Free Other Notice - District Court of Arizona - Arizona

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Requested bv Plaiutiff#10 (Offered as rebuttal to Defeudauts; instruction Plaintiff believes no qualified immnnity is appropriate)

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Qualified Immunity If you find that the plaintiff has proved the elements of her Section 1983 claim against any of the individual defendants, you must proceed to consider whether any of those individual defendants are entitled to what the law calls "qualified immunity" for the federal Section 1983 claim that the plaintiff has proved. The individual defendants each have the burden of proving, by a preponderance of the evidence, that they are entitled to qualified immunity. For any of them to show that he is entitled to qualified immunity, the individual defendants must show either: 1. that the law establishing the parameters ofthe constitutional rigbts of Teresa August that she claims was violated was not clearly established as of June 10, 2002; or 2. if the law was clearly established, based on the circumstances, the individual made a mistake regarding what the law required and the mistake was reasonable. To determine what the clearly established law required, please refer to the previous instructions I have given you on the elements of excessive force and the duty to intercede. To show that a mistake was reasonable, a defendant must show that a reasonable officer in that defendant's position would not have been expected (at the time) to know that his or her conduct violated clearly established federal law. Jfyou fmd any particular defendant is entitled to qualified immunity for a particular federal claim, you may not fmd him liable for that claim. If, however, you find that any particular defendant is not entitled to qualified immunity with respect to a the federal claim of excessive use of force, you may proceed to consider the issue of damages. SOURCE:
OBJECTION: Defendants object as repetitive, confusing and as having no legal support. The correct legal standard regarding qualified immunity is set forth io: Saucier v.
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KaJz, 533 U.S. 194,202 (2001); Peng v. Penghu, 335 F.3d 970, 976 (9tb Cir. 2003). Reynolds v. County of Son Diego, 84 F.3d 1162,1170 (9tb Cir.1996) (overruled ou otber grouuds); Acri v. Varian Assoc. Inc., 114 F.3d 999 (9tb Cir. 1997). Hemphill v. Kincheloe, 987 F.2d 589,591 (9tb Cir. 1993); Audersou v. Creighton, 483 U.S. 635, 641 (1987); Baker v. Racansky, 887 F.2d 183 (9tb Cir. 1989).

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Plaintiff's

Requested

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Punitive Damages
[fyou find for the plaintiff, you may, but are not required to, award punitive

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damages. The purposes of punitive damages are 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 defendant's or defendants' conduct or failure to act was malicious, or in reckless disregard of the plaintiffs rights, or oppressively done.

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An act or a failure to act is malicious if it is accompanied by ill will, or spite. or if it is for the purpose of injuring another. An act or a failure to act is in reckless disregard of Teresa August's rights if, under the circumstances, it reflects complete indifference to her safety, rights, or the defendant acts in the face of a perceived risk that its actions will violate Teresa's rights under federal
law.

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An act or a failure to act is oppressively done if done in a way or manner that injures, or damages, or otherwise violates the rights of another person with unnecessary harshness or severity, as by misuse or abuse of authority or power. or by taking advantage
of some weakness, or disability, or misfortune of another person.

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Uyou find that punitive damages are appropriate. you must use reason in setting
the amount. Punitive purposes but should considering punitive defendant's conduct damages, if any, should be in an amount sufficient to fulfill their not reflect bias, prejudice or sympathy toward any party. In damages, you may consider the degree of reprehensibility of the and the relationship of any award of punitive damages to any actual

harm inflicted on Teresa. 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.

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SOURCE: Adapted from Model Civil Jury Instructions, Ninth Circuit, 2004,

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Instruction 7.5; Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction 18.07.1; McKinley v. Trattles, 732 F.2d 1320, 1326, n.2 (7th Cir. 1984) (described as "accurate and complete" and in compliance with Smith v. Wade, 461 U.S. 30 (1983)). OBJECTION: Defendants object to tbis instruction as confnsing and repetitive. Defendants propose nse oftbe Nintb Circnit Model Civil Jnry Instrnction 7.5 on punitive damages and assert that there is no basis to adapt the instruction.

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2 3 If you find that a party could have produced certain evidence, and that the evidence 4 5 6 7 was within that party's control, and that this evidence would have been relevant in deciding facts in dispute in this case, you are pcnnitted, but not required, to infer that the evidence, if produced, would have been unfavorable to that party. In deciding whether to draw this inference, you should consider whether the evidence that was not produced would merely have duplicated other evidence already introduced. You may also consider that parties have a duty to preserve relevant evidencc. SOURCE: Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction 2.04.1. Glover v. BIC CorJO;. F.3d 1318, 1329-30 (9'h Cir. 1993); 6 Akiona v. United States, 938 F.2d 158, 161 (9" 1991). OBJECTION: Defendants object to this proposed jury instruction as there is no evidence of spoliation in this case. Accordingly, the proposed jury instruction is inappropriate nnless the Conrt determinates that spoliation takes place (or at the very least, determines that a reasonahle jury could find that spoliation takes place). This spoliation instruction is therefore inappropriate until the Court holds an evidentiary hearing on this issue. See, e.g., DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866, 873 (Mo. App. 2002); Phillips v. Covenant Clinic, 625 N.W.2d 714,721 (Iowa 2001); Beverly v. Wal-Mart Stores, 3 P.3d 163, 165 (Okl. App. 2000); Bromley v. Garey, 979 P.2d 1165, 1170 (Idaho 1999); Aramburu v. The Boemg Co., 112 F.3d 1398, 1407 (10th Cir. 1997); Beers v. Bayliner Marine Corp., 675 A.2d 829, 832 (Conn. 1996). Plaintiff's Reqnested #12 Spoliation of Evidence

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2 3 Plaintiff's Requested #13 Insurance 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 bearing on whether or not a party was at fault, or the damages, if any, a party has suffered.

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Requested bv Plaiutlff#14 Rie-ht to resist excessive force A person may legally resist the unlawful use of excessive force against her. If you
fmd that the force used by the officers in arresting Teresa August was excessive, you may

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consider any resistance she may have offered in response to that force as justified.

SOURCE: Smith v. Hemet, 394 F.3d 689 (9th Cif. 2005) OBJECTION: Defendants object to the proposed instruction because it does not correctly state the law aud is uot supported hy State v. Hemet, 394 F.3d 689 (9th Clr. 2005). That case held that a conviction for resisting arrest did Dot preclude a claim for excessive force. It also notes that whether a suspect resisted is relevant to whether the force used was excessive. 394 F.3d at 703. Smith does not hold that the jury in an excessive force case may consider whether the resistance was justified in determining whether excessive force was applied. Model Ninth Circuit Instruction 11.4 accurately states the law in this Circuit regarding the use of excessiveforce.

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Requested bv Plaintiff#15 Indivisible Iniury Teresa August contends that the officer or officers dislocated her elbow. The officers contend that Teresa's struggling during her arrest was the cause of her injury. If you find that Teresa August proved that the officer's or officers' conduct contributed to her injury, the burden of proof shifts to the officer and/or officcrs to establish which officer and/or officers among them bcars the appropriate apportionment of damages.

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SOURCE: "Fedcral common law principles of tort and damages govern recovery under section 1983.... [citations omitted] It is axiomatic that where several independent actors concurrently or consecutively produce a single, indivisible injury, each actor will be held jointly and severally liable for the entire injury." Watts v. Laurent, 774 F.2d 168 (7th Cir. 1985) Arizona law also still applies joint and several liability if the parties were acting in concert. A.R.S section 12-2506(D)(I). In reaffirming the singlc injury rule, the court stated, U[O]nce a plaintiff proves thatthe defendants' conduct contributed to the plaintiffs damages, see Markiewicz [v, Salt River Valley Water Users' Ass'n, 118 Ariz. 329, 338, 576 P.2d 517, 526 (1978)], the burden of proof shifts to the defendants to apportion damages. See Piner [v. Superior Court, 192 Ariz. 182, 189,962 P.2d 909, 916 (1998)]; Holtz [v. Holder, 101 Ariz. 247, 251, 418 P.2d 584, 588 (1966)]." OBJECTION: Defendants object as this jury instruction is an improper statement uftbe law. In Watts, the issue or joint and several liability was only considered after a jury had found all the named defendants liable for "concurrently" violating the PlaintiWs constitutional rights. Further, in order for liability to attach under § 1983, "an individual must have personally caused or participated in the alleged constitutional deprivation. Palmer v. Marion Co., 327 F.3d 588, 594 (7" Cir. 2003); accord Zimmerman v. Tribble, 266 F.3d 568, 574 (7" Cir. 2000). Further, Plaintifrs reliance on Arizona law for the § 1983 apportionment of damages is misplaced. Defendants have no objection to apportioning damages between the Plaintiff and Defendants. However, because no issue has been raised regarding the apportionment of damages against the individual Defendants, the instruction is inappropriate.

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Reqnested bv Defendants #1 Excessive Force - 42 U.S.C. § 1983 Elements On Plaintiffs 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 eaeh Defendant by a preponderance of the evidence: I. The acts or omissions of Defendants Griffin, Dunn, Lynde and

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The acts or omissions of the Defendants Griffin, Dunn, Lynde rights protected by the

and Monson were the cause of the deprivation of Plaintiffs Constitution or laws of the United States.

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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.

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OBJECTION, incomplete and misleading statement of the law: "Anyone who 'causes' any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Johnson v. DuJjj;, 588 F.2d 740, 743 (9th Cir. 19778). The proposed instruction also lacks a definition of the "intent" required to state a claim. See Plaintiffs requested Jury instruction no. 4, Section 1983 Litigation, Jury Instructions, M Schwartz & G. Pratt, Volume 4 (2005), Instruction 3.02.1; Caballero v. City of Concord, 956 F.2d 204, 206-07 (9th Cir. 1992) (holding that specific intent is not a requirement of a Section 1983 violation or a violation of the Fourth Amendment).

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ReQnested bv Defendants #2 Excessive Force Defined

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The Plaintiff claims that Defendants Griffm, Lynde, Dunn and Monson, used excessive force in making a lawful arrest. 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 occurs when a law enforcement officer uses excessive force in making a lawful arrest. In

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deciding whether excessive force was used, you should consider the totality of the
circumstances at the time. 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

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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 defendant 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.

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SOURCE: 21 Ninth Circuit Civil Model Jury Instructions IIA. OBJECTION, inappropriate comment on the evidence: The third and fourth sentences in the first paragraph, beginning, "In deciding whether excessive force was used .. ," is not included in the Ninth Circuit Civil Model Jury Instructions and adds unnecessary and improper emphasis. The last paragraph also is not a part of the Ninth Circuit Civil Model Jury Instructions, constitutes an improper comment on the evidence and misstates the law. If suggestions for factors to be considered are included in the instruction, factors should also include whether there was any threat of imminent harm, whether there was any threat

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of dIective and complete flight from the officers, and the age and size of Plaintiff.

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Requested Bv Defeudauts #3 Failure To Complv With Police Officer

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traffic.

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OBJECTION, does not apply to the facts of this case. A.R.S. § 28-622 relates to motor vehicle traffic, which has nothing to do with Plaintiffs excessive force claim.

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Requested Bv Defeudauts #4 If you fmd that any of the Defendants in this lawsuit acted negligently, and

3 4 as a result, Plaintiffs constitutional rights were violated, you Carillot hold the officers liable pursuant to 42 V.S.C. § 1983. Negligent conduct does not constitute conduct which would rise to the level of a constitutional violation.

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SOURCE: (1986).

Daniel v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344

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OBJECTION, confusing to jury. "Defendant is correct in noting that to state a claim under 42 V.S.C. § 1983, a Plaintiff must demonstrate more than just 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] ftring of the gun 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 (6ili Cif. 2000).

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ReQuesled BV DeCeuduals #5 A presumption of reasonableness and good faith attaches to a police officer's

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use of force in detaining a suspect.

Source: 5 AmJur.2d Arrest § 81. City of Mason v. Banks, 581 S.W.2d 621, 625-626 (Tenn. 1979); Dauffenbach v. City of Wichita, 233 Kansas 1028, 667 P.2d 380 (1983); Wall v. Zeeb, 153 N.W.2d 779 (N.D. 1967). Objection, and misstates or misrepresents the law, duplicates law regarding excessive force and will confuse the jury. Moreover, 5 Am.Jur.2d Arrest § 81 the arrest of a business partner and therefore, does not support Defendants' proposed language. Both City of Mason and Dauffenbach reference Restatement (Second) of Torts § 132 in support of their "presumption of reasonableness" language, but Restatement (Second) of Torts § 132 actually states the law in terms of loss of privilege for the use of force "if the means employed are in excess of those which the actor reasonably believes to be necessary." The proposed instruction is just another way of stating the standard for excessive force, and multiple instructions on this very same issue are likely to confuse the jury and prejudice Plaintiff.

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Requested Bv Defeudauts #6 A police officer is allowed to use all the objectively reasonable force he in
good faith believes is necessary under the circumstances. because it is detennined, Liability cannot attach merely

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in retrospect, that less force could have been applied under the

circumstances to achieve the officer's objectives.

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Objection, duplicative, misstates and misapplies the law, and is inapplicable to the facts Source:

Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978), cert. denied 439 U.S. 912.

in this matter. Landrum involved the shooting death of a suspect fleeing, on foot, from the scene of a business burglary. Plaintiff posed no risk of fleeiug the sceue and the
charges were misdemeanors, not felonies. "Good faith" is an affmnative defense that

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must be proven by defendant, Gomez v. To/edo, 446 U.S. 635, 640, 100 S.C!. 1920, 64 L.Ed.2d 572 (1980). Moreover, "good faith" is the basis for the qualified immunity defense, which "ordinarily should be decided by the court long before trial." Hunter v. Bryant, 502 U.S. 224, 228,112 S.Ct. 534,116 L.Ed.2d 589 (1991). See a/so Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151,150 L.Ed.2d 272 (2001). The instruction also injects an element of subjective belief, and the analysis under an excessive force claim is
objective only. Saucier.

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