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 REGARDING INVESTIGATION AND DISCIPLINE

Plaintiff Teresa August responds that Defendants' Motion in Limine regarding
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investigation and discipline of Defendant Officer Toby Dunn should be denied. The evidence
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is relevant to Officer Dunn's truthfulness, bias, motive, intent and credibility regarding his version of the events of June 10, 2002. I. FACTUAL BACKGROUND

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Defendant Officers Dunn, Monson and Griffin committed a warrantless, illegal entry
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into Plaintiff's home when Officer Lynde radioed for help instead of simply leaving the home through the unlocked screen door. In the ensuing confusion, at least one of Defendants severely injured Mrs. August, dislocating her elbow when he (or they) used excessive force while effecting the arrest. None of the defendants has "come clean" about who torqued Mrs. August's arm, and so the Officers' credibility is an important issue. Officer Dunn has a checkered work history with the Phoenix Police Department. Problems include improper and inappropriate personal use of city equipment (his computer for romantic pursuits on the internet), investigation into his participation in a pursuit, neglect

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of duty, loss of property and smacking a cigarette out of person's mouth.
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II.

LEGAL ARGUMENT Officer Dunn's prior bad acts, while not admissible as evidence that he acted in

conformance therewith, are admissible to impeach his truthfulness pursuant to Rule 608(b), Federal Rules of Evidence, and as evidence of bias, motive and intent pursuant to Rule 404(b), Federal Rules of Evidence. "Prior acts of theft or receipt of stolen property are, like acts of fraud or deceit, probative of a witness's truthfulness or untruthfulness under Rule 608(b)." United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996) (cross examination on prior thefts permissible) (citing Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1567 (7th Cir. 1990).

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Personal use of his city computer on city time involves theft of the use of the equipment and theft of his time. Additionally, the "loss" may be a euphemistic description of conversion of the missing property. Disciplinary actions against an officer may be the subject of cross-examination due to bias. United States v. Garrett, 542 F.2d 23, 26 (6th cir. 1976) (judgment reversed when

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defendant not permitted to cross examine suspended officer suspected of drug use and who
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refused urine test). Evidence of bias or ill will also bears on the credibility of the witness, particularly when the details of what happened are contested; evidence of bias or ill will may make one version more or less likely to be accurate. See Graham v. Connor, 490 U.S. 386, FN12, 399, 109 S.Ct. 1865, FN12, 1873 104 L.Ed.2d 443 (1989) and Rickets v. City of Hartford, 74 F.3d 1397, 1412 (2d Cir. 1996). Ill will and intent are also relevant to punitive damages. Rickets at 1412. Officer Dunn had greater motive to alter his story to avoid additional discipline and the likelihood of greater discipline arising from this incident based on previous disciplinary

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actions. That Officer Dunn's act of smacking a cigarette out of a person's mouth shows that
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he knows he may be disciplined for unnecessary or excessive violence and he therefore will not admit his actions regarding Mrs. August, including whether he was the one who improperly torqued her arm and dislocated her elbow. Officer Dunn's previous incident of inappropriate use of force and willingness to commit an unprovoked assault also raise questions about Officer Dunn's credibility regarding his version of events, and the greater likelihood that Mrs. August's version of events is the truth. III. CONCLUSION Based on the case law cited, and the specific facts of this matter, Officer Dunn's prior

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bad acts are proper subjects for cross-examination.
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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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