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. 6 RE: ALLEGED COLLATERAL & BAD ACTS OF TERESA AUGUST

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 Middle School employees related
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to their interaction with Teresa August; and other instances of alleged bad prior acts.
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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. Teresa

August's house is right next door to the school, and the traffic interferes with her ingress and/or egress. 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 City of Phoenix Departmental Report No. 2004-40870033 [AUGUST 0540 ­ 0544]). Defendants have disclosed Diane Lynn, Suzanne Mayhong and Kevin Sotomayor, employees of Madison Meadows Middle School. They are expected to testify that on May 26, 2004, also 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," but they listed more general explanations of yet further attenuated conduct on the part of Mrs. August
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(EXHIBIT 2, copy of Defendants' Answers to Plaintiffs' Second Set of Non-Uniform Interrogatories to Defendants dated November 4, 2004). Traffic control issues at the nearby grades school and how Mrs. August dealt with them are completely irrelevant to any issue in the lawsuit - whether the officers used an unreasonable amount of force in arresting Teresa August. Teresa August used profanity on June 10, 2002, but she was not directing it in a personally insulting way toward the officers ­ she was swearing in the presence of the officers, not at the officers. Mrs. August was very upset about the assault by her grandson and by the officers' failure to remove her grandson from her property. A citizen's use of

profanity, even if directed at police officers, does not justify dislocating her elbow. None of these actions are admissible under Rule 404(b), as character evidence, or Rule 608(b), prior bad acts that are probative of truthfulness. The

incidents are highly dissimilar to the facts in this case and simply do not involve honesty or truthfulness. 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 unearthed a 14-year-old Petition for Protective Order. Mrs. August and her ex-daughter-in-law, Pamela Hickey, disputed visitation with Teresa's grandson, Samuel Hickey. Pamela Hickey filed a Petition for a Protective Order on March 11, 1992, alleging Teresa August had "threatened and intimidate, interfere with custody of child unlawfully," (sic). (EXHIBIT 3, copy of March 11, 1992 Petition for Order of Protection [AUGUST 0546 ­ 0552]). On March 25, 1992, the Maricopa County Superior Court Judge heard the evidence and vacated the provisional Order of Protection (EXHIBIT 4, copy of March 25, 1992 Order vacating provision order of protection [AUGUST 0553 ­ 0554]).

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In addition to being inadmissible under Rules 404(b) and 608(b), this event occurred beyond the presumptive time limit for admissibility of criminal convictions under Rule 609(b). 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. III. Reference to An Alleged Suicide in 1991 Defendants also disclosed a City of Phoenix police report pertaining to "attempted suicide" which allegedly occurred on October 13, 1991, eleven years before this event. impeachment. This event is not relevant and should not be used for

DATED this 17th day of November, 2006. TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

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CERTIFICATE OF SERVICE
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I hereby certify that on November 17, 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] -4Document 159

Jennifer L. Holsman: Randall H. Warner:

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By:

s/ Aly Shomar-Esparza

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