Free Memorandum - 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' TRIAL MEMORANDUM OF LAW

Defendants City of Phoenix, Griffin, Lynde, Monson and Dunn, through counsel, submit their Trial Memorandum of Law as follows. I. INTRODUCTION. Plaintiff filed this action against the City of Phoenix, Sgt. Griffin and Officers Monson, Lynde and Dunn, arising out of her arrest on June 10, 2002. Pursuant to the Court's September 20, 2006 Order, Plaintiff has two claims remaining: (1) excessive force under 42 U.S.C. § 1983; and (2) a state law claim for assault and battery. Plaintiff has also made a demand for punitive damages under 42 U.S.C. § 1983 against the individual officers. Defendants provide the following legal analysis regarding these

issues, as well as, qualified immunity for the Defendant officers..

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II.

LEGAL ANALYSIS. A. Section 1983 ­ Excessive Force. Under federal law, the constitutional standard governing a citizen's claim

that law enforcement officials used excessive force, is whether the amount of force used was objectively reasonable given what police officers knew at the time. Graham v. Connor, 490 U.S. 386, 388 (1989); Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001). Determining reasonableness requires a balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests" against the governmental interests at stake. See United States v. Place, 461 U.S. 696, 703 (1983). The officers' actions must be "objectively reasonable" in light of the facts and circumstances presented to them, without regard to any underlying motivation. See Scott v. United States, 436 U.S. 128, 137-139 (1978). The "reasonableness" of the use of force by an officer must be judged not with 20/20 hindsight, but by the officer's own on-scene perspective, giving due regard for the hard, split-second judgments they have to make. Graham, 490 U.S. at 397. As outlined in Tennessee v. Garner, in evaluating use of force, the Court must pay careful attention to the facts and circumstances in the case, including the severity of the crime, whether there is an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest. 417 U.S. 1, 8-9 (1985); see also Graham, 490 U.S. at 396. The right to make an arrest or investigatory stop carries with it the right to use some degree of physical coercion. See Terry v. Ohio, 392 U.S. 1, 22-27 (1968). Plaintiff alleges that police used excessive force when they injured her arm while trying to handcuff her. Yet simply because a suspect receives an injury during an arrest, does not by itself establish excessive force. See Young v. Rabideau, 821 F.2d 373, 381 (7th Cir. 1987) (injuries alone not a clear indication of excessive force). Instead, the Plaintiff must show that police intentionally used force that was objectively unreasonable
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under the circumstances. Cf. Brower v. County of Inyo, 489 U.S. 593, 596-597 (1989) (fourth amendment violation only when suspect's freedom of movement is restrained through means intentionally applied). Here, the officers used only as much force as was necessary to handcuff the struggling suspect. The Eleventh Circuit case of Rodriguez v. Farrell, 280 F.3d 1341, 1344 (11th Cir. 2002), is illustrative. The police in that case arrested a man on the erroneous suspicion that an outstanding warrant existed. As he made the arrest, the officer grabbed the man's arm, twisted it behind his back and forced it up to just below the shoulder blade. Despite the man's screams, the officer finished handcuffing him in this manner. Although these actions severely aggravated a prior injury, the court held that police did not use excessive force. 280 F.3d at 1353. Citing Graham, the court held that police had the right to handcuff the man as part of the arrest, and that the manner of handcuffing "is a relatively common and ordinarily accepted non-excessive way to detain an arrestee." Id. at 1351. The police were unaware of the man's prior injury and handcuffing him in a manner they had no reason to believe would cause injury did not constitute excessive force. Id. at 1353. The same is true here. Police used a standard arm bar hold on Plaintiff to handcuff her while she struggled. They had no reason to believe this common method of handcuffing would injure her. Plaintiff testified during her deposition, that she felt police apply pressure to her elbow during the struggle. Assuming this is true, it still does not support an inference that police intentionally used force that was unreasonable. When a suspect is struggling and has disobeyed officers' commands, police are entitled to do what is necessary to get control over the suspect. And, as Graham notes, courts will not second-guess with 20/20 hindsight the split-second decisions officers had to make. A contrast of Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004), with the district court case of Gales v. District of Columbia, 47 F. Supp. 2d 43 (D.D.C. 1999),
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illustrates the point. In Wall, the suspect was complying with police orders when, without warning, the officer grabbed him from behind, twisted his arm and forced him face first into a car. The court held that these facts, if proven, would demonstrate excessive force. 364 F.3d at 1111. In Gales, the subject of a search warrant failed to obey officers' orders to get down on the floor during their search. An officer then put her arms behind her, shoved her to the floor and used a knee to keep her there. Under the circumstances, the court held that this degree of force was reasonable. 47 F. Supp. 2d at 48. This case is different from Wall because Plaintiff was admittedly noncompliant with police orders when they tried to detain her. Thus, this case is analogous to Gales, in which the suspect failed to comply with officers' orders. The court there found that shoving the suspect to the ground and keeping a knee in her back was not excessive under the circumstances. Similarly, the officers here used a minor level of force under the circumstances, and only in response to Plaintiff's active resistance. As outlined above, Plaintiff will be unable to satisfy the Graham standard for demonstrating excessive force by the Defendants. B. Liability For Negligence.

In addition to asserting an excessive force claim, Plaintiff alleges negligence. The jury should not be instructed on negligence. First, there is no Section 1983 liability for negligent use of force. See Saucier v. Katz, 533 U.S. 194, 204-05 (2001) (whether use of force was "objectively reasonable" cannot be judged using 20/20 hindsight); Ansley v. Heinrich, 925 F.2d 1339, 1334 (11th Cir. 1991) (district court correctly instructed the jury that negligent conduct alone could not form the basis of a section 1983 claim based on the fourth amendment); see also Daniels v. Williams, 474 U.S. 327, 328 (1986) ("We conclude that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.").
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intentionally used force that was objectively unreasonable can they be held liable under Section 1983. Thus, a negligence instruction would be inappropriate as to the Section 1983 claim. A state law negligence instruction is also unwarranted. Under Arizona law, there can be no liability for any state law tort based on conduct that was justified under Arizona's use of force statutes: No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter. A.R.S. § 13-413. Thus, it makes no difference whether Plaintiff's claim is labeled The only issue for the jury is whether

"assault," "negligence" or something else.

Defendants' conduct was justified under Arizona's statutes. Under A.R.S. § 13-409, Defendants were justified in using physical force to arrest Mrs. August if she used or threatened to use physical force and: 1. A reasonable person would believe that such force is immediately necessary to effect the arrest or detention or prevent the escape[;] 2. Such person makes known the purpose of the arrest or detention or believes that it is otherwise known or cannot reasonably be made known to the person to be arrested or detained[; and] 3. A reasonable person would believe the arrest or detention to be lawful. This standard is reflected in the Revised Arizona Jury Instructions. See RAJI (Civil) 4th Intentional Torts 9. Furthermore, under A.R.S. § 13-404(B)(2), a suspect may not use force "to resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence at his direction, whether the lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law." The jury should be instructed as to this statute as well.
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C.

Qualified Immunity. In this case, the individual officers are entitled to qualified immunity from

Plaintiff's Section 1983 claims. As the Supreme Court noted in Saucier v. Katz, 533 U.S. 194, 202 (2001), the qualified immunity inquiry is different from the underlying excessive force inquiry. An officer may have used an unreasonable amount of force, but mistakenly believed the amount used was appropriate under the circumstances. Id; see also Brosseau v. Haugen, 125 S. Ct. 596, 598 (2004). To determine whether Defendants are entitled to qualified immunity, the Supreme Court applies a two-part inquiry. First, the court must determine whether a constitutional right has been violated. The second step is whether the right was clearly established. See Saucier, 533 U.S. at 198. "The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 194-195. The reasonableness inquiry for qualified immunity is different from determining whether there was an unconstitutional use of excessive force in that "reasonable mistakes can be made as to the legal constraints on particular police conduct." Id. at 195. Here, the officers believed they had probable cause to arrest Plaintiff. Given what Sam had told them and what they had witnessed, that belief was reasonable. Further, given Plaintiff's conduct -- and her penchant for disregarding police requests or commands -- they reasonably believed it was necessary to handcuff her. Finally, there is no evidence that police intentionally did anything while handcuffing her to purposely inflict injury. D. Punitive Damages.

Plaintiff has made a claim for punitive damages against the Defendant Officers under 42 U.S.C. § 1983. The standard for imposing punitive damages against an individual defendant was articulated by the U.S. Supreme Court in Smith v. Wade, 461
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U.S. 30 (1983). In Smith, the Supreme Court held that punitive damages can be awarded against an individual defendant under § 1983 only "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." Smith, 461 U.S. at 30, 103 S.Ct. at 1640. In this case, there is no evidence that the officers acted "maliciously, wantonly, or oppressively" toward Plaintiff during her arrest. 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

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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