Free Response to Motion - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE NO. 4 RE: CRIMINAL CHARGES AND PROBABLE CAUSE

Defendants hereby move in opposition to Plaintiff's Motion in Limine No. 4 regarding criminal charges and probable cause and request Plaintiff's Motion in Limine be denied. The jury should be advised that Defendants' entry into Plaintiff's home was supported by legal, valid probable cause and that Plaintiff's arrest on June 10, 2002, was lawful. Further, Plaintiff should be precluded from making any statements, or introducing any contrary evidence regarding the legality of Defendants' conduct pertaining to the entry into the home, the lawfulness of the arrest, or the findings of this Court on Defendants' Motion for Summary Judgment on Plaintiff Teresa August's claim of false arrest or former Plaintiff Mark August's claim of false arrest. Defendants incorporate by reference their Motion in Limine regarding probable cause and entry in response to this Motion.

Case 2:03-cv-01892-ROS

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I.

THE JURY SHOULD BE TOLD THAT DEFENDANTS' CONDUCT IN ENTERING THE HOME AND ARRESTING PLAINTIFF WAS LAWFUL Defendants have obtained judgment as a matter of law on the issue of the

legality of the entry into her home and the arrest of Plaintiff Teresa August. Nevertheless, it is fully anticipated at trial that Plaintiff will complain mightily regarding Defendants' conduct in coming into her home and making a warrantless arrest.1 Even if Plaintiff were instructed by this Court that she was not to make any statements regarding the propriety of Defendants' conduct in entering her home or her arrest, the failure for this Court to advise the jury of the legality of this action would leave it to the unfettered speculation of the jury to determine whether the conduct was lawful when, in fact, the conduct has been adjudged legal and appropriate as a matter of law. Defendants seek from this Court an instruction to the jury at the beginning of the case to advise the jury that there is no issue before them as to the legality of their entry into Plaintiff's home or the legality of the arrest of Plaintiff. This is the law of the case and to not instruct the jury otherwise would cause irreparable harm to Defendants. II. THE ULTIMATE OUTCOME OF PLAINTIFF'S CHARGES IS IRRELEVANT, INADMISSIBLE AND UNDULY PREJUDICIAL To somehow mitigate what Plaintiff contends is the devastating effect of the jury learning that Defendants' conduct in arresting Plaintiff was lawful, Plaintiff seeks to educate the jury that the prosecutor, unconnected to Defendants in any way, elected not to pursue a criminal prosecution of Plaintiff. In support of her contention, Plaintiff cites cases from the Second Circuit and from the State of New York. These cases, however, are not applicable to an excessive force claim. Instead, these cases and the proposition for

Plaintiff mentioned in her deposition no less than five times the word "warrant" and lack thereof, and the violation of her civil rights by coming into her home. She locked the police out of her house, and locked a police officer inside her house. As Plaintiff's deposition demonstrated, not only to defense counsel but to her own attorney, Plaintiff is a difficult witness to control.
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which Plaintiff cites are relating to a claim of false arrest where probable cause is a complete defense.2 There is no false arrest claim remaining in this case and, thus, the outof-jurisdiction cases for which Plaintiff relies are in opposite here. Moreover, if this Court were, however, to accept Plaintiff's argument and to admit evidence that the prosecutor elected to dismiss charges against Plaintiff, then Defendants would seek to introduce evidence of the separate probable cause hearing and determination by the criminal trial judge in which he concluded as a matter of law that probable cause existed to go forward with the charges. This evidence would be

admissible to impeach any suggestion by Plaintiff that the dismissal decision by the prosecutor was somehow a legal decision entitled to some merit and consideration. Defendants maintain that the better course here would be to simply instruct the jury as to the Court's prior determination from the summary judgment ruling that Defendants' conduct in entering the home and arresting Plaintiff was done with valid, probable cause. III. CONCLUSION Plaintiff's Motion in Limine should be denied. /// /// /// /// /// /// ///

Additionally, the causes concern malicious prosecution where a necessary element is a favorable termination in the merits. No such clement is necessary here.
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1715115.1

DATED this 29th day of November, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson

Electronically filed and served this 29th day of November, 2006, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

s/Peggy Sue Trakes

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