Free Other Notice - District Court of Arizona - Arizona

1
2

Requested Bv Defeudants #7 Qualified immunity shields an individual officer's conduct if a reasonable

3 official could have believed his conduct to be lawful, in light of clearly established law

4 and the information the official possessed. Qualified immunity applies even if reasonable
5 officers could disagree on whether Defendants' Griffin, Lynde, Dunn and Monson's 6 conduct was lawful. 7 and protects all but the plainly incompetent or those who knowingly violate the law. 8
9

This is because qualified immunity allows for mistaken judgments

10
11

12
13

14
15

Source: Saucier v. Katz, 533 U.S. 194,202 (2001); Peng v. Penghu, 335 F.3d 970, 976 (9th Cir. 2003). Reynolds v. County of San Diego, 84 F.3d 1162, 1170 (9th Cu. 1996) (overruled on other grounds); Acri v. Varian Assoc. Inc., 114 F.3d 999 (9th Cir. 1997). Hemphill v. Kincheloe, 987 F.2d 589, 591 (9th Cir. 1993); Anderson v. Creighton, 483 U.S. 635, 641 (1987); Baker v. Racansky, 887 F.2d 183 (9th Cir. 1989). Objectiou, improper instruction that usurps the Court's authority. The qualified immunity defense "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).

16
17

18
19

20 21 22
23

24 25
26
1713098.1

31 Document 170-10 Filed 11/17/2006 Page 1 of 15

Case 2:03-cv-01892-ROS

I 2 3
4 5 6 7

Requested By Defendants #8 Punitive Dama~es (42 U.S.CO § 1983) Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may only award punitive damages if and only if you find that the defendant's conduct was a product of evil motive, was malicious or sadistic, or was in reckless disregard of plaintifrs rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of plaintiffs rights if, under the circumstances, it reflects complete indifference to the safety and rights of others. If you find that punitive damages are appropriate against Defendants Griffin, Lynde, Dunn and Monson, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes bnt should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff. You may also choose not to award punitive damages against Defendants Griffin, Lynde, Dunn and Monson if you determine that plaintiff has not met his required burden.

8
9

10
II
12 13 14 15

16
17 18

19

20
21

Source: Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993) (citing Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983). Objection, grossly misstates cited cases and law, inflammatory and prejudicial. Smith at 461 U.S. at 56,103 S.Ct. 1625,75 L.Ed. 632, actually states, "We hold that ajury may be permitted to assess punitive damages 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. We further hold that this threshold applies even wheu the underlying standard of liability for compensatory damages is onc of recklessness," Additionally, Morgan provides, "instructions should be fashioned to describe the proper purposes of punitive damages, so that the jury understands that punitive damages are not to compensate the plaintiff, but to punish the
1713098.1

22
23

24
25

26

32

Case 2:03-cv-01892-ROS

Document 170-10

Filed 11/17/2006

Page 2 of 15

]

2 3 4

5
6 7 8 9 10 II 12 13 14 15 16 17 18 19

defendant and to deter the defendant and others from such conduct in the future," Morgan at 1256, citing Pacific Mutual LifeIns. Co. v. Haslip, 499 U.S. ], 16, III S.C!. ]032, 113 L.Ed.2d I (199]). The court quoted the trial court's additional jury instruction with approval in footnote 13: "In arriving at any award of punitive damages, you are to consider the following: (I) The reprehensibility of the conduct of the defendant. (2) The amount of punitive damages which will have a deterrent effect 0 the defendant in the light of defendant's [mancial condition. (3) That the punitive damage must bear a reasonable relationship to the injury, harm, or damage actually suffered by the plaintiff." Id.

20
21

22
23

24 25 26
1713098,]

33 Document 170-10 Filed 11/17/2006 Page 3 of 15

Case 2:03-cv-01892-ROS

I
2

Reqnested Bv Defendants #9 To help you follow the evidence, I will give you a brief summary of the
positions of the parties:

3 4

5
6 7 8 9 10 11 12 13 14 IS 16 17 18 19

The Plaintiff claims that the City of Phoenix and its police officers used excessive force in violation of her civil rights under 42 V.S.C. § 1983 and Arizona state law. The Defendants deny Plaintiffs claim.

Source;

Ninth Circuit Civil Model Jury Instruction 1.2.

Objection, misstates Plaintiffs claim. Plaintiff will accept the instruction if the middle paragraph is modified to read as follows: The Plaintiff claims that the City of Phoenix police officers used excessive force in violation of her civil rights under 42 V.S.C. § 1983.

20
21 22
23 24 25

26
1713098.]

34
Document 170-10 Filed 11/17/2006 Page 4 of 15

Case 2:03-cv-01892-ROS

1
2 3

Requested Bv Defendants #10 Liability For Violation of Civil Ri2hts To impose liability under 42 U.S.C. § 1983 for a violation ofPlaintifrs civil

4
5

rights, a plaintiff must prove an affirmative link between the conduct of the defendant and Thus, the plaintiff must establish that the specific conduct, of a

6 II the harm alleged. 7 8 9
10

particular defendant, caused the plaintiff specific injury.

11

12
13 14 15 16 17 18 19

Source:

See Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604 (1976); Leer v. Murphy, 844 F.2d 628, 633 (9'h Clr. 1988) (plaintiff must establish causal connection between the defendants' actions and the harm allegedly suffered). misstates law, will confuse the jury and cited cases inapplicable to this matter. Rizzo involved a determination of whether there was a case or controversy, not a requirement that the plaintiffs prove that a specific conduct caused a specific mjury. Leer involved an Eighth Amendment claim by a prisoner. and that court was concerned with the duties owed, the determination of deliberate indifference and the distinction in proof of causation depending on whether injunction relief or money damages are sought. Leer at 633.

Objection,

20
21

22
23

24
25

26
1713098.1

35

Case 2:03-cv-01892-ROS

Document 170-10

Filed 11/17/2006

Page 5 of 15

1 2 3 4 5 6
7

Requested Bv Defendauts #11 Justification for Non·Deadlv Physical Force in Law Enforcement

In arresting or detaining a suspect, a person is justified in using physical force if: A reasonable person would believe that such force is immediately

1.

8 9 10
11

necessary to arrest or detain the suspect; and The person makes known the purpose of the arrest or detention, if it

2.

is reasonable to do so; and,
A reasonable person would believe the arrest or detention to be

12 13 14 lawful.

3.

15
16 17 18 19

20
21 Source: RAJI (Criminal) 4.09 (Justification for Physical force in Law Enforcement); A.R.S. §13-409. Objection, incomplete statement of the law. "It is considered unreasonable to inflict

22
23

bodily hann to effect an arrest for a misdemeanor if there are other reasonable methods of
effecting the arrest." State v. Cadena, 9 Ariz.App. 369, 372, 452 P.2d 534, 537 (1969) (citing A.R.S. § 13-1401 (now A.R.S. § 13-3881) and Harding v. State, 26 Ariz. 334, 225 P 482 (1924)). A.R.S. § 13-3881(B) provides, "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be suhjected to any greater restraint than necessary for his detention.~'

24 25 26

1713098.1

36
Document 170-10 Filed 11/17/2006 Page 6 of 15

Case 2:03-cv-01892-ROS

I 2 3 4 5 6 7 8 9 10 II 12 13 14 1.

Requested Bv Defendants #12 Assanlt

Theresa August claims that Defendants Griffin, Lynde, Dunn and Monson assaulted her. On this claim, Ms. August must prove: Defendants Griffin, Lynde, Dunn and Monson intended: a. b. To cause harm or offensive contact with Theresa August. or

To cause Theresa August apprehensionof an immediate harmful or offensive contact; and,

2. 3.

Defendants Griffin, Lynde, Dunn and Monson caused Theresa August apprehension of an immediate harmful or offensive contact. Theresa August's damages.

A contact is offensive if it would offend a reasonable person.

15
16 17 18 19 Source: Restatement (Second) of Torts §§ 21-34; Garcia v. United States, 826 F.2d 806 (9th Cir. 1987); A.R.S. § 1 3-1203(A)(2); RAJI (Criminal) 12.02 (Threatening or Intimidating) and 12.03 (Assault). Objection, unrelated to Plaintiffs' § 1983 claim, would confuse jury.

20
21

22
23 24

25
26
1713098.1

37

Case 2:03-cv-01892-ROS

Document 170-10

Filed 11/17/2006

Page 7 of 15

I 2 3
4

Requested By Defendants #13 Defendants cannot be liable if Plaintiff was injured while she was attempting to commit, committing, or fleeing from a felony criminal act. Under Arizona law, a person commits felony assault by: (I) Intentionally, knowingly or recklessly causing any physical injury to another person; or (2) Intentionally placing another person in reasonable apprehension of imminent physical injuries; or (3) Knowingly touching another person with intent to injure, insult, or provoke such person. An aggravated assault occurs if a person commits assault knowing or having reason to know that the victim is a police officer.

5 6 7 8 9 10
11

12 13 14
15

16 17 18 19

Under Arizona law, a person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to her to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest by: (I) Using or threatening to use physical force against the peace officer or another; or (2) Using any other means creating a substantial risk of causing physical injury to the peace officer or another.

20
21

22
Source: 23 24 25 26
1713098.1

A.R.S. § 12-712; A.R.S. § 13-\203; A.R.S. § 13-1204; A.R.S. § 13-2508.

Objection, misstates law, cites law that has been ruled unconstitutional. The proposed instruction tracks with the definition of assault, not felony assault, and omits any mention of the aggravating factors that enhance the charge to a felony. Furthermore, the Arizona courts have ruled that A.R.S. § 12-712, which provides for non-liability for damages to a

38
Document 170-10 Filed 11/17/2006 Page 8 of 15

Case 2:03-cv-01892-ROS

1 2 3 4

person committing a criminal act, is unconstitutional. Sonoran Desert Investigations v. Miller, 213 Ariz. 274,141 P.3d 754 (App. 2006).

5
6 7 8 9

10
11 12 13 14 15 16 17 18 19

20
21 22 23

24
25

26
1713098.1

39 Document 170-10 Filed 11/17/2006 Page 9 of 15

Case 2:03-cv-01892-ROS

I 2 3 4

Requested Bv Defendants #14 Justification for Usinl!:Foree in Crime Prevention

5
6 7 8 9 10
I]

A person is justified in threatening or using physical force and against another if and to the extent the person reasouably believes that physical force or deadly physical force is immediately necessary to prevent the commission of the crime(s) of aggravated assault. There is no duty to retreat before threatening or using such force. A person is presumed to be acting reasonably for the purposes oftbis section of they are acting to prevent the commission of the offense listed above.

]2
13

14

15 16 17
18 19

Source: RAJI (Criminal) 4.11 (Use of Force in Crime Prevention) (as modified); A.R.S. § 13-411. Objection, misstates the law and would confuse and prejudice the jury. A.R.S. § 13-411 applies the justification for aggravated assault as defined under A.R.S. § 13-1204(A)(l) and (2). Subsection (]) identifies "serious physical injury to another," and subsection (2) identifies use ofa "deadly weapon or dangerous instrument," Neither subsection applies to this matter; therefore, A.R.S. § 13-41] and this jury instruction is improper.

20
21

22
23

24
25

26
1713098.1

40 Document 170-10 Filed 11/17/2006 Page 10 of 15

Case 2:03-cv-01892-ROS

1 2 3 4 5 6 7 8 9 10 II Source: (1981). 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 II
1713098.1

Requested bv Defeudants #15 You may not award punitive damages against Ibe City of Phoenix.

A.R.S. § 12-820.04; City afNewport v. Fact Concerts, Inc., 101 S.Ct. 2748

41

Case 2:03-cv-01892-ROS

Document 170-10

Filed 11/17/2006

Page 11 of 15

I 2
3

Defendants' Proposed Instruction #16 SvoliatioD of Evidence Plaintiff claims Defendants failed to preserve evidence. If you find that Defendants willfully destroyed evidence, then you may but are not required to infer that the evidence destroyed was adverse to Defendants. You may not apply this adverse inference if Defendants were merely negligent in failing to preserve evidence. If you find that Defendants did not willfully destroy evidence, you may not guess about or infer what the missing evidence would have shown. Willful means that the Defendants intentionally destroyed evidence knowing that it is relevant to litigation. You may not use evidence regarding failure to preserve evidence for any purpose other than the adverse inference I have just mentioned. You may not award damages against Defendants for failing to preserve evidence.

4

5
6 7 8 9 10
11

12 13
14

IS 16 17 18 19

SOURCE: See, e.g., DeGraffenreidv. RL 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 (Ok!. App. 2000); Bromley v. Garey, 979 P.2d 1165, 1170 (Idaho 1999); Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997); Beers v. Bayliner Marine Corp., 675 A.2d 829, 832 (Conn. 1996).

20
21

22
23

24
25 26
1713098.1

42

Case 2:03-cv-01892-ROS

Document 170-10

Filed 11/17/2006

Page 12 of 15

I

Defendants Proposed Instrnction #17 The Court has found there was probable cause for the arrest of the Plaintiff

2 3 4 5 6 7 8 9 10
II

for assault of Sam Hickey, disorderly conduct and resisting arrest.
SOURCE: Court's Order dated September 20, 2006

12 13 14 15 16 17 18 19

20
21

22
23

24
25

26
1713098.1

43

Case 2:03-cv-01892-ROS

Document 170-10

Filed 11/17/2006

Page 13 of 15

1
2 3 The officers entry into Plaintiffs home was justified by probable cause and 4 Defendants Proposed Instrnction #18

5
6

exigent circumstances.

SOURCE: 7 8 9 10 II 12 13 14
15

Court's Order dated September 20, 2006

16 17 18 19

20 21 22
23 24 25

26
1713098,]

44
Document 170-10 Filed 11/17/2006 Page 14 of 15

Case 2:03-cv-01892-ROS

I

Defendants' Proposed Instruction #19 Not every push or shove, even ifit latcr seems unnecessary, violates the Fourth Amendment's prohibition against the use of "excessive forcen . The reasonableness of an officer's use of force must embody allowance for the fact that officers are often forced to

2 3 4 5 6 7 8 9 10
11

make split second judgments in circumstances that are tense, uncertain, and rapidly
evolving.

I SOURCE:

Graham v Conner, 490 U.S. 386, at 396-97 (1989).

12 13 14 15 16 17 18 19

20
21

22
23 24 25

26
171309U

45

Case 2:03-cv-01892-ROS

Document 170-10

Filed 11/17/2006

Page 15 of 15