Free Motion in Limine - 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 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

PLAINTIFFS' MOTION IN LIMINE NO. 8 RE: PRIOR BAD ACTS OF SAM HICKEY

Plaintiff Teresa August moves to exclude from trial evidence of her collateral
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and irrelevant interactions with Phoenix Police Officers that occurred on different
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occasions; any testimony from Madison Meadows Grade School employees related
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to employees' interaction with Teresa August; and other alleged instances of bad prior acts. I. Incidents at Madison Meadows Middle School As part of Defendants' smear campaign, they have dug up witnesses and police reports related to disputes that arose between Teresa August and Madison Meadows Middle School related to the school's failure to control traffic which interferes with Teresa August's house, which is right next door to the grade school. Mrs. August has suffered for years with the school's traffic problem. In May 2004, about two years after the relevant events in this lawsuit, things reached a boiling point and Mrs. August had some heated words with school personnel on school property. The school personnel alleged she used foul language. The school police officer, Officer Jerry Peterson, was called and he attempted to talk with Mrs. August, but she left the property. (EXHIBIT 1, copy of Departmental Report dated ________). Defendants have disclosed Diane Lynn, Suzanne Mayhong and Kevin Sotomayor, employees of Madison Meadows Middle School to testify that on May 26, 2004, two years after the arrest subject of this lawsuit, Teresa August yelled at them in a loud voice, used profanity and made derogatory remarks about Phoenix Police Officer Jerry Peterson, all regarding her complaints about the parking problem. Plaintiffs attempted to determine through non-uniform interrogatories what acts Officer Peterson claims to have observed Plaintiff Teresa August commit that resulted in him concluding that she acted in a "loud, aggressive" manner, but Defendants stone-walled this request for information by claiming that the non-uniform interrogatory was "overly broad as to the type of information requested; vague; not likely to lead to admissible evidence; unduly burdensome." (EXHIBIT 2, copy of Defendants' Answers to Plaintiffs' Second Set of Non-Uniform Interrogatories to Defendants.)
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These actions are completely collateral to what happened in 2002, and not relevant to any issue in the lawsuit, mainly whether the officers used an unreasonable amount of force in effecting Teresa August's arrest. The evidence at trial will be that Teresa August did use profanity, but was not directing it in a personally insulting way against the officers. She was just very upset about having been assaulted by her grandson and that the police were not removing him from her property. Moreover, even if she used profanity, this does not relieve in any way the Defendants from their obligation not to violate a citizens' constitutional right to be free from an unreasonable amount of force during an arrest. Neither the information contained in Officer

Peterson's Police Report, nor testimony from the Madison Meadow's employees should be admitted in evidence. II. Order of Protection from 1992 Is Not Relevant Defendants also dug up that in 1992, ten years before these events, Teresa August had a dispute with her ex-daughter-in-law, Pamela Hickey, related to visitation of Teresa's grandson, Samuel Hickey. Pamela Hickey filed a Petition for a Protective Order on March 11, 1992 and alleged that Teresa August had "threatened and intimidate, interfere with custody of child unlawfully," (sic). The hearing occurred on March 25, 1992 and the Maricopa County Superior Court Judge vacated the Order of Protection that had been issued provisionally (EXHIBIT 3). For obvious reasons, the events a decade earlier involving other people, and unsupported allegations are not relevant to whether the officers used excessive force in arresting Teresa August on June 10, 2002. Any testimony related to Pamela

Hickey's allegations should be excluded from the trial. DATED this 15th day of November, 2006. TREON & SHOOK, P.L.L.C. By:
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s/ Daniel B. Treon
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Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on November 15, 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]

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Jennifer L. Holsman: Randall H. Warner:

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By:

s/ Aly Shomar-Esparza

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