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. 4 RE: CRIMINAL CHARGES AND PROBABLE CAUSE

Plaintiff Teresa August moves to exclude from evidence 1) any reference to the
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criminal charges filed by the State of Arizona several months after her arrest and 2)
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any reference to the finding of probable cause on the resisting arrest charge made by
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the criminal court after a preliminary hearing.
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First, Defendants should not be allowed to admit this evidence for the simple reason that it is not relevant and would be unduly prejudicial. Second, if these facts do come in evidence, then evidence of what happened to those charges ­ dismissed by the prosecuting attorney "in the interests of justice" ­ should also be admitted in evidence. Defendants' entire defense consists of the claim that Mrs. August would not have been injured if she had not been resisting arrest. Therefore, defendants'

defense has made what happened to that arrest ­ whether she was formally charged, whether probable cause was found, and most importantly, what happened to those charges ­ relevant. Since Defendants essentially blame Mrs. August for her injuries and allege that her act of resisting caused the injury, the fact of the dismissal of the charges becomes relevant to Plaintiff's ability to rebut this allegation. The dismissal is thus affirmative evidence rebutting Defendants' claim that Mrs. August caused her own injury, and must be admitted. The fact of what happened to these "officialized" charges (charges brought to support the officers' view of the events) is made relevant by Defendants' defense because by alleging that Teresa August was non-compliant, failed to do everything they told her to do, and resisted to some degree really boils down to a justification defense. "Evidence of a subsequent dismissal, acquittal or reversal on appeal

would...be admissible to refute...justification." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 95, 335
N.E.2d 310, cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975)).

Finally, evidence of only the arrest or the finding of probable cause on just the resisting arrest charge is an incomplete picture of the status of Mrs. August's situation, and could lead to speculation by the jury regarding the outcome of those charges. Therefore, if any evidence regarding a finding of probable cause or resisting arrest is admitted, Plaintiffs should also be permitted to introduce evidence regarding
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the dismissal of the charges.

See Hansel v. Sheridan, 991 F.Supp. 69, 74 fn.2

(N.D.N.Y. 1998) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d. Cir. 1996). 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 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]

Jennifer L. Holsman: Randall H. Warner:

By:

s/ Aly Shomar-Esparza

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