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: MARK AUGUST

Defendants City of Phoenix Griffin, Lynde, Dunn and Monson move for an Order in limine precluding Plaintiff from introducing any evidence regarding Mark August's interaction with police on June 10, 2002. Any 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 Point and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND. This case was filed on behalf of both Plaintiff Teresa August and her son, Mark August arising out of their arrests on June 10, 2002. After Plaintiff was arrested, Mark arrived on the scene during which he refused their commands and was handcuffed in order to prevent further escalation at the scene.

Case 2:03-cv-01892-ROS

Document 147

Filed 11/15/2006

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On September 20, 2006, this Court granted summary judgment as to all claims asserted by Mark August. Despite this, Defendants anticipate that Plaintiff will try to introduce evidence of Mark August's interaction with police on June 10, 2002. This Motion seeks to exclude such evidence. II. Legal Argument. The Court's September 20, 2006 Order substantially narrows the issues for trial. Mark August no longer has any claims, and Plaintiff's only claim is for the alleged excessive use of force. Everything involving Mark August happened after his mother was arrested. Thus, nothing that happened to him bears any relevance to the sole liability issue in the case: whether police used excessive force on Plaintiff. FED. R. EVID. 401; see, e.g., Bemis v. Edwards, 45 F.3d 1369, 1375 (9th Cir. 1995) (statement regarding city conduct post-arrest irrelevant regarding claims of excessive force during arrest). Furthermore, the admission of evidence regarding Mr. August's encounter with police would be unfairly prejudicial and would only confuse and mislead the jury. FED. R. EVID. 403. Unfair prejudice under Rule 403 is evidence that tends to suggest to the jury an improper basis for deciding the case. See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 652 (1997) (unfair prejudice is "the capacity of some...evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged"). Evidence of Mr. August's detention may unfairly prejudice the jury and improperly lead it to find against the Defendants for reasons that have nothing to do with whether they used excessive force on Plaintiff before Mark arrived. If Plaintiff is allowed to refer to, describe or mention the detention of Mr. August, the jury may award damages based on that conduct, as opposed to the merits of Plaintiff's claims. This would be improper since the Court has already granted summary judgment as to Mark August's claims. See, e.g., Thurman Industries v. Pay `N Pak Stores, 875 F.2d 1369, 1380 (9th Cir.
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Case 2:03-cv-01892-ROS

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1989) (evidence that threatened to confuse issues or cause the jury to make a decision on improper grounds rightfully excluded). III. CONCLUSION. For the foregoing reasons, Defendants respectfully request that the Court enter an order excluding all evidence of Mark August's interaction with police on June 10, 2002. 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 Defendant City of Phoenix, Lynde, Griffin, Dunn and Monson

1709390.1

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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Case 2:03-cv-01892-ROS

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Filed 11/15/2006

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