Free Other Notice - District Court of Arizona - Arizona

EXHIBIT E

Case 2:03-cv-01892-ROS

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I II Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 2 ~ JONES, SKELTON & HOCHULl, P.L.C. 2901 North Central Avenue, Suite 800 3 II Phoenix, Arizona 85012 Telephone: (602) 263-1700 4 II Fax: (602) 200-7858 kwieneke .shtinn.com 5 'holsman shfmn.com

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6 ~ Attorneys for Defendants The City of Phoenix, Griffm, Lynde, Dunn, and Monson
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UNITED STATES DISTRICT

COURT

DISTRICT OF ARIZONA Teresa August, et aI, NO. CV03-1892-PI-IX-ROS Plaintiff,

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v.
12 The City of Phoenix, et aI,
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JOINT PROPOSED INSTRUCTIONS Defendant.

JURY

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The parties, through counsel, propose the following model and non-uniform jury instructions to be given in the trial of this matter. Plaintiff and Defendants have

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noted their objections on any uniform and non-unifonn instructions below.

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I.
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2001 Ninth Circuit Model Civil Jury lustructious Preliminary 1.1 1.2 1.4 1.5 Duty ofJury Claims and Defenses What is Not Evidence Evidence for Limited Purpose

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1.6 1.7 1.8

Direct and Circumstantial Evidence Rulings on Objections Credibility of Witnesses Conduct of the Jury No Transcript Available to the Jury Taking Notes Outline of Trial Burden of Proof - Preponderance of the Evidence
During Trial

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2 Bench Conferences and Recesses

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1.13 B.

Instructions

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Cautionary Jnstruction-First Recess

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Stipulations of Fact Judicial Notice Deposition as Substantive Evidence Transcript of Tape Recording Use of Interrogatories
After Close Of Evidence: Consideration Of

2.13 C.

General Instrnctions Evidence

Duties of Jury

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Civil Rights Actions - 42 D.S.C. § 1983 11.1 Violations of Federal Civil Rights - Elements and Burdens of Proof

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DATED this 17th 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 Defendant The City of Phoenix, et a!.

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TREON & SHOOK
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By

slDaniel B. Treon/per authorization
Daniel B. Treon

2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Attorneys for Plaintiff Electronically filed and served this 17th day of November, 2006, to: ALL PARTIES ON ELECTRONIC COPY e-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 SERVICE LIST

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BY

s/Gloria Gray

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PLAINTIFF'S REQUESTED NON-MODEL JURY INSTRUCTIONS
1. Nature of Statute 2. Burden of Proof on Section 1983 Cases 3. Color of Law 4. No specific Intent

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5. Excessive Force
6. Causation 7. Pain Suffering and Emotional Distress 8. Joint and Several Liability 9. Comparative Fault not Applied to Section 1983 Claims 10. Qualified Immunity
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Requested bv Plaintiffs #1
Plaintiffs assert claims under a federal civil rights law, 42 D.S.C. § 1983. The statute provides a remedy for individuals who have been deprived of their federal constitutional rights under color of law.

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SOURCE: Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction 3.01.1; 42 V.S.C. § 1983.

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Reqnested bv Plaintiffs #2

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Burden of Proof on Section 1983 Elements The plaintiffs have the burden of proving each element of their § 1983 claims by a preponderance of the evidence. Preponderance of the evidence means that it is more likely than not that the fact occurred. Thus, in order to prevail on their claim, the plaintiffs must persuade you that it is more likely than not that: 1. The acts or omissions complained of were committed by a person acting under color of state law; 2. The acts or omissions deprived the plaintiffs of a right protected by the federal Constitution; and 3. The defendant's acts or omissions were the cause of the deprivation of the plaintiffs rights protected by the Constitution or laws of the United States.

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SOURCE: Adapted from Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction 3.03.1; Model Civil Jury Instructions, Ninth Circuit, 2004, Instruction 11.1; Caballera v. City a/Cancord. 956 F.2d 204, 206-207 (9th Cir. 1992) (holding that specific intent is not a requirement of a Section 1983 violation or a violation of the Fourth Amendment). OBJECTION: Defendants object to this instruction as an improper instruction of the law. Defendants reliance on Caballero v. City o/Concord, 956 F.2d 204, 206-207 (9th Cir. 1992) is misplaced where the "specific intent" holding in Caballero related to a Plaintiffs false arrest, not excessive force, claim. In addition, Plaintiffs instruction is confusing as the law requires force to have been intentionally applied as outlined in Model Ninth Circuit Jury Instruction 11.1. This jury instruction also implies tbat "negligent conduct" is actionable under 42 U.S.c. § 1983, which is not the case. See Saucier v. Katz, 533 U.S. 194,204-05 (2001) (whether use of force was "objectively reasonable" cannot be judged using 20/20 bindsigbt); Ansley v. Heinrich, 925 F.2d 1339,1334 (Btb Cir. 1991) (district conrt correctly instructed the jury that negligent conduct alone could not form the basis of a section 1983 claim based on the fourth amendment); see also Daniels v. Williams, 474 U.S. 327, 328 (1986) ("We conclude that the Due Process Clause is simply not implicated by a negligent act of an official cansing unintended loss of or injury to life, liberty, or property.").

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Color of Law 4 Acts are done under color of law when a person acts or purports to act in the Requested bv Plaiutiff #3

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perfonnancc of official duties under any state, county, or municipal law, ordinance, or regulation. The issue of whether the defendants were acting under color of law is not in

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color of law. I charge you as a matter of law that each of the defendants were acting under color of state law. Therefore, you need not concern yourself with that element of the plaintiffs' case.

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SOURCE: Adapted !Tom Model Civil Jury Instructions, Ninth Circuit, 2004, Instruction 11.2; Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction 3.01.1. OBJECTION: Defendants object to this instruction as unnecessary as there is no dispute the officers acted under color of state law. The instruction is also repetitive and confusing.

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3 No Specific Intent Requested bv Plaiutiff #4

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Section 1983 does not require the plaintiffs to demonstrate that the defendants acted willfully, or with specific intent to violate the plaintiffs' federally protected rights. Nor does § 1983 require the plaintiffs to show that the defendants abused governmental power.

SOURCE: Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (200S), Instruction 3.02.1; Caballero v. City afConcord, 956 F.2d 204, 206-207 (9th Cir. 1992) (holding that specific intent is not a requirement of a Section 1983 violation or a violation of the Fourth Amendment). OBJECTION: Defendants object to this instruction as an improper instruction uftbe law. Defendants reliance on Caballero v. City ojConcord, 956 F.2d 204, 206-207 (9th Cir. 1992) is misplaced where the "specific intent" holding in Caballero related to a Plaintiffs false arrest, not excessive force, claim. In addition, Plaintiffs instruction is confusing as the law requires force to have been intentionally applied as outlined in Model Ninth Circuit Jury Instruction 11.1. This jury instruction also implies that "negligent conduct" is actionable under 42 U.S.c. § 1983, which is not the case. See Saucier v. Katz, 533 U.S. 194,204-05 (2001) (whether use of force was "objectively reasonable" cannot be judged using 20/20 bindsigbt); Ansley v. Heinricll, 925 F.2d 1339, 1334 (lltb Cir. 1991) (district court correctly instructed the jury that negligent conduct alone could not form the basis of a section 1983 claim based on the fourth amendment); see also Daniels v. Williams, 474 U.S. 327, 328 (1986) ("We conclude that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.").

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Requested bv Plaiutiff #5
Excessive Force On the plaintiffs Section 1983 excessive force claim, the plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: (1) The defendants' use of force was excessive under the circumstances because it was

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not reasonably necessary;
(2) The act or failure to act by the defendants caused harm to Teresa August; and (3) The defendants were acting under color of state law. In dctcnnining whether the force was excessive, you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used on Teresa, the extent of the injury inflicted on Teresa, whether a reasonable officer on the scene would have used such force under similar circumstances. You must balance Teresa's rights against the police officers' interests at stake, taking into consideration the facts and circumstances, including the severity of the crime at issue (misdemeanor assault), whether Teresa August posed an immediate threat to the safety of officers or others, and whether she was actively resisting or attempting to flee. The continued use offorce once a person is rendered helpless constitutes excessive force. The use of force against a non-violent detainee, where less forceful means of restraint are available to subdue passive resistance, is excessive force. A Defendant has committed excessive force ifhe or she: 1) ordered the force to be used on Teresa, which is excessive; 2) participated in using the excessive force on Teresa; or 3) observed the excessive force being used on Charles and failed to intervene to stop it. If the plaintiff proves these elements by a preponderance of the evidence, then you are to proceed to the question of damages. If any of the above clements has not been proved by the plaintiff by a preponderance of the evidence, then your verdict must be for the defendant. SOURCE: Adapted from Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction 10.01.1; Model Civil Jury Instructions, Ninth Circuit, 2004, Instruction 11.9. In order to detennine whether a constitutional violation has been stated, the Court must balance the detainee's rights against the government interests at stake, taking into consideration the facts and circumstances, including the severity of the crime at issue, whether the detainee poses an immediate threat to the safety of officers or others, and whether he is actively resisting or attempting to flee. Gibson v. County afWashoe, 290 F3d 1175, 1197-98 (9th Crr. 2002) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

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The Eighth Amendment's prohibition against malicious and sadistic use of force is not the applicable standard for excessive force claims made by pretrial detainees. See Pierce v. Multnomah County, 76 F.3d 1032, 1042 (9th Cir.1996) ("the Eighth Amendment's prohibition against the malicious or sadistic use of force ... does not apply until after conviction and sentence"). Officers that observe excessive force also violate a detainee's constitutional rights when they faile to intervene to protect the detainee from the other officers' use of excessive force. See, e.g., Durham v. Nu'Man, 97 F.3d 862, 866-68 (6th Cir. 1996) (holding that security officers could be held liable under § 1983 for failing to protect an individual from an assault by other security officers). Buckner v. Hollins, 983 F.2d 119, 122 (8., Cir. 1993) (holding same). LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 2000) (any reasonable officer would know that the continued use of force once a person is rendered helpless constitutes excessive force); Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125. 1130-31 (9th Cir. 2002) (the use of force against non-violent protestors. where less forceful means of restraint are available to subdue passive resistance, is a clear violation of the constitution). Dearie v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) (holding that every officer should know that it is objectively unreasonable to use a significant level of force "against an unarmed man who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or individuals."). OBJECTION: Defendants object to tbis instruction as repetitive and confusing. In addition, tbe instruction includes parties ("Cbarles") not involved with the subject litigation. The instruction also inserts inappropriate factual statements that are inappropriate in a jury instruction on the law. Defendants suggest tbat tbe Ninth Circuit Model Jury Instruction 11.4 used in place of Plaintiffs proposed instruction.

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Requested by Plaiutiff #6 Causation
The plaintiff must prove by a preponderance of the evidence that the defendants' conduct was a cause of Teresa August's injuries. "Cause" means that there must be a sufficient causal connection between the conduct of the defendant and Teresa August's injuries. An act is a cause ifit was a substantial factor in bringing about Teresa's injuries. Teresa's' injury or damage must be a reasonably foreseeable consequence of a defendant's act or failure to act. Stated differently, the issue is whether a reasonable person would view the defendant's conduct as the cause of Teresa's injuries. The law recognizes that there may be more than onc cause ofan injury or damage. Multiple factors, or the conduct or failure to act of two or more people, may operate at the same time to cause an injury. In such a case, each factor may be a cause of Teresa's injuries.

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SOURCE: Adapted from Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction 14.01.2; see also Cooper y. Dyke, 814 F.2d 941, 947 (4th Cir. 1997) (upholding refusal to give special intervening cause instruction; general proximate causation instruction was sufficient for jury to consider the defendant's theory of an intervening cause); Gordon v. Dege/mann, 29 F.3d 295, 298 (7th Cir. 1994) (in false arrest case, holding that it was error to instruct the jury that only the officer that arrested plaintiff could violate § 1983, because it did not take into consideration that "one who directs or assists an unlawful arrest may be liable."). OBJECTION: Defendants object to this instruction as repetitive and confusing. Defendants propose the following instruction on causation: "Before you can find any party at fault, you must find that the party caused the Plaintiffs injury. Plaintiff has the burden of proof in establishing who and what cause
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Requested bv Plaintiff #7 Pain. Sufferiol! and Emotional Distress
In assessing compensatory damages, you may include an amotmt for pain, suffering, and emotional distress that you detennine to be reasonable compensation in the light of all the evidence in this case. We all know that the nature and degree of pain and mental distress may differ widely from person to person. Consequently, the law does not try to fix, nor does the law permit, a precise fannula by which pain or emotional distress as an element of compensatory damages may be measured and reduced to dollars and cents. Instead of providing a formula for measuring these damages, the law leaves the determination of the amount of damages to the common sense and good judgment afyau, the jurors. You should arrive at a monetary amount, in the light of your common knowledge and general experience, and without regard to sentiment, that you deem to be fair, reasonable, and adequate. In other words, without favor and without any precise formula, you as jurors must arrive at a sum of money that will justly, fairly, and adequately compensate the plaintiff for the actual pain. suffering, and emotional distress you find that Teresa endured as the direct result of any harm she may have suffered. The amount of damages should be fair, just, and reasonable.

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SOURCE: Adapted from Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction] 8.01.5; Patrolmen's Benevolent v. City of New York, 310 F.3d 43,56 (2nd Cir. 2002) (holding that in a Section 1983 claim, emotional distress can be proved without physical manifestations; testimony of the distress is sufficient); Pryer v. Slavic, 251 F.3d 448 (3rd Cir. 2001) (holding it is error not to instruct the jury that it could award damages for intangible injuries, such as pain and suffering).

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OBJECTION: Defendants object to tbis instruction as unnecessary, repetitive and confusing. Defendants propose using Ninth Circuit Jury Instruction 7.2 in place of Plaintiffs proposed instruction #8.

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Requested bv Plaintiffs #8 Joint and Several Liabilitv When two or more defendants act together to violate the plaintiffs federally protected rights, the law permits the plaintiffs to treat them together so that each defendant is liable to the plaintiff for the full amount of the plaintiffs' compensatory damages. All defendants who, under a common plan to commit a wrongful act, actively take part in it, or assist, or encourage, or failure to intervene with the ¥/Tongful conduct, are fully liable for the plaintiffs' compensatory damages. The law calls this form of liability "joint and several liability. " SOURCE: Adapted from Section 1983 Litigation, Jury Instructions, M. Schwartz & G. Pratt, Volume 4 (2005), Instruction 18.06.3; see also Barton Protective Services, Inc. v. Faber, 745 Soold 968, 975-76 (Fla. App. 1999) (holding that where private security company and two police officers were sued under section 1983 for intentional acts in connection with an unlawful arrest, joint and several liability was appropriate); Mathis v. Parks, 741 F.Supp. 567, 573 (E.D. N.C. 1990) (holding that police officer who did not deliver allegedly fatal blow to the decedent during arrest could be held jointly and severally liable under Section 1983 with officer who did deliver blow, either on basis of participation in infliction of excessive force, or failure to take reasonable steps to protect decedent from use of excessive force causing death, or even on basis of dragging decedent in his mortally wounded limp state along ground to police car and shoving him into the back seat). OBJECTION: Defendants object to this instruction as repetitive and confusing. The jury does not need to be instructed on joint and several liability because it is an improper subject for a jury instruction. The Court should not instruct the jury on joint and several liability as this will be made clear on the Verdict Form.

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Requested bv Plaintiff #9 Comparative Fault not Applied to Section 1983 Claims

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The policies underlying Section 1983 claims include compensation of persons injured by deprivation of federal rights, and the prevention of abuses of power by those acting under the law. Therefore, when assessing damages in each of the plaintiffs' federal Section 1983 claims against the defendants, you are not to consider the alleged fault of any non-parties or the plaintiff, if such fault exists. In other words, in the plaintiffs' Section 1983 claims, you are prohibited from allocating any percentage of fault to a nonparty or the plaintiffs.

Robertson v. Wegmann, 436 u.S. 584, 590-91 (1978) (stating that the policies underlying Section 1983 claims include compensation of persons injured by deprivation
SOURCES: of abuses of power by those acting under the color of law); Quezada v. County oj Bernalillo, 944 F.2d 710, 721 (10th Cir. 1991) ("Comparative negligence is not applied in suits for violations of federal constitutional rights lU1der Section 1983."), overruled on other grounds, Eolum v. Schirard, 46 Fed.Appx. 587, 591 (lOth Cif. 2002) (unpublished decision); Clappier v. Flynn, 605 F.2d 519, 530 (10th Cir. 1979) (holding same as Quezada); Virgo v. Lyons, 209 Conn. 497, 504, 551 A.2d 1243, 1247, n.8 (1988) (noting that under Section 1983 claims there is no setoff for the contributory negligence of a plaintiff, as opposed to state law that allowed for contributory negligence); Campbell v. Hoffman, 1994 WL 114007 (D. Kan. 1994) (holding that defendants' allegations of contributory negligence of plaintiffs and various nonparties as a defense to the plaintiff s section 1983 action be stricken from pretrial order). of federal rights, and prevention

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OBJECTION: Defendants object to this instruction as repetitive and confusing. The jury does not need to be instructed on comparative fault because it is an improper subject for a jury instruction. The Court should not instruct the jury on comparative fault as this will be made clear on the Verdict Form.

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