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, Dunn, Lynde 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 REGARDING INVESTIGATION AND DISCIPLINE

Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson, through counsel, move for an Order in limine excluding all evidence, inference, and argument pertaining to any investigation or discipline of Defendant Dunn from the City of Phoenix. The unrelated investigation or disciplinary actions are irrelevant to the issues in this case and would be unduly prejudicial under FED. R. EVID. 403. This Motion is supported by all Pleadings on file, the following Memorandum of Points and Authorities, and the Attached Exhibits.

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MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND This case arises out of Plaintiff's allegation of excessive force by the Defendants during her arrest on June 10, 2002. During the deposition of Officer Dunn, he was asked questions about any investigations or discipline received while employed with the City of Phoenix. Officer Dunn testified that he had received discipline for using a City computer for personal use.1 As a result of this allegation, Officer Dunn received "eight hours off." Officer Dunn also testified about other departmental investigations for alleged neglect of duty, a pursuit, for hitting a cigarette out of a citizen's mouth and loss of property. It is anticipated that Plaintiff will seek to use this evidence against Officer Dunn during trial. Any evidence related to investigations or disciplinary action taken against Officer Dunn must be excluded. II. LEGAL ARGUMENTS A. Unrelated Investigations or Discipline Are Irrelevant.

Evidence that Officer Dunn was investigated or disciplined for issues wholly unrelated to the claims of excessive force in this case is irrelevant to the remaining issue of liability.2 Evidence of Officer Dunn's prior investigations for his participation in a pursuit, improper use of a computer or allegedly not timely completing reports does not make it more or less probable that he engaged in excessive force against Plaintiff on June See deposition transcript of Officer Dunn, pages 133-142, attached hereto as Exhibit 1. 2 FED. R. EVID. 401 states that relevant evidence is evidence that tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
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10, 2002.3 Thus, introduction of Officer Dunn's unrelated investigations or discipline would only confuse and mislead the jury regarding liability in this case. Because Officer Dunn's disciplinary record is irrelevant to the underlying liability issues raised in this case, the evidence must be precluded. B. Any Probative Value of the Subsequent Remedial Measure Is Outweighed By Its Prejudicial Effect.

FED. R. EVID. 403 precludes the admission of evidence when the probative value is substantially outweighed by any unfair prejudice. Defendants anticipate that Plaintiff will introduce evidence of Officer Dunn's other investigations or discipline as a subsequent remedial measure to corroborate their allegation that Officer Dunn is a "bad officer" who acted inappropriately on June 10, 2002. If the jury hears evidence that Defendant Dunn has previously been investigated and disciplined, albeit in situations wholly unrelated to the facts presented in this case, there is a strong possibility the jurors will erroneously view this action as evidence of wrongdoing by Officer Dunn, rather than deciding this case on its merits.4 Because introduction of Officer Dunn's prior investigations or discipline would be unduly prejudicial to Defendants, the evidence is inadmissible under FED. R. EVID. 403. /// /// See also, FED. R. EVID. 403 (although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence). 4 See Maddox v. City of Los Angeles, 792 F.2d at 1417 (evidence of disciplinary proceedings excluded under Rule 403 because the jury "might have inferred that officer Harris was guilty of wrongdoing because the Police Department conducted disciplinary proceedings").
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III.

CONCLUSION. Based on the foregoing reasons, Defendants respectfully request this Court to

exclude evidence of any investigation or disciplinary action taken against Officer Dunn. Such evidence should be excluded on the basis of its irrelevancy and its potential for confusion and unfair prejudice under Rule 403. 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, Dunn, Lynde and Monson
1711743.1

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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