against the defendant and is so much a part of the setting of the case and its environment that its proof is appropriate in order to complete the story of the crime on trial by proving its immediate context or the `res gestae' or the uncharged offense is so linked together in point of time and circumstances with the crime charge that one cannot be fully shown without proving the other and is thus part of the res gestae of the crime charged. And where evidence is admissible to provide this full presentation of the offense, there is no reason to fragmentize the event under inquiry by suppressing parts of the res gestae. United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980) (citations, quotations and footnotes omitted). Arizona also recognizes what it calls the "complete story principal," and the

contested event can occur after the primary events at issue, State v. Price, 123 Ariz. 166, 598 P.2d 985 (1979) ("request for a `taste' of heroin immediately following a delivery of the drug is relevant to the issue of intent and motive in that it permits the logical inference that one who uses heroin is more likely to have intended to participate in the furnishing thereof in hope of receiving a portion for himself"). Mr. August arrived minutes after the confrontation between the officers and his

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mother, and his interactions with and observations of the officers are part of the entire
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sequence of relevant events. B. The Events Witnessed by Mr. August are Admissible Pursuant to Rule 404(b)

The issues of the warrantless entry into Mrs. August's home and Defendants'
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reasonable belief that the extreme, elbow-dislocating force was necessary involve subjective
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belief and knowledge of Defendants' acts, which naturally implicate motive and intent. Case 2:03-cv-01892-ROS

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Defendants' actions following Mrs. August's arrest are part of the continuing sequence of
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events and are evidence of objective reasonableness and subjective belief, motive and intent. Although subjective intent is not a defense to excessive force or justification for a warrantless entry (both are judged objectively), punitive damages can be awarded "in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Rule 404(b), Federal Rules of Evidence, permits evidence of other crimes wrongs or acts to prove motive or intent. Therefore, the conduct of Defendants after they arrested Mrs. August

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is relevant and admissible.
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III.

CONCLUSION Mrs. August's claims arise from the events on June 10, 2002. To prove her claim and

her request for punitive damages, Mrs. August is entitled to tell the entire story of the events that day. For all of the aforestated reasons, Defendants' Motion in Limine regarding the

testimony of Mark August should be denied. DATED this 29th day of November, 2006. 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
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I hereby certify that on November 29, 2006, 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

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