Free Memorandum - 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 ) ) ) PLAINTIFF'S TRIAL ) MEMORANDUM OF LAW ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Plaintiff Teresa August hereby submits her Trial Memorandum of Law:
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I.
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FACTUAL BACKGROUND

On June 10, 2002, Plaintiff Teresa August was having problems with her mentally troubled 17-year-old grandson, Sam Hickey.
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Unable to control her
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grandson's outburst, and fearing for her safety, Mrs. August called 9-1-1 and requested police assistance. Phoenix police officers responded, but refused to

remove Sam August from Teresa August's home. Mrs. August became even more upset when it became clear to her that the officers refused to help her. The parties hotly dispute the events of the next few moments. After a lengthy discussion, Mrs. August reluctantly allowed an officer into her home. When she

automatically locked the screen door after letting in the officer, the police panicked, surged into the home, startling Mrs. August. As she verbally and physically protested the invasion by the officers, they "teed up" Mrs. August and wrenched her right arm behind her, severely dislocating Mrs. August's right elbow. At least three officers were involved in the assault on Mrs. August, who was 68 years old at the time of the incident. The officers' justification for the arrest was Mrs. August's "assault" on her 17year-old grandson. In reaching the decision to arrest Mrs. August, the officers

disregarded the disparity in size between the elderly grandmother and her troubled grandson, Mrs. August's statements that any minor injuries she may have inflicted on Sam Hickey were in self defense, and the fact that it was Mrs. August that called 9-11. Although the police reports dated June 10, 2002 purported to relate the material incidents, the reporting officers failed to document which officer actually handcuffed Mrs. August, a curious omission since it was immediately clear Mrs. August suffered a serious injury1. In fact, paramedics were called to the scene and Mrs. August was transported to Maricopa Medical Center, where she was treated by Dr. Seligson. Dr. Seligson, a board certified emergency room physician, had seen approximately 6000 patients who were in custody at the time he treated Mrs. August. According to his deposition testimony, Dr. Seligson had never before seen a patient
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The testimony of Defendant Toby Dunn at the preliminary hearing on June 2, 2003 added no clarification regarding which officer dislocated Mrs. August's elbow.

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with a dislocated elbow from a handcuffing procedure; he further testified that a person could not self-inflict a dislocation because she would be stopped by the pain. Dr. Beth Purdy, a board-certified orthopedic surgeon, in her rebuttal opinion, stated, "The officer's stabilization of the upper arm with the simultaneous force and torquing to the lower arm/wrist produced the significant dislocation [of Mrs. August's elbow]." Defendants have produced no credible medical testimony to dispute the testimony of Dr. Seligson and Dr. Purdy. As the significant events unfolded, some of the officers on the scene at Mrs. August's home were in radio contact with other officers and/or dispatchers. Despite the severity of Mrs. August's injury compared with the relatively minor nature of the basis for the presence of the police on that day, early notice that Mrs. August was making a claim, and an aborted Professional Standards Bureau investigation, the City of Phoenix did not preserve the tapes of the radio transmissions made that day. II. A. LEGAL ARGUMENT Defendants Used Excessive Force.

The only competent medical testimony clearly indicates that Mrs. August did not injure herself. The testimony of the treating emergency room doctor and Mrs. August's expert complement and support each other. Dr. Seligson had never seen a dislocated elbow from a handcuffing incident in his many years of practice, and Dr. Purdy specifically identifies the mechanism that caused Mrs. August's injury ­ "[t]he officer's stabilization of the upper arm with the simultaneous force and torquing to the lower arm/wrist." Not only does the medical testimony support the claim of excessive force, but so does the totality of circumstances. First and foremost, the alleged crime was a misdemeanor, and the law clearly limits the amount of force officers are permitted to use to arrest an alleged misdemeanant. "It is considered unreasonable to inflict

bodily harm to effect an arrest for a misdemeanor if there are other reasonable
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methods of effecting the arrest." State v. Cadena, 9 Ariz.App. 369, 372, 452 P.2d 534, 537 (1969) (citing A.R.S. § 1301401 (renumbered as A.R.S. § 13-3881) and Harding v. State, 26 Ariz. 334, 225 P 482 (1924). See also A.R.S. § 13-3881(B) ("No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subjected to any greater restraint than necessary for his detention."). Another important factor that supports Plaintiff's claim of unreasonable force includes that she was in her home and therefore, escape was not an issue. See Berry v. City of Phillipsburg, Kansas, 796 F.Supp. 1400, 1405 (D. Kan. 1992) (denying summary judgment on § 1983 claim, as officers' breaking down the door of plaintiff's home, tackling and choking her and dragging her from home by handcuffs and hair for a suspected litter violation stated a claim). The lack of probable cause, which is also alleged by Mrs. August, was also a factor in Berry. Id. And, unlike the plaintiff in Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002), whose infirmity was not known to the arresting officer, the Phoenix Police had an extended opportunity to interact with and observe Mrs. August, and her elderly status, and the commonly recognized loss of strength, agility and flexibility that accompany aging, were apparent. B. Defendants are Not Entitled to Claim Qualified Immunity for "Mistake"

Defendants are not contending that their actions did not involve Mrs. August's constitutional and statutory rights. They appear to be claiming that their conduct did not violate Mrs. August's rights because she was struggling when they attempted to arrest her, and therefore there was no excessive force and they are entitled to qualified immunity. Plaintiff must prove both these elements to claim excessive force under § 1983. Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988). For the reasons stated supra, Plaintiff does believe that dislocating the elbow of a 68-year-old woman who was standing in her own home, not a threat to escape, who voluntarily permitted
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the police to enter, was unarmed and therefore posed no serious threat of injury or death to the officers, and who was suspected of committing misdemeanor assault, was excessive force. Once this threshold has been established, Defendants still have an affirmative defense ­ that the officers reasonably believed their conduct did not violate the Constitution. Wilkins v. City of Oakland, 350 F.3d 949, 954-55 (9th Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Although the issue of reasonableness is objective, Id. at 955, the analysis includes an inquiry into the "belief" of the officer, which is, by definition, subjective: Belief ­ "A conviction of the truth of a proposition, existing subjectively in the mind, and induced by argument, persuasion, or proof addressed to the judgment." Black's Law

Dictionary (6th ed. 1990, citing Latrobe v. J. H. Cross, 29 F.2d 210, 212 (D.C.Pa. 1928). The officer who performed the maneuver that dislocated Mrs. August's elbow has not identified himself. Without such an acknowledgement, the issue of the

officer's subjective belief never manifests as a defense. Therefore, Defendants are not entitled to qualified immunity if the jury finds the Defendants used excessive force. C. Defendants Spoliated Material Evidence by Failing to Preserve the Tape Recordings of the Radio Transmissions.

Within days of June 10, 2002 the City of Phoenix was clearly on notice that it, and its officers, would be the subject of a claim by Teresa August. She had contacted the police department and made a complaint about what happened to her. What the officers on the scene were relaying over the radio would have provided contemporaneous information about events and could have contained admissible evidence, such as party admissions, statements against interest or for impeachment. Despite prompt notice, Defendants intentionally destroyed or recklessly allowed the

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destruction of the tapes of the radio calls. Defendants' actions clearly constitute spoliation. The Ninth Circuit law is clear: Short of excluding the disputed evidence, a trial court also has the broad discretionary power to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior. Akiona v. United States, 938 F.2d 158 (9th Cir. 1991). As Uigard [v. Lakewood, 982 F.2d 363 (9th Cir. 1992)] correctly notes, however, a finding of "bad faith" is not a prerequisite to this corrective procedure. 982 F.2d at 368-70 & n. 2. Surely a finding of bad faith will suffice, but so will simple notice of "potential relvenace to the litigation." Akiona, 938 F.2d at 161. Glover v. Bic Corp. 6 F.3d 1318 (9th Cir. 1993). D. Punitive Damages Under § 1983

Plaintiff alleges Defendants' actions warrant the award of punitive damages. "The standard for punitive damages under § 1983 mirrors the standard for punitive damages under common law tort cases." Dang v. Cross, 422 F.3d 800, 807 Cir. 2005) (citing Smith v. Wade, 461 U.S. 30, 49, S.Ct. 1625, 75 L.Ed.2d 632 (1983). A "jury 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." Dang at 807 (quoting Smith at 56, 103 S.Ct. 1625). Since common law applies, punitive damages can also be awarded if the jury finds the defendants acted "maliciously or wantonly or oppressively." Dang at 808 (quoting McKinley v. Trattles, 732 F.2d 3120, 1326 n. 2 (7th Cir. 1984)). E. Evidenc

The Court granted Defendants' motion for summary judgment on Teresa August's wrongful arrest claim. As a result of the fact that the defendants still have not identified which of them twisted her arm during the arrest, which arrest was for the misdemeanor assault of Sam Hickey, which even Officer Dunn admitted he did not have probable cause to effect when he went barreling through Mrs. August's front
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security screen door.

Plaintiff respectfully suggests that as the evidence occurs in

this case the Court consider revisiting this issue as if Mrs. August had just been arrested on the misdemeanor assault charge for assaulting Sam (for which there was no finding of probable cause), then Defendants' would not be claiming that her act of (allegedly) committing a wholly separate crime (resisting arrest, which temporally came after she was seized and arrested for assaulting Sam) was the cause of her injury. It is the fact that the officers claim that this injury occurred during her active resisting (her "resisting arrest" crime) that makes granting them judgment on an arrest for a different crime (her "assault" of Sam) questionable given the many fact questions that surround the "why's" of why the officers went into her house in the first place. It is also the fact that the officers claim that this injury occurred during her

active resisting (her "resisting arrest" crime) that makes what happened to that criminal charge - dismissal at the trial court level - relevant.

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] -7Document 153
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Jennifer L. Holsman: Randall H. Warner:

[email protected]; [email protected] [email protected]; [email protected]

By:

s/ Aly Shomar-Esparza

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