Free Motion in Limine - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants City of Phoenix, Griffin, Lynde, Dunn and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' MOTION IN LIMINE RE: PROBABLE CAUSE AND ENTRY

Defendants City of Phoenix, Griffin, Lynde, Dunn and Monson move for an Order in limine precluding Plaintiff from introducing any evidence that entry into Plaintiff Teresa August's house was improper or that officers lacked probable cause to arrest her on June 10, 2002. Such evidence is irrelevant and likely to cause unfair prejudice and mislead or confuse the jury. FED. R. EVID. 401, 403. This Motion is supported by the attached Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND This case arises out of the arrest of Plaintiff on June 10, 2002, as the result of an altercation between herself and her grandson, Sam Hickey. When officers arrived on the scene they spoke to Sam, who had bite marks where Plaintiff had bitten him. As

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officers attempted to speak with Plaintiff, she stormed back into the atrium outside her home, where she locked herself and her nine-year-old grandson, Marcus, behind a security screen door. Officer Lynde spoke with Plaintiff through the door for a time, after which Plaintiff allowed him to enter. Once Officer Lynde entered the atrium, other officers saw Plaintiff close and lock the door. Concerned for the safety of Officer Lynde and nine-year-old Marcus, officers pushed the screen door open and entered the atrium. Upon entering, Plaintiff was placed under arrest. On September 20, 2006, this Court granted summary judgment on Plaintiff's claims for false arrest, ruling that police had probable cause to arrest Plaintiff: Based on the undisputed evidence available to the officers when they arrived at Ms. August's home, the "totality of the circumstances" establishes sufficient probable cause for the arrest of Ms. August. See September 20, 2006 Order at 7:10-12. The Court found that probable cause to arrest Plaintiff arose from a variety of sources: Plaintiff's admission that she had bitten Sam, the observation of bite marks on Sam, and Sam's statements regarding further attacks by Plaintiff. Despite this, Defendants anticipate that Plaintiff will suggest to the jury that Officers lacked probable cause to arrest Plaintiff and entry into her house was improper. This Motion asks the Court to exclude such evidence. II. ARGUMENT Through the Court's order of September 20, 2006, the scope of this trial is limited to the whether excessive force was used on Plaintiff during her arrest on June 10, 2002. Admission of evidence regarding whether or not there was probable cause for the arrest of Plaintiff or whether entry into her home was improper will confuse the jury and conflate the issues at trial. FED. R. EVID. 403. Since the Court has already

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decided that probable cause existed, there is no need to revisit the issue. Cardwell v. Kurtz, 765 F.2d 776, 778 (9th Cir. 1985) (district court correct in refusing to reexamine an issue already decided). Additionally, because this trial is confined to the narrow issue of whether excessive force was used during the arrest of Plaintiff, a discussion of whether probable cause existed would be highly and unfairly prejudicial to Defendants. It is likely that a jury may confuse issues of probable cause and excessive force in deciding whether excessive force was used. FED. R. EVID. 403; see e.g., United States v. Hardy, 289 F.3d 608 613 (9th Cir. 2002) (unfair prejudice arises when evidence would cause a jury to find against defendant on improper grounds, such as bad character). The only liability issue at trial is whether police used excessive force in arresting Plaintiff. Information related to the officers' entry into Plaintiff's house is irrelevant to whether the force they used to effect a justified arrest was excessive. FED. R. EVID. 401. The insinuation that entry was not proper gives the jury the opportunity to find against defendants on improper grounds and should be excluded. See, e.g., Thurman Industries v. Pay `N Pak Stores, 875 F.2d 1369, 1380 (9th Cir. 1989) (evidence that threatened to confuse issues or cause the jury to make a decision on improper grounds rightfully excluded). III. CONCLUSION For these reasons, Defendants respectfully request that the Court preclude Plaintiff from offering evidence that probable cause did not exist for the Plaintiff's house. entry of

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1710236.1

DATED this 15th day of November, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By

s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffin, Lynde, Dunn and Monson

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Electronically filed and served this 15th day of November, 2006, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

By:

s/Gloria Gray

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